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.)

Sunday, January 31, 2016

Labor Certification Granted Despite Different Job Description in SWA Job Order


Any employer or employee who has dealt with labor application issues understand the importance of an accurate job description.  Imagine you posted a State job order that has a different job description than what you entered in the ETA 9089 labor application. Would it cause a denial of the labor application? 

According to a recent decision by the Board of Alien Labor Certification Appeals (BALCA), such a discrepancy does not justify a denial.  Matter of Pinnacle Technical Resources Inc., 2012-PER-00130 (January 1, 2016). 

In Pinnacle, the employer filed a foreign labor application for the position of a "Technical Recruiter." The job description in the PERM labor application is as follows:

Recruit qualified IT professionals across platforms and skills backgrounds for multiple positions; Screen candidates for application development. Interview candidates and perform orientation/training of all new candidates. Maintain client contacts database.

In the State job order, the job description is listed as:

Job Description Analyze, coordinate payroll and process benefits, new hire process, employment verification, unemployment claims, time entry/time sheet management. Manage Visa/Green Card Application process, legal issues compliance (ADA, EEO, FMLA, OSHA, etc.). Work directly with Director of Operations.

The Certifying Officer (CO) denied the petition because the State job order "contained duties that exceeded the job duties listed on the ETA Form 9089," citing the regulation at 20 C.F.R. § 656.17(f) as authority for the denial.  

BALCA reversed the denial because § 656.17(f)(6) applies only to advertisements placed in newspapers or in professional journals but not to SWA job orders.  In its decision, the Board cited Symantec Corp., 2011-PER-1856 (July 30, 2014) (en banc) and also Fidelus Technologies, 2011-PER-1635 (June 11, 2015) (applying Symantec to SWA job orders).  Newspaper ads and SWA job orders are two different recruiting requirements for PERM foreign labor application, and the Pinnacle Board decision decidedly drew a distinction between them.




Visa Bulletin Predictions by Charles Oppenheim - January 2016


The following are the most updated predictions regarding the Visa Bulletin by Charles Oppenheim, Visa Chief of the Visa Control and Reporting Division, U.S. Department of State, through AILA's DOS Liaison Committee:

EB-2 India Advanced More than Expected:  Charlie predicted in last November that there would be about eight  months of advancement in EB-2 India in the coming months.  This category actually has advanced more significantly.  For example, in February's Visa Bullein, it moves forward by six months.   There are two reasons for this rapid advancement. First, there has been less demand than previously anticipated because of fewer EB-3 to EB-2 upgrades and USCIS efforts to clear EB-2 India backlog cases.  Secondly, it is also part of DOS strategy to advance cut off dates aggressively early on during the year to ensure that visa numbers are used up during the fiscal year.  According to Charlie,  "USCIS have led him to believe that the rate of demand in the coming months will reduce the rate of cut-off date movement."

EB-2 Other Countries Demand is Lower probably as a result of fewer EB-3 upgrades.

EB-2 and EB-3 China Will Continue to Advance:  Demand in EB-2 China has been decreasing. Demand decreased in November by about half, when compared to October.  Demand for EB-3 China is also low.  In an attempt to meet usage target, Charlie will continue to advance EB-3 China.  As a result, more downgrades from EB-2 to EB-3 are expected, which could "rebalance" the cut off dates of these categories. Charlie expects such rebalancing to happen over the next few months.

"Dates for Filing" Chart in the April Bulletin will be Revised by Charlie, primarily in the family-based categories.  Charlie also predicts that EB-3 Other Countries filing date will advance if demand in that category remains low.

Q & A:

QUESTION: Do the numbers reported on the Waiting List for EB-3 Philippines reflect actual visa demand for this category? It has been suggested by some that as many as 80% of the 28,102 individuals listed in the report will not pursue their visa applications as a result of the visa backlog and lack of priority date movement over the years. If in fact actual demand to date has been less than expected, are you considering adjusting the priority date cut-off for this category?

