Visa Lawyer Blog

The Labor Department just announced protocols for certifying U visa applications, and that the U visa certification process will be handled by the Wage and Hour Division’s regional administrators.

What is a U Visa

The Victims of Trafficking and Violence Protection Act of 2000 created two new nonimmigrant visas for noncitizen victims of crimes, the T visa and the U visa. Both visas are designed to provide immigration status to noncitizens who are assisting or are willing to assist authorities investigating crimes.

The U visa is designed for noncitizen crime victims who (1) have suffered substantial physical or mental abuse from criminal activity; (2) have information regarding the criminal activity; (3) assist government officials in the investigation or prosecution of such criminal activity; and (4) the criminal activity violated US law or occurred in the United States (including Indian country and military installations) or the territories and possessions of the United States.

The U visa certification process has been delegated to the Wage and Hour Division’s regional administrators located in five cities around the country. The division will refer the underlying qualifying criminal activity to appropriate law enforcement agencies in accordance with its normal referral procedure. After the division completes a certification, the victim of the qualifying criminal activity must still submit his or her application to U.S. Citizenship and Immigration Services for a determination of whether to approve the application.

The Wage and Hour Division will consider completing U visa certifications based on five qualifying criminal activities – involuntary servitude, peonage, trafficking, obstruction of justice and witness tampering – when it detects them in the process of investigating a violation of an employment law under its jurisdiction, for example, as related to minimum wage and overtime rights.

The Wage and Hour Division is responsible for enforcing federal labor laws pertaining to the minimum wage, overtime pay, recordkeeping, child labor and special employment, family and medical leave, migrant workers, lie detector tests, worker protections in certain temporary worker programs, and the prevailing wages for government service and construction contracts.

Click here for Department of Labor U Visa Process and Protocols Question and Answer

As leaders in NAFTA visa processing we like to update our readers on different visa categories and updates. This article is provided by our TN Visa Lawyer, Attorney Andrew Desposito.

For many who come to the U.S. seeking work, there are only so many visas through which they may legally work. It is because of this issue that U.S. lawmakers have been strict on immigration enforcement of illegal immigrants trying to work in the U.S., in particular those coming from Mexico.

For Mexicans and Canadians, the nonimmigrant NAFTA professional (TN) visa allows citizens of Mexico and Canada, as NAFTA professionals, to work in the U.S. in a prearranged business activity for a U.S. or foreign employer.

So what does this mean for you?

What this means is that if you are a person that works in a certain field, and have the education that corresponds with that field, you may be able to apply for the TN visa. Unlike the H-1B and its cap on how many visas are granted each year, or the J-1 and H-3 visas and their limited durations, the TN visa may be granted for up to three years and can continually be renewed toward the end of its duration. There are certain requirements of eligibility for the TN visa.

With some exceptions, each profession under the TN visa requires at least a baccalaureate degree as an entry-level requirement. If a baccalaureate degree is required, no work experience may be used to substitute it. In some professions, an alternative criterion to a bachelor’s degree is listed. For some professions, experience or licensing is required in addition to the degree. It is therefore crucial to know what field you may qualify under before seeking this visa.

Once you have determined that a TN visa is available to you, the next step is to find a U.S. employer willing to hire you in the job category related to your experience. During this time of economic growth, many companies are capable of hiring individuals from Mexico and Canada to fill those positions in the U.S. at very little cost. The visa itself is inexpensive to apply for at the U.S. Consulate or the Port of Entry. This makes it a far more attractive option to U.S. employers instead of the H-1B or L-1A visa and its many filing fees that come with it.

With an employer willing to sponsor you for the TN visa, all that remains is preparing for your TN visa.

Preparing a perfect TN Application

There are many little parts that go into putting together a successful TN visa package. There should be no question in the mind of the immigration officer at the Port of Entry or the U.S. Embassy that you, the employee, meet the position requirements as listed under appendix 1603.D.1 of the TN visa, and that the company is an established business that has the need for your position.

The immigration officer will ask questions regarding the nature of the business, the position you will be employed in, what your position entails for the company, and may even ask for examples of work that relate directly to the position being applied for.

The Technical Publications Writer is a TN visa category that many individuals can be qualified to work. The position requires a Baccalaureate or Licenciatura Degree or Post Secondary Diploma or Post Secondary Certificate, and three years experience. The degree requirement is very broad in that all it takes is a degree or diploma in a related field to the company that the position is held. For instance, there was a case where the Technical Publications Writer was to assist a new media company in the design of its materials for publication on its websites, revise product instruction, and review and research social media publications. A degree in English was the related degree necessary to fulfill the duties of her position.

When trying to figure out if one has the three years experience as a Technical Publications Writer, the occupational outlook handbook provides guidance on whether one can hold such a position. A Technical Publications Writer helps a company by reviewing published materials, recommending revisions or changes, arranging typing, duplication, or distribution of materials, as well as editing, standardizing, or making changes to materials prepared by other writers.

The Technical Publications Writer may also complete specific writing projects for the company. Looking at a person’s prior work experience, it is not usually difficult to see that many duties one performed were similar to what is required of a Technical Publications Writer.

Although work experience and degree are the requirements to holding the position, as outlined in the Appendix, a person should be able to bring other work that has been done to show they can produce something that is published. What this means is that an immigration officer at the embassy or the port of entry may feel the person does not fit the job description because they have not published something.

