A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Friday, March 20, 2015

L-1B Visa Denial Rates at All Time High

The denial rate for L-1B "specialized knowledge" multinational employees was all time high in 2014. According to the USCIS statistics, the denial rate for L-1B increased to 35 percent in FY2014.   These numbers were reported and analyzed by  the National Foundation for American Policy in their March 2015 report.  


High Historic H-1B Denial Rate
To put things in perspective, one should note that the denial rate for L-1B petitions was only 6 percent in FY 2006.  The denial rate has increased gradually over the past decade especially the last few years.  Such increase is particularly alarming since the legal requirements for this visa type have not changed.  

Indian Nationals Hit Hardest
The NFAP report also contains these additional insights:

- The L-1B denial rate for Indian nationals is 56 percent for FY2012 through FY 2014, compared to an average denial rate of 13 percent to employees from all other countries during the same period. 

- The denial rate for employees already working in the U.S. (41 percent in FY 2014) is higher than first-time applications (32 percent).  The difference is disturbing as USCIS usually gives deference to visa petitions that have already been approved previously.

- While only 2 percent of L-1B cases received a Request for Evidence in FY2004, 45 percent of L-1B petitions were issued RFE in FY2014, 

Main Reason for Denial
The main reason for denying an L-1B visa petition is usually based on a finding that the job duties are not "specialized" in nature.  While the L-1A is used to transfer executives and high-level managers of international companies to the U.S., the L-1B visa was created to transfer employees who have special knowledge of the company's product, service, research, equipment, techniques, management or other interests and its application in international markets.  Alternatively, the L-1B employee can also be somebody who has an advanced level of knowledge or processes and procedures of the company.

The difficulty lies on the vagueness of this definition.  While the company believes that certain knowledge and skills constitute specialized knowledge, the Immigration Examiners think differently. In fact, USCIS sometimes takes the view that in the modern world, most jobs require certain degree of specialized knowledge and, therefore, an L-1B petition must show more to warrant approval. Another perception is that petitioners are using the L-1B visa in place of the H-1B visa to bypass the latter's visa cap.

In technological jobs, employees must apply technical knowledge of computer hardware and software to perform their job duties.  Is this knowledge specialized knowledge contemplated by the L-1B visa or just regular technical skills that most employees in the profession are expected to possess? Sometimes the distinction is only a fine line, depending on the particular facts of the case and interpretation. 

Conclusion
USCIS has promised to issue more guidance on the standard of adjudication on L-1B visa.  Until then, employers must understand the current high denial rates in this type of cases and act accordingly.  Based on a careful analysis of each case and presentation of appropriate evidence and legal arguments, our office has been able to secure L-1B approvals for our clients even in this unfriendly adjudication environment. 



Friday, March 13, 2015

Health Care Manager H-1B denial reversed

An acupuncture and traditional Chinese medicine practice in Lynnwood, WA, filed an H-1B petition on behalf of a Korean national for the position of a part-time Health Care Manager.  The petition was denied by USCIS because the agency found the profession not to be a "specialty occupation" under the H-1B Visa Program.  Further, the agency concluded that the beneficiary did not qualify for the position based on her three-year bachelor's degree and work experience.  On appeal, a District Court reversed the USCIS decision and approved the H-1B petition.

Congress created the H-1B Visa Program so that U.S. employers may hire foreign workers to fill job openings that generally require technical skills or professional knowledge.  For example, before the "dot-com" bubble was burst, most of the H-1B employees were hi-tech workers with computer or engineering skills.  However, the H-1B visa is not only granted to technical employees. Over the years, many other professionals such as Human Resource Specialists and Market Research Analysts, etc., have been found to qualify for H-1B status.  

For a job opening to qualify under the H-1B Visa Program, it must be a "specialty occupation" under the law. There are four different ways that a job can be classified as a specialty occupation.  One of the criteria is that " A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into a particular position."  In this case, USCIS, referring to the Labor Department's Occupation Outlook Handbook (OOH), concluded that Health Care Manager position is not a specialty occupation.  According to the OOH:

Medical and health services managers typically need at least a bachelor’s degree to enter the occupation. However, master’s degrees in health services, long-term care administration, public health, public administration, or business administration also are common. Prospective medical and health services managers have a bachelor’s degree in health administration.

