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, February 16, 2018

H-1B Level 1 Wage Approval and Denial

Since late last summer, many H-1B applicants received formal Requests for Evidence (RFEs) from the USCIS regarding the issue of wage level in the H-1B petition and and related Labor Condition Application (LCA).  These RFEs typically question whether the position qualifies as an H-1B specialty occupation if level 1 wage is offered to the employee.  Employers and attorneys have responded to these RFEs using various arguments with explanation.  Our office also responded to quite a few of these RFEs and, thankfully, all decisions have been favorable. 

As the new H-1B cap filing deadline of April 1st approaches, it is unclear what the current position of USCIS is regarding wage level.  Two recent decisions by the AAO (Administrative Appeals Office) may shed some light on this important issue, although they are non-binding decisions. Both decisions were issued on January 25, 2018: one was approved while the other one was denied.  The first case, Matter of G-J-S-USA, Inc., was filed for the position of an investment banking analyst while the second case, Matter of B-C, Inc., was filed for the position of a nontechnical engineer-in-training.  The language and analysis in both decisions are almost identical. The following are the key takeaways of these two cases. 

First, AAO clarifies the relationship between the Labor Condition Application (LCA) and the H-1B petition.  The LCA is certified by the DOL while the H-1B petition is adjudicated by USCIS under the DHS.  In the LCA, there is a wage requirement, and the purposes of the wage requirement is to protect U.S. workers' wages and to protect H-1B workers from wage abuses.  According to the regulation, "DHS determines whether the petition is supported by an LCA which corresponds with the petition,...."  AAO notes that "When accessing the wage level indicated on the LCA, USCIS does not purport to supplant DOL's responsibility with respect to wage determinations."  AAO confirms that it is the DOL that is charged with the responsibility of wage determination but not USCIS, which is an important observation.

Second, AAO confirms that there is no "inherent inconsistency" between the wage level of a position and its nature as a specialty occupation.  This is a very important observation.  It precludes any conclusion that just because level 1 wage is offered in a position, it is not a specialty occupation.  Wage is a factor to consider but not a defining factor.

Third, in determining whether level 1 wage is appropriately assigned, one should compare the requirements and attributes of a particular position with those associated with the corresponding  occupation in the Occupational Information Network (O*NET).  O*NET is a massive database of information primarily maintained by the DOL regarding various occupations in the United States. 

Fourth, the comparison mentioned above comprises of five steps. (1) Identify the O*NET occupation that best matches the sponsored position in terms of educational and other requirements; (2) Compare the educational requirements of the H-1B position and the O*NET occupation; (3) Compare the experience requirements of the H-1B position and the O*NET occupation; (4) Determine if there any special skills or additional requirements of the H-1B position; and (5) Determine if there are any supervisory requirements for the position.

By applying the above five steps, AAO determined that level 1 wage is not appropriate in the investment banking analyst case as the position requires a master's degree in finance or a related field, which is above the normal requirement of a bachelor's degree.  

These AAO decisions are definitely helpful to employers who plan to submit H-1B petitions.  However, the role of DHS and USCIS in wage determination will still need to be clarified.  AAO appears to suggest that in order to determine whether the DOL-certified LCA "corresponds with" the H-1B petition, USCIS needs to review the wage level of the position offered.  Whether this nexus is sufficient and appropriate remains to be determined. 













Wednesday, February 14, 2018

USCIS expanded credit card payment program

USCIS announced today that it is accepting credit payments for many application forms including the I-130, I-485, I-765, I-131, I-129F, etc., in addition to the N-400 and I-90.  However, for more complicated forms such as the I-129 Petition for a Nonimmigrant Worker, which requires multiple fees, credit card payment is still not accepted.

Change of Status from B-1/B-2 Visitor to F-1/M-1 Student

Every year, tens of thousands of visitors arrive at the United States on their B-1 business visitor visa or B-2 visitor visa for pleasure.  Many of them would like to change status from B-1 / B-2 visitor visa status to F-1 student status after their arrival. Some foreign travelers would like to enroll in an ESL course to brush up their English; some others intend to pursue an undergraduate or postgraduate degree in one of the fine institutions in the United States. In these situations, foreign visitors must submit a formal application to the U.S. Citizenship and Immigration Services (USCIS) to change their status.  They must wait till their request has been approved before starting their academic studies.