ANSWER: Number use for EB-3 Philippines is at a fairly reasonable level for this point in the year. We have 5,000+ applicants which have already been reported to VO, and are only awaiting forward movement of the cut-off date. The cut-off date will continue to advance, but how quickly remains to be seen.

The "lag time" does not seem to have resulted in a lack of demand. The reason for the rapid movement of this date in FY 2015 was that we had worked through the eligible demand which was reported for overseas processing, and USCIS demand (approximately 950) was extremely low during the first four months of FY 2015. During the next three months, demand from USCIS exploded (approximately 3,000), perhaps due to a decreasing processing backlog."

Saturday, January 30, 2016

Annual H-1B Filing Begins April 1st: Are You Ready?


Like usual, USCIS is expected to begin accepting H-1B cap cases beginning on April 1, 2016.  A cap case is one that is subject to the annual H-1B visa quota of 65,000.  For most applicants who are filing for their initial H-1B petition, unless their employer or position is exempt from the H-1B cap, their petition will likely be subject to the visa cap.

Although April 1st is still a few months away, it is actually the right time to get everything ready for H-1B filing.  Quite a few of our regular clients have already sent us documents for this year's filing. For the past few years, the annual visa cap was used up quickly during the first few days of filing. Later filers had to wait for another year to submit their H-1B petitions.  

Employee's Documents
Foreign workers who are present in the U.S. in a valid visa status (e.g., F-1 students) may request their status be changed to H-1B directly in the petition.  For individuals who are physically outside of the U.S, they must wait until their H-1B petition to be approved first before they may apply for a visa to enter the United States.   

In both situations, foreign employees must first secure a job offer from an American employer that qualifies for the H-1B visa program.  Although a self-petition is possible, it would be much easier to have an employer petition for you.  Once you received a job offer, then you must provide documents to prove that you qualify for the position.  H-1B jobs are called "Specialty Occupation" legally. They are generally professional occupations that require at a minimum of a bachelor's degree to enter. Typical H-1B job titles include computer programmer, engineer, accountant, financial analyst, data scientist, market researcher, etc.  

To prove that you qualify for the position, you must examine the general requirements for the position. If a bachelor's degree is required, you have to prove that you possess such a degree in the specified subject areas.  If your degree was not earned in America, you may have to obtain an academic evaluation to establish that your degree is equivalent to a U.S. degree.  Sometimes it is also possible to use your previous professional experience to qualify for an H-1B position.  You must prove that you possess qualifying experience, in quality and quantity. Expert opinion letters may be needed to prove your eligibility.   Other documents such as certificates, awards, etc., can also be used to support your case.  

For applicants who are present in the U.S, you should gather your passport, visas, I-94s, and other related documents to establish that you are legally here and that you may legally change status to H-1B.

Employer's Preparation
Generally a U.S. employer does not have to produce substantial amount of documents to support an H-1B petition.  Employers filing for the first time must still be ready to prove their corporate identify, federal tax ID number, address, physical location, etc.  

For smaller and/or newer companies, they must also be ready to show that they have a need for the requested H-1B professional. For instance, if a small employer with less than five employees is petitioning for a full-time accountant, the employer must explain why the services of an accountant are required.  Sometimes, smaller employers may also be required to prove that they have the financial resources to pay for the salary of the H-1B employee.  

For consulting firms which place their employees in client sites, the current policy requires that they produce substantial documents to prove that there is a valid employer-employee relationship throughout the duration of the H-1B employment.  They also must show that they will have control over the H-1B employee while the employee is working off-site. 

Conclusion
Competition for H-1B visa numbers is expected to be very intense this year again.  Hence, employers and employees must start early and get their documents ready to ensure timely filing of their H-1B petitions.





