A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

Contact: 732-632-9888, http://www.1visa1.com/

Friday, June 21, 2024

US Supreme Court Held Citizens Cannot Challenge Spousal Visa Denials

 



Ms. Munoz, an American citizen, petitioned for an immigrant visa for her Salvadoran husband to enter the United States so that they can live together. The American Consulate in San Salvador refused to issue a visa to her husband, based on his previous gang activities. As a California lawyer, Ms. Munoz challenged the visa denial in a federal district court. She argued that the consular officer's decision violated her constitutional rights, specifically her right to familial association under the Due Process Clause, as well as her rights under the Fourteenth Amendment Equal Protection Clause. 

Lower Court Refused to Review Visa Refusal

The District Court, however, ruled in favor of the Department of State, citing the doctrine of consular nonreviewability, which generally prohibits courts from reviewing consular visa decisions. Ms. Munoz filed an appeal with the Ninth Circuit Court of Appeals, which also agreed with the consular decision.   Undaunted, Ms. Munoz appealed the case to the U.S. Supreme Court.  

Surpreme Court Upheld the Consular Nonreviewability Doctrine

In Department of State v. Muñoz (06/21/2024), the U.S. Supreme Court ruled in favor of the Department of State, affirming the lower court's decision that upheld the consular officer's visa denial based on the doctrine of consular nonreviewability. This doctrine holds that consular decisions on visa applications are generally not subject to judicial review, reinforcing the government's broad discretion in immigration matters.

Ms. Muñoz argued that her right to marry and live with her spouse is a fundamental liberty interest protected by the Fifth Amendment's Due Process Clause, which provides that no person shall be "deprived of life, liberty, or property, without due process of law."  She also claimed that the refusal to grant her husband a visa treated her differently from other U.S. citizens whose spouses were allowed to enter the country, thereby violating her right to equal protection under the Fourteeth Amendment.

The Supreme Court acknowledged the hardship faced by U.S. citizens separated from their spouses due to visa denials but held that the constitutional protections invoked by the plaintiffs do not extend to override the consular nonreviewability doctrine. Under this doctrine, consular decisions are insulated from judicial review, reiterating the principle that such decisions fall within the executive branch's authority and are not subject to challenge in federal courts, except in very narrow circumstances, such as when there is a clear statutory or constitutional violation.  However, the facts of this case did not meet the requirements for such an exception.

The decision underscores the balance and conflicts between individual rights and the government's interest in controlling immigration, highlighting the Supreme Court's position of upholding the consular nonreviewability doctrine to avoid judicial overreach into executive functions.

Where to Apply is Critical

One takeaway from this decision is that, if an applicant has a choice, they should always apply for American visa status in the United States.  The reason is that the nonreviewability doctrine only applies in overseas visa applications. There are generally more legal and procedural safeguards for applications filed within the United States.  As we constantly advise clients, advance planning and evaluation of an immigration case is the key to success.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  




USCIS Extends Certain TPS EADs Through March 9, 2025

 


In a significant update for Temporary Protected Status (TPS) beneficiaries, the United States Citizenship and Immigration Services (USCIS) has announced an extension of Employment Authorization Documents (EADs). This extension aims to ensure that individuals under TPS can continue working without interruption while their status is being processed or renewed.  

USCIS is issuing Form I-797, Notice of Action, to specific TPS beneficiaries who are eligible to re-register for TPS or have a pending application to renew their Form I-766, EAD. This notice extends the validity of their EADs through March 9, 2025.

Eligible TPS beneficiaries can present their Form I-797, along with their TPS-based EAD (those with an A12 or C19 code) to their employers. This combination serves as proof of continued employment authorization through March 9, 2025. For employers, this combination is considered an unexpired EAD for Form I-9 purposes, which is critical for verifying employment eligibility.

When updating or completing Form I-9, employers should enter March 9, 2025 as the new expiration date of the automatically extended EADs. This ensures compliance with employment verification requirements and helps avoid any potential legal issues regarding employment authorization. Employer would have to reverify the employee before they start work on March 10, 2025.


