Visa Lawyer Blog

Articles Posted in Work Visas

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Presently, attorneys Jacob Sapochnick, Esq., Ekaterina Powell, Esq., and Yingfei Zhou, Esq. from our office are in attendance at the 2015 American Immigration Lawyers Association (AILA) Conference on Immigration Law taking place in Washington, DC. Together, they have had the privilege of being present for an open forum where officials from the Department of State and the National Visa Center provided valuable information in regards to modernization of PERM, improvements in visa processing at the National Visa Center, technical issues experienced at U.S. Consulates abroad, H-1B fee announcements, and more!

Technical issues experienced at U.S. Consulates worldwide

1. In regards to technical issues causing delays in visa issuance at U.S. Consulates worldwide, visa issuance is currently frozen. No visas are currently being issued at any U.S. Consulates worldwide. U.S. Consulates are rescheduling appointments for visas that were affected by the technical issues. The DOS is working to repair the hardware, however it will not be until next week when all issues will be resolved. Due to this, there will be a backlog for visa issuance and it will take longer to schedule a consular appointment for a visa.

2. If a visa applicant was affected by the technical issues at a U.S. Consulate abroad and they need to retrieve their passport urgently, they will be able to retrieve their passport, however, in doing so, applicants will forfeit the visa fees they have paid, and will be issued a 221(g) visa denial letter. If applicants are still interested in receiving a visa, they must re-apply and re-pay any visa fees. Applicants who are re-applying must note on future applications that their visa was denied due to a technical glitch. Applicants from visa waiver countries who are concerned that the visa denial will automatically result in an ESTA denial can rest assured. ESTA submissions will not be denied based on the technical glitch. DOS has responded that the technical issues will not affect future visa applications. Continue reading

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USCIS released guidance on May 22, 2015 to clarify Administrative Appeal Office (AAO)’s precedent decision on April 9, 2015 on Matter of Simeio Solutions, LLC that all employers must file amended H-1B petitions when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker’s worksite location.

When Must File an Amended Petition

In Matter of Simeio, AAO ruled than a material change occurs when an H-1B employee moves to a new location outside the geographic area of the LCA that was originally filed for the employee’s H-1B petition. Whenever there is a material change, an amended H-1B petition is required. Employers whose H-1B employees changed locations before or after this April 9 ruling to outside of the geographic area covered by the previous LCA are now all required to file amended H-1B petitions.

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If a petitioner filed an FY16 H-1B cap petition in a timely manner for the fiscal year 2016 and has received notification from the delivery service used suggesting that there may be a delay or damage to the package, the petitioner may file a second H-1B petition.

The second H-1B petition must contain the following: a new fee payment, an explanation as to why a second petition is being filed with supporting evidence (such as the notice from the delivery service), and a request to withdraw the first petition.

If a second petition is sent without these items, it will considered a duplicate filing. USCIS would like to remind employers that it will deny or revoke petitions that are filed in the multiple or duplicate by an employer in the same fiscal year for the same H-1B employee, and they will not refund the filing fees.

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On March 4, 2015, the federal district court in the Northern District of Florida ruled in Perez v. Perez that the Department of Labor (DOL) lacks authority under the Immigration and Nationality Act (INA) to issue regulations in the H-2B program. This decision vacated and permanently enjoined DOL from enforcing the 2008 H-2B regulations. DOL was forced to immediately discontinue processing applications for temporary labor certification and can no longer accept or process requests for prevailing wage determinations or applications for labor certification.

On March 5, 2015, US Citizenship and Immigration Services (USCIS) announced that it is also temporarily suspending their adjudication of Form I-129 H-2B Petitions for Temporary Non-Agricultural Workers as these petitions require temporary labor certifications as issued by DOL. The government is considering the options to continue processing these petitions following the March 4 court decision. USCIS will continue to adjudicate H-2B petitions on Guam if those petitions are accompanied by temporary labor certifications issued by the Guam Department of Labor.

On March 6, 2015, USCIS suspended premium processing on all H-2B petitions until further notice. USCIS will issue a refund on all petitions filed using the premium processing service that were not acted upon by the agency within the 15 calendar day period.

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By Yingfei Zhou, Esq.

The TN is a wonderful category to achieve quick entry for Canadians and Mexicans without the extra H-1B baggage of a labor condition application (LCA) or specialty occupation analysis. Canadian professionals listed in Appendix 1603. D.1 to Annex 1603 of NAFTA can apply and be admitted to the U.S. under TN work category in a 24-hour period. The TN is also useful Canadians and Mexicans who have used up their allotted L-1 and/or H-1B time.

When presenting a TN application at a POE/PFI, the application paperwork should be straightforward and streamlined. You need to bring proof of your Canadian or Mexican citizenship, a detailed letter describing the professional activity as it appears in 8 CFR 214.6, documentation of the credentials as listed in Appendix 1603.D.1 (a resume is recommended), and application fee. The application must include every item required in 8 CFR 214.6(d).

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By Marie Puertollano, Esq.

We filed an H-1B case on April 1, 2014 for Product Line Manager, a position in the “Market Research Analyst” category of USCIS. The beneficiary has a Bachelor’s Degree in Engineering. The petitioner (the employer) is involved in high tech manufacturing. A few weeks later, we received a Request for Evidence questioning two aspects of the case.

First, USCIS questioned the fact that the position qualifies as the “specialty occupation”. Many occupations in engineering, medicine or accounting are traditionally considered specialty occupations. However, occupations in sales or marketing included in the “Market Research Analyst” category are not normally viewed to be appropriate for H-1B. USCIS uses the Occupational Outlook Handbook (OOH), a publication of the Department of Labor to determine what occupational category a particular position falls under. USCIS then tries to match the duties of a particular position with the occupational classifications found in OOH. As such, Product Line Manager position fell into Market Research Analyst classification.

Secondly, USCIS stated that the degree in Engineering of the beneficiary is unrelated to the position of Market Research Analyst. USCIS also routinely consults the OOH to determine the particular position’s educational requirements to determine whether the beneficiary’s background is relevant for the occupation. The OOH states that Market Research Analysts “typically need a bachelor’s degree in market research or a related field. Many have degrees in fields such as statistics, math, and computer science. Others have backgrounds in business administration, the social sciences, or communications.” Engineering is not mentioned as a possible field of study. This is why USCIS asked to “clarify how the beneficiary’s educational background qualified the beneficiary for the proffered position of Product Line Manager/Market Research Analyst”.

We timely answered to the Request for More Evidence (RFE) and the case was approved one week after! