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By Ekaterina Powell, Esq.

On July 11, 2014, USCIS released new guidance on adjudication of H-1B petitions for nursing occupations, which superseded the previous USCIS Memorandum of Johnny Williams, INS Office of Field Operations, Guidance on Adjudication of H-1B Petitions filed on Behalf of Nurses, HQISD 70/6.2.8-P (November 27, 2002).

New USCIS guidance has the “Policy” designation, which means that it has to be followed by USCIS adjudicators.

Below is the summary of the most important points of the new guidance.

  • Most registered nurse positions do not qualify for H-1B because they do not normally require a U.S. Bachelor’s or higher degree in nursing as the minimum requirement for entry into the particular positions.
  • Advanced practice registered nurse (APRN) positions normally qualify for H-1B because they require a bachelor’s degree in a specific specialty as the minimum for entry into the occupation. This is because the job duties of APRN also include many additional functions that RNs do not normally perform, such as for example ordering and evaluating test results, referring patients to specialists, and diagnosing and treating ailments. APRNs utilize extended and expanded skills, experience and knowledge in assessment, planning, implementation, diagnosis and evaluation of care required. APRNs focus on patient-centered care, which means understanding a patient’s concerns and lifestyle before choosing a course of action.
  • The following is a non-exhaustive list of APRN occupations that may qualify for H-1B:
  1. Certified Nurse-Midwife
  2. Certified Clinical Nurse Specialist
  3. Certified Nurse Practitioner
  4. Certified Registered Nurse Anesthetist
  • If a state requires at least a bachelor’s degree in nursing to obtain a nursing license, an RN position in that state would generally qualify for H-1B – at this time, no state requires a bachelor’s degree in nursing for licensure. However, state licensure requirements are subject to change.
  • There may be situations when the petitioner may be able to show that an RN position qualifies for H-1B. USCIS will evaluate the facts of each case to determine whether the following positions may qualify for H-1B:
  • Addiction nurses
  • Cardiovascular nurses
  • Critical Care nurses
  • Emergency room nurses
  • Genetics nurses
  • Neonatology nurses
  • Nephrology nurses
  • Oncology nurses
  • Pediatric nurses
  • Peri-Operative (Operating Room) nurses
  • Rehabilitation nurses
  • Other nurses
  • USCIS uses the following criteria to determine whether the particular RN position qualifies as a specialty occupation:
    1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
    2. 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;
    3. The employer normally requires a degree or its equivalent for the position; or
    4. The nature of the duties [is] so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
    • Specifically, in order to determine whether the particular RN position qualifies for H-1B, USCIS will take into account the following:
      • The nature of the petitioner’s business – The petitioner could substantiate that due the size of the organization, the level of responsibilities of RN is much higher than at other establishments;
      • Industry practices – The petitioner needs to show that it is the industry standard to require an RN in the particular position to have a bachelor’s degree in a specific specialty as the minimum for entry into the position;
      • A detailed description of the duties to be performed within the petitioner’s business operations – The petitioner needs to show that the duties of the particular position go beyond typical duties of an RN and are sufficiently specialized and complex that the knowledge required to perform the duties in usually associated with the attainment of a bachelor’s or higher degree in nursing;
      • Advanced certification requirements – such as for example progressive care certified nurse, critical care RN, critical care RN e-ICU, critical care nurse specialist, acute care nurse practitioner, certified nurse manager and leader, cardiac medicine sub-specialty nurse, and cardiac surgery sub-specialty nurse;
      • ANCC Magnet Recognized status – as evidence that the organization has the majority of RNs with bachelor’s degrees;
      • Clinical experience requirements;
      • Training in the specialty requirements; and
      • Wage rate relative to others in the occupation – if the wage rate is significantly higher than for other RNs, it shows the increased level of responsibility.
    • Administrative Nurse Positions – can they qualify for H-1B? The new Policy Guidance makes no direct mention of Charge Nurses and nurses in other administrative capacities, leaving it unclear whether they can still qualify for H-1B visa. The only notation applicable to nurse managers can be found when the guidance talks about Magnet Recognition program. In footnote 9 to the Policy memo, USCIS states that “as of January 1, 2013, 100% of nurse managers of individual units/wards/clinics must have at least a baccalaureate degree in nursing upon submission of the Magnet application.” Thus, it seems like USCIS will consider the facts of each case to determine whether the particular position of charge nurse or nurse manager qualifies as a specialty occupation worthy of H-1B visa.
    • Previous USCIS guidance of 2002, on the other hand, specifically mentioned that nurses in administrative positions, such as an upper-level “nurse manager” in a hospital administration position, could qualify for H-1B.