Although there is nothing in the requirements for that position requiring a published material, it is good to be able to show one’s prior work has been published in some capacity. This is good for when a person applying for the visa gets an officer who does not understand that the word publications in the TN profession does not mean a person must be published to hold the position. A recent client went through this similar situation where they were not convinced the person should be a Technical Publications Writer because they did not have any published material.

As attorneys who have worked on many TN visas, we know what immigration officers are looking for in their interview with TN professionals. We understand that many of them need to see for themselves how your position and your background meet the requirements of the TN position. We have helped people get TN visas as Engineers, Lawyers, Management Consultants, Technical Publications Writers, and Economists. No matter your personal background, being a professional under a TN visa is as simple as finding out what position fits you best.

Although some positions do have specific degree requirements, such as a lawyer, other positions require a degree in a related field, such as for the Technical Publications Writer. With an attorney that understands little nuances like this, it is possible to get your TN visa wihttp://www.h1b.biz/lawyer-attorney-1137117.htmlthout the wait through the USCIS process for other work visas.

This is a great article by our Attorney Ekaterina Powell, Esq., she has been very involved in H1B DOL audits in the past few months as we defend our employer clients.

The number of Labor Condition Application compliance investigations of the H-1B employers by the Department of Labor (DOL) is on the rise. When violations are found, the Administrator of the Wage and Hour Division may assess civil money penalties ranging from $1,000 to $35,000 per violation, depending on the type and severity of the violation. The Administrator may also impose other remedies on the H-1B employers, including payment of back wages, and debarment from the H-1B program for a certain number of years.

Therefore, it is critical for all companies that employ foreign workers under H-1B program to keep themselves up-to-date with the compliance measures and strictly follow the record keeping requirements.

This article will provide an overview of what the H-1B employers need to do in order to protect themselves from the possible violations and to avoid penalties for failure to comply with the record keeping requirements.

H-1B employer needs to create a public access file for each employee’s Labor Condition Application (LCA) that is filed with the Department of Labor. Employers of any H-1B nonimmigrant workers are required to make a filed LCA and its supporting documentation available for public inspection at the employer’s principal place of business or at the place of employment of the H-1B nonimmigrant workers within one day after the date of submission of the LCA. This public inspection file must contain the following:

• Copy of the LCA (with employer’s original signature and cover pages)
• Documentation of the wage to be paid to the H-1B employee
• Explanation of system used to set the actual wage
• Documentation used to establish the prevailing wage
• Copy of the notice given to the union/employees
• A summary of benefits offered to U.S. workers in the same classification as the H-1B worker and a statement explaining any differentiation
• Statement signed by an H-1B employee as proof he or she received a copy of the LCA
• Documentation regarding any adjustment to the wage (e.g., annual raise or cost of living increase)
In the event of corporate change, the public inspection file must also contain:
• A sworn statement by a successor entity accepting all liabilities of predecessor entity
• Affected LCA number(s) and effective date(s)
• Description of successor entity’s actual wage system
• Successor entity’s employer identification number

In addition to the records listed above, every H-1B dependent, willful violator employer must keep the required documentation concerning compliance with the non-displacement of similarly employed U.S. workers obligation.

The determination as to whether an employer is H-1B dependent is reached based on the proportion of the number of the H-1B workers to the total number of full-time employees of the company. If the employer has up to 25 employees with 8 or more H-1B workers, or if the employer has between 26 and 50 employees with 13 or more H-1Bs, or if the employer has 51 and more employees with 15% of the workforce in H-1B status, the employer is considered H-1B dependent.

The employer is considered a willful violator if the company has been found to have committed a willful violation or a misrepresentation of a material fact during the five (5) year period preceding the date of this application.

In addition to the records generally maintained by all H-1B employers, any H-1B-dependent or willful violator employer must keep the following records:

1. Documentation of dependency calculation
2. If the employer utilizes the definition of “single employer” to determine H-1B dependency, a list of all entities included
3. List of “exempt” H-1B worker(s)
4. Documentation of recruiting:
A. Recruiting methods used;
B. Date and copy of advertisement/posting and compensation offered;
C. Any document created/received concerning worker recruitment and interviews; and
D. Offer to U.S. worker(s) and the applicant(s)’ response(s).
5. If operating as a contractor and arranging for an H-1B worker to work at another employer’s work site:
A. Written communication or contract language with secondary employer re: U.S. worker displacement; and/or
B. Contemporaneous written note of secondary employer’s oral statement re: U.S. worker displacement; and
6. Name, last-known address, personnel records, pay records, and anything created/received concerning U.S. worker hiring/firing/departing at or near the time of filing USCIS H-1B petition.

The records listed above must be kept for one year beyond the end of the employment period specified on the LCA, and be available at the employer’s principal place of business in the U.S. or at the place of employment.

