Visa Lawyer Blog

In a previous Blog post we have updated the period of Admission for Canadian Applicants, this post will provide the latest update for Mexican Professional Applicants under NAFTA.

Prior to Mexico’s accession to the U.S./Canada agreement. IMMACT90 made U.S. immigration laws more restrictive. When Congress later approved the favored relationship--NAFTA--citizens of Mexico were given the benefit of the then-current U.S. immigration law. Benefits granted to Canadian citizens of the CFTA prior to IMMACT90, therefore, were not granted to citizens of Mexico. Unlike Mexicans, Canadians are not required to have visas except in the E and K categories, although they must meet all the requirements of a visa category to be eligible for admission to the United States.

In contrast, citizens of Mexico without border crossing cards (BCCs) must have visas, and therefore, they are not eligible for the port-of-entry adjudication afforded Canadian citizens by NAFTA. Although U.S. immigration laws have become increasingly restrictive, NAFTA citizens of Canada and Mexico are favored more than businesspersons from any other country.

A TN visa issued to a citizen of Mexico by a U.S. consular officer is valid for a maximum of one year. The TN visa validity limitation is required by the U.S. Department of State’s reciprocity schedule. The validity of the TN visa, however, does not determine the period of time that a Mexican TN nonimmigrant alien may be admitted in TN status.

A citizen of Mexico with a valid TN visa may be admitted for a period of up to three years in TN status.

Determining the Appropriate Period of Admission:

A citizen of Mexico may be admitted to the United States in TN status for up to three years, provided that the individual’s passport will remain valid throughout this period and the individual is otherwise admissible.

The period of initial admission for citizens of Mexico in TN status should be for the full period of intended employment, up to a maximum of three years. The intended period of employment should be indicated in a letter or similar statement supporting the TN application for admission and signed by the prospective employer. If the period of employment will exceed the validity of the TN visa, the applicant for admission still may be admitted up to three years regardless of the expiration date of the TN visa, provided that the individual’s passport will remain valid throughout this period and the individual is otherwise admissible.

Examples help to illustrate the appropriate period of admission for a TN nonimmigrant alien.

Example #1: A citizen of Mexico may present a TN visa valid for a period of one year accompanied by a letter from the prospective employer indicating that the intended period of employment is for a period of three (3) years. The Mexican nonimmigrant alien may be admitted for a period of three (3) years, provided that the individual’s passport will remain valid throughout this period and the individual is otherwise admissible.

Example #2: A citizen of Mexico may present a TN visa valid for a period of one week after the date of application for admission accompanied by a letter from a prospective employer indicating that the intended period of employment is for a period of three (3) years. The Mexican nonimmigrant alien may be admitted for a period of three (3) years, provided that the individual’s passport will remain valid throughout this period and the individual is otherwise admissible.

Example #3: A citizen of Mexico may present a TN visa valid for a period of one week after the date of application for admission accompanied by a letter from a prospective employer indicating that the intended period of employment is for a period of one (1) year. The Mexican nonimmigrant alien may be admitted for a period of one (1) year, provided that the individual’s passport will remain valid throughout this period and the individual is otherwise admissible.

Foreign workers traveling into their destination countries can help themselves enormously by being able to articulate to border agents the specific purpose and nature of their trip or assignment and their qualifications to take on the assignment. CBP agents should be educated about the TN Admission rules, and avoid any unnecessary delays for applicants coming to work under NAFTA provisions.

This is an important decision for all employers with current H1B employees. The Department of Labor's Administrative Review Board (ARB) found that the time period it took for the employee to obtain a social security card, which the employee's employer required for their payroll system, was "nonproductive status." The employer was therefore required to pay wages for the two-week period that it took for the employee to obtain the social security card.

However, the ARB found that the employer did not owe back wages to the H-1B worker for the period between her arrival in the U.S. and the date she contacted her employer to inform them that she was in the U.S. The ARB also found that the employer was not required to pay wages to the H-1B worker for the time period in which she was unavailable for work as a result of personal matters such as opening a bank account, obtaining a car lease, securing a driver's license, and securing schooling and day care for her children. These were periods in which the H-1B worker was in voluntary nonproductive status.

The DOL has a regulation that states that an employer who files an H1B petition must begin to pay the sponsored worker the required LCA wage when the worker enters into employment. The DOL defines this as when the worker makes himself or herself available for employment or when the worker comes under the control of the employer.

Thus, an H1B employee meets this requirement and the wage obligation begins, in many situations, when the worker is not engaging in productive employment. This can include common situations, such as when the employee is available to start, but is waiting for an end-client assignment, is engaged in any type of training (whether in-house or from the employee's residence), is attending orientation sessions, and/or is interviewing with end-clients or customers for placement. Thus, employers that do not pay their H1B workers who have made themselves available or are in the employer's control, as explained above, can be subject to substantial back-wage assessments.

The New Year is a good time to tie up any loose ends, and make sure that one's company procedures and paperwork are in order. If you have further questions about H1B compliance, feel free to email us.

The following article covers CBP standards for accepting L-1 petitions for Canadians under NAFTA. The standards discuss the burden of proof, package completeness, review of the petition, and submission to USCIS by CBP.

With the institution of the North American Free Trade Agreement (NAFTA), the use of L-1 visas has been supplemented by the use of E-1 and E-2 visas. However, the L-1 can be easier to apply for because it requires less documentation and can be immediately obtained at the border and other Ports of Entry. The L-1 visa, therefore, continues to be a useful immigration tool for companies that do not qualify for E status.

1. The burden of proof for establishing eligibility rests with both the petitioner who is filing the petition; and the beneficiary, who is applying for admission.

2. CBP will review an I-129 petition submitted for an L-1 applicant to ensure the application is complete.

a. Two copies of the I-129 with original signatures on each copy.
b. Supporting documentation is included with the I-129 petition to establish the
petitioner and beneficiary are demonstrating that the petitioner and beneficiary meet
the requirements for the L-1 class of admission are:

-Qualifying entity:
-The applicant is coming to work for an entity in the U.S. that is the parent,
branch, affiliate, or subsidiary of the entity in the foreign country. ii. Qualifying capacity:
- Executive or Managerial.
-Specialized Knowledge. iii. Qualifying past employment:
- An alien who within the preceding three years has been employed abroad for one continuous year.
-Qualifying citizenship – the applicant is a citizen of Canada.