(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  




Tuesday, June 18, 2024

July 2024 Visa Bulletin: EB-3 Worldwide Retrogression

 


In July's Visa Bulletin, the worldside EB-3 final action date retrogresses to 12/01/2021.  According to the State Department, it has become necessary to retrogress the worldwide EB-3 final action date (including Mexico and Philippines) effective in July, due to the "continued high demand and number use in this category."  In fact, the State Department states that visa numbers of this category may retrogress further or even become “Unavailable” in August. 

   

AD: Dates for Final Action (Green Card Approval)  

FD: Dates for Filing Applications Only

Family-based

Other Countries

China

India

Mexico

Philippines

F1

AD

10/22/2015

10/22/2015  

10/22/2015

05/08/2002

03/01/2012

FD

09/01/2017  

09/01/2017

09/01/2017

04/01/2005 

04/22/2015

F2A

AD

11/15/2021

11/15/2021

11/15/2021

02/01/2021

11/15/2021

FD

11/01/2023   

11/01/2023

11/01/2023

11/01/2023

11/01/2023

F2B

AD

05/01/2016

05/01/2016

05/01/2016

07/08/2004     

 10/22/2011

FD

01/01/2017

01/01/2017

01/01/2017

05/01/2005

10/01/2013

F3

AD

04/01/2010    

04/01/2010

04/01/2010

03/01/2000

09/08/2002

FD

10/01/2010

10/01/2010

10/01/2010

06/15/2001

11/08/2003

F4

AD

08/01/2007   

08/01/2007

01/22/2006 

02/08/2001

02/01/2004

FD

03/01/2008    

03/01/2008

06/15/2006

04/28/2001

04/01/2006


1st: Unmarried Sons and Daughters of Citizens (about 23,400 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 23,400 per year)
4th: Brothers and Sisters of Adult Citizens. (about 65,000 per year)


Employment-based 

Other Countries

China

India

Mexico

Philippines

EB-1

AD

C

11/01/2022

 02/01/2022

C

C

FD

C

01/01/2023

02/08/2022

C

C

EB-2

AD

03/15/2023

03/01/2020

06/15/2012

03/15/2023   

03/15/2023

FD

03/22/2023

06/01/2020

06/22/2012

03/22/2023

03/22/2023

EB-3

AD

12/01/2021

09/01/2020

09/22/2012

12/01/2021

12/01/2021

FD

02/01/2023

07/01/2021

10/01/2012

02/01/2023

01/01/2023

Other Workers

AD

01/01/2021

01/01/2017

09/22/2012

01/01/2021

05/01/2020

FD

01/08/2021

06/01/2017

10/01/2012

01/08/2021

05/15/2020

EB-4

AD

01/01/2021

01/01/2021

01/01/2021

01/01/2021

01/01/2021

FD

02/01/2021

02/01/2021

02/01/2021

  02/01/2021

02/01/2021

EB-5

AD

C

12/15/2015*

12/01/2020*

C

C

FD

C

01/01/2017

04/01/2022

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)
*China and India EB-5 visa numbers for rural, high unemployment & infrastructure areas/projects are current.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Biden Plan to Grant Deportation Relief for Immigrant Spouses of U.S. Citizens

 



In a significant move, the Biden administration announced a plan to grant work authorization and deportation relief to undocumented spouses of U.S. citizens. According to DHS, the program will eventually provide a path for applicants to apply for permanent resident status (green card). This policy shift could impact hundreds of thousands of families currently living under the shadow of immigration uncertainty.

1.1 Million Undocumented Immigrants Have U.S. Citizen Spouses

According to Fwd.us, an immigration advocacy group, approximately 1.1 million undocumented immigrants are married to U.S. citizens. These individuals currently face significant legal hurdles due to their undocumented status, which affects their ability to work legally and exposes them to the risk of deportation. Under existing immigration law, many of these spouses are ineligible to apply for a green card, leaving them in a precarious legal situation despite their marital ties to American citizens. Typically, these individuals have entered the U.S. illegally without inspection by an immigration officer, which makes them ineligible to be legalized even though they are married to American citizens.