Additionally, H-1B employers must maintain complete payroll records and make such available to the Wage and Hour Division upon request. The records must include the following information:
• Name, address, and occupation, for all H-1B workers and any other worker employed by the employer in the same occupation at the place of employment
• Rate of pay, total wages paid each pay period, date of pay and pay period covered by the payment, and total additions to or deductions from pay each pay period for each H-1B worker and any other worker employed by the employer in the same occupation at the place of employment
• Hours worked each day and each week by the employee if the employee is paid on other than a salary basis (with respect to H-1B workers and any other worker employed by the employer in the same occupation at the place of employment)
• With respect to only H-1B workers, whether the worker is a part-time employee
• Documentation of the offer of benefits and eligibility for benefits provided as compensation for services

Payroll records for the nonimmigrant workers and other employees in the occupational classification must be maintained for a period of three years from the date of the creation of the records (or longer if an enforcement proceeding is in effect) and be kept at the employer’s principal place of business in the U.S. or at the place of employment of workers in the H-1B program.

The law in the compliance area is continually evolving. In order to avoid sanctions imposed by the Department of Labor in case of an investigation, the H-1B employers need to be aware of their obligations per the Labor Condition Application. If your company needs assistance with the H-1B investigation or needs advice on the compliance measures, please do not hesitate to contact our office.

Another blow to the H1B program. According to Computer World, the cables being released by WikiLeaks are shedding some light on fraud in the H-1B visa application process in countries that don't get much attention for it -- Mexico, Libya and Iceland.

The reports so far are a collection of anecdotes explaining attempts to dupe U.S. officials into granting visas to people not eligible for them. That collection may grow as more cables are released.

The cables offer insight into the types of issues that embassy officials in such countries can encounter when processing work visas.

A cable sent from the U.S. embassy in Mexico City, written two years ago this month, said that Mexico presents "persistent fraud problems" for the H-1B and L-1 visa programs as applicants "overstate experience, education, or future job responsibilities in efforts to bolster their applications."

The fraud attempts in Mexico are mostly by people looking for a way to immigrate to the U.S., according to the cable.

The most common false documents presented during interviews or in petition packages submitted to U.S. Citizenship and Immigration Services (USCIS) officials are false pay receipts, the embassy wrote.

This cable, and others, shed a little detail on a 2008 USCIS report that found evidence of forged documents and shell companies that gave fake addresses and locations.

That report found one in five visas are affected by either fraud or have "technical violations."

For several months, WikiLeaks has been slowly releasing State Department cables that may ultimately number as many as 251,000. Less than 7,000 cables have been released so far.

Expect more delays in visa processing in such Consulates from now onwards.

Read more..

Drug convictions and Immigration Laws are very complicated and require careful analysis. The good news is that a person cannot be deported from the U.S. for Possession of Marijuana as long as the amount does not exceed 30 grams. However, a conviction for any other type of marijuana offense other than simple possession of 30 grams or less requires mandatory deportation.

INA § 237(a)(2)(B)(i) provides as follows:

Any alien who at time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802), other than a single offense involving possession for one’s own use of thirty grams or less of marijuana is deportable.

In addition to making an alien inadmissible, an admission to a controlled substance offense also makes that person ineligible to adjust status (for example, through an immediate relative or spouse). 8 U.S.C. Sec. 1255(a) provides that persons must be “admissible” in order to be eligible to adjust his/her status to lawful permanent residence.

Furthermore, there is no waiver of inadmissibility or other grounds of relief for a person who has admitted to committing a controlled substance offense other than simple possession of 30 grams or less of marijuana.

The important question is, therefore, what constitutes an admission to “committing acts which constitute the essential elements of…a violation relating to a controlled substance”.

We posted below AILA's (formerly the Association of Immigration and Nationality Lawyers) amicus brief arguing Lennon’s 1968 marijuana conviction was not for a crime involving mens rea, and urging the rejection of the decision to deny his adjustment of status.

The argument put forth by Immigration officials at the time to deny his application for permanent residency in the U.S. was on account of having been charged in England with possession of cannabis and obstructing justice. Yet when the case made it to the Court of Appeals, Chief Judge Irving R. Kaufman ruled that the conviction “need not be recognized under U.S. Immigration law” and ordered INS to adjudicate Lennon’s residence case without considering the conviction. In spite of this favorable ruling that would have cleared the path for Lennon to acquire his immigration goal, the INS would not have it; they were set on denying him this privilege. And so it quickly became evident there were ulterior motives for keeping him out of the country.

The H1B cap count was always an indication how our economy is doing. While we see recovery, it is a slow one. Same goes for H1B numbers usage.

As of April 15, 2011, approximately 7,100 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 5,100 H-1B petitions for aliens with advanced degrees. If the numbers continue in this slow movement, we are looking to have H1B numbers open all through the summer and beyond.

Of course this could change at any time, so if you have an H1B employee in mind, file sooner than later.

In general, any person holding a B1 or B1/B2 visa may be eligible to perform H-1B work in the United States as long as they fulfill the following criteria:

-Hold the equivalent of a U.S. bachelor’s degree

- Plan to perform H-1B-caliber work or training

- Will be paid only by their foreign employer, except reimbursement of incidental travel costs such as housing and per diem. The employee must not receive any salary from a U.S. source.

-The task can be accomplished in a short period of time.

These travelers would be admitted as B1 visitors, and may only stay in the U.S. for the time allotted by the Department of Homeland Security upon entry. Like any other B1/B2 applicant, travelers must still show strong professional, familial and financial or other ties, which indicate a strong inducement to return to the country of origin or another country other than the United States.