3. CBP will review the I-129 petition in accordance with 8 CFR 214.2(l)(17)(iv):

a. If a petition or certificate of eligibility submitted concurrently with an application for
admission is lacking necessary supporting documentation or is otherwise deficient, the inspecting CBP officer shall return the I-129 petition to the applicant for admission in order to obtain the necessary documentation from the petitioner or for the deficiency to be overcome.

b. The fee to file the petition will be remitted at such time as the documentary or other deficiency is overcome.

c. If the petition or certificate of eligibility is clearly deniable, the CBP officer will accept the petition (with fee) and the petitioner shall be notified of the denial, the reasons for denial, and the right of appeal.

d. If a formal denial order cannot be issued by the port of entry, the petition with a recommendation for denial shall be forwarded to the appropriate U.S. Citizenship and Immigration Services (USCIS) Service Center for final action.

4. To ensure prompt processing by USCIS, including creating a Form I-797, Notice of Action confirming the adjudication result (e.g. approval of the L-1 classification and the dates of validity); sending the Form I-797 to the petitioner; and entry by USCIS into the Department of State’s Petition Information Management System (PIMS) to facilitate the issuance of L-2 (dependent of L-1) nonimmigrant visas for non-citizens of Canada, the completed I-129 petition package must be mailed by CBP to the USCIS Service Center after the petition has been adjudicated by CBP.

a. CBP will permit petitioners to prepare and CBP will accept a prepaid Express Mail Flat Rate Envelope submitted with the L-1 petition and an application for admission.
b. The prepaid mailer must to be addressed to either the USCIS California Service Center or the USCIS Vermont Service Center, depending on the location where the beneficiary will work.

The NAFTA provisions affect those applying for admission in B-1, E, L, or TN status. Citizens of Canada or Mexico applying for admission in other nonimmigrant categories do not benefit at all from NAFTA. Even those who do qualify under NAFTA must still meet the admission requirements under all other provisions of U.S. immigration law.

The NAFTA parties did not intend to harmonize their immigration regimes or create a common labor market or a passport union. Instead, each country intended to maintain its sovereignty over immigration in order to protect its domestic labor market and continue to drive competition.

We routinely escort our clients to the port of entry for TN and L cases, if you need support feel free to email us.

Great Video that gives a glimpse into the life of a foreign job seeker trying to make it America.

At this rate of mechanical efficiency, supported by technology, it will be extremely difficult to create jobs for the entire world population (not that I’m arguing these companies SHOULD create jobs for the entire population). Again, assuming that I attended school at the of this revolution, I have therefore not worked in a professional capacity with digital marketing. However, I have been able to learn on my own and at school, albeit not at the same pace with which technology has evolved. For formal education to keep pace with changing industries, changes will need to be made in the current academic institution mind-set/process, such as: a refresh of curriculum at schools; dynamic teaching processes to prepare students and professors for the future, focuses on unlearning outdated material and learning new technologies and new material (this is not to say that all old learnings should be forgotten, but rather to say that they should be refreshed at a more rapid pace); and, more classes emphasizing how technology is rapidly being employed to change the face of the world. For example, I can count on one hand the number of classes at my MBA program that even mention technology, much less emphasize it. In a job market where only people who understand technology are in high-demand, academia cannot afford to neglect incorporating more technology-focused courses and learnings into its curricula.

This gap is extending and unless checked there will be a huge void between the required skill sets demanded by employers. I would go so far as to say that this gap might hamper and curtail the progress of the digital infrastructure. I wonder if we can somehow make use of the same technologies and support passionate people who are taking the leap of faith to ensure they remain educated, and at the same time needed in the workforce (for example, corporate outreach in the form of technology course sponsorship, etc)? Unless this happens the unemployment rate will, at best, stagnate, at worse increase to a level never before seen in the past 50 years.

The B1 visa is still a hot and controversial option for business visitors. At the AILA Rome District Chapter conference held in London, representatives of the DOS in London indicated that Consular Officers may no longer be printing endorsements on B-1 visas indicating the basis for issuance of the visa (e.g., B in lieu of H or BILOH endorsements). Instead, Consular Officers will enter information relating to the basis for issuance of the B-1 visa in an online database accessible to CBP officers at POEs (in order to defer such adjudications to CBP):

The following questions were discussed and we are sharing with our readers:

a) Has CBP in Dublin engaged in discussions with DOS relating to this change in DOS
procedures? Pre-clearance regularly engage in discussions on visa procedures, but there
have been no specific instructions on this issue.

b) Has CBP in Dublin provided any training to CBP officers relating to review of consular
officer notes? General training occurs. DOS notes are seen as helpful as a form of
verification.

c) Has CBP in Dublin received any new guidance to the field in connection with this new
method of indicating the basis for issuance of a B-1 visa? No

d) If CBP in Dublin has received any new instructions to the field in connection with B-1 visa
endorsements, is CBP willing to provide a copy to AILA? N/A

e) Is it possible to provide any insight regarding what is seen by CBP? Would this only be accessible during secondary inspection? Should the applicant mention this BILOH electronic annotation to the CBP officer or will this already be obvious? DOS notes are viewed only during the secondary inspection process. Yes an applicant should always be well prepared for entry, particularly under this category. It will assist with the BILOH if mentioned at the outset. Six new officers have been added since last November. If an officer encounters a BILOH situation that they feel uncomfortable admitting from primary it is more likely that the individual will end up in secondary, but this is not necessary for more experienced officers.

f) Without the annotation on the visa itself, what about cases where individuals will be sharing their time between the U.S. and U.K. for an extended period (e.g., 6 months)? Will such individuals be required to go through secondary each and every time they seek to re-enter the U.S. to engage in local employment pursuant to his/her B-1 in lieu of H-1B sub-classification? An applicant would not necessarily need to go through secondary for a BILOH, it will depend on the answers they provide to CBP on the reasons for their travel. This adjudication would happen regardless of annotation. Lack of annotation will not change the way in which we deal with the visa category.