Monday, January 25, 2016

PERM Labor Application Processing Time

DOL posted the following PERM labor certification processing times as of - January 13, 2016



Analyst Reviews: 
June 2015
(About 7-8 months)
Audit Review: 
November 2014
(About 15 months)
Reconsideration Requests: 
August 2015 
(5 months)
Government Error Reconsideration:
Current


(Note: the dates represent initial filing dates)

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Temporary Protected Status Extended for Sudan

WASHINGTON—Secretary of Homeland Security Jeh Johnson has extended Sudan’s designation for Temporary Protected Status (TPS) for an additional 18 months due to the ongoing armed conflict and extraordinary and temporary conditions in Sudan that prevent its nationals from safely returning. The extended designation is effective May 3, 2016, through November 2, 2017.

Current TPS Sudan beneficiaries seeking to extend their TPS status must re-register during a 60-day period that runs from January 25, 2016 through March 25, 2016. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to re-register as soon as possible.

The 18-month extension also allows TPS re-registrants to apply for a new Employment Authorization Document (EAD). Eligible Sudan TPS beneficiaries who re-register during the 60-day period and request a new EAD will receive one with an expiration date of November 2, 2017. USCIS recognizes that some re-registrants may not receive their new EADs until after their current work permits expire. Therefore, USCIS is automatically extending current TPS Sudan EADs bearing a May 2, 2016 expiration date for an additional six months. These existing EADs are now valid through November 2, 2016.

Source: USCIS.gov  01/25/2016

Saturday, January 23, 2016

STEM OPT Program Extended to May 10, 2016 by Federal Judge


Today Judge Elle S. Huvelle of the D.C. Federal District Court granted the DHS request to extend the Court's vacatur order for 90 days in the pending STEM OPT lawsuit. In effect, the STEM Optional Practical Training program will remain valid until May 10, 2016.  

This court order is particularly important to thousands of foreign technical students who are coming to the end of their regular OPT employment this year. As they ponder their options, the pending litigation surrounding the STEM OPT program has created confusion and uncertainties.  The timing of this order is significant.  By this order, not only will these STEM students be able to extend their OPT employment, but they also will be able to apply for H-1B employment in April with their OPT extension.  
According to DHS statistics, there are currently about 23,000 STEM OPT participants and 2,300 dependents of these participants.  8,000 STEM OPT applications are currently pending before DHS. Further, there are 434,000 foreign students who are potentially eligible to apply for an extension of stay and employment under the STEM OPT program.

A group of American technical workers filed a suit in the D.C. Federal District Court, challenging the legality of the STEM OPT program.  The STEM Optional Practical Training rule was promulgated by DHS in 2008. The plaintiffs in the suit alleged that the 2008 rule was implemented without notice and comment, as required by law.  Judge Huvelle issued an order vacating the rule but stayed the order until February 12, 2016, to allow DHS time to obtain proper notice and comment on the rule. DHS requested for an extension of the February 12, 2016 date after having received more than 50K comments on the proposed rule.  

The STEM OPT program in existence grants 17 additional months of employment to qualified foreign students.  To apply for a STEM OPT extension, a student must be in post-completion 12-month OPT and has earned a designated STEM degree.  Employment must be directly related to the field of study. Further, the employer must be registered with the DHS E-Verify employment verification system, and agree to report any termination or changes in employment status within 48 hours. Students may apply for STEM OPT 120 days before the regular OPT expires by filing the I-765 form. Once an application is submitted, a student is allowed to continue working for up to 180 days or until the USCIS makes a decision.  

The new rule published by DHS proposes some significant changes to the current program.  For instance, 24 instead of 17 additional months of employment have been proposed. A new employment period will also be granted for each qualified academic program. Other changes include: better defined STEM degree programs, better employer training and monitoring, better protection for U.S. workers, etc.  

Foreign students should pay close attention to the final rule and keep in touch with their school advisers and immigrant attorneys to make sure that they comply with all legal requirements. 





Tuesday, January 19, 2016

Supreme Court to hear Controversial Deferred Action Case


Today, the U.S. Supreme Court announced that it will hear the controversial case of Texas vs. United States concerning the Government's plan to grant deferred action status to millions of long-time illegal immigrants in the U.S. who are parents of U.S. citizens and residents.  