    If you are considering filing an H-1B petition for a nurse, our office can help you determine if the particular position could qualify for H-1B and can help you with the entire H-1B process.

     

    It is a pleasure for our law office to introduce associate attorney Nadia Galash to our readers

    Bio: Nanadiadia Galash has been a California licensed attorney since 2009 and has been practicing immigration law since 2011. Nadia Galash specializes in adjustment of status/permanent resident processing; citizenship; deportation and removal proceedings before Immigration Court; law and motion work; and immigration appeals. Her practice although limited also includes criminal defense and family law matters.

    Nadia is a Russian attorney with 3 children. In her free time she enjoys yoga and meditation.

    For more information on her bar admissions and achievements please visit our webpage. 

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    The rise in the number of unaccompanied children crossing into the United States illegally has dominated talks between lawmakers, pundits, political analysts, and humanitarian organizations, all of whom have a stake in bringing about comprehensive immigration reform. According to reports by the New York Times, since the month of October, over 50,000 children have been caught crossing the United States border illegally; a number that is double the amount of children who crossed illegally in 2013. This issue has become a point of contention not just for pro-immigration reform advocates, but has also transformed into a humanitarian issue worthy of continued debate, due to the dangerous nature a child succumbs to in making the dangerous trek to the United States unaccompanied and vulnerable.

    Where are these children coming from you might ask? The vast majority of these unaccompanied children are coming from poverty stricken towns across El Salvador, Guatemala, and Honduras, which are also notorious for their violence. The New York Times reports that unaccompanied children from Mexico make up less than a quarter of the total amount of children coming to the United States illegally. The increase in the number of children crossing into the United States illegally began in 2012. Of the children that were apprehended, more than 70% were caught crossing through the Rio Grande Valley in Texas, while only 13% were caught crossing through Tucson, Arizona.

    Though experts have continuously debated the reasons why these unaccompanied children are coming to the United States, most agree that there are various factors which drive these children to escape the conditions in their country: poverty, violence, and the desire to re-unite with their families. Among the countries mentioned, Honduras boasts the world’s highest murder rate. Children coming from Guatemala and El Salvador tend to come from very poor and rural towns. Some of the problem may lie in the fact that previously, minors who were detained were not immediately deported. This may have led many Central Americans with the perception that the Department of Homeland Security would allow these children to remain in the United States.

    Under current law, Mexican children can be deported from the United States much faster than children from countries that do not share a border with the United States, though efforts are being made in Congress to change these existing laws. Currently, Central American children are given a court hearing before being deported and immigration proceedings are initiated. The Department of Health and Human Services provides children with a health screening, immunizations, and temporary shelters where they can stay for about 35 days. 100 permanent shelters exist near the US-Mexico border which are run by the Department of Health and Human Services, but due to the rise in the amount of children being detained, temporary shelters have opened on military bases across California, Oklahoma, and Texas. In other cases children who are not placed in temporary shelters are allowed to stay with a family member or sponsor who can care for them within the United States while their immigration proceedings are pending.

    One thing is clear; this issue is a multilateral issue which must be ameliorated with the help of the Central American and Mexican governments. The United States is grossly unprepared and understaffed to face such a complex issue. The United States has launched several programs to assist El Salvador, Guatemala, and Honduras in its repatriation efforts and in improving the security of its citizens and the overall rule of law in their countries. Domestically, the Department of Justice and DHS is attempting to bolster its efforts to increase enforcement and create laws that will allow ICE to more effectively detain and remove minors. This approach has met great criticism from political analysts, who argue that increasing border enforcement will not and has not solved the problem, and in many ways has made the issue worse. For more information on congressional initiatives regarding this issue please visit the White House Fact Sheet by clicking here. To listen in on Attorney Jacob J Sapochnick weighing in on the subject please watch the video below.