Generally speaking, USCIS has the discretionary power to approve or deny this type of applications for non-immigrant status change in the United States, meaning that USCIS will decide whether or not to approve an application based on the facts and circumstances of the case. For example, if an applicant made a false statement when they applied for her B-1 / B-2 visa, the request for a change of status will likely be rejected.

In addition, there has been important policy changes regarding this type of application since 2017.  Not only that applicants must prove that they have maintained their lawful visitor status at the time of submitting the Form I-539, Application for Extension / Change of Nonimmigrant Status, the applicant must also maintain their lawful status throughout the application process until 30 days before the term of the academic studies begins.  For examples, if an applicant's authorized stay in the U.S. has expired, then she is considered to have failed to maintain her immigration status. 

This requirement makes it more difficult for foreigners to apply for changes of status to F-1 because the usual maximum period of authorized stay in B-1/B-2 status is only 6 months.  One way to comply with this new requirement is to submit a timely I-539 application to extend one's B-1/B-2 status to "bridge the gap" in status.  Hence, an applicant must plan her application process and academic studies carefully.  Sometimes more than one extension application is required due to longer adjudication schedule in recent months.  Timing is critical here.  Careful consideration must be given to the academic schedule as well as the USCIS processing schedule.  Sometimes deferral of studies to the following term is necessary.

In short, a foreign visitor may still apply for change of status from B-1/B-2 status to F-1 student status (or M-1 vocational student status).  under the new immigration policy.  However, one must be very careful about maintaining her lawful immigration status throughout the application process.  Extension of status may be required to maintain one's lawful status.  An applicant should work closely not only with her immigration lawyer but also the educational institution's adviser (designated school official) to ensure that both the timing and documentation requirements are met. 

Wednesday, February 7, 2018

H-1B Filing Tips for Cap Season

Tens of thousands of applicants and employers are gearing up to submit H-1B petitions in order to meet the initial application acceptance date of April 1st.  The adjudication standards have been tightened significantly in recent years.  Consequently, it is important to plan ahead and pay attention to details to avoid last minute issues.  The following are some tips that may help applicants to prepare for a legally sufficient H-1B petition:

1)  Basic Application Procedures:   The USCIS has confirmed that the basic application procedures will remain the same as last year.  Hence, it is expected that all applications received within the first five business days will be accepted to participate in the "visa lottery", a random computer selection process.  65,000 visa numbers are available for regular cap applications, and an additional 20,000 visa numbers for available for applicants with a U.S.-earned advanced degree (master cap).  A drawing will be conducted for the master cap cases first, followed by a second drawing for the regular cap cases.

2) Premium Processing:  USCIS stated that there may be a short suspension of premium processing for H-1B cap-subject cases (last year the suspension lasted 6 months).  If timing is important, it is generally advisable to use premium processing if it is available.  USCIS promises to issue a decision or a Request for Evidence within 15 days of the acceptance.  

3) Start Early:  It is never too early to start the process.  As soon as a foreign worker finds a job that includes H-1B sponsorship, the preparation should begin.  The facts of the case including job descriptions and requirements, employer information, and employee qualifications, etc., should be carefully evaluated and analyzed.  Any missing information or documents should obtained.  The market prevailing wage also needs to be determined.  A clear and detailed job description with any special requirements such as technical requirements or travel requirements should be drafted.

4) Resolution of Potential Issues:  An early start has an added advantage, i.e., extra time to handle and issues of the case.  Over the years, the requirements for the H-1B visa program have gotten quite complicated, even before the recent policy changes by the current administration.  It often takes time to resolve a potential issue of case.  For examples, an employee's academic background may need a formal equivalency evaluation, or supporting documents may be needed to prove that a position qualifies as a "specialty occupation".   The earlier we can spot an issue, the sooner we can tackle and resolve it.

5) Submission of the Labor Condition Application: Certification of the LCA by the Labor Department is a required before an H-1B can be submitted with USCIS.  The LCA is submitted by the employer to include the key terms of the H-1B employment such as job classification, address of the place of employment and the wages or salary offered.  Every year, many cases were delayed or denied due to the employer's inability to obtain a certified Labor Condition Application.

6) Employer's Corporate Identify:  Employers filing H-1B petitions for employees for the first time must also provide documents to verify their business information such as name, address and date of formation.  Such information is required before the Department of Labor will accept the filing of the Labor Condition Application.