In its denial, USCIS reasoned that while many Health Care Manager jobs require a bachelor's degree, it is not a requirement to enter the profession.  Further, it also noted that the profession does not require one specific degree to enter in denying the petition. 

On appeal, the District Court disagreed with this position.  Another Court in California actually has considered the issue and found that medical and health services managers constituted a specialty occupation. More important, the District Court held that the regulation "does not restrict qualifying occupations to those for which there exists a single, specifically tailored and titled degree program."   The statute and regulation actually allow for occupations that require the attainment of the “equivalent” of specialized bachelor’s degree to enter. 

Further the District Court also disagreed with the USCIS conclusion that the beneficiary did not qualify for the position. An expert opinion letter concluded that the beneficiary's three of years of coursework in South Korea and her four plus years of professional experience in management is the equivalent of a Bachelor of Science in Management from an accredited institution of higher education in the United States.  USCIS discounted the evidentiary value of the expert opinion letter but this position was also struck down by the District Court as being an abuse of its discretion.

The issues of specialty occupation and degree equivalency have become hot topics in recent years as the filings of H-1B petitions increase.  Careful planning and analysis is absolutely required before filing an H-1B petition to ensure legal compliance and approval. 

Tuesday, February 24, 2015

Eligible H-4 Dependent Spouses May Apply for EAD starting May 26, 2015



USCIS just announced today that certain eligible H-4 dependent spouses of H-1B workers may apply for Employment Authorization Document (EAD) as of May 26, 2015.  Eligible H-4 dependent spouses include those who are seeking employment-based lawful permanent resident (LPR) status. Please also see our previous post for more details.



Friday, February 20, 2015

March 2015 Visa Bulletin - India EB-2 advances 16 months

In the March 2015 Visa Bulletin recently released by the U.S. State Department, the headline news is the significant advances in several employment categories. Employment Second (EB-2) India jumps forward significantly by 16 months.  EB-2 China advances 4.5 months. EB-3 China advances by seven (7) weeks.

Charles Oppenheim of the State Department discussed about the pros and cons of advancing the cut-off date for EB-2 India in December.  Apparently, a decision was made to advance this category, as shown by the significant advancements in February's and March's Visa Bulletins.

The family visa categories continue to advance modestly.  Family 2A (spouse and children of legal residents) move forward by six (6) weeks for China, India, Philippines, and Other Countries.  Please see below for details. 

FAMILY
Other Countries
China
India
Mexico
Philippines
F1
08/01/07
08/01/07
08/01/07
10/22/94
02/01/05
F2A
06/22/13
06/22/13
06/22/13
05/22/13
06/22/13
F2B
07/08/08
07/08/08
07/08/08
01/01/95
03/22/04
F3
01/22/04
01/22/04
01/22/04
02/22/94
08/01/93
F4
05/15/02
05/15/02
05/15/02
06/01/97
09/08/91

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)
4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)

EMPLOYMENT
Other Countries
China
India
Mexico
Philippines
EB1
C
C
C
C
C
EB2
C
09/01/10
01/01/07
C
C
EB3
06/01/14
10/22/11
01/01/04
06/01/14
06/01/14
Other Workers
06/01/14
08/15/05
01/01/04
06/01/14
06/01/14
EB4
C
C
C
C
C
EB5
C
C
C
C
C


1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)
4th: "Special Immigrants" (Religious & others)


5th: Employment Creation (Investors)

Tuesday, February 17, 2015

Expanded DACA and DAPA suspended; Existing DACA not affected

In light of of the temporary injunction issued by a federal court judge in Texas on President Obama's executive action plans, the Department of Homeland Security (DHS) issued a press release today announcing that DHS will not accept applications for expanded DACA relief tomorrow (02/18/2015) as planned.  The DAPA program will also be suspended temporarily.  