Consulate Generals worldwide are prepared to issue B1/B2 visas to qualified applicants for this purpose. These visas may also be used for tourism. Current holders of B1/B2 visas may already use this provision without seeking another visa.

Having said that, abuse in the B1 in lieu is on the rise, therefore the recent proposal from Senator Grassley is not surprising.

Senator Charles Grassley of Iowa has asked the Department of State and the Department of Homeland Security to investigate the current use of the B-1 Business Visitor and B-1 in lieu of H-1B visa programs. In a letter to Secretary of State Hillary Clinton and Secretary of Homeland Security Janet Napolitano, Senator Grassley expressed his concern that companies are using the B-1 business visa in order to circumvent the numerical limit and the prevailing wage requirements of the H-1B visa program.

Specifically, he cites a formal complaint that has been filed against a company in an Alabama Circuit Court alleging that the company brings low-level, unskilled foreign workers as B-1 business visitors to work in full-time positions in violation of the immigration laws under the guise of attending business meetings.

Senator Grassley asked the Department of State and the Department of Homeland Security to provide, among other things, information regarding the number of B-1 in lieu of H-1B visas issued each year for the past five years, the consular posts that issued such visas, the employers that are using these visas, the lengths of time the visa holders remain in the United States, the ways in which the Department of State verifies an employer's claim about the B-1 visa holder's activities while in the United States, and the actions taken against employers that abuse the B-1 visa program. Senator Grassley also requested that the B-1 in lieu of H-1B program be reviewed, and he questioned whether the visa category should be eliminated entirely.

We have been processing B1 visas for legitimate employers with global operations. The concern is that now there will be increased pressure on Consular officers to reject more B1 applicants, this will make it tougher for legitimate US employers to conduct business in the international market place.

A recent new Bill S. 823 would permit aliens who lawfully enter the United States on valid visas as nonimmigrant elementary and secondary school students to attend public schools in the United States for longer than 1 year if such aliens reimburse the local educational agency that administers the school for the full, unsubsidized per capita cost of providing education at such school for the period of the alien's attendance.

Under current laws, there are limitations and requirements related to foreign (F-1) students attending public secondary/high schools (grades nine through twelve), under U.S. law. Student F-1 visas cannot be issued to persons seeking to enter the United States in order to attend a public primary/elementary school or a publicly funded adult education program.

Dependents of a nonimmigrant visa holder of any type, including F-1, are not prohibited from attendance at either a public primary school, an adult education program, or another public educational institution, as appropriate.

The current law does not allow a student in F-1 status to attend public secondary school without paying tuition. The student must pay the full, unsubsidized per capita (for each student) cost of education in all cases.

We will keep you posted as new information becomes available on this Bill.

Where is this taking us? An Arizona-style immigration bill cleared the Georgia legislature last week and needs only the governor's signature to become law.

The legislation would give police authority to question suspects about their immigration status. It would also require many private employers to check the immigration status of newly hired workers on a federal database called E-Verify.

After extended debate, both the state Senate and House of Representatives passed the legislation in the final hours of their 40-day session.

Georgia Governor Nathan Deal has not said whether he would sign it.

Deal supported E-Verify as a member of the U.S. Congress, said Phil Kent, spokesman for the Virginia-based nonprofit Americans for Immigration Control.

"It would be political suicide for him to go against the wishes of the large majority of the people's representatives," Kent said on Friday.

The National Association of Latino Elected Officials' Educational Fund on Thursday called the legislation "unconstitutional and costly" and predicted that it will produce an expensive legal fight for Georgia, as it has for Arizona.

Read more...

American Immigration Council (AIC) and the American Immigration Lawyers Association (AILA) argued recently in an amicus brief—the government may not arrest H-1B employees for whom timely-filed extension applications remain pending.

The decision in El Badrawi v. United States, by U.S. District Judge Janet C. Hall, correctly recognized that a federal regulation allows H-1B employees to continue working for 240 days pending the adjudication of their extension applications, and that “work authorization is part and parcel of their authorization to be in the country, not a separate matter.” Permitting the initiation of removal proceedings during this period would thus be unfair to employees and employers alike, according to the decision.

The plaintiff, a Lebanese national, was gainfully employed as a medical researcher when his employer requested an H-1B extension in early 2004, more than a month before his H-1B status expired. Though his employer paid a $1,000 fee for premium processing of the application, the government never adjudicated it and refused to respond to requests for information. Nearly seven months after the request was filed, immigration agents arrested the plaintiff for allegedly “overstaying” his initial period of admission. He was placed in removal proceedings and detained for nearly two months.

In their amicus brief, AIC and AILA argued that 8 C.F.R. § 274a.12(b)(20), which provides for work authorization while a timely-filed extension application is pending, necessarily authorizes H-1B employees to remain in the United States. Accordingly, they cannot be arrested solely for staying in the country while extension applications are being adjudicated. With supporting declarations from three companies that rely on H-1B workers, the brief argued that arresting noncitizens with pending extension applications would threaten to disrupt key sectors of the U.S. economy and undermine the goals of the H-1B program.

In her decision, Judge Hall said the AIC-AILA brief “highlights the substantial interest that employers have in the administration of the H-1B visa program, the lack of notice provided by the regulation at issue, and the hardship that the government’s proposed interpretation would impose upon them.”