Program will Benefit Spouses and Step Children

The Biden Administration plans to grant these undocumented spouses "parole in place." Parole is an executive authority that would allow them to stay in the country temporarily without fear of deportation and enable them to obtain employment authoriziation. This initiative seeks to stabilize the lives of many mixed-status families, providing them with economic opportunities and reducing the constant fear of family separation due to deportation. This program will also confer benefits to step-children of U.S. citizens.  According to NPR, an estimated 500,000 undocumented spouses and 50,000 non-citizen stepchildren would qualify for this relief. 

Program Requirements


Not all undocumented spouses of U.S. citizens would qualify for this Biden plan.  To qualify for parole in place status, the applicant must have been present in the United States for at least 10 years as of June 17, 2024.  It is unclear if physical presense must be continuous at this point. Furthermore, the applicant must have been married to a U.S. citizen on or before June 17, 2024.  Individuals who pose a threat to national security or public safety will not be eligible for this process.  It should also be noted that an applicant who entered the United States legally may apply for permanent resident status through adjustment of status.  These applicants do not need to apply under Biden's parole program. 

Discretionary Adjudciation


According to DHS, this is a discretionary application and will be adjuducated on a case-by-case basis. 
DHS will take into consideration the applicant's previous immigration history, criminal history, the results of background checks and national security, and any other relevant information available to or requested by USCIS. Fraudulent applications will also be screened out of the process.  Individuals with a criminal record and those with serious immigration violations will likely not be eligible for the program. 

Program Rationale and Challenges

The rationale behind this potential policy shift is multifaceted. Advocates argue that providing legal status and work authorization to the spouses of U.S. citizens is not only a humane approach but also economically beneficial. Allowing these individuals to work legally can contribute to the economy and reduce the exploitation often associated with undocumented labor.

Moreover, supporters emphasize the importance of family unity. Keeping families together is a cornerstone of U.S. immigration policy, and providing relief to these spouses aligns with this principle. It also addresses the emotional and psychological toll that the threat of deportation imposes on families.

Challenges and Next Steps

 Implementation of the program is expected to start in late summer, after a formal publication of the details in the Federal Register.  Implementing such a program would not be without challenges.  Opponents of the program will argue such executive actions overstep legal boundaries, as immigration relief should be addressed through legislative channels. The executive branch's authority to grant broad immigration relief without congressional approval may face challenges in court.  Additionally, there would be logistical hurdles in processing and verifying the eligibility of a large number of applicants.  

Conclusion

The Biden administration's plan to grant work authorization and parole status to undocumented spouses and step-children of U.S. citizens represents a significant potential shift in immigration policy. While it promises to alleviate the hardships faced by many families, it also underscores the ongoing challenges of addressing immigration reform in a deeply divided political landscape.


(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  


Friday, May 31, 2024

Voting violations may result in denial of naturalization and deportation

 


In the United States, the right to vote is a fundamental aspect of citizenship, reserved for those who are U.S. citizens. However, the issue of non-citizen voting has sparked debates and discussions, particularly in local elections in some jurisdictions. While some states and localities have explored allowing non-citizens to vote in certain elections, such as school board or municipal elections, federal elections are strictly reserved for U.S. citizens.

Who Can Vote in the U.S.?

According to federal law, only U.S. citizens are eligible to vote in federal elections, including presidential, congressional, and senatorial elections. Furthermore, individual states may have additional requirements for voting in state and local elections, but these typically also mandate U.S. citizenship. Many states also require voters to be residents of the state in which they intend to vote.

Illegal Voting and Green Card Eligibility

The act of registering to vote as a non-citizen, whether intentionally or unintentionally, can have serious consequences, particularly for individuals seeking to obtain a green card (permanent resident status) in the United States.  For example, INA Section 212(a)(10)(D) provides that any non-citizen who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation is inadmissible.  In other words, the person would not be eligible for the U.S. green card.