     

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    By Lupe Lopez

    Alan and Diana married in February 2014.  They quickly filed for Diana’s green card and because they had been married less than two years at the time of the interview, Diana received conditional permanent residence.  Everything was fine and there were no problems until Alan received a promotion to a position in one of the firm’s overseas offices.  Both Alan and Diana were concerned because they knew that Diana would not be able to spend much time out of the U.S. and still maintain her permanent residence.

    Alan and Diana came to our office in to get an attorney’s opinion of their situation and to see if there was any way they could file a form that would maintain Diana’s permanent residence while living abroad.  Normally, if you are a permanent lawful resident, you cannot be out of the country for an extended period of time if you wish to maintain your residency; especially for the purpose of obtaining citizenship.  In order to be naturalized as a U.S. Citizen, the permanent resident must fulfill residency requirements and show evidence that he or she has been physically present in the United States for at least half of the three years (for people who have gained status through marriage to a U.S. Citizen – half of five years for all others).  Diana would not be able to accumulate the time needed if she is forced to live abroad with her husband.

    After review of their specific situation, the attorney was able to determine that Diana could file for expedited naturalization under Section 319(B) of the Immigration and Naturalization Act.  The requirements for filing under this section of the INA include:

    1. Marriage to a U.S. Citizen and living together in a valid marital union;
    2. The U.S. Citizen must be “regularly stationed abroad” in the employment of:
    • The U.S. government; or
    • An American Institution of research recognized as such by the Attorney General; or
    • An American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the U.S., or a subsidiary thereof; or
    • A Public International Organization in which the U.S. participates by treaty. Per Title 8 of the Code of Federal Regulations, Part 319.5, these organizations are: The North Atlantic Treaty Organization and the UN and all agencies and organizations which are a part thereof, or
    • Is authorized to perform the ministerial or priestly functions of a religious denomination having a bona fide organization within the U.S. or is engaged solely as a missionary by a religious denomination or by an interdenominational mission organization having a bona fide organization with the U.S.; and

    3. You comply with all applicable naturalization requirements of Sections 316 & 319 of the      Immigration and Nationality Act, Parts 316 and 319.2 of the Title 8 of the Code of   Federal Regulations.

    4. Your USC spouse must have at least one year remaining on his or her overseas duty at the time of naturalization.

    5. The green card holder must show evidence that he/she will return overseas within 45 days of the naturalization.

    If the green card holder is within 90 days of the expiration of their conditional permanent residence, then he/she will also need to file for removal of conditions in conjunction with their N400.

    Persons intending to file for naturalization under Section 319(b) may be interviewed and naturalized at a USCIS office of their choice in the United States, including Guam, Puerto Rico, and the Virgin Islands of the United States.  Once he/she becomes a U.S. Citizen, they will be required to have a U.S. Passport issued to you prior to departing the United States.

    There are other situations under which you may have expedited citizenship.  Our Law Firm will verify that you fulfill all the requirements for filing and ensure that your paperwork is completed correctly.  If you are interested in receiving more information, please feel free to call our offices.

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    By Yingfei Zhou, Esq.

    The Conrad 30/J-1 Visa Waiver program allows J-1 medical doctors to apply for a waiver of the 2-year residence requirement upon completion of the J-1 exchange visitor program. From October 1 through September 30 of each year, up to 30 waivers can be recommended by each state’s Department of Health. If the home government funded the physician’s exchange program, the physician also needs to obtain a “no objection” letter from his or her home country. Once the waiver is approved, applicants can file for cap-exempt H-1B visa to work for the health care facility.

    In order to be eligible, the applicant must be a physician practicing clinical medicine full time (no less than 40 hours per week) in an area designated by U.S. Department of Health and Human Services (HHS) as a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), or Medically Underserved Population (MUP). The employment should commence within 90 days from the date the waiver is approved by the USCIS.

    The facility, on the other hand, upon recommendation of waiver application, must accept Medicaid/Medicare clients, employ a discounted/sliding fee schedule for low-income clients, and post a notice in a conspicuous place in the waiting area that all clients will be seen regardless of their ability to pay.

    The deadline for submitting applications is the first Monday in November of every year. The application process is on a first come, first served basis. There are no restrictions regarding the type of specialists allowed, with the exception of those involved in care that is not medically essential, such as, cosmetic surgery. Each state may have its own priorities, depending on the needs.

    Take Florida for example, where primary care specialists that include family medicine, internal medicine, pediatrics, obstetrics and gynecology, psychiatry, and hospitalist specialties, are the priority for the State of Florida. Additional waivers for specialists will be considered only if there are unused waivers after the review and scoring process is complete.