However, the Department will continue to accept and process applications filed by existing DACA beneficiaries and other types of benefit applications.  DHS Secretary Jen . C. Johnson stated that the DOJ will appeal the temporary injunction order, which was issued as a result of lawsuits filed by twenty-six (26) Republican-controlled states.  


Monday, February 9, 2015

VSC Biometrics Notices Delayed Due to System Issues

If you filed any immigration petitions in December 2014 and January 2015 with the Vermont Service Center (VSC) that require fingerprinting, your biometrics appointment notices will likely to come late.  

The VSC has informed AILA that due to technical issues with its biometric scheduling system, there has been a "temporary halt in sending biometrics notices in all cases at VSC with the exception of TPS-related applications."  VSC's developers are working on the problems and biometrics appointment notices are expected to be sent out again starting  February 12, 2015.  (AILA Doc. No. 15020940.)  

Friday, February 6, 2015

Adoptions by U.S. permanent residents not governed by Hague Adoption Convention


Many thousands of American parents adopt children from overseas countries every year.  Yet, overseas adoption can be a very tricky and complicated process.  In recent years, the new legal requirements imposed by the Hague Adoption Convention have made international adoption an even more daunting task for U.S. citizen parents. However, if one of the two adopting parents is a lawful permanent resident while the other one is an American citizen, the Hague Convention requirements do not apply to them, according to a recent immigration appeal board decision on January 9, 2015.

Hague Convention
The Hague Adoption Convention became effective in the U.S. in 2008.  The Hague Convention is an international agreement created mainly to protect the interests of children and the adoptive parents against illegal activities such as fraud and child trafficking.  The convention introduced additional requirements in the adoption process including the use of different forms (I-800, I-800A) and visa categories(IH-3, IH-4), stricter requirements for the adoption agencies, mandatory parental education, additional home study requirements, etc.  On the other hand, Convention adoptions also confer additional benefits to the family. For examples, the adopted child may automatically acquire United States citizenship; and the adoptive parent does not need to satisfy the 2-year residency and legal custody requirements under the regular adoption rule. 

American couple's Mexican adoption denied
The couple in the case adopted a new-born baby from Mexico in December 2009.   The wife, a U.S. legal resident, file an immigration visa petition (Form I-130) with the California Service Center (CSC) of the USCIS.   The petition was denied by CSC Director on December 23, 2013.  The Service Center took the position that the couple's adoption was subject to the legal requirements of the Hague Convention.  Since the couple did not follow the Convention requirements when adopting their child, the visa petition was denied.  In denying the petition, the Service Center Director explained that because the petitioner's husband was a U.S. citizen, and they were adopting the child together, the adoption should therefore be subject to the Convention requirements.

BIA reverses the denial
The couple appealed the denial to the Board of Immigration Appeals (BIA).  Upon a review of the relevant regulations, the BIA noted that the regulations govern international adoptions by United States citizens only. Neither the language of the Convention nor the regulations specifically require a lawful permanent resident parent to pursue a Convention adoption.  Consequently, the BIA held that in petitions filed by a USC parent and a LPR parent, the adoptive parents may choose to pursue either a Convention adoption or the regular route of filing an I-130 visa petition. The Board therefore remanded the case to California Service Center for further actions. Although this decision may not be the final word on this important issue, adoptive parents can at least make arguments based on this case if they choose not to adopt under the Convention. 

Sunday, February 1, 2015

Removal of conditions application (I-751) in marriage cases: filing location changes

As of 01/14/2015, the filing location for Form I-751, Petition to Remove Conditions on Residence, for applicants living in Louisiana, New Mexico, Oklahoma, South Carolina, Tennessee, and Texas has changed from Vermont Service Center (VSC) to California Service Center (CSC).  Applications sent to the wrong service center will be rejected starting 3/17/15.  

A U.S. citizen may petition for his or her spouse to immigrate to the U.S. based on their marriage. However, if their marriage is less than two years old, the foreign spouse may only acquire a 2-year conditional residence status.  Within 90 days of the second anniversary of the spouse's conditional status, he or she must file a petition to remove the conditions.  