Apart from arming clients with a support letter from the employer, is there anything we can do to avoid alarm bells going off when a B-1/B-2 visa holder announces that she is entering the US to "work"? Would you suggest that the letter of support is also carried for simple B-1 entry or even Visa Waiver entry? Yes this is sensible. It may not be reviewed or needed. A well prepared applicant will go some way in facilitating entry.

To conclude, holders of this visa encounter problems when trying to enter the U.S. This is because this visa has not been formally recognized by U.S. Citizenship and Immigration Services (USCIS), even though it is issued by a U.S. Consulate or Embassy. We suggest clients to be well prepared and carry the necessary documents to support entry on the B1 Visa.

There are thousands of employment opportunities all over the United States. But the simple fact is that finding a good job with an employer willing to go through the visa petitioning process can be quite difficult, time-consuming and expensive. Most employers are simply not interested in sponsoring immigrants for visas.

One of the most frequent and difficult questions that international workers ask is "When and how should I tell a prospective employer that I am a foreign worker?" There is certainly no easy or correct answer to this question. Watch our video and hope that you can get some answers here!

Today, U.S. Citizenship and Immigration Services (USCIS) posted a job announcement and began accepting applications from business experts to serve on the USCIS Entrepreneurs in Residence tactical team. The purpose of the tactical team is to bring business experts in-house to work alongside USCIS staff to ensure that current immigration laws’ potential to attract foreign entrepreneurial talent is fully realized. The tactical team will help develop policy guidance and training tools that support their decision-makers. The Entrepreneurs in Residence initiative provides USCIS a unique opportunity to gain knowledge on how specific industries operate and to use that knowledge to inform USCIS’s policies and practices. Together this will ensure that immigration pathways for foreign entrepreneurs are clear, consistent, and better reflect today’s industry realities.

The Entrepreneurs in Residence initiative is the perfect complement to the changes made to the National Interest Waiver. The new regulations regarding the National Interest Waiver allows an entrepreneur to petition himself because the entrepreneurship is in the national interest and will have such an impact. With business experts working alongside USCIS to provide better guidance in the decision-making process, there is a better chance that a good National Interest Waiver for an entrepreneur will be approved. This is a step in the right direction for bringing more entrepreneurs and foreign investors to the U.S. who want to bring business here that will have a meaningful impact on the economy. Once the initiative commences, we will provide an update on how much it impacts entrepreneurs and their opportunities to bring business to the U.S.

Now the J1 Visa is on the spot, and for a reason. Secretary of State Hillary Rodham Clinton has ordered an "extensive and thorough review" of a foreign exchange program that has been used by U.S. businesses as a source of cheap labor and exploited by criminals to import women to work in the sex industry.

The J1 Work & Travel Program offers overseas university exchange students a challenging opportunity to intimately experience life and culture in the U.S. during their summer holiday period.

Work & Travel J1 provides international university students the chance to work at entry-level, seasonal jobs in the United States for up to 4 months on a J-1 Visa. Participants are entitled to work, earn money and travel at the end of the work assignment.

The U.S. House Judiciary Committee's immigration subcommittee also has been gathering information on the J-1 visa, which was created in 1963 to allow college students from other countries to spend their summer breaks living, working and traveling in the U.S.

As the program has grown to bring more than 100,000 young people here annually, it has become as much about money as cultural understanding.

The State Department has made several changes since an Associated Press investigation last year uncovered widespread abuses, including living and working conditions that some participants compared to indentured servitude. In one of the worst cases, a woman told the AP she was beaten, raped and forced to work as a stripper in Detroit after being promised a job as a waitress in Virginia.

The reforms being considered by the State Department would limit and refine the types of jobs students can have, expand the list of prohibited employment categories, and strengthen the "the cultural aspects of the program to ensure that the objective of the program - positive exposure to the United States - is accomplished."

The agency already prohibits participants from taking jobs "that might bring the Department of State into notoriety or disrepute" but the AP found that strip clubs and adult entertainment companies openly solicited J-1 workers.

Critics say the students have gotten little help from companies designated as sponsors by the State Department. We hope that the third party sponsor will take a more active role in making sure j1 students are safe in the hands of employers during the J1 work period.

Another victory for our office appealing a tough H1B denial, consistency pays eventually. This article was prepared by attorney Ekaterina Powell from our office.

H-1B is a “specialty occupation” work visa. Traditionally, occupations in law, medicine, sciences and engineering are considered specialty occupations. However, the statute and the regulations contain provisions that allow other professions to be considered specialty occupations if certain conditions are met. For example, if a baccalaureate in a specific specialty (or its equivalent) is normally the minimum requirement for entry into the particular position, then the position should be viewed as a specialty occupation.

USCIS uses the Occupational Outlook Handbook (OOH), a publication of the Department of Labor in its analysis on whether a particular position can be classified as a specialty occupation. Unfortunately, USCIS continues to use its overly restrictive interpretations of the H-1B regulations when it comes to the occupations in marketing, public relations, or management and business related professions.

EXAMPLE OF AN H-1B CASE FOR A PUBLIC RELATIONS SPECIALIST

Below is an example of a successful complex H-1B case handled by our office. A tourism company consisting of 5 employees filed an H-1B petition for Suzette, a French citizen with a Master’s degree in Marketing and Communications to work for the company in the position of Public Relations Specialist.

USCIS issued a Request for Evidence in the case asking for additional evidence establishing that the position of a Public Relations Specialist is a specialty occupation. The response to the request of evidence along with the supporting evidence was timely received by USCIS.
After several months (!), the employer received a decision denying the H-1B petition because, in the opinion of the officer, the position did not qualify as a specialty occupation. The denial not only quoted boilerplate language unrelated to the case, but also included reasoning that was taken from a completely different case. The adjudicator obviously did not pay attention to the specific facts of the case and issued a capricious decision not warranted by the proper analysis of the law.

Our office filed a Motion to Reconsider the Denial Decision. The case was accepted for review and five days thereafter the case was approved!