Furthermore, those who have been admitted into the U.S. can be deported if they have voted illegally, under INA Section 237(a)(6).  This provision states that an individual who, at any time after admission to the United States, has voted in violation of any federal, state, or local law or regulation is removable from the U.S.  It is important to note that the act of illegal voting must have occurred on or after September 30, 1996, when the relevant law was passed. 


Voting Violations May Result in Denial of Naturalization

Immigration law requires an applicant for naturalization must demonstrate "good moral character" for a specific period (usually five years) prior to filing the application and up until the applicant takes the oath of citizenship. 

A person who falsely represents themselves as a U.S. citizen for any purpose or benefit under the INA or any other federal or state law is deemed to lack good moral character.  Similarly, a non-citizens who illegally registers to vote or votes in a Federal, State, or local election may also be found to lack good moral character.  These individuals are not eligible for naturalization.  

In fact, a person who knowingly makes any false statement or claim that he is a citizen of the United States in order to register to vote or to vote in any Federal, State, or local election is subject to fines and imprisonment of up to five years, pursuant to 18 USC §1015.

What Should I do If I Mistakenly Registered to Vote?


Unfortunately, many individuals are encouraged to register to vote at the same time when they apply for their state driver's licenses or ID cards. New immigrants or those with limited English proficiency may just follow instructions to register to vote, not knowing that they are not eligible to register or to vote. They may have mistakenly checked yes to the question asking whether they are a U.S. citizen. Worse, some of them may have actually voted in Federal or State elections.

What further complicates the situation is that, applicants typically don't even know they have violated the laws until the time when they apply for naturalization. The naturalization application (N-400) specifically has questions on this issue, and the applicant must also testify under oath whether they have registered to vote or voted in U.S. elections.

In these situations, if the voter registration was unintentional, the applicant should try to contact the State DMV or election office to cancel the registration, and to gather evidence showing it was a mistake. Evidence might include written statements or affidavits from officials confirming the error. This is not usually easy to achieve, especially if the registration took place a long time ago.

One should not hesitate to seek advice from legal counsel in this situation. A false claim to U.S. citizenship not only results in denial of naturalization, but may also lead to deportation. Consulting with an immigration attorney is crucial, before you file an application for green card or naturalization, to navigate the complexities of the case and present a strong defense during the naturalization process.

Conclusion

Registering to vote as a non-citizen is a serious issue that can lead to ineligibility for U.S. green card and citizenship. Addressing the issue promptly, gathering evidence of the mistake, and seeking legal guidance are essential steps to mitigate the consequences.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  



Saturday, May 18, 2024

Celebrating the Contributions of Asian Americans, Native Hawaiians, and Pacific Islanders: A House Resolution




The U.S. House of Representatives recently introduced a resolution (H. Res. 1228) to recognize the significance of Asian American, Native Hawaiian, and Pacific Islander Heritage Month. This resolution honors the invaluable contributions these communities have made to the history, culture, and progress of the United States. A House Resolution (HR) is a formal statement or decision adopted by the U.S. House of Representatives to express the opinions, intentions, or sentiments of the House. They can recognize individuals or groups, or declare national observances.

Resolution to Recognize and Celebrate

The House Resolution acknowledges the significant contributions of Asian Americans, Native Hawaiians, and Pacific Islanders (AANHPIs) to U.S. history and culture. It also celebrates May as Asian American, Native Hawaiian, and Pacific Islander Heritage Month, based on historical events like the arrival of the first Japanese immigrants on May 7, 1843, and the completion of the transcontinental railroad on May 10, 1869, largely built by Chinese laborers. The AANHPI population in the U.S. has grown rapidly, with Asian Americans increasing by 55.5% and Native Hawaiians and Pacific Islanders by 30.8% from 2010 to 2020.

Key Anniversaries and Contributions

The House Resolution also commemorializes relevant anniversaries, and also recognizes notable government figures such as Dalip Singh Saund, Daniel K. Inouye, Patsy T. Mink, and Vice President Kamala D. Harris. Similarly, it also issues commemorative quarters for figures like Anna May Wong (first Chinese American film star in Hollywood who gained international recognition), and Patsy Mink, and the establishment of a commission to study the creation of a National Museum of Asian Pacific American History and Culture.