Saturday, January 31, 2015

USCIS to accept expanded DACA applications on February 18, 2015

On November 20, 2014, President Obama announced a series of executive actions to reform the current immigration system including allowing certain parents of U.S. citizens and residents to stay and work in the U.S. without fear of deportation, as well as expanding the Deferred Action for Childhood Arrivals (DACA) program.  USCIS just announced that the federal agency will begin accepting applications for the expanded DACA program on February 18, 2015.

Expanded DACA Program
The expanded DACA program is for individuals present in the U.S. without legal immigration status to apply for deferred action benefits for the first time.  Existing DACA program participants may also take this opportunity to renew their DACA benefits.   Under the expanded program, the period of deferred action and employment authorization will be three years, and the current age of the applicants will no longer be a factor for consideration.  (Under the existing program, applicants must be 30 years old or younger and the benefits only last two years).  

Further, under the expanded program, applicants who have lived in the U.S. continuously since January 1, 2010 will be eligible to apply (as opposed to the prior requirement of June 15, 2007).   Applicants must still be currently enrolled in school, have graduated from high school, has obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States.  They must not have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety.  

Application Process
Under the existing DACA program, applicants must submit Form I-821D, Consideration of Deferred Action for Childhood Arrivals, Form 765, Application for Employment Authorization Document and Form 765 WS.  Additionally, applicants must also submit documents proving their identity; evidence that they came to the U.S. before the age of 16; evidence that they have been continuously living in the U.S. since January 1, 2010; and  evidence that they are attending school or have graduated from high school or proof they were honorably discharged from the Coast Guard or Armed Forces of the U.S.

Other immigration reform changes
Other changes regarding immigration reform will be rolled out slowly.  For example, the deferred action for parents of U.S. citizens and lawful permanent residents (DAPA) is expected to take effect by mid or late May.  Tens of thousands of applications will be submitted to the USCIS once the application window is open, and the processing time is expected to be long.   We are advising our clients to get their documents ready as early as possible so that we can submit their applications immediately once the application window is open.   

Monday, January 26, 2015

Housing benefits must be announced in labor application ads and notices

If an employer provides housing benefits such as free housing to employees in a job opportunity, such benefits must be announced in the job notices and advertisements in order to fulfill the regulatory requirements for a foreign worker's permanent employment labor certification, according to a recent decision by the Board of Alien Labor Certification Appeals (BALCA).(Matter of Needham-Betz Thoroughbreds, Inc., 12/31/14)  Labor certification is a prerequisite requirement for most employment-based green card applications.


Labor application denied because ads did not disclose free housing
Needham-Betz involves a labor application filed by an employer for the position of a "farm manager." The job site is a horse farm.  The employer offers its employees to live, rent-free, on-site at the farm as an option.  The foreign worker here did take advantage of this housing benefit.  In denying the case, the Certifying Officer reasoned that free housing is a major convenience and cost-saving incentive for a worker to take a job.  If this benefit was included in the job notices and advertisements, some potential U.S. workers who were not otherwise interested in the position might have applied.  According to the CO, the employer offered terms and conditions of employment that were less favorable than those offered to the alien" in violation of 20 C.F.R. § 656.17(f)(7). 

Emma Willard School - same benefit, different outcome
The employer appealed the denial to BALCA the appeal board, making two arguments.  First, the employer relies on another decision of BALCA - Emma Willard School, 2010-PER-01101 (Sept. 28, 2011).  Similar to the instant case, Emma's employer is a boarding school which offers free housing to most employees and teachers.  A BALCA panel of three judges in that case held that the employer’s failure to indicate the availability of employer-subsidized housing in its advertisements did not violate section 656.17(f)(7).  However, in the instant case, the Needham-Betz board (a panel of three different judges) did not find Emma controlling because Emma was not decided by the whole board (en banc).