Judge Hall’s ruling is a victory for the rule of law and for common sense,” said Melissa Crow, Director of the American Immigration Council’s Legal Action Center. “If H-1B employees can continue working while extension applications on their behalf are pending, it defies logic to argue that they can be arrested, detained and removed without notice.”

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Whenever you hear about H-1B visa, you hear the term “specialty occupation”.

So, what does “specialty occupation” mean? Why is it important to prove that the proposed position is a “specialty occupation” in order to qualify for the H-1B? What role does the Occupational Outlook Handbook (OOH) published by the Department of Labor play in USCIS’ interpretation of “specialty occupation”?

This article will address these questions and other common issues that H-1B candidates and practicing immigration attorneys face in context of H-1B filings.

In order to qualify for an H-1B, you have to show that the proposed position is a “specialty occupation”. The Immigration and Nationality Act defines “specialty occupation” 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.”

Proving that the proposed position is a “specialty occupation” is not an easy task. There is no defined list of occupations that are definitely considered to be “specialty occupations” by USCIS for the purpose of H-1B petitions. USCIS does not use a title, by itself, when determining whether a particular job qualifies as a specialty occupation. The specific duties of the offered position combined with the nature of the petitioner’s business are factors that USCIS considers.

When determining whether the proposed position qualifies as a “specialty occupation”, it is critical to address each of the four-prong definition that can be found in the Code of Federal Regulations (CFR).

(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 suggests that it is enough to satisfy any one of the prongs, it is advisable to address each of them and to submit proof for as many elements as possible with the initial H-1B filing to avoid future RFEs.

This article is going to concentrate on the first prong of the above-mentioned criteria.

What is the main reference publication that the Service turns to in its determination of a “specialty occupation”?

There are a number of publications that could potentially be used for the reference information on the industry educational requirements for a particular position. Among them are OOH and O-NET guides published by the Department of Labor.

Even though O-NET has an SVP rating and statistics on the industry’s educational requirements for various occupations, AAO has held that it does not consider O-NET to be a persuasive source of information as to whether a job requires the attainment of a baccalaureate or higher degree in a specific specialty. USCIS suggests that O-NET provides only general information regarding the tasks and work activities associated with a particular occupation, as well as the education, training, and experience required to perform the duties of that occupation.

USCIS does not consider O-NET in its determination whether a particular position is a “specialty occupation” because, as the Service states, an SVP rating is meant to indicate only the total number of years of vocational preparation required for a particular occupation. It does not describe how those years are to be divided among training, formal education, and experience and it does not specify the particular type of degree, if any, that a position would require.
Instead, USCIS turns to the Occupational Outlook Handbook (OOH), a publication of the U.S. Department of Labor for guidance on the minimum educational requirements for entry into the occupation. The OOH has information on management, professional, service, sales, construction, production, administrative, and other occupations.
It is a regular USCIS practice to heavily rely on OOH in its determination whether the proposed position qualifies as a specialty occupation. Unfortunately, at times, USCIS disregards important evidence showing that the position satisfies other criteria that otherwise would qualify the position as a “specialty occupation”.
In any H-1B case, it is always advisable to check the OOH first. If a particular job is not listed, it is recommended to seek the closest related occupations by searching SOC codes (Standard Occupational Classification) though O-NET. Even though it is critical for the practitioner to carefully classify uncommon positions under the appropriate SOC codes, USCIS does not rely upon the title’s designation. USCIS will consider the duties of the proposed position to identify the position title.

Is a bachelor’s degree a minimum requirement for entry into the occupation?

One of the tricky issues in H-1B practice is that USCIS relies on the explicit language of the OOH. Often, however, the OOH does not use imperative language in describing whether a bachelor’s degree is required for certain occupations. Rather, the OOH entry will indicate that "some" or "many" employers "prefer" a bachelor’s degree in a variety of fields. Such language leads USCIS to assume that the occupation does not require a bachelor’s degree. It is important for an immigration attorney to carefully analyze the language of the OOH before proceeding with a particular position and consider other criteria that the proffered position can meet.

Is there a requirement of a degree in a specific specialty directly related to the job duties?
Another issue that is important to note is that USCIS requires the minimum educational requirement to be a bachelor’s degree in a specific specialty. In other words, the occupation does not only have to require at least a baccalaureate level of education, but it also has to require the degree to be in a specific specialty directly related to the job duties.
Therefore, if the OOH states that a bachelor’s degree is required, but does not reference specific fields of concentration for such a degree, the position does not qualify as a “specialty occupation”, according to USCIS.

Often, USCIS notes in the RFE that, according to the OOH, the occupation does not require a baccalaureate level of education in a specific specialty as a normal minimum for entry into the occupation and that there is no clear standard for how one prepares for a career, and that the requirements appear to vary by employer as to what course of study might be appropriate or preferred. As a result, USCIS suggests that the proffered position cannot be considered to have met the criterion. This is an example of the RFE for a Budget Analyst position.

The Service suggests that any occupation that allows for more than one degree specialty will not satisfy the requirements of a specialty occupation. However, it is impossible to allocate a single degree major that all professionals in the particular position, e.g. Budget Analysts, should have. This is because the requirements of a particular job vary depending on the nature of the duties, and its specific emphasis on business management, accounting, etc. The OOH provides a range of specific specialties that Budget Analysts can be trained in. For the position of Budget Analyst, the OOH suggests that employers usually require a bachelor's degree in one of many areas, including accounting, finance, business, public administration, economics, statistics, political science, or sociology.