7) Duplicate Copy and Double Check Everything:  If an employee plans to apply for an H-1B visa stamp from overseas, then a duplicate copy of the H-1B petition must be submitted with the original copy.  Even if a foreign worker is changing status in the U.S., it is still a good idea to submit a duplicate set of documents to prepare for future visa stamping.  Before submitting the petition, double and triple-check everything before submitting the petition especially the spelling of the names, date and country of birth, filing fees and mailing address.



Monday, February 5, 2018

Stricter "Public Charge" Requirements for U.S. Immigrant and Non-immigrant Visas

An applicant for an immigrant visa or nonimmigrant visa to enter the United States is subject to a number of grounds of inadmissibility such as previous immigration or criminal violations.  Public charge is one of such basis for disallowing a foreigner from receiving a U.S. visa.  Simply put, if the person is likely to become a financial burden of the U.S. government, then her visa will be denied.  Recent changes in the State Department's Foreign Affairs Manuel (FAM) make it more difficult for visa applicants to prove that she is not likely to become a public charge.  
The Immigration Act provides five factors for consideration regarding the issue of public charge, including (I) age; (II) health; (III) family status; (IV) assets, resources, and financial status; and (V) education and skills.  Further, the U.S. government may also consider any affidavit of support provided by sponsors.  However, for many years, the overseas consular officers and the U.S. immigration officers have relied mostly on the affidavits of support (I-864 form) executed by financial sponsors as proof that the visa applicant will not burden the U.S. society.
The recent changes in the FAM have provided new guidance to the consular officers on this important issue:
1) Under the new guidance, the consular officers must examine the visa applicant’s “age, health, family status, assets, resources, financial status, education, and skills" in all cases.  The Form I-864 affidavit of support is only a positive factor to consider; an I-864 alone is insufficient proof of satisfying the public charge requirements in most cases.  All relevant factors will be considered in the totality of circumstances.  
2) In fact, the consular officer has to consider the likelihood that the sponsor will actually provide financial support to the visa applicant. Hence, if the financial sponsor is not a close family member, it is possible to argue that the financial sponsor may not be willing to

support the immigrant.
3) Several groups of visa applicants have been identified for heightened scrutiny including children, the aged, the unemployed, retired persons, the disabled, or those who have health conditions.
4) For children under the age of 18 who are not accompanying or following to join a parent/guardian will be subject to heightened scrutiny.  
5) For applicants aged 18 or older, they need to show that they have employable skills in the U.S.  For the elderly applicants, consular officers may view their age as a negative factor to the extent that it affects their employability and potential need for healthcare. 
6) For those who have certain health issues, their ability to work, the likelihood of future medical expenses, or their ability to support themselves and their dependents will be considered. The new guidance even suggests that applicants with health issues may have to provide proof of medical insurance or other proof of ability to pay for any potential medical expenses in the United States.
7) The visa applicant's education, employment history, and offer of U.S. employment may also be considered, requiring them to provide supporting documents in these regards. 
8) Non-immigrant visa applicants (e.g., F-1, B-1/B-2) are also subject to the public charge ground of inadmissibility. According to the new guidance, consular officers "should not recommend for an NIV waiver an applicant who is ineligible on this [public charge] ground as a matter of policy.”
9) Consular officers are also asked to consider whether or not the visa applicant or a family member in the applicant’s household is currently or has received “public assistance of any type" from state, federal, or local sources.  Previously, receipt of non-cash benefits (e.g., food stamps, medicaid, etc.) were specifically excluded for consideration.   Further, if a financial sponsor has received a means-tested benefit (e.g., housing, food stamps, etc.) within the past three years, the consular officer will review the sponsor’s current ability to provide financial support to the visa applicant. 
No doubt these changes mean tougher adjudication standards for visa applications.  But it is important to note that these are merely policy changes but not changes in the statute.  It will also take some time to observe how each consulate office implements these changes.  

Saturday, February 3, 2018

Recent DUI Arrest - Basis for Denying Immigration Bond

A foreign national who is in the custody of the U.S. Government may request for a custody determination or "bond hearing" under section 236(a) of the Immigration and Nationality Act.  An Immigration Judge may set a bond as a condition for the release of the foreign national if it can be established that he or she is not a danger to the community, not a threat to the national security, and does not pose a risk of flight.  