What about the ETA's FAQs?
The employer also pointed out that one of the FAQs issued by Labor Department's Employment and Training Administration had indicated that "not every duty, requirement and condition of employment needs to be included in advertisements."  Hence, the employer argued that their failure to include the housing benefit should not be used as the reason for denial.  BALCA, again, did not accept this argument.  Although not all job benefits need to be advertised, the Board distinguishes free housing from other benefits: "Free housing for an employee is a huge income enhancement that is not readily assumed to be part of an employment opportunity, unlike the other more typical benefits such as health insurance or vacation days."  The Board agreed with the CO that the benefit of free housing was so substantial that it should have been announced so that potential U.S. job seekers could have taken that into consideration. 

U.S. workers and foreigners must be treated equally
This decision is another example of how the Board interpreted section 656.17(f)(7). This section prohibits employers for offering terms and conditions of employment less favorable than those offered to the foreign national.  The idea is to treat U.S. workers and foreign workers equally and fairly.   Employers are not required to list all the job requirements, duties, conditions in the job postings but only those that  are unusual and would tend to influence job seekers' decisions.  

Better safe than sorry
However, it is sometimes difficult to decide what must be included.  For example, the Emma Board panel approved certification although the benefit of free housing was not posted, whereas in the instance case, a different Board panel in Needham-Betz held the other way.  It is possible that new decisions will come down on this vary issue.  But as prudent advisers to our clients, we always prepare PERM labor application defensively, and advise clients to include unusual requirements (on-call, travel, relocation, etc.) and benefits (housing, telecommuting, home office, etc.) in job postings and advertisements.  At the end,  when a PERM labor application is denied, regardless of whether we are right or wrong on the law, it would still cause substantial delay in the green card application process.  


Tuesday, January 20, 2015

Visa Bulletin - February 2015 - EB-2 India advances 6.5 months

In the newly released Visa Bulletin for February 2015, the headlines news is the 6.5-month advancement in EB-2 India to September 1, 2005.  Additionally the State Department also predicts that EB-2 India will advance four to six months per month in the coming Visa Bulletins.  This is indeed good news for Indian nationals with pending green card cases.  If their priority dates are current, they should file their Form I-485 application to adjust status as soon as possible.  

Additionally, EB-3 and "Other Workers" categories also advance six to seven months for most countries including China, Mexico and Philippines, except India.  EB-3 China continues to advance rapidly to September 1, 2011, far surpassing EB-2 China.  Hence, qualified Chinese applicants may convert or downgrade from EB-2 to EB-3 in order to obtain their green cards faster.   

Family immigration categories continue to advance modestly.   Family 1st moves forward by two weeks for China, India, and Other Countries.   F2A moves forward by three weeks for China, India, Philippines and Other Countries.

FAMILY
Other Countries
China
India
Mexico
Philippines
F1
07/22/07
07/22/07
07/22/07
10/01/94
01/08/05
F2A
05/08/13
05/08/13
05/08/13
04/22/13
05/08/13
F2B
05/22/08
05/22/08
05/22/08
12/15/94
02/22/04
F3
01/01/04
01/01/04
01/01/04
01/15/94
07/15/93
F4
04/15/02
04/15/02
04/15/02
04/22/97
08/08/91

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)
4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)

EMPLOYMENT
Other Countries
China
India
Mexico
Philippines
EB1
C
C
C
C
C
EB2
C
03/15/10
09/01/05
C
C
EB3
01/01/14
09/01/11
12/22/03
01/01/14
01/01/14
Other Workers
01/01/14
08/15/05
12/22/03
01/01/14
01/01/14
EB4
C
C
C
C
C
EB5
C
C
C
C
C


1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)
4th: "Special Immigrants" (Religious & others)
5th: Employment Creation (Investors)

Thursday, January 15, 2015

Delay in Processing of I-90 Application to Replace Permanent Resident Card

When U.S. permanent residents need to replace or renew their green cards, they file the Form I-90, Application to Replace Permanent Resident Card, with the USCIS.  Lately, the processing of the I-90 application has been slower than normal.  In fact, the issue of delays in the processing of Forms I-90 was raised by AILA in their October 9, 2014 liaison meeting with USCIS Field Operations.