Recent Increase in Anti-Asian Hate CrimesSince March 2020, there has been a dramatic increase in anti-Asian hate crimes. In 2020 and 2021, there were 124% and 339% increase in Anti-Asian hate crimes respectively. Over 11,500 hate incidents have been reported since the start of the pandemic through March 2022, according to Stop AAPI Hate.

Historical Context of Anti-Asian Discrimination

The House Resolution also calls out discrimination against Asian Americans in the United States, especially during crises, including Legislative Acts such as the Page Act of 1875 (Restricted the entry of Asian women, effectively prohibiting Chinese women from immigrating and limiting Chinese family formations in the U.S.); Chinese Exclusion Act of 1882 (The first law to explicitly exclude an entire ethnic group from immigrating to the U.S.); Executive Order 9066 (Authorized the forced relocation and incarceration of approximately 120,000 individuals of Japanese ancestry during World War II); Sikh Temple Shooting of August 5, 2012, in Oak Creek, Wisconsin (A white supremacist killed six people and wounded four others); etc.

In response to the rise in anti-Asian hate crimes during the pandemic, Congress passed the COVID-19 Hate Crimes Act, which was signed into law by President Joe Biden on May 20, 2021.

The Significance of This Resolution

This House Resolution serves as an important acknowledgment of the diverse and impactful contributions of AANHPI communities to the United States. It provides an opportunity for Americans to celebrate and learn about the rich cultural heritage and history of these groups, while also recognizing the challenges they have faced and continue to overcome.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  




The U.S. Issued Record 5.2 Million Nonimmigrant Visas

 



For those considering a journey to the United States, there has never been a better time to apply for a visa. The U.S. Department of State is having an exceptional year in visa processing, making it easier for travelers, students, and workers to come to the U.S. Here’s what you need to know about the latest updates and achievements in visa issuance.

A Historic Year for Visa Issuance

In the first half of the 2024 fiscal year (October 2023 to March 2024), the State Department issued nearly 5.2 million nonimmigrant visas globally. This impressive figure surpasses all previous records for the same period. Notably, 30% of U.S. embassies and consulates set all-time records for the number of nonimmigrant visas issued.

The Department of State plays a crucial role in facilitating travel and tourism, a vital sector for the U.S. economy. International visitors contribute significantly, with recent figures showing an annual impact of $239 billion, supporting approximately 9.5 million American jobs.  The following are the key highlights from FY 2024.

Tourism and Business Travel (B1/B2 Visas):

  • Nearly 4.1 million B visitor visas (including border crossing cards) were issued for tourists and business travelers.
  • The highest-volume missions, including Mexico, India, Brazil, China, Colombia, Argentina, the Dominican Republic, and Ecuador, issued a record number of visas.

Academic and Workforce Contributions (F, M, J, H Visas):

  • 134,000 exchange visitor program participants and 115,000 students received visas, reinforcing the U.S. as a top academic destination.
  • Temporary or seasonal worker visas reached a record-breaking 205,000, supporting essential sectors like agriculture.
  • Almost 160,000 visas were issued to airline and shipping crew members, the second-highest half-year record.

Family Reunification and Employment (Immigration Visas):

  • Over 281,000 immigrant visas were issued in the first half of FY 2024, with a quarter of embassies and consulates surpassing past decade records.
  • More than 152,000 visas were issued to immediate family members of U.S. citizens, setting a new record for this category.

Enhancing Visa Processing Capabilities

To meet the growing demand for U.S. visas, the State Department has implemented innovative technological solutions and expanded the use of secure tools, such as waiving in-person interviews for eligible applicants. These measures ensure timely processing while maintaining strict national security standards.

What This Means for You

If you are planning to visit, study, or work in the United States, the current momentum in visa processing means your application is likely to be handled more efficiently than ever. The Department of State’s commitment to supporting the U.S. economy and American families through effective visa processing is stronger than ever.