In November, the Fifth Circuit sided with the lower Federal District Court and upheld the injunction against the Obama Administration to implement its new DAPA (parents of U.S. citizens and legal residents) and expanded DACA (childhood arrivals) programs.  These programs are part of the Administration's executive plan to reform the U.S. immigration policy. 

In granting certiorari, the Supreme Court also asked the parties to brief on the issue of whether the deferred action plan violates the "Taking Clause" of the United States Constitution.  The Taking Clause of the Fifth Amendment provides that private property should not be taken for public use, without just compensation.

The timing of this case is particularly interesting in light of the recent heated debates on immigration among the presidential candidates.  The case is expected to be decided in June, but the future of the these deferred action programs will ultimately depend on the result of the upcoming presidential election.  

Friday, January 15, 2016

Comparable Evidence Standard for EB1 Outstanding Professors and Researchers Adopted

The DHS has finalized new regulations to improve several nonimmigrant visa programs as well as the EB-1B Outstanding Professors and Researchers immigrant program. This final rule, entitled: "Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants" will go into effect on February 16, 2016.


EB-1 Outstanding Professors and Researchers

Foreigners who can establish that they are outstanding professors or researchers may apply for permanent residence (green card) in the United States.  It generally requires at least three years of relevant experience and a tenure track or comparable job offer by a U.S. educational institution or private company. Further, they must submit evidence to prove that they are recognized internationally as outstanding in the academic field specified. Specifically the regulation requires that that they must submit evidence to meet at least two of the following six criteria:

(A) Documentation of the alien's receipt of major prizes or awards for outstanding achievement in the academic field;
(B) Documentation of the alien's membership in associations in the academic field which require outstanding achievements of their members;
(C) Published material in professional publications written by others about the alien's work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation;
(D) Evidence of the alien's participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;
(E) Evidence of the alien's original scientific or scholarly research contributions to the academic field; or
(F) Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field;

The new regulation for outstanding professors and researchers accepts other types of evidence that are comparable to the above-listed ones.  For examples, the applicant may now submit important patents or prestigious peer-reviewed funding grants to prove international recognition.  This modification is good news for professors and researchers who would like to apply for a green card under the EB-1 category.  It provides alternative ways for them to prove their case when the primary evidence is not available.  


Improvements in the Singapore, Chile (H-1B1), Australia (E-3) and CNMI  CW-1 Programs

H-1B1 and principal E-3 nonimmigrants will now be allowed to work for the sponsoring employer without first applying for an employment authorization document (EAD).  Further, these foreign workers may continue employment with the same employer for up to 240 days if an extension of stay petition has been timely filed by their employers.   

Similarly, CW-1 nonimmigrants will enjoy the same continued employment authorization after the expiration of their current status, as long as their employers' timely-filed request for an extension of stay remains pending.

Finally, the new rule has also included the principal E-3 and H-1B1 nonimmigrant classifications in the existing regulations regarding the filing procedures for extensions of stay and change of status requests.

Tuesday, January 12, 2016

H-1B and L-1 Fee Increases Under New Law


USCIS made the following announcement today regarding the new fees for H-1B ($4,000) and L-1 ($4,500) fees as follows. It only affects employers who have 50 or more employees and of which more than 50% are in H-1B or L status.  

The Consolidated Appropriations Act, 2016 (Public Law 114-113), signed into law by President Obama on December 18, 2015, increases fees for certain H-1B and L-1 petitioners. These petitioners must submit an additional fee of $4,000 for certain H-1B petitions and $4,500 for certain L-1A and L-1B petitions postmarked on or after December 18, 2015.

The additional fees apply to petitioners who employ 50 or more employees in the United States, with more than 50 percent of those employees in H-1B or L (including L-1A and L-1B) nonimmigrant status. These petitioners must submit the additional fees with an H-1B or L-1 petition filed:
  • Initially to grant status to a nonimmigrant described in subparagraph (H)(i)(b) or (L) of section 101(a)(15) of the Immigration and Nationality Act; or
  • To obtain authorization for a nonimmigrant in such status to change employers.
This fee is in addition to the base processing fee, Fraud Prevention and Detection Fee, American Competitiveness and Workforce Improvement Act of 1998 fee (when required), as well as the premium processing fee, if applicable. Public Law 114-113 fees will remain effective through September 30, 2025.