Interestingly, for some occupations that the Service recognizes as “specialty occupations”, the OOH also provides for a range of acceptable degrees. For example, Software Engineer has been continuously recognized by USCIS as a specialty occupation even though the position may be filled by professionals holding various but similar degrees in computer science, software engineering, physics, computer information systems, information technology, or mathematics.

Any inconsistency in USCIS’ treatment of particular positions should be carefully reviewed by the attorney and should be addressed appropriately.
Is a general degree, e.g. in business administration, considered a degree in a specific specialty related to the job duties of the proposed position?

USCIS does not favor general degrees, such as business administration or management degrees. Therefore, positions normally staffed by persons with a degree in a general field may be challenged by USCIS.

The required degree must be in a specialty field related to the position to be filled. Such interpretation is due to the fact that curriculums for degrees in specific fields, such as biology or computer science, provide the students with the requisite knowledge and expertise necessary to perform the particular tasks of the proposed positions.
In cases where a business degree is required, it is important to emphasize that the degree along with specialized experience in the field is required for entry into the particular position. For example, relevant case law points out that a position of a showroom manager is a specialty occupation, because the job required a degree in marketing or business “in addition to specialized design experience.”

It is not always possible to prove that the proposed position meets the criterion of a “specialty occupation” based on the first prong. Therefore, a counsel should submit evidence that proves other elements of the “specialty occupation” definition. If USCIS does not consider evidence that proves other prongs of the test, it is important for an immigration attorney to analyze the decision and to consider an option of filing a motion to re-open the case.

If you have your case denied due to the fact that USCIS did not consider the proposed position to be a “specialty occupation”, or if you want advice on whether you can qualify for the H-1B, contact our office for further guidance. Our experienced team of attorneys will review your case and recommend options that are available to you.

In an effort to fight fraud and abuse in the L1 and H1B programs, U.S. Citizenship and Immigration Services (USCIS) is implementing a program known as Validation Instrument for Business Enterprises (VIBE). VIBE is a web-based tool that will allow the USCIS to corroborate certain basic information about a company during adjudication of employment-based visa petitions. Use of this program is becoming evident in the content of requests for evidence (RFEs). See example below from one of our cases.

USCIS procedures allow for the employer to explain or clarify any concerns regarding information contained in VIBE. If information collected through the VIBE program reveals inconsistencies with the employer's petition, or raises other concerns regarding the case, the USCIS should issue an RFE or notice of intent to deny (NOID) to allow for a response, rather than directly denying the case. The RFE or NOID will clearly note that that the VIBE program has found missing or contradictory information and provide a description of this information. The petitioning employer will then have the ability to address these issues.

As you can see in the example above, the info for our client was completely in accurate and as a result the RFE was issued. We had to communicate with the Dun and Bradstreet office for hours until they finally updated the info and issued a confirmation page. We used that new verification from D & B to respond to the USCIS request for evidence.

USCIS entered into a contract with New Jersey-based Dun and Bradstreet (D&B) in September 2009 to act as the information provider for the VIBE program. D&B is a supplier of commercial information on businesses. In order to avoid RFEs or NOIDs due to outdated or inaccurate information in D&B's records, employers may wish to review their D&B company report and ensure that D&B's database is accurate. There is no fee to update company information. If a company finds that D&B does not have its information at all, it may request assignment of a D&B number.

We suggest that Employers be proactive and find out what is contained in their D&B records.

Major defeat for Anti Immigration supporters. The Ninth Circuit upheld today a lower court's block of much of Arizona's controversial SB 1070 law aimed at illegal immigration. A three-judge panel of the Ninth Circuit Court of Appeals ruled that the lower court "did not abuse its discretion" in blocking parts of the law from taking effect last year.

The decision, a victory for the Obama administration and immigration activists who filed suit to block the law, means the SB 1070 case will likely find its way to the Supreme Court. The judges agreed with U.S. District Court Judge Susan Bolton, who issued a preliminary injunction in July preventing sections of SB 1070 from being enforced.

From the ruling:

The relevant provisions of S.B. 1070 facially conflict with Congressional intent...

We stress that the question before us is not, as Arizona has portrayed, whether state and local law enforcement officials can apply the statute in a constitutional way... This formulation misses the point: there can be no constitutional application of a statute that, on its face, conflicts with Congressional intent and therefore is preempted by the Supremacy Clause....

By imposing mandatory obligations on state and local officers, Arizona interferes with the federal government's authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed DHS agents.

The decision rejected Arizona's contention it could enact a state law against undocumented workers seeking employment, citing Congress' "affirmative choice not to criminalize work as a method of dis- couraging unauthorized immigrant employment."

"Congress has deliberately crafted a very particular calibration of force which does not include the criminalization of work," Paez wrote.

The court also upheld Bolton's injunction against Arizona law enforcment arresting suspected illegal immigrants without warrants based on a believe that they could be subject to civil removal from the United States.