I-90 applications are taking 6 months or longer to process
The current processing time for I-90s is 6 months but some cases are taking longer to process. The reason for the delays, according to USCIS, is that the National Benefits Center (NBC) currently does not have enough employees to handle the case volume.  Consequently, USCIS is asking various local offices to help process these applications.

What can I do if I need proof of permanent resident status?
The green card is needed by permanent residents for various purposes including employment, travel, getting a driver’s license, applying for government benefits, etc.   Delays in the processing of their I-90 applications can cause substantial inconvenience. Fortunately, permanent residents may obtain temporary proof of their permanent resident status at a local USCIS office.  It is basically a stamp in their passport called "I-551 stamp".  Form I-551 is actually the official name of the Alien Registration Card, aka Green Card.  The I-551 stamp may serve as a temporary green card for up to one year.

How to obtain a temporary green card stamp?
To apply for a temporary I-551 stamp, applicants should schedule an InfoPass appointment first with their local USCIS office on the USCIS website.  If there are no InfoPass appointments available, applicants may also try walking-in without an appointment.  It should be noted each local office's walk-in policy may be different.   The following documents are usually needed for an I-551 stamp:

  • Valid passport;
  • InfoPass appointment notice (if applicable);
  • Form I-90 receipt notice;
  • Proof of residence within the jurisdiction of the USCIS office;
  • Copy of expired/lost green card, if available;
  • Documents evidencing the need for the I-551 stamp as an emergency walk-in (i.e. flight itinerary, doctor’s letter or death certificate, evidence of the relationship to an ill or deceased relative; company letter if emergency travel is work-related, etc., copy of date-stamped ASC appointment notice evidencing biometrics capture (if applicable).

Validity of the I-551 stamp
The I-551 stamp is usually issued with a validity period of 6 to 12 months, or until the passport's expiration date.  If the applicant's biometrics have not yet been captured, then the I-551's stamp will have a validity period of 30 to 60 days only.  

Please also note that the above reflects only the current USCIS policy, which is subject to change without advance notice.  

Mexican nationals may now obtain certified birth certificates at Consulates of Mexico




Issuance of certified copies of Mexican birth certificates at Consulates of Mexico

Starting January 15th, 2015, the consulates of Mexico in the United States will issue copies of
birth certificates registered in Mexico, as reported by AILA.

To obtain their certified copies, Mexican nationals should visit the nearest consulate, present an official proof of identity, fill out an application and provide their Clave Única de Registro de Población (CURP) in case they have one. The cost of each certified copy will be $13.00 dollars.

The issuance of certified copies does not carry any additional costs. Be aware of abuses and scams. Nobody can charge additional fees for this service.

Those interested in obtaining a certified copy of their birth certificate can get more information in the free application for smartphones and mobile devices MiConsulmex or at the toll free number Centro de Información y Asistencia a Mexicanos (CIAM): 1-855-463-6395.

Mexican consulates will continue offering protection and consular assistance to Mexicans regardless of their immigration status.

-------------------------------------------------------------------------
Expedición de copias certificadas de actas de nacimiento mexicanas en consulados de México

A partir del 15 de enero de 2015, los Consulados de México en Estados Unidos podrán emitir copias certificadas de actas de nacimiento generadas en territorio nacional.

Para obtener sus copias certificadas, los mexicanos deberán presentarse en una oficina consular, portar una identificación oficial que acredite que es el titular del acta de nacimiento, proporcionar su Clave Única de Registro de Población (si cuenta con ella), llenar una solicitud y cubrir el pago de derechos correspondientes ($13 dólares por acta).

La expedición de actas no representa costos adicionales al del pago de derechos de $13 dólares. Evite ser víctima de abusos, ninguna persona puede cobrarle más por este servicio. Los interesados podrán obtener más información sobre este servicio en la aplicación gratuita para dispositivos móviles MiConsulmex, así como llamando al Centro de Información y Asistencia a Mexicanos (CIAM): 1-855-463-6395.