    Normally, there is no limit to the number of applications submitted by an employer. However, only one application per specialty may be recommended. If unused waiver slots remain, additional applications from similar specialties may be considered. The State will ask the employer to prioritize the applicants from similar specialties based on their clinic needs. So, we recommend you to check on your state’s public health department website for specific details.

    With regard to an application process, there are two steps: 1) first to obtain your waiver case number from the U.S. Department of State (DOS); 2) then to obtain the sponsorship of your state health department.

    The first step is much the same with other types of J-1 Visa Waiver application. The Conrad 30 applicant first obtains his or her waiver case number, by completing Form DS-3035, J-1 Visa Waiver Review Application at the U.S Department of State website at: https://j1visawaiverrecommendation.state.gov/. Once the DS-3035 is submitted online, applicant needs to assemble and mail application packet to the Department of State, including the submitted DS-3035, check for application fee in the amount of $215 per applicant, the applicant’s passport I.D. page containing name and birth date, copies of all DS-2019, statement of reason, Form G-28 is the application is prepared by an attorney, and one self-addressed, stamped envelope.

    The second step is distinguished from other types of J-1 Visa Waiver, which is to obtain a recommendation from the state’s health department. Normally, this process takes about 3 months if the case is prepared is a correct way.

    For this step, again, we recommend you the check with your state’s J-1 Visa Waiver Program guidelines and procedures, as the documentation requirements may vary from state to state. The documents commonly required by state health agency are:

    1) State J-1 Visa Waiver application form,

    2) cover letter from the practice facility that indicates a desire to hire the physician,

    3) employment contract,

    4) physician attestation,

    5) employer attestation,

    6) evidence of shortage designation status,

    7) copies of the facility’s discounted/sliding fee schedule and the public notice of the availability of the discounted/sliding fee schedule,

    8) copy of the physician’s medical license,

    9) personal statement from the J-1 physician regarding his or her reason for not wishing to fulfill the two-year home country residence requirement,

    10) Form DS-3035,

    11) copies of all DS-2019s,

    12) a “no objection” letter if foreign government funding is involved in the J-1 program, and

    13) G-28 form is the case is prepared by an attorney.

    Some states may also require the Department of State Waiver Case File Number appear on the lower right corner of every page of the application.

    Once approved at the State Health Department’s level, the state public health department that agreed to sponsor the J-1 medical doctor for a waiver must then send the waiver application to the Department of State Waiver Review Division (DOS-WRD) for a recommendation. Once the recommendation is issued, its Waiver Review Division will forward a recommendation letter directly to the USCIS and the case is considered closed at the Department of State. Any further action on the case falls under the jurisdiction of the USCIS.

    USCIS will then make a final determination on whether to approve the waiver application.  Upon a favorable recommendation by the Department of State, USCIS will generally grant the waiver as long as there are no underlying concerns. USCIS will provide written notice of its decision (I-612 Approval Notice) to the J-1 medical doctor and his or her representative (if applicable).

    There are quite a few responsibilities after being granted a Waiver:

    • The petitioner must submit a Form I-129, Petition for a Nonimmigrant Worker, along with the Department of State favorable recommendation letter, in order to request a change of the J-1 medical doctor’s nonimmigrant status to H-1B.
    • The spouse and/or child of the waiver recipient must submit Form I-539, Application to Extend/Change Nonimmigrant Status, in order to change status from J-2 to H-4 nonimmigrant status.
    • The J-1 medical doctor must practice medicine full time (40 hours per week) for at least three years in an area designated by HHS as a HPSA, MUA, or MUP and the employment must commence within 90 days after Waiver approval.
    • Some states require the J-1 physician and employer to complete practice status report every year to allow the state to monitor the status of the J-1 physician and information about the practice sites. The state agency or its representatives may also conduct periodic monitoring through telephone calls or site visits to ensure compliance with federal and state policies and procedures.
    • Contract changes which result in termination of employment, change in practice scope, or relocation from a site approved in the application request to a new site must be presented in writing to the state health agency prior to the change. If waiver recipient fails to fulfill the terms and conditions imposed on the waiver, he or she (and his or her spouse and/or child) will once again become subject to the 2-year foreign residence requirement under section 212(e) of the INA. Once the Conrad 30 waiver recipient has fulfilled all of the terms and conditions imposed on the waiver, including the 3-year period of employment with the health care facility, he or she (and his or her spouse and/or child) will become eligible to apply for an immigrant visa, permanent residence, or H or L nonimmigrant visa.