(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  




Thursday, May 9, 2024

A Second Drawing for H-1B Lottery?



USCIS released the number of H-1B registrations for H-1B FY 2025 recently.  The government received 470,342 eligible registrations for this year’s lottery, representing a 38% decrease from 758,994 entries last year.  The number of H-1B applicants participating in the lottery is quite stable. Approximately 442,000 workers applied this year, compared with 446,000 last year.  Similarly, the number of employers this year was approximately 52,700, comparable to last year's number of  approximately 52,000. 

Significantly, the number of eligible registrations for workers with muliple registrations dropped significantly from 408,891 last year to 47,314 this year. This indicates that the government's "one-person-one-chance" policy is effective. 

Is a second drawing possible? Last year, USCIS selected 110,791 registrations in the initial drawing for FY 2024, which is lower than previous years, because the agency expected a higher anticipated petition filing rate last year and also higher approval rates of H-1B visas by overseas consulates.  As a result, a 2nd drawing was needed to use up the H-1B cap.  This year, USCIS selected 120,603 registrations in the first draw, which is also a smaller number than in previous years.  Because selection is based on unique beneficiaries, USCIS again expected a higher petition filing rate this year.  However, 120,603 is 9,812 greater than last year's initial number, leaving less visa numbers for a second draw.

However, a second drawing is still a real possibility based on economic data and anecdotal evidence.  The recent numbers of initial unemployment filings are on the rise, indicating that the job market is finally cooling down. We have clients who are considering dropping some selected cases for workers who are non-performers. Hence, it is likely that the petition filing rate may not be as high as anticipated.  If so, there may be unused H-1B visa numbers after the initial filing window ending in June is closed.  Of course, this is a double-edge sword, a deteriorating economy may also mean that employers are less likely to continue sponsorship even if a worker's registration is selected in the second drawing.  


(Source: USCIS.gov)



(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  




Wednesday, May 1, 2024

Checklist to Avoid H-1B Denial and Request for Evidence

 


As in the previous years, the H-1B lottery for FY 2025 was equally intense.  USCIS just announced that it selected 114,017 unique beneficiaries from the lottery, with 120,603 selected registrations in the initial selection performed in the last few days of March.  The use of the word “initial” suggests that USCIS is likely to make another selection.  Hence, the unselected applicants should not give up hope yet.  For the lucky selectees, this is no time to relax. Formal requests for evidence are very common in H-1B cases, and a percentage of cases are denied every year.  The following are some common reasons for the issuance of RFEs and/or denials:


1)  Failure to prove “specialty occupation”:  H-1B visas are issued to professional workers who engage in a “specialty occupation,” which normally requires a bachelor’s or higher degree in a specific subject area, or its equivalent, as the minimum requirement to enter the profession.  The employer may also prove that its company usually requires a degree for the position, or that the job nature or duties are so complex or unique that it can be performed only by an individual with a degree.

2) The petitioner is not an eligible H-1B employer:  USCIS routinely verify an employer’s corporate and financial information with government and commercial databases such as those provided by Dun & Bradstreet.   RFEs will be issued if the corporate name, identity, address, federal employer ID number, etc., do not match with the information provided by these databases.  Newer and smaller companies’ H-1B petitions are particularly vulnerable, as they may be viewed as too small to need the services of an H-1B employee.

3) Failure to prove a bona-fide position: USCIS promulgated a new rule in October 2023 to modernize  H–1B requirements.  One of the requirements is that the employer must prove that there is a real and concrete job offer for the beneficiary.  Documents such as business contracts, third-party agreements, project or program documents, etc., are required to support the petition.

4) Issues with job location: The job location is also an area of focus in many RFEs, as it affects both the market wage and also veracity of the job offer. The actual locations where the job duties will be performed must be correctly reported in the Labor Condition Application (LCA).   If the job location is wrong or unclear, or if there are multiple locations, an RFE will likely be issued. Remote and hybrid work arrangement is common in the post-COVID19 era.  Employers should be particularly careful with this issue.