Los consulados de México seguirán ofreciendo protección y asistencia consular a los mexicanos que la requieran, sin importar su condición migratoria.

AILA InfoNet Doc. No. 15011545. (Posted 1/15/15)

Monday, January 5, 2015

Does my job qualify for H-1B?

If you are a foreign student who recently graduated and landed a dream job with an employer that promised H-1B sponsorship, you should celebrate right?  Maybe or maybe not.  

Employers and foreign nationals are, once again, gearing up for the upcoming H-1B filing season. The first date that USCIS will accept H-1B petitions for FY2016 is Wednesday, April 1, 2015. The H-1B visa was created for professional jobs or "specialty occupations." 

What constitutes a specialty occupation is not always clear. Unless you are offered a classic H-1B job such as computer programmer, it is very likely that USCIS will issue a Request for Evidence (RFE) to demand proof that the position offered is a specialty occupation.  For examples, if you are offered a position as a "business manager" or "market research analyst", it is very important to analyze the position carefully before submitting your H-1B petition.

What is an H-1B Specialty Occupation?
The Immigration and Nationality Act (INA) defines a "specialty occupation" as "an occupation that requires "theoretical and practical application of a body of specialized knowledge," and "attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States."  This definition is quite abstract and rigid.  Subsequently, the agency regulations provided further clarification for the degree requirement.  

Under the H-1B regulations, a job qualifies as a specialty occupation as long as it meets one of the four (4) listed criteria: 
  • A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  • The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
  • The employer normally requires a degree or its equivalent for the position; or
  • The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
The Job Description
Generally, positions such as accountant, dentist, engineer, etc., that normally require a bachelor's or higher degree to enter do not have any issue.  Some positions, such as art specialist, marketing specialist, business analyst, etc., are not as clear-cut.  For these positions, we must first analyze the job duties and requirements.  If the job duties reflect the duties of a professional position, (for example, an art specialist is performing the duties of an appraiser), then it should be argued that the position is in fact professional in nature.  Related resources especially the Occupational Outlook Handbook (OOH) should be consulted as it is often cited by USCIS as authority.  

Industry Standard
Further, the hiring practice of other companies should also be researched.  If competitors or other companies in the same field require a bachelor's degree for this position, then it can be argued that a bachelor's degree is required for this position based on industry standard.   Copies of job postings, letters by other companies, experts in the field, etc., can be used as proof.

Employer / Internal Requirements
Alternatively, the employer can also argue that the job is a specialty occupation with respect to the company's own requirements and practices by showing that the employer normally requires a degree or its equivalent for the position.  As evidence, the employer may present documents to show that it has actually hired individuals with bachelor's degrees for this or similar positions. 

Another way to establish the employer's internal requirements is to argue that this particular position is "so complex and unique" that it can be performed by a degreed individual. Here, careful analysis must be employed to examine the position including every duty and responsibility, the size and hierarchy of the company, the person(s) that the position reports to, the professionals and departments that the employee interacts with, etc.  Any need for quantitative or qualitative analysis, organizational skills, communications skills, abstract concepts, product branding, customer relationships, etc., should be incorporated to establish the complexity of the job duties.  

Finally, the employer may also argue that the job duties are "so specialized and complex" that knowledge usually associated with a bachelor's or higher degree is required.  This is similar to the above requirement except that it focuses (less rigidly) on objective facts and data.  The employer only needs to establish that knowledge associated with a bachelor's degree is usually (not absolutely) required for the profession, 

Conclusion
To sum up, an H-1B petition will not be approved unless it is determined by USCIS that a specialty occupation is involved. Requests for Evidence (RFE) are often issued by USCIS on this particular issue.  Any issues regarding this issue should be addressed early on during the application process.  