    If you need to more information about a specific state’s Conrad 30/J-1 Waiver program, please feel free to contact us.

     

    Great news for Indian Nationals! The United States Department of State Bureau of Consular Affairs recently released the August Visa Bulletin which summarizes the availability of immigrant visas for the month of August for family-based and employment-based visa preferences. According to Section 201 of the Immigration and Nationality Act (INA) the allotted number of employment based visas is set to at least 140,000 visas for the worldwide level. The Visa Bulletin for August indicates that the second preference EB-2 employment-based category for India has advanced by 5 years when compared to the Visa Bulletin in the recent year. The advancement of the employment based second preference EB-2 category provides Indian nationals whose Form I-140 Immigrant Petition for Alien Worker was approved and whose priority dates fall before January 22nd of 2009, with the opportunity to apply for their green cards beginning August 2014. For priority dates related to family sponsored preferences and diversity immigrant categories please click here to read the August Visa Bulletin. For legal questions please contact our office and we would be happy to help.

    Employment Based

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    Want to track the status of a pending case? Moving to a new address? Want to report a problem with your case? No problem!

    Our loyal fans and followers, who communicate with us through our various social networking sites and web page, often ask our law office how they can track or check the status of their pending case, how they can change their address with USCIS while their case is pending, and how they can report a problem with their case. These are all very important questions. It is imperative that all applicants who have pending cases with USCIS regularly check the status of their case both online and by calling USCIS. There are several ways to communicate with USCIS. You can check the status of your pending case online, submit a service request online, schedule an Infopass online, and submit a change of address online.  For time sensitive issues, applicants should check the status of their pending case or report a problem with their pending case by calling USCIS directly by phone. In this post we will walk you through the steps of how to communicate with USCIS via all of these methods.

    How to check the status of a case online:

    In order to check the status of your pending case online you will need to have your receipt notices on hand and locate the receipt number(s) on the notice(s).

    Note: Most cases are issued more than one receipt notice so it is important for you to gather all documentation you have received from USCIS.

    The receipt number always appears at the top left corner of the receipt notice underneath the case type. In order to check the status of a pending case you will need to visit the following website: https://egov.uscis.gov/cris/Dashboard/CaseStatus.do.

    Once you have located the receipt number on your receipt notice, you must input your receipt number in the appropriate space marked ‘Enter your receipt number’. Once you have done so click on ‘Check Status.’ The status of your case will appear and will indicate whether your case has been accepted, is under initial review, in the testing and interview stage, decision stage, post decision stage, or in its final stage of card/document production.

    It is important to note that in order to get the most accurate representation of what phase your pending case is in, it is advisable that you call USCIS directly. At times the website may contain errors or inaccurate information. Please always consult USCIS directly by telephone for all serious and time sensitive inquiries. For emergency situations it is best to schedule an Infopass appointment as soon as possible. Infopass appointments are highly coveted please refer to the Infopass section on how to schedule an appointment.

    How to check the status of your case with USCIS via telephone:

    In order to check the status of your pending case with USCIS via telephone you will need to obtain your receipt notice(s) and locate your receipt number(s). If you are the petitioner for the pending case you must have the applicant present at the time you are calling to inquire about the pending case. You will also need to have your personal information handy in case the customer service officer needs this information to process your request. The phone number you will need to call to inquire about your pending case is 1-800-375-5283. For the hearing impaired the phone number is 1-800-767-1833. Follow the prompts and punch in your receipt number on the prompt. Wait to be connected to the first level of customer service. If you are calling to submit a service request or to verify basic information about your case you will only need to speak to the first level of customer service. If you are calling to report a problem with your case or need more detailed information on the status of your pending case, you will need to ask the customer service officer to transfer you to the second level of customer service. Once you are transferred to the second level of customer service, you will have the option to request a call back whereby USCIS will call your telephone number once an officer is able to take your call. The call back feature is an automated system which records your name and phone number putting you in line for a call back based on the order your phone call was received. The second level of customer service will be able to answer most questions, update you on the status of your case, verify the information on file for your case, and submit a service request on your behalf should there be a problem with your case. For all changes of address the applicant will need to submit Form AR-11 online. You can also follow up with USCIS once you have made the change of address online.