Driving under the influence is a significant adverse consideration in determining whether an alien is a danger to the community in bond proceedings, according to the Board of Immigration Appeals.  In Matter of Siniauskas, 27 I&N Dec. 207 (BIA 2018), the foreign national is a long time U.S. resident without legal status; he is married to a green card holder and has a U.S. citizen daughter who filed an immigrant visa petition on his behalf.  He also volunteers in church and owns his business.  He had several DUI convictions more than ten years ago and has sought professional help regarding his drinking problem.  Recently he was arrested again for drunk driving.  He explained that his recent arrest was an aberration that has mitigating circumstances, i.e., it happened on the first anniversary of his mother’s death. 

However, the Board did not accept his explanation.  The Board found his actions indicate that he is and continues to be a danger to his community and revoked his bond. The Board's decision means that he will continue to be held in custody until a decision is made on his immigration petitions. 

In recent years, DUIs have been made a priority for immigration enforcement, especially under the current administration.  DHS Secretary had stated in an interview that a single DUI could lead to deportation of an immigrant. 


License Plate Reader (LPR) Service Used by ICE

U.S. Immigration and Customs Enforcement (ICE) has procured a commercial License Plate Reader (LPR) data service to support its law enforcement operations.  The LPR data service stores recorded vehicle license plate data from cameras equipped with license plate reader technology including:

• Toll road cameras;

• Parking lot cameras;

• Vehicle repossession companies; and

• Law enforcement agencies.

ICE reports that privacy and civil liberties protections have been implemented by the agency and the vendor regarding the use of LPR.

Visa Bulletin Predictions for February 2018 and Forward


Every month after the release of the monthly visa bulletin, DOS Visa Office Chief Mr. Charlie Oppenheim would provide his insights on the trends, movements, predictions, etc., regarding the usage of immigrant visa numbers.  The following are his most important insights following the publication of the February 2018 Visa Bulletin:  

Overview of the February 2018 Visa Bulletin:
Predictions for upcoming months are generally positive with forward movement predicted in most categories except EB-5 China-Mainland. EB-5 Vietnam will have a final action cutoff date no later than April.

Predictions regarding Employment-Based I-485s:
Charlie predicts that the new USCIS policy requiring interviews of employment-based I-485 adjustment will result in increased volatility in final action date movement in the employment-based categories.  Generally, there will be advancements in the Employment categories in the beginning, only to be followed by slower movement or retrogression in some categories.  Because visa numbers will be used by different district offices, data gathering will be challenging.  It will take time for the new policy to set in. For now, Charlie is trying advance cutoff dates to use up all available visa numbers without overdoing it to avoid visa retrogression. 

EB-4 and EB-5:
EB-4 Religious Workers and EB-5 Regional Center Categories have become "unavailable" pending 
Congressional re-authorization.  The EB-5 (Non-Regional Center) category will remain current in the coming months except for EB-5 China, which will experience little if any forward movement. 

EB-1 India and EB-1 China:
The imposition of a final action date for EB-1 China and EB-1 India in late FY 2017 created a backlog of cases in the first quarter of FY 2018. So far, this fiscal year, EB-1 India and EB-1 China have already used 7,000 and 4,500 visa numbers, respectively. These categories will likely remain current for the coming months.  Cutoff final action dates could be imposed in the summer remains likely if heavy demand continues. This risk may be offset by the delay caused by the transition of I-485s applications to USCIS Field Offices for interviews.

EB-2 Worldwide:
This category should remain current for the foreseeable future.

EB-2 and EB-3 China:
EB-2 China will continue to advance two to three months every month.  EB-3 China is predicted to advance up to five months per Visa Bulletin.  

EB-2 India: 
Heavy demand continues for EB-2 India, which is predicted to move forward only up to two weeks per Visa Bulletin. 

EB-3 India: 
The February Visa Bulletin predicts forward movement in this category at a pace of one to three months. Charlie predicts that, when the final action date advances beyond August 2007, visibility will diminish. When this happens, there is "potential for rapid movement of the EB-3 India final action date to generate new demand."

EB-3 Philippines:
Demand is not very high, and rapid forward movement may become possible later on. Visa numbers are mostly used by overseas consulate offices for this category. 

Family-Based Categories:
FB-1 Worldwide will advance at the rate of one month per bulletin; FB-2A Worldwide three to five weeks; FB-3 Worldwide up to five weeks; and FB-4 worldwide up to three weeks.