Saturday, December 27, 2014

EB-5 Investment Program Fraud Alert

In light of the increasing number of EB-5 investor visa cases involving fraud and illegal practices, the U.S. Securities and Exchange Commission's ("SEC") and U.S. Citizenship and Immigration Services ("USCIS") recently issued a fraud alert to prospective foreign investors to help them identify potential fraudulent or illegal EB-5 Program activities. 

The main points of the fraud alert are summarized below:




1. Confirm that the regional center has been designated by USCIS. If you intend to invest through a regional center, check the list of current regional centers on the USCIS website. If the regional center is not on the list, exercise extreme caution. Even if it is on the list, understand that USCIS has not endorsed the regional center or any of the investments it offers.


2. Obtain copies of documents provided to USCIS. Regional centers must file an initial application (Form I-924) to obtain USCIS approval and designation, and must submit an information collection supplement (Form I-924A) at the end of every calendar year. Ask the regional center for copies of these forms and supporting documentation provided to USCIS.

3. Request investment information in writing. Ask for a copy of the investment offering memorandum or private placement memorandum from the issuer. Examine it carefully and research similar projects in evaluating the proposal. Follow up with any questions you may have. If you do not understand the information in the document or the issuer is unwilling or unable to answer your questions to your satisfaction, do not invest.

4. Ask if promoters are being paid. If there are supposedly unaffiliated consultants, lawyers, or agencies recommending or endorsing the investment, ask how much money or what type of benefits they expect to receive in connection with recommending the investment. Be skeptical of information from promoters that is inconsistent with the investment offering memorandum or private placement memorandum from the issuer.

5. Seek independent verification. Confirm whether claims made about the investment are true. For example, if the investment involves construction of commercial real estate, check county records to see if the issuer has obtained the proper permits and whether state and local property tax assessments correspond with the values the regional center attributes to the property. If other companies have purportedly signed onto the project, go directly to those companies for confirmation.

6. Examine structural risk. Understand that you may be investing in a new commercial enterprise that has no assets and has been established to loan funds to a company that will use the funds to develop projects. Carefully examine loan documents and offering statements to determine if the loan is secured by any collateral pledged to investors.

7. Consider the developer's incentives. EB-5 regional center principals and developers often make capital investments in the projects they manage. Recognize that if principals and developers do not make an equity investment in the project, their financial incentives may not be linked to the success of the project.

8. Look for warning signs of fraud. Beware if you spot any of these hallmarks of fraud:
  • Promises of a visa or becoming a lawful permanent resident. Investing through EB-5 makes you eligible to apply for a conditional visa, but there is no guarantee that USCIS will grant you a conditional visa or subsequently remove the conditions on your lawful permanent residency. USCIS carefully reviews each case and denies cases where eligibility rules are not met. Guarantees of the receipt or timing of a visa or green card are warning signs of fraud.
  • Guaranteed investment returns or no investment risk. Money invested through EB-5 must be at risk for the purpose of generating a return. If you are guaranteed investment returns or told you will get back a portion of the money you invested, be suspicious.
  • Overly consistent high investment returns. Investments tend to go up and down over time, particularly those that offer high returns. Be suspicious of an investment that claims to provide, or continues to generate, high rates of return regardless of overall market conditions.
  • Unregistered investments. Even though a regional center may be designated as a regional center by USCIS, most new commercial enterprise investment opportunities offered through regional centers are not registered with the SEC or any state regulator. When an offering is unregistered, the issuer may not provide investors with access to key information about the company's management, products, services, and finances that registration requires. In such circumstances, investors should obtain additional information about the company to help ensure that the investment opportunity is bona fide.
  • Unlicensed sellers. Federal and state securities laws require investment professionals and their firms who offer and sell investments to be licensed or registered. Designation as a regional center does not satisfy this requirement. Many fraudulent investment schemes involve unlicensed individuals or unregistered firms.
  • Layers of companies run by the same individuals. Some EB-5 regional center investments are structured through layers of different companies that are managed by the same individuals. In such circumstances, confirm that conflicts of interest have been fully disclosed and are minimized. 

(For more information, see the full alert at: http://www.sec.gov/investor/alerts/ia_immigrant.htm)