    How to schedule an Infopass appointment:

    First Step: Visit https://infopass.uscis.gov/ the screen will look like this when you first begin:

    infoass

    Second Step: Click on your language on the top left corner

    Third Step: Your screen will look like this, Click on ‘Make your appointment with Infopass’2

    Fourth Step: Enter your zip code and country of residence from the drop down menu provided

    3

    Fifth Step: Select the Office closest to you and click continue

    4

    Sixth Step: Select the kind of service you will need. Most of the time it will be the first option and click continue

    5

    Seventh Step: Next you will see this screen select the second option if the others do not apply and click continue

    6

    Eighth Step: Enter the following information then click continue. The A# and Receipt # are very important for your case

    7

    Ninth Step: The first available appointment will appear on your screen click on it and click continue

    8

    Tenth Step: The available time slots will appear on your screen click on your desired time slot and continue

    10

    Eleventh Step: Verify that the information on the screen is correct and make any changes as necessary and click ‘Schedule’

    11

    Twelfth Step: The confirmation page will look similar to this; print it for your records and bring it to the appointment. Follow the instructions on the confirmation page

    12

    To cancel, reschedule, or reprint an Infopass appointment go back to the main menu which looks like this:

    16

    How to Submit a Change of Address Form AR-11 Online:

    Visit https://egov.uscis.gov/coa/displayCOAForm.do gather your personal information and have your receipt numbers on hand. Once you have submitted the change of address print and save the confirmation page (Form AR-11).

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    How to Submit a Service Request Online and By Telephone: 

    Visit https://egov.uscis.gov/e-request/Intro.do to submit a case inquiry if your case is outside the normal processing time, you did not receive a notice by mail, you did not receive a card by mail, or if you did not receive a document by mail and to submit a service request based on a typographical error on a case or to request appointment accommodations for an interview appointment. It is also possible to submit a service request or case inquiry by calling USCIS directly.

    If you have any questions about these methods of communication please contact our office. 

    For more tips remember to follow us on FacebookYoutubeTwitter, and Instagram 

    By Ekaterina Powell, Esq.

    Since the H-1B season kicked off on April 1, 2014, USCIS has started issuing Requests for Evidence (RFE). This article will address the RFE trends and practice tips.

    Below are 4 main points USCIS addresses in the RFEs:

    • Specialty Occupation
    • Sufficient Specialty Occupation Work
    • Right to Control the Beneficiary’s Employment
    • Beneficiary’s Qualifications

     1. Specialty Occupation

    In order to qualify for an H-1B, you have to show that the proposed position is what’s called a “specialty occupation.” Specialty occupation is defined as “an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge, and (b) 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.”

    If a particular position requires just a generalized bachelor’s degree however, it will not satisfy the specialty occupation standard. USCIS holds the position that the occupation has to require a degree in a specific specialty. USCIS does not further explain what “specific specialty” means, which is subject to interpretation. Generally, USCIS accepts that a position, which requires a bachelor’s degree in a narrow field of related fields as a normal minimum requirement for entry into the occupation, could satisfy the specialty occupation standard.

    Neither the statutes nor the regulations or policy memoranda have a list of specialty occupations, which presents a lot of challenges for employers trying to bring qualified workers from abroad. Because there is no list of occupations that would qualify as “specialty occupations,” each H-1B petition is analyzed by USCIS on a case-by-case basis.

    What is even more confusing is that even if USCIS finds one occupation to be a specialty occupation, it can deny another H-1B petition for the same position. This is because USCIS does not consider the job title on its own in its determination whether the position qualifies as a “specialty occupation.” Instead, the specific duties of the offered position combined with the nature of the petitioner’s business are factors that USCIS considers.

    When USCIS has concerns that a particular position may not be complex enough to qualify as a specialty occupation, it issues an RFE asking to prove one of the following prongs:

    1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
    2. 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;
    3. The employer normally requires a degree or its equivalent for the position; or
    4. The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

    Even though the language of the regulations provides that it is enough to satisfy any one of the prongs above, it is advisable to address each of them and to submit proof for as many elements as possible with the RFE response.