MOTION TO RECONSIDER

In our Motion to Reconsider, we were able to show that the law was inappropriately applied by USCIS in reaching the unfavorable decision.
The regulations provide that in order to qualify as a specialty occupation, the petition must meet one of the 4 criteria:

1) a bachelor’s degree or the equivalent is the minimum requirement for entry into the occupation;
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.

In reality, USCIS is so restrictive in its analysis of the 4 criteria that, if you consider their interpretations, it is impossible for any position to qualify as a specialty occupation.
A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position of Public Relations Specialist. The first prong to analyze is whether a bachelor’s degree in a specific specialty is normally the minimum requirement for entry into the occupation. The problem with USCIS’ interpretation of this criterion is the fact that the Service gives too much deference to the OOH and interprets the language of that publication too narrowly.

For example, in the specific case of a Public Relations Specialist, USCIS stated that, as shown in the OOH, “although a baccalaureate level of training is offered, the position of Public Relations Specialist is an occupation that does not require a baccalaureate level of education in a specific specialty as a normal, minimum for entry into the occupation. As a result, the proffered position cannot be considered to have met this criterion.”

Even though the Service agreed to the fact that a bachelor’s degree is normally required by the industry, the Service refused to classify the position as a specialty occupation because the OOH does not provide for one degree specialty that is appropriate for all PR Specialists.
It is important to note that the specific specialty requirement is not in the INA or the regulations; however, the Service has consistently required the degree requirement to be in a specific field in order to qualify for the “specialty occupation”. This Service’s interpretation has been upheld by the courts.

In our Motion, we disputed the Service’s findings regarding the meaning of the OOH. The OOH provides a limited range of specific specialties that Public Relations Specialists can be trained in. Moreover, the OOH limits these specialties to communications-related field. Therefore, a Public Relations Specialist has to have a bachelor’s degree in one of the following fields: public relations, journalism, marketing, or communications.

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 Public Relations should have. This is because the requirements of a particular job vary depending on the nature of the duties, and its specific emphasis.
The specific specialty should not be viewed narrowly by allowing only one degree concentration, but can be found if OOH provides a limited range of acceptable fields of education.

For example, Software Engineer has continuously been recognized by USCIS as a specialty occupation even though the position may be filled by professionals holding various degrees in related fields, such as computer science, software engineering, physics, computer information systems, or mathematics.

Similarly to Software Engineers, Public Relations Specialist position may also be filled by professionals holding a degree in communication-related field, such as public relations, journalism, marketing, or communications. Therefore, based on the foregoing analysis of this criterion alone, Public Relations Specialist is a specialty occupation as the OOH provides a limited range of degrees that are acceptable for Public Relations Specialist position.
The degree requirement is common to the industry in parallel positions to that of Public Relations Specialist among similar companies

The second criterion to classify the position as a specialty occupation is establishing that the degree requirement is common to the industry in parallel positions among similar companies.
In order to satisfy the requirement, the Service requested job listings or letters from similar companies hiring PR Specialists with the same degree requirement. In addition, USCIS requested evidence from the professional associations in the PR field that made a degree a requirement for entry into the field.

Job Listings

With the Response to the Request for Evidence, we submitted numerous job listings, letters from other small tourism agencies, and letters from the professional associations noting the degree requirement for PR Specialists. In addition, we submitted numerous prior H-1B approvals with their corresponding supporting documents to show the Service’s policy to consider the position of PR Specialist to be a “specialty occupation”.

USCIS found that evidence insufficient to satisfy the requirement because, in the opinion of the Service, 22 job listings are not sufficient evidence of a degree requirement common to the industry. In addition, the Service stated that the hiring employers should be similar in size (by number of employees) and annual incomes to the petitioner. In the denial, USCIS stated that it was not clear from the face of the advertisements if the employers were similar to the petitioner’s business.

So, what is the sufficient number of advertisements? Interestingly, USCIS does not provide any guidance on this and only states that each case is analyzed on a case-by-case basis. Such uncertainty gives too much power to USCIS to deny the petitions even when extensive evidence is provided.

Unfortunately, review of inappropriate denial decisions can take months and costs a lot of money. Therefore, not many petitioners are willing to go through the process. Refiling the case, in the hope that another, more reasonable, adjudicator will review the petition, is not always an option because it is associated with paying the filing fees all over again, which are not refundable, and the adjudication may take a long time.

Often times, employers need workers who could fill the position soon, and, therefore, the employers may not be willing to go through this lengthy process again and, as a result, they lose the much needed talent.

It is the author’s opinion that, following the Service’s logic, it is practically impossible to meet the overly restrictive agency’s standards. Where would you find a job listing that shows how many employees are in the company and disclosing the company’s annual incomes? This is not a realistic requirement and it can never be satisfied.

Letters from Business Owners

In addition to the job listings, with the RFE response we provided letters from the owners of similar businesses to that of the petitioner. The business owner attested to the fact that his company hired PR Specialists with the particular degrees. The denial stated that no corroborative evidence was provided to prove that the business owner actually hired someone in the PR position.

This adjudicator’s statement appeared from the thin air because the RFE did not ask for corroborating evidence in that respect. Denying the petition based on fact that the corroborating evidence along with the statement was not provided is abuse of adjudicator’s discretion not supported by the law and the current policies.

Letters from the Professional Associations in the Field

In addition, the Service stated that the letters from the professional associations in the field of public relations that we provided are also insufficient to prove industry standard. The decision states “ the record does not include sufficient evidence to substantiate that the business representative is associated with the petitioner’s industry”.
This statement has no merit. The statements from the professional associations were provided to show that professional associations in the field of public relations concur on the fact that it is common to all industries to require candidates for the positions of Public Relation Specialists to have a baccalaureate level of education in a communications-related field.
Public Relations Specialist position is so complex or unique that it can be performed only by an individual with a degree

As an alternative to demonstrating that the degree requirement is common to the industry in parallel positions among similar organizations, the petitioner may show that the proffered position is so complex or unique that it can only be performed by an individual with a degree.

With the RFE response, we provided numerous materials of the petitioner on the public relations campaigns, current projects and events of the company along with promotional materials and showed that the beneficiary will have discretionary decision-making authority and will exercise independent judgment. Therefore, the position is complex and requires a professional with a bachelor’s degree in a specific field to fill the position.