FB-1 Philippines and FB-2B Philippines advance seven months and 21 days in February, respectively. Charlie attributes the recent volatility to the lack of visibility of rescheduled appointments made by applicants through the Department of State's Global Support System (GSS). Charlie is trying to obtain more accurate date from the post in Manila.



Cite as AILA Doc. No. 14071401.

Wednesday, January 31, 2018

Asylum Interviews - Last In, First Out

If you filed your political asylum application with the USCIS recently, you will likely be scheduled for an interview sooner than you think.

USCIS announced today that it is changing the order the agency is processing pending affirmative applications for political asylum; it will give priority to cases that have been pending for 21 days or less.  Specifically, the Asylum Office will interview cases in the following order:

  • Applications that were scheduled for an interview, but the interview had to be rescheduled at the applicant’s request or the needs of USCIS;
  • Applications pending 21 days or less since filing; and
  • All other pending applications, starting with newer filings and working back toward older filings.
  • Additionally, the Affirmative Asylum Bulletin issued by USCIS has been discontinued.


The change of processing order is intended to address the agency's concerns that some filers may be abusing the current backlog of asylum cases to obtain employment authorization. Currently there are about 311,000 pending asylum applications with USCIS.  Filing of an asylum application entitles the applicant to apply for employment authorization to work in the U.S. after the case has been pending for a period of time. By using a “last in, first out” interview schedule, USCIS aims to discourage foreigners from filing frivolous or otherwise non-meritorious asylum claims.   

A person without a valid immigration status whose asylum claim has been denied is usually placed in removal proceedings. 

Tuesday, January 23, 2018

February 2018 Visa Bulletin: EB-3 China Advances 5 Months


For February, there are some advancements for the EB-2 and EB-3 categories.  Most significantly, EB-3 China moves forward by 5 months while EB-2 China advances by 7 weeks.  India's EB-2 and EB-3 move forward by 2 weeks and 1 month respectively.  It should be noted that the Filing Date for EB-2 China also advances by 1 year, which should help overseas applicants to start the processing a lot quicker.  

Advancement of China's EB-3 category is expected to continue and, hence, Chinese applicants with I-140 approvals under the EB-2 category should consider downgrading to take advantage of the situation.

There are some moderate advancements in the family-based categories.  Family 1st for Philippines moves up by 7 months in February. 

AD: Dates for Final Action (Approval) FD : Dates for Filing Applications
      Family
Other Countries
      China
India
Mexico
Philippines
F1
AD
03/15/2011
03/15/2011
03/15/2011
05/01/1996
01/01/2005
FD
01/01/2012
01/01/2012
01/01/2012
11/01/1996
10/01/2007
F2A
AD
03/01/2016
03/01/2016
03/01/2016
01/01/2016
02/01/2016
FD
11/01/2016
11/01/2016
11/01/2016
11/01/2016
11/01/2016
F2B
AD
01/15/2011
01/15/2011
01/15/2011
08/15/1996
07/01/2006
FD
09/01/2011
09/01/2011
09/01/2011
01/01/1997
09/01/2007
F3
AD
11/15/2005
11/15/2005
11/15/2005
06/15/1995
03/15/1995
FD
12/01/2005
12/01/2005
12/01/2005
10/01/1995
06/15/1995
F4
AD
07/22/2004
07/22/2004
01/08/2004
11/01/1997
09/01/1994
FD
11/15/2004
11/15/2004
06/22/2004
02/08/1998
03/01/1995

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 Counties
China

El Salvador
Guatemala
Honduras
India
Mexico
Philippines
EB1
AD
C
         C
C
          C
C
C
FD
C
C
C
C
C
C
EB2
AD
 C
10/01/2013
C
  12/08/2008
C
C
FD
C
11/15/2014
C
02/08/2009
C
C
EB3
AD
C
09/15/2014
C
12/01/2006
C
03/01/2016
FD
C
01/01/2016
C
01/01/2008
C
08/01/2016
Other Workers
AD
C
02/01/2007
C
12/01/2006
C
03/01/2016
FD
C
06/01/2008
C
01/01/2008
C
08/01/2016
EB4
AD
C
C
12/01/2015
C
06/22/2016
C
FD
C
C
04/15/2016
C
C
C
EB5
AD
C
07/22/2014
C
C
C
C
FD
C
09/01/2014
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)

Notes:  The following two categories (not listed above) have become "unavailable" in February 2018:
- Certain Religious Workers for all countries.