Read more

U.S. Citizenship and Immigration Services (USCIS) today announced it continues to accept H-1B nonimmigrant petitions that are subject to the fiscal year (FY) 2012 cap. The agency began accepting these petitions on April 1, 2011.

USCIS is monitoring the number of petitions received that count toward the congressionally mandated annual H-1B cap of 65,000 and the 20,000 U.S. master’s degree or higher cap exemption. USCIS has received approximately 5,900 H-1B petitions counting toward the 65,000 cap, and approximately 4,500 petitions toward the 20,000 cap exemption for individuals with advanced degrees.

With all the hype, hysteria and hot air generated around the H1-B visa program issue during the past several years, one fundamental truism remains: the current annual level of H-1B visas being utilized in the United States is about the same level as in 1990.

This is pretty amazing when one considers two facts: 1) the U.S. GDP has risen by 64 percent during the past 19 years (from from $8.5 trillion to $14 trillion) and 2) and during the same time frame, the U.S. technology industry - by far the largest group to take advantage of H1-B visas and arguably its largest beneficiary grown by a considerably larger margin on an annual percentage basis.

Our government is making it increasingly difficult for U.S. companies to hire the "best and brightest." The irony here is that we have never had a greater sense of urgency when it comes to fostering new thinking and technology development in the areas of biotech, clean tech, healthcare, and IT and in driving innovation across all geographies.

We will keep providing updates on H-1B Cap count. Let us know if we can assist you in your H-1B cap cases.

Many readers were emailing us for an update on the Visa Waiver overstay saga. Here is the latest: Our Lawyer's Association and all fellow attorneys are concerned that USCIS has not yet provided guidance to the field with respect to the eligibility of an alien who was admitted under the Visa Waiver Program (“VWP”) to adjust status as an immediate relative under INA § 245 at any time prior to the removal of the alien under INA § 217.

Several USCIS District Offices are holding in abeyance immediate relative adjustment of status applications by applicants who entered under the Visa Waiver Program and whose VWP 90-day admission expired prior to the filing of the Form I-485, and at least one district here in San Diego continues to deny such cases.

The Solicitor General has acknowledged the adjustment eligibility of an alien admitted under the VWP in a brief in opposition to certiorari filed in Bradley v. Holder, Case No. 10-397

In the brief, the Solicitor General acknowledged at page 9:

In general, VWP aliens are excepted from eligibility to seek adjustment of status, but those who qualify as immediate relatives fall within an exception to the exception. See 8 U.S.C. 1255(c)(4). Immediate relatives therefore are subject to the general rule that DHS may grant adjustment of status, “in [its] discretion and under such regulations as [it] may prescribe.”provides that VWP aliens who are immediate relatives must be able to seek adjustment of status in removal proceedings. To the contrary, as the court of appeals explained, VWP aliens have waived any opportunity to use adjustment of status, or any ground except an application for asylum, to challenge removal. Pet. App. 15a (citing Bayo, 593 F.3d. at 507). (Emphasis added). U.S.C. 1255(a). But nothing in that general rule, or in Section 1255(c)(4),

In this brief, the Department of Justice confirms that USCIS may continue its longstanding policy of adjudicating applications to adjust status for immediate relatives who have entered and overstayed a VWP admission, and those applications may be approved in its discretion.

Central to several of the cases is that the aliens in each were attempting to interpose adjustment of status as a defense to removal. The courts found that they waived the right to do so by gaining admission under the VWP. While we are aware that courts in McCarthy, Momeni, and Bayo state that VWP aliens who overstay their 90-day periods of admission are ineligible to adjust, those pronouncements were outside the scope of issues before those courts.

Moreover, courts in McCarthy, Momeni, and Ferry, state that VWP aliens only forego the right to contest removal through adjustment, not the right to adjustment through proceedings before USCIS, even when filing for adjustment after the expiration of the 90-day period. In McCarthy, the court says: “The Sixth, Eighth, and Tenth Circuits have also concluded that aliens who file for an adjustment of status after the expiration of the ninety-day period waive their right to contest a subsequent removal order.” (Italics added.) The Ninth Circuit in Momeni holds: “An alien who comes to the United States under the Visa Waiver Program generally cannot avoid his or her waiver of the right to contest removal (other than on the basis of asylum).” (Italics added.)

Similarly, the Ferry court says: “It is evident under the applicable statutes and regulations that a VWP alien who overstays his authorized time and is ordered removed has waived his right to contest that removal through an application for adjustment of status.” (Italics added.) Each is silent as to eligibility to adjust administratively before the USCIS. That is as it should be.

The American Immigration Lawyers Association requests that USCIS immediately provide guidance to the field clarifying that an alien admitted under the Visa Waiver Program may adjust status as an immediate relative notwithstanding the filing of the Form I-485 adjustment application after the expiration of the VWP alien’s period of admission.

Here is what the US Citizenship and Immigration Services had to say:

All field offices have been instructed to adjudicate I-485 applications filed by individuals who last entered the U.S. under the Visa Waiver Program (VWP) and overstayed on their merits UNLESS the potential beneficiary is the subject of an INA section 217 removal order.

Additionally, field offices have been instructed to hold in abeyance all VWP adjustment applications for potential beneficiaries who have been ordered removed under INA section 217. We are drafting final guidance including an AFM update on this topic we expect to issue soon.