However, when the petitioner is a small company, USCIS scrutinizes the H-1B petition even more justifying its decision by a statement that the company does not have organizational complexity that would require the services of a PR professional with a bachelor’s degree.
The petitioner normally requires a degree in a specific specialty or its equivalent for the position of Public Relations Specialist and similar positions

For the last criterion, the RFE asked the petitioner to present evidence showing the number of persons employed in similar positions and showing how many of those persons have a baccalaureate or higher degree.

With the RFE response, the petitioner submitted the resume, copy of the degree and H-1B approval notice of a Marketing Manager employed by the petitioner.
Marketing Manager’s duties were related to that of a PR Specialist. However, even that was not enough to satisfy the onerous standards.

THE PETITIONER HAS PROVEN BY PREPONDERANCE OF EVIDENCE THAT THE POSITION QUALIFIES AS A SPECIALTY OCCUPATION

In our motion, we pointed out that analysis of each and every criteria of “specialty occupation” and the facts of this case show that the Service has used the inappropriate standard of review in reaching its decision. The standard of review in H-1B cases is preponderance of evidence, which means that we only have to prove that it is “more likely than not” that the position qualifies as a specialty occupation.

According to the analysis in the motion, we have proven that it is more likely than not that the proposed position of Public Relations Specialist is a specialty occupation.

Conclusion

The need for a reform and extensive training of USCIS officers to ensure consistency in adjudications is evident. USCIS continues to use its overly restrictive interpretations and uses its discretion sporadically without providing a rational basis for the denials.

In our Motion to Reconsider in this case, we were able to show the specific instances where the law was inappropriately applied by USCIS and that the facts of the case were not properly reviewed. As a result of the Motion, the wrongful denial decision was overturned and the case was finally approved!

A few updates for our Italian Investor clients, Effective December 1, 2011, all E visas applications will be processed in Rome. Therefore, all new E1 Visa and E2 visa applications submitted after December 1, 2011 should be sent to the E Visa Section in Rome following the directions on the web. (http://italy.usembassy.gov./visa/vis/vis-6-en.html) All cases will be processed in the order received. All pending cases sent to Milan prior to December 1, 2011, will be processed to conclusion in Milan, in the order they were received.

In a Small Business Administration (“SBA”) study, the report found that, “Immigrants are nearly 30 percent more likely to start a business than are nonimmigrants, and they represent 16.7 percent of all new business owners in the United States.” This SBA report also found that nearly 30 percent of all new business owners per month in New York, Florida, and Texas, are immigrants. In addition, business owners from Europe constituted a growing share of immigrant business owners.

The E Visa for those unfamiliar with the opportunity, provides nonimmigrant visa status for a national of any of the countries with which the United States maintains an appropriate treaty of commerce and navigation, who is coming to the United States to carry on substantial trade, including trade in services or technology, principally between the United States and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or is actively in the process of investing substantial amount of capital.

An E-2 treaty investor must seek entry solely to develop and direct the treaty business. In certain franchises, the franchise contract may be too restrictive to establish this element of direction by the foreign investor, but a franchise business may qualify for E-2 status is the franchisee can exemplify sufficient control over the franchise operations.

Employees of treaty investors must have the same nationality as the E-2 employer. The position must be executive, supervisory, or require essential skills. As to executive or supervisory positions, the consular officer will review if the position principally requires management skills or key supervisory responsibility; or if the position chiefly involves routine work and only secondarily requires supervision of low-level employees. The E classification is intended for specialists and not for ordinary skilled workers. There are exceptions to this general rule. Some skills may be essential for as long as the business is operating.

Final tip for Italian investors, The most common reason causing delays in processing Treaty Trader and Treaty Investor visa applications is the failure to submit a Banca Nazionale del Lavoro receipt for the Machine Readable Visa fee payment. Cases submitted without this receipt are not examined or processed until the Machine Readable Visa fee payment receipts are received.

For more information on the E2 Visa, feel free to email us at any time.

A few updates for our Italian Investor clients, Effective December 1, 2011, all E visas applications will be processed in Rome. Therefore, all new E1 Visa and E2 visa applications submitted after December 1, 2011 should be sent to the E Visa Section in Rome following the directions on the web. (http://italy.usembassy.gov./visa/vis/vis-6-en.html) All cases will be processed in the order received. All pending cases sent to Milan prior to December 1, 2011, will be processed to conclusion in Milan, in the order they were received.

In a Small Business Administration (“SBA”) study, the report found that, “Immigrants are nearly 30 percent more likely to start a business than are nonimmigrants, and they represent 16.7 percent of all new business owners in the United States.” This SBA report also found that nearly 30 percent of all new business owners per month in New York, Florida, and Texas, are immigrants. In addition, business owners from Europe constituted a growing share of immigrant business owners.

The E Visa for those unfamiliar with the opportunity, provides nonimmigrant visa status for a national of any of the countries with which the United States maintains an appropriate treaty of commerce and navigation, who is coming to the United States to carry on substantial trade, including trade in services or technology, principally between the United States and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or is actively in the process of investing substantial amount of capital.

An E-2 treaty investor must seek entry solely to develop and direct the treaty business. In certain franchises, the franchise contract may be too restrictive to establish this element of direction by the foreign investor, but a franchise business may qualify for E-2 status is the franchisee can exemplify sufficient control over the franchise operations.

Employees of treaty investors must have the same nationality as the E-2 employer. The position must be executive, supervisory, or require essential skills. As to executive or supervisory positions, the consular officer will review if the position principally requires management skills or key supervisory responsibility; or if the position chiefly involves routine work and only secondarily requires supervision of low-level employees. The E classification is intended for specialists and not for ordinary skilled workers. There are exceptions to this general rule. Some skills may be essential for as long as the business is operating.

Final tip for Italian investors, The most common reason causing delays in processing Treaty Trader and Treaty Investor visa applications is the failure to submit a Banca Nazionale del Lavoro receipt for the Machine Readable Visa fee payment. Cases submitted without this receipt are not examined or processed until the Machine Readable Visa fee payment receipts are received.

For more information on the E2 Visa, feel free to email us at any time.