    In particular, it is helpful to include evidence of job advertisements found on the internet for the same position with the same degree requirements from similar businesses and letters from other businesses explaining their hiring practices for the same position. The goal is to show that other companies in the same field similar to Petitioner’s business also have bachelor’s degree requirement for the position offered to the H-1B beneficiary.

    In addition, it proves helpful to submit Petitioner’s past employment practices of hiring degreed individuals for the same or similar positions by providing employment records (quarterly wage reports, W-2s) and degrees of those individuals.

    Finally, it is helpful to explain in lay terms why the position offered to the beneficiary requires a degreed individual. Here, Petitioners can focus on particular complex projects to be handled, which can be documented by providing project plans, evidence of tasks to be completed on each project, evidence of similar completed projects, etc.

    The nature of the company’s business is also important to address. If the beneficiary’s services are not the primary line of the company’s services, Petitioners should address how the beneficiary’s services will be used.

    2. Sufficient Specialty Occupation Work

    The second most common RFE issued by USCIS is regarding sufficiency of specialty occupation work available to H-1B beneficiary for the entire duration of the requested H-1B validity period.

    This issue most often comes up with small petitioning businesses and start ups when USCIS is concerned that the company is too small to host a particular position, and thus they need more information showing that there is a need for the particular position within the company and that there is enough work for the beneficiary throughout the requested H-1B period.

    To respond to such RFE, it is helpful to provide evidence of the company’s past, present and future projects, contracts with clients, statements of work, work orders, service agreements or letters from customers for provision of services, critical reviews of the company’s products, products’ market analysis or similar documents.

     3. Right to Control Beneficiary’s Employment

    If the H-1B beneficiary is also an owner/part owner of the petitioning company, USCIS may issue an RFE asking to provide evidence to show that the company will have the right to control the beneficiary’s employment and that the H-1B beneficiary is not hiring him/herself.

    If you own your company you may be able to demonstrate that an employer-employee relationship exists if the control of your work is exercised by others. For example, if your company has a board of directors, preferred shareholders, investors, or other factors that show your organization has the right to control the terms and conditions of your employment (namely the right to hire, fire, pay, supervise or otherwise control the terms and conditions of your employment), then you may be able to meet this requirement.

    For such an RFE, it is helpful to explain how the company will supervise and otherwise control the beneficiary’s employment supported by the company’s documents covering corporate structure of the business and ownership levels. Specifically, the petitioner’s business formation documents should sufficiently explain how the company is organized and who within the company has the right to control the work of all the employees, including the H-1B beneficiary.

    With Corporation, Petitioners could show that the Board of Directors will control the work of the H-1B beneficiary, as provided for in the Bylaws. However, what’s important to point out in response to RFE is the way the Board of Directors is formed. If the Bylaws state that the Board is selected by the majority of shares entitled to vote and the H-1B beneficiary in fact holds the majority of shares, the H-1B petition may be denied as USCIS can find that there is no requisite right to control the beneficiary’s work since the beneficiary him/herself can appoint the Board.

    With LLC, it is easier to show the right to control the H-1B employee’s work if LLC is structured in a way that the managing member who has the hiring/firing authority is not the H-1B employee.

    Some of the evidence you may submit to demonstrate the distinction between your ownership interest and the right to control your employment includes:

    • Term Sheet
    • Capitalization Table
    • Stock purchase Agreement
    • Investor rights Agreement
    • Voting Agreement
    • Organizational documents and operating agreements
    • Performance Review Process
    • Employment Agreement/Offer Letter
    • Organizational Chart showing the company’s hierarchy

    Before you proceed with the H-1B case for a part-owner or sole owner of the company, it is important to consult with the counsel to see what options are available and how the business has to be structured to have a chance of passing the H-1B master.

    4. Beneficiary’s Qualifications

    H-1B beneficiary must possess a bachelor’s degree or equivalent work experience. The degree of the beneficiary must relate to the job duties of the position offered. If the degree is not normally associated with the occupation offered, it is critical to explain how the degree is related to the job duties in connection with the company’s business.

    If USCIS is not satisfied with the beneficiary’s qualifications, it can issue an RFE asking to provide evidence of a related degree or equivalent work experience or the combination of both.

    USCIS has adopted a so-called “three-for-one” rule, by which three years of specialized training and/or work experience may be substituted for each year of college-level education that the beneficiary lacks. Thus, if you do not have any college level education, you will need at least 12 years of qualifying work experience.