So bottom line is that ALL office are now required to approve such Visa Waiver overstays, let's hope San Diego will get that message soon.

It has been 5 days now since the H1B season started and there is no indication whether the H1B Cap was reached on the first day or not. The stakes are higher this year as the economy rebounds.

According to computer world, some law makers think that the cap should be increased to certain industries and keep other out of the game.

A top Republican lawmaker, U.S. Rep. Lamar Smith (R-Texas), chairman of the House Judiciary Committee, Thursday said the H-1B visa plays a "vital role" in the economy and thus its cap should be increased.

But Smith, perhaps recognizing the difficulties of raising the contentious visa cap, offered an alternative that would make more H-1B visas available to tech firms while cutting the number of professions that could apply for the visas.

About half of all H-1B visas are used by technology companies, but there's a long list of other industries that use it as well, to hire fashion models, pastry chefs, dancers, social workers and photographers, Smith said.

Smith said he's "not sure" whether some of those non-tech occupations "are as crucial to our success in the global economy as are computer scientists."

"If Congress doesn't act to increase the H-1B cap, we may need to examine what sort of workers should qualify for the H-1B visa," Smith said at a hearing Thursday before the House Subcommittee on Immigration Policy and Enforcement.

The committee's hearing on the H-1B visa included talk of expanding the use of green cards, particularly for foreign advanced degree graduates of U.S. universities, as an alternative to H-1B visas. President Barack Obama has signaled he would amenable to such a change in his State of Union address.

That could be an interesting idea, but I am not sure if choosing a few particular industries for the visa could be the best solution.

Read more...

Charlie Oppenheim, Chief, Immigrant Visa Control and Reporting Division, U.S. Department of State, informed previously of a dramatic reduction in the use of EB-1 numbers.

He stated:

“[US]CIS says they have seen a decline in filings, and does not expect a change in the number use pattern. Therefore, this decline in EB-1 number use will allow me to begin having those ‘otherwise unused’ numbers drop down and be available for use in the EB-2 category. Based on current indications, that would mean that at least 12,000 additional numbers will be available to the EB-2 category. This situation will allow me to advance the India EB-2 cut-off date for May. The reason being that all ‘otherwise unused’ numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates.”

According to Mr. Oppenheim, the fall-off in demand for EB-1 numbers began in October 2010.

Charlie Oppenheim discussed scenarios for EB-2 movement in the coming months. In preparation of the May 2011 Visa Bulletin, DOS will consider the approximately 12,000 unused EB-1 numbers that will "spill-down" to EB-2, EB-2 demand and possible unused numbers, and will consult with USCIS on its processing potential. A quick look by DOS at this point indicates that there is the possibility for greater advancement of the India EB-2 category than had earlier been thought.

Doing so will give DOS better visibility into EB-3 upgrade demand in the pipeline, and will better ensure that all visas allowed annually are used. However, a rapid advance could spur a surge in demand that could impact the cut-off dates later in the year. The May Visa Bulletin, generally issued mid-April, will contain a discussion of visa availability projections for the remainder of the year.

We will keep you posted with more information.

This system started in late March. This is an initiative that allows individuals in the United States to check their employment eligibility information without charge.

The self check allows individuals to become aware of any inaccuracies in their records. The workers can address incorrect information and seek to resolve any mismatches or inconsistencies before applying for jobs. Most employers are not required to utilize the E-Verify system, however, participation by employers is becoming more common.

There are 4 steps in the system: entry of biographic information by the user; confirmation of identity; entry of work eligibility information such as Social Security number or Alien Registration number; and receipt of employment eligibility information based on the information found in the databases of the Social Security Administration (SSA) and the Department of Homeland Security (DHS).

By providing individual users with this secure and confidential process to check their employment eligibility information, E-Verify Self Check should reduce the employer burden of having to resolve tentative non-confirmations and mismatches generated by E-Verify.

Read more

On August 18, 2010 we were the first to report the new trend coming from some local Immigration offices, mainly San Diego, regarding Visa Waiver overstay Issues. Click here to read the post as well as the Adjustment of Status denial we posted that same week.

We are happy to report that we were able to overturn the Appeal denial of that same case a few weeks ago, making this one of the only visa waivers approvals since this new policy started in July. While this is a small victory for us and our clients, the Visa Waiver overstay denial policy still continues in San Diego at this time.

Due to some of publicity efforts, National Public Radio and KPBS covered this story this morning, click here to listen online.

If you come to the United States with a passport from a European country or Japan, you can stay here for 90 days, and can commonly overstay without a problem.

But not in San Diego anymore. In the last year, a growing number of visitors on what's known as a Visa Waiver here have been asked to leave after 90 days by local immigration authorities.

Lawyer Jacob Sapochnick observes that San Diego seems to be taking this initiative on its own, despite federal directives.

"Maybe they're tired of all the people overstaying, and people illegally coming to the U.S.," said Sapochnick, trying to find a reason for the shift in practices. "Maybe they have decided to take the only initiative, and using that discretion that they have, and deny those cases."

About 150,000 visitors from 34 countries use the Visa Waiver each year. The U.S. Citizenship and Immigration Services (USCIS) did not respond to an interview request.

It seems that the Immigration Service Officers were not willing to talk to the Radio, we would have loved to hear their position as well.

We will keep updating our readers.