A recent article on Ars Technica has shed some light on an important issue going on in the U.S., the ability to get work visas. Some of the Silicon Valley's most important companies, including Intel, Google, and Yahoo, were cofounded by immigrants. Yet America's ponderous immigration system makes it difficult for talented young people born outside of the U.S. to come to the Bay Area. There have been various proposals to make it easier for immigrant entrepreneurs to come to the United States, but that has not made much progress in Congress.

A new company called Blueseed is seeking to bypass the political process and solve the problem directly. Blueseed plans to buy a ship and turn it into a floating incubator anchored in international waters off the coast of California.

An interview by Ars Technica talked to Blueseed founder Max Marty. He acknowledged that it would be better for America to reform immigration laws and thereby make his company unnecessary. But in the meantime, Marty and his team are hard at work tackling the practical obstacles to making their vision of a floating, year-round hack-a-thon a reality. Within the next year, they're hoping to raise a venture capital round large enough to lease or buy a ship with space for around a thousand passengers. If Blueseed's audacious hack of the immigration system is successful, it will not only open up Silicon Valley to a broader range of entrepreneurs, it will also shine a spotlight on the barriers American law places in the way of immigrants seeking to start businesses in the United States.

Blueseed is trying to overcome the limitations of American immigration law, but its business model also depends in critical part on the goodwill of American immigration officials. That is because a key part of the Blueseed sales pitch is that residents will be able to make regular trips to the mainland.

Immigration law makes it difficult for many would-be immigrants to get permission to work in the United States. For example, there's an annual cap on the number of H1-B visas available for American employers to hire skilled immigrant workers, a cap that was recently met. However, permission to travel to the United States for business or tourism is much easier to get.

Marty pointed to the B-1 business visa as a key part of his company's strategy. With a B-1 visa, visitors can freely travel to the United States for meetings, conferences, and even training seminars. B-1 visas are relatively easier to get, and can be valid for as long as 10 years.

Blueseed plans to provide regular ferry service between the ship to the United States. While Blueseed residents would need to do their actual work—such as writing code—on the ship, Marty envisions them making regular trips to Silicon Valley to meet with clients, investors, and business partners.

With the ship only 12 miles offshore, it should be practical to make a day trip to the mainland and return in the evening. A B-1 visa also permits overnight stays, making it useful for extended business related visits.

Continue reading "Start Up Company Seeks to Bypass U.S. Immigration System" »

OK so game is over for 2011, next filing is April 2012. U.S. Citizenship and Immigration Services (USCIS) announced that as of Tuesday, November 22, the 65,000 H-1B cap for fiscal year 2012 has been exhausted. USCIS previously confirmed that it had exhausted the 20,000 cap for employees with advanced degrees from U.S. colleges and universities. As such, the next available H-1Bs will be available for filing on April 1, 2012 with a start date of October 1, 2012.

The American Immigration Lawyers Association (AILA) commented on Wednesday’s announcement from the United States Citizenship and Immigration Services (USCIS) that it has received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year 2012 since the filing window opened on April 1st this year.

“During a time when job creation is the nation’s number one priority, why are we still fiddling around with an outmoded quota system that ignores the importance of immigrants to the economic engine?” said AILA President Eleanor Pelta.

“The marketplace dictates the pace and type of demand by business for specialized workers. To be more competitive globally, we really should be smarter about our high skilled visa distribution so that it is related to market needs instead of pinned to a static limit that was determined by Congress in the last decade,” continued Pelta. “Congress needs to be working on ways to make the visa system work for fueling the economy. The status quo is no longer acceptable.”

H-1B petitions are filed by U.S. employers seeking to hire a specific foreign national in a specialty occupation involving the theoretical and practical application of a body of specialized knowledge (such as the sciences, medicine and health care, education, biotechnology). The numerical limitation on H-1B petitions for fiscal year 2012 is 65,000. Additionally, the first 20,000 H-1B petitions filed on behalf of aliens who have earned a U.S. master’s degree or higher are exempt from the fiscal year cap.

Please email us to discuss options to work in the US. Happy Thanksgiving to All.

OK so the cap will be met by next week, we are certain now. U.S. Citizenship and Immigration Services (USCIS) announced that, as of November 18, 2011, it has received approximately 61,800 H-1B petitions counting towards the congressionally-mandated 65,000 limit. USCIS previously confirmed that it has received 20,000 H-1B petitions for employees with advanced degrees from U.S. colleges and universities, thus reaching the annual limit on H-1B petitions in the advanced degree category. Accordingly, additional H-1B petitions in this category will be adjudicated under the 65,000 general cap.

USCIS has historically accepted a greater number of H-1B petitions than the number available for approval under the cap based on the assumption that some petitions will be denied, rejected or withdrawn. USCIS will once again use actual data on approval and denials for this fiscal year to determine how many petitions should be accepted for filing and when to end the filing period for cap-subject petitions.

Hurry and file your cases now.

So why are we so stressed out in the past week or so, H1B time is on us. U.S. Citizenship and Immigration Services (USCIS) announced that, as of November 14, 2011, it has received approximately 56,800 H-1B petitions counting towards the congressionally-mandated 65,000 limit. USCIS also confirmed that it has received approximately 20,000 H-1B petitions for employees with advanced degrees from U.S. colleges and universities. The annual limit on H-1B petitions in the advanced degree category is 20,000. However, USCIS is still accepting H-1B petitions under the general cap for employees with advanced degrees from U.S. colleges and universities.

So looks like the economy is doing better, just look at H1B numbers from last year. In mid-November 2010, USCIS had received approximately 46,800 H-1B petitions counting towards the mandated 65,000 limit and approximately 17,200 H-1B petitions for employees with advanced degrees from U.S. colleges and universities. We expect even less visas to last next year.

So bottom line, call your Lawyers and let the filing begin!!

To qualify for an H-1B visa foreign nationals must have the a U.S. Bachelor’s Degree or its equivalent in their specialty and, in fields that require licensing, such as teaching or pharmacy, a full unrestricted license to practice in the U.S. You must also have a U.S. employer to sponsor you; you cannot be self-employed or self-petitioned.