5) Payment of market wages: Employers are required to pay H-1B employees market wages (or actual wages if higher) as stated in the Labor Condition Application.  H-1B jobs are usually professional occupations that command higher salaries than average. If the LCA contains incorrect wage information, or if it is not clear that the employer has sufficient financial resources to pay the required wage, an RFE will be issued.  For smaller companies that do not have sufficient business profits, other evidence must be submitted to satisfy this requirement.

6) H-1B employee’s education and qualifications:  H-1B occupations usually require the attainment of a bachelors’ degree or its equivalent in order to enter the profession.  Many jobs also require other qualifications such as previous training and work experience.  Professional jobs may also require state-issued licenses and professional degrees.  If it is not clear from the H-1B petition submitted that the foreign worker processes the required qualifications for the position, an RFE will definitely be issued.

7) Correct filing address, fees, forms, etc.:  Last but not least, many H-1B petitions are rejected or denied for technical reasons such as use of wrong filing address and payment of incorrect fees.  USCIS made substantial changes in the filing addresses, application fees, and form editions as of April 1st of this year.  Applicants should double-check their petitions before filing to ensure that there are no technical errors.

There are other reasons for issuing RFEs and/or denials in H-1B petitions.  In fact, USCIS can actually deny an H-1B petition outright without issuing an RFE first if it is determined that additional evidence will not be possible to overcome the deficiencies in the petition. Sometimes, USCIS may also issue a Notice of Intent to Deny (NOID) if there is little or no evidence submitted, or if there is a discretionary issue in the case to consider (although the basic requirements are net).  Hence, it is important to provide a well-prepared and legally sufficient H-1B petition.


(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  




Tuesday, April 23, 2024

USCIS Clarifies Schedule A Exceptional ability in Sciences and Art

 


Many foreign workers have heard about the EB-1A “extraordinary ability alien petition” and the EB-2 “national interest waiver” petition. These are two types of employment-based green card applications that an applicant may file by themselves, without sponsorship by a U.S. employer. Additionally, applicants can submit these two types of petitions directly with the USCIS without first obtaining a labor certification from the Department of Labor.

The purpose of the labor certification is to test the American job market to see if there are able, willing, qualified and available American workers for the position. If such workers exist, the employer must first offer the position to them. Under the employment-based categories, there is a sub-category of positions under Schedule A that is also exempt from the labor certification requirement.

Schedule A Group I pre-certifies job openings for physical therapists and nurses, while Group II pre-certifies positions that require exceptional ability in "sciences and art". Foreign workers may submit their immigrant visa petitions with USCIS directly without first obtaining a labor certification. However, they must have a full-time offer of employment by a U.S. employer, and also demonstrate exceptional ability in sciences and art.

USCIS recently clarifies that “science or art” means any field of knowledge or skill which colleges and universities commonly offer specialized courses leading to a degree in the knowledge or skill. This definition is adapted from existing DOL regulations. With this definition, most professional and skilled occupations would qualify.

To apply under the Schedule A Group II sub-category, the employer must provide notice of the opening to bargaining representatives, or to its employees. To prove exceptional ability, there must be evidence that the employee's achievements have enjoyed “widespread acclaim” and “international recognition”. The employee must provide evidence to satisfy at least 2 of these 7 criteria:

  1. Receipt of internationally recognized awards;
  2. Membership in international associations that require outstanding achievement;
  3. Published material in professional publications about the employee or his work;
  4. Participation as a judge, reviewer, or juror of the work of others;
  5. Original scientific or scholarly research contributions of major significance in the field;
  6. Authorship of published scientific or scholarly articles in international or professional journals; and
  7. Display of the beneficiary’s work, in the field, at artistic exhibitions in more than one country.

Further, there must be evidence that the beneficiary’s employment during the past year, and also the position offered in the U.S., must also require exceptional ability.

For workers with exceptional or unusual ability that do not meet the requirements of EB-1A and NIW petitions, Schedule A Group II offers an alternative avenue for them to apply for U.S. green cards without going through the lengthy labor certification process.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)