USCIS is in the process of revising Form I-129, Petition for a Nonimmigrant Worker and Form I-129S, Nonimmigrant Petition Based on Blanket L Petition to reflect the provisions of Public Law 114-113. Petitioners should continue to completeItem Numbers 1.d. and 1.d.1 of Section 1 of the H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement (Page 19 of Form I-129) and Item Numbers 4.a. and 4.b. of the L Classification Supplement (Page 22 of Form I-129).
USCIS may begin rejecting petitions received on or after Feb. 11, 2016 that do not complete Item Numbers 1.d. and 1.d.1of Section 1 of the H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement and Item Numbers 4.a. and4.b. of the L Classification Supplement, or include the additional Public Law 114-113 fee, if applicable. During the 30 day period immediately following this web alert, USCIS may issue a Request for Evidence (RFE) to determine whether the additional fee applies to the petition. To avoid an RFE, petitioners should complete the questions on the Form I-129 noted in the paragraph above and submit the applicable fee when required. Because an RFE will be issued for the fee, rather than a rejection for the omission of the fee, USCIS will maintain the original filing date as the receipt date. Petitioners should wait to respond to the RFE before sending in the additional fee or an explanation of why the new fee does not apply.



February 2016 Visa Bulletin: India EB-2 and China EB-3 Action Dates Advance

In February 2016’s Visa Bulletin, “filing dates” for all visa categories did not change at all, which indicates that USCIS will not accept new applications for now. The "final action dates” advance steadily for most visa categories while USCIS is slowly processing the existing backlog. India’s EB-2 action date moves forward significantly by 6 months.  China's EB-3 advances three months, continuing its lead over its EB-2 counterpart.  Downgrading to EB-3 remains a viable option for Chinese applicants.

AD: Dates for Final Action
FD : Dates for Filing Applications

FAMILY
Other Countries
China
India
Mexico
Philippines
F1
AD
07/08/2008
07/08/2008
07/08/2008
01/01/1995
11/01/2003
FD
10/01/2009
10/01/2009
10/01/2009
04/01/1995
09/01/2005
F2A
AD
09/01/2014
09/01/2014
09/01/2014
06/08/2014
09/01/2014
FD
06/15/2015
06/15/2015
06/15/2015
06/15/2015
06/15/2015
F2B
AD
05/15/2009
05/15/2009
05/15/2009
09/08/1995
02/01/2005
FD
12/15/2010
12/15/2010
12/15/2010
04/01/1996
05/01/2005
F3
AD
10/01/2004
10/01/2004
10/01/2004
09/08/1994
11/22/1993
FD
08/01/2005
08/01/2005
08/01/2005
05/01/1995
08/01/1995
F4
AD
06/08/2003
06/08/2003
06/08/2003
04/01/1997
08/08/1992
FD
05/01/2004
05/01/2004
05/01/2004
06/01/1998
01/01/1993

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
AD
C
C
C
C
C
FD
C
C
C
C
C
EB2
AD
C
03/01/2012
08/01/2008
C
C
FD
C
01/01/2013
07/01/2009
C
C
EB3
AD
10/01/2015
10/01/2012
06/15/2004
10/01/2015
01/08/2008
FD
01/01/2016
10/01/2013
07/01/2005
01/01/2016
01/01/2010
Other Workers
AD
10/01/2015
12/22/2006
06/15/2004
10/01/2015
01/08/2008
FD
01/01/2016
01/01/2007
07/01/2005
01/01/2016
01/01/2010
EB4
AD
C
C
C
C
C
FD
C
C
C
C
C
EB5
AD
C
01/15/2014
C
C
C
FD
C
05/01/2015
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)