Thus, if you wish to come to the U.S. on an H-1B specialty occupation visa, and all your degrees are foreign degrees, you will need your educational credentials evaluated and submit that evaluation with the H-1B petition.

At a recent meeting between AILA and USCIS officials, the following issue came up: We request that Service Center Operations Director advise on how the Service treats foreign degrees, for equivalency purposes, if the programs were structured differently at the time
the degree was obtained than what is reflected today in the ACCRO-EDGE database.

For example a degree that may have taken 4 years in the past now takes 3 years and the individual who holds the degree completed it under the 4 year standard. How can we be sure the beneficiary is given credit for having a 4 year degree? A member at the Annual Conference reported a denied I-140 under these conditions even when the member provided a course by course evaluation, a letter from the foreign university explaining the change and documents from the government showing when the change occurred.

USCIS Response: USCIS reviews each educational evaluation independently. If USCIS determines that the beneficiary’s educational background is equivalent to a U.S. bachelor’s degree then USCIS will adjudicate accordingly. Petitioners should provide whatever information they feel will best establish that the beneficiary’s educational background is equivalent to a U.S. bachelor’s degree.

As a reminder, USCIS’s policy regarding evaluations on the equivalency of degrees is that the
evaluations are advisory in nature and the final determination continues to rest with USCIS (See
Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988), Matter of Sea, Inc. 19 I&N
Dec. 817 (Comm 1988), and Matter of Ho, 19 I&N Dec. 582 (BIA 1988).)

8 CFR 214.2(h)(4)(iii)(D) provides that for purposes of paragraph (h)(4)(iii)(C)(4) equivalence to completion of a United States baccalaureate or higher degree shall mean achievement of a level of knowledge, competence, and practice in the specialty occupation that has been determined to be equal to that of an individual who has a baccalaureate or higher degree in the specialty and shall be determined by one or more of the following:

An evaluation from an official who has authority to grant college-level credit for training and or/experience in the specialty at an accredited college or university which has a program for granting such credit based on an individual’s training and or work experience.

We strongly advice our clients to provide as much documentation and information about foreign education as possible. We also suggest to only use expert professors in line with the above referenced guidelines. Email us for more info.

We have been reporting on the increase in unjust H1B denials for weeks. In many cases applicants and their lawyers are left with the option to appeal or refile. But when the media gets involved, USCIS are forced to change course.

Earlier this week "World News" shared the story of Amit Aharoni, an Israeli national and a graduate of Stanford Business School, who secured $1.65 million in venture capital funding with two cofounders to launch CruiseWise.com, an online cruise booking company. The company hired nine Americans in just one year.

But Aharoni hit rough waters after he received a letter on Oct. 4 from U.S. Citizenship and Immigration Services denying his request for a visa and notifying him that he needed to leave the country immediately. Aharoni moved to Canada, where he was forced to run his company via Skype from a friend's living room. While "World News' viewers voiced their disappointment, this morning, Aharoni received an email from USCIS. He was told that his petition had been reconsidered and approved. He is once again able to work in the U.S.

Experts say America's immigration policy is putting it at a competitive disadvantage. There are other countries that are eager to have entrepreneurs, enticing them with special visas and funding. According to Partnership for a New American Economy, an organization that advocates "the economic benefits of sensible immigration reform," countries including the United Kingdom, Singapore and Chile have visas for entrepreneurs. Chile even has a program that offers $40,000 in seed funding.

It is a problem politicians in America acknowledge, but have not solved.

According to statistics from Partnership for a New American Economy, 40 percent of Fortune 500 companies were founded by immigrants or their children.

If we fail to give such gifted immigrants the foundation to innovate, we will be the the first ones to loose.

So the race for H1b Visas is on. As of October 28, 2011, USCIS received approximately 49,200 H-1B petitions counting towards the congressionally mandated 65,000 limit. USCIS also confirmed that it has received approximately 20,000 H-1B petitions for employees with advanced degrees from U.S. colleges and universities.

The annual limit on H-1B petitions in the advanced degree category is 20,000. Accordingly, USCIS is still accepting H-1B petitions under the general cap. Employees with advanced degrees from U.S. colleges and universities may still apply under the general cap.

The H-1B numbers are being used at a faster rate this year than they were last year. In October 2010, USCIS had received approximately 45,600 H-1B petitions counting towards the congressionally mandated 65,000 limit and approximately 16,700 H-1B petitions for employees with advanced degrees from U.S. colleges and universities.

If you want to get your H1B visa this year, now is the time to file. Contact us if you need to get it done fast.

Can you own your company as an H1B Holder? Attorney Ekaterina Powell from our office has prepared the summary of the updates regarding establishing employer-employee relationship for H-1B purposes in cases where the beneficiary owns 100% of the petitioning company.

Since the issuance of Neufeld Memorandum “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Placements” in January 2010, USCIS has issued Requests for Evidence (RFEs) for many companies where the beneficiary is also a stockholder of the petitioning company. Often times, the RFEs are issued even if the beneficiary owns a minimal percentage of shares in the petitioning company.

In the situations where the beneficiary has an ownership interest in the petitioning company, it has to be established that the petitioner can be classified as the employer pursuant to 8 C.F.R. § 214.2(h) (4) (ii) (2). In other words, it has to be established that there will be an "employer-employee relationship”, as indicated by the fact that the petitioner may hire, pay, fire, supervise, or otherwise exercise the right to control over any such employee.

Establishing the Right to Control

The Neufeld memo provides an example of a situation where the right to control will not be found. The example includes a petitioner, a fashion merchandising company, that is owned by the beneficiary. The beneficiary is the sole operator, manager, and employee of the petitioning company. The beneficiary cannot be fired. There is no outside entity which can exercise control over the beneficiary. USCIS provides this scenario as an example where there is no right to control over the beneficiary.

However, this example in the memorandum does not preclude the finding of right to control in the situations where the beneficiary owns shares of the petitioning company or is the sole owner of the company and there is an outside control over the beneficiary.