    The equivalence of work experience to a degree can be determined by one or more of the following: (a) an evaluation by a college official authorized to grant credit for training and/or experience in the specialty; (b) the results of college-level equivalency examinations or special credit programs; or (c) certification or registration from nationally recognized professional associations for the specialty. See 8 C.F.R. 214.2 (h) (4) (iii) (D).

    An evaluation by a college official is usually the most common form of work experience evaluation. As a practical matter, USCIS often accepts professors’ opinions that the H-1B beneficiary’s work experience is equivalent to a bachelor’s degree. However, there are a lot of special requirements for such professors’ opinions that are not covered by this article. Please note that credentials evaluation services are not allowed to evaluate your work experience to prove that work experience is equivalent to a degree. Regulations limit the scope of foreign credential evaluators to evaluating only foreign education.

    If your degree is unrelated to the position offered and you have qualifying work experience in the related occupation that falls short of 12 years, you may still be able to establish that you qualify for the H-1B. College professor who is eligible to grant credit for work experience may be able to credit you some of your school units for general or related subjects and use them in combination of your work experience for equivalency to a U.S. Bachelor’s degree in a field related to the occupation offered.

    Proof of the qualifying work experience usually includes letters from your former employers or co-workers if your employer no longer exists. The letters from previous employers should contain the location, dates of employment, job title, and the duties you had, as well as the theoretical knowledge used and its practical application.

    If you require help with the RFE response, please do not hesitate to contact our office.

    The Law Office of Jacob J. Sapochnick is delighted to introduce associate attorney, Ms. Ekaterina Powell,  for our second staff spotlight.

    Ms. Powell has worked for our firm since June 2010 and is one of six attorneys working in our law office. Ms. Powell specializes in various family-based, investment-based, and employment-based immigration matters. Ms. Powell’s specific focus of work is on nonimmigrant and immigrant work and investment visas, extraordinary ability petitions, national interest waivers, EB-5 investment petitions, waivers of inadmissibility, VAWA cases, H-1B/LCA compliance matters, government worksite audits and investigations, as well as complex requests for evidence, motions and appeals.

    ekaterina

    Bio: After receiving her law degree in Russia in 2007, Ms. Powell decided to make California her permanent home. Within only three years of immigrating to the U.S., Ms. Powell graduated from an American law school and became a California licensed attorney.

    Passion for law and her experience of being an immigrant inspired Ms. Powell to choose immigration law as a career path.

    Ms. Powell has published numerous articles on immigration-related matters, which you can find on our blog. Ms. Powell also writes for VOICE: An Immigration Dialogue, the publication of American Immigration Lawyers Association. She has given presentations at workshops and seminars devoted to various topics of immigration law. In addition to her busy work at the firm, Ms. Powell volunteers for non-profit organizations helping immigrants from all over the world obtain legal assistance.

    For Ms. Powell there is nothing more rewarding for her than to see her hard work and dedication help the clients solve their immigration issues and help them reach their American dreams.

    Outside of the office, Ms. Powell can be found spending time with her family outdoors, gardening, or hiking/camping.

    USCIS recently announced new policy changes regarding Form I-693, Report of Medical Examination and Vaccination Record. Starting June 1, 2014, USCIS has limited the validity period for all Forms I-693 to one year from the date that USCIS receives the form. This updated policy applies to any Form I-693 supporting a benefit application that USCIS adjudicates on or after June 1, 2014.

    If you are applying for adjustment of status, you may submit Form I-693 in one of the following ways:

    • Submit Form I-693 by mail, together with your Form I-485, Application to Register for Permanent Residence or Adjust Status, to the location specified for your Form I-485 (see “Direct Filing Addresses for Form I-485”).
    • Submit Form I-693 by mail, after filing your Form I-485, to the location specified in your most recent communication with USCIS (for example, a Request for Evidence letter from USCIS).
    • Submit Form I-693 in person at an interview in a USCIS field office (if an interview is required).

    To ensure that your medical examination is still valid at the time USCIS adjudicates your application, we would recommend you to schedule the medical examination as close as possible to the time you file for adjustment of status, respond to a Request for Evidence, or attend an interview (if applicable).

    For additional information on this new policy, please contact our office.