USCIS acknowledges that a sole stockholder of a corporation can be employed by that corporation as the corporation is a separate legal entity from its owners and even its sole owner. However, an H-1B beneficiary who owns a majority of the sponsoring entity and who reports to no one but him or herself may not be able to establish that a valid employment relationship exists in that the beneficiary, who is also the petitioner, cannot establish the requisite “control”. USCIS stresses in the Memorandum that “[w]hile it is correct that a petitioner may employ and seek H-1B classification for a beneficiary who happens to have a significant ownership interest in a petitioner, this does not automatically mean that the beneficiary is a bona fide employee.”

Neither the Memo nor the regulations bar approval of the H-1B petitions where the beneficiary has the ownership interest. The Neufeld Memorandum merely stresses the fact that the petitioner has to show the right to control the beneficiary.

Even though the Memorandum clearly states that there can be situations where the corporation can establish the right to control its sole owner, adjudications of H-1B petitions where the beneficiary had an ownership interest in the sponsoring entity have been inconsistent. Often times, USCIS plainly concludes that since the beneficiary owns a part of the petitioning entity, it has not established the employer-employee relationship.

Despite the fact that the Neufeld memorandum was issued almost two years ago, USCIS has released its clarifications of the memorandum in the Q&A session only in August 2011. See Questions & Answers: USCIS Issues Guidance Memorandum on Establishing the "Employee-Employer Relationship" in H-1B Petitions posted on 08/02/2011 on USCIS website.

The Q&A clarifies when a beneficiary, who is the sole owner of the petitioner, may be able to establish a valid employer-employee relationship. Specifically, if the facts show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established.

Q&A gives an example that a petitioner that provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary may be able to establish an employer-employee relationship with the beneficiary.
There is a widespread misconception about the scope of the clarifications given by USCIS. Many individuals think that now any beneficiary who is the sole owner of the petitioner will be able to establish employer-employee relationship.

However, this is a misinterpretation of the Q&A. In any H-1B case filed on behalf of the beneficiary who has an ownership interest in the sponsoring organization, the petitioner has to provide documentary evidence proving its right to control the H-1B worker.

Documentation Required

The Frequently Asked Questions issued by USCIS suggest that the petitioner may submit a combination of any documents that sufficiently establish that the required relationship between the petitioner and the beneficiary exists and may submit any other similar probative evidence.
Such documentary evidence may include the following:
• Corporate documents, including bylaws, showing the board of directors and its authorities to exercise outside control over the beneficiary;
• Copy of signed Employment Agreement between the petitioner and beneficiary detailing
the terms and conditions of employment;

• Copy of an employment offer letter that clearly describes the nature of the employer-employee
relationship and the services to be performed by the beneficiary, the ability of the employer to fire the employee, the explanation of how the employer will exercise its right to control the employee, and the explanation how the employee will be supervised throughout the H-1B employment;

• Copy of position description or any other documentation that describes the skills required to perform the job offered, the source of the instrumentalities and tools needed to perform the job, the product to be developed or the service to be provided, the duration of the relationship between the petitioner and beneficiary, whether the petitioner has the right to assign additional duties, the extent of petitioner's discretion over when and how long the beneficiary will work, the method of payment, the petitioner's role in paying and hiring assistants to be utilized by the beneficiary, whether the work to be performed is part of the regular business of the petitioner, the provision of employee benefits, and the tax treatment of the beneficiary in relation to the petitioner;

• A description of the performance review process along with progress and performance evaluations;

• Letters from the other directors explaining how the right to control the work of the beneficiary will be exercised on a day-to-day basis, who will supervise the beneficiary and evaluate the work-product of the beneficiary, and explaining the management structure of the company;

• Copy of petitioner's organizational chart, demonstrating beneficiary's supervisory chain;
• Other relevant documents.

It remains to be seen if USCIS will be consistent in its adjudication of H-1B petitions where the beneficiary is the sole owner of the sponsoring entity. Therefore, when filing the H-1B petition, do not assume that the petition should be approved for a sole owner of the sponsoring entity in light of the new guidance. It is recommended to include as much evidence as possible showing the outside control over the beneficiary to prove a valid employment relationship between the petitioning entity and the H-1B worker. Please contact us with any other questions.

As lawyers specializing in the H2B visa process, we wanted to share the following update. The Department of Labor (DOL) is now issuing two prevailing wage determinations (PWD) for H-2B cases. Since last week we have received new PWDs with the following message attached:

On January 19, 2011, the Department published a Final Rule that revised the methodology by which the Department calculates prevailing wages under the H-2B program. On August 1, 2011 the Department amended that rule to make wage rates established under this new methodology effective for wages paid to H–2B workers and U.S. workers recruited in connection with an H–2B labor certification for all work performed on or after September 30, 2011. However, on September 28, 2011, the Department announced in the Federal Register a 60-day postponement of the effective date of the Wage Final Rule to November 30, 2011. This delay will permit the various courts involved in litigation relating to the Wage Final Rule to determine the appropriate venue to resolve all claims and to allow the Department to avoid the possibility of administering the H-2B program under potentially conflicting court orders.

As a result of the pending court actions and the delay imposed by the Department, you are now receiving two Prevailing Wage Determinations; attached please find the second of two. The wage listed on this Form ETA 9141 is for work performed until November 29, 2011. The National Prevailing Wage Center has already issued to you an ETA Form 9141 that is based upon the Wage Final Rule, which will, by virtue of that delay in the effective date, apply to work that is to be performed on or after November 30, 2011, unless a new effective date is established in connection with the pending court actions.

If you have not yet advertised for this position, the advertising conducted between now and November 30, 2011 should include the following language:

[Employer] will offer a wage of [at least the wage from this Form 9141]. [Employer] may be required to offer a wage of [the wage from the earlier PWD] for work performed on or after November 30, 2011.

For employers receiving these two PWDs, it must list in the Application for Temporary Employment Certification the two wages in Item G.1, as the range of wages to be offered, and insert in G.3 that [Employer] will offer a wage of [the wage from the first PWD] for work performed on or after November 30, 2011, unless the Department further postpones the effective date of, or is legally barred from implementing, the Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program Final Rule, 76 FR 3452 (Jan. 19, 2011).

You may be required to offer a wage of [wage on the first PWD] for work performed on or after November 30, 2011.

We expect more confusion and delays in this already short duration visa. I am getting ready for many calls from frustrated and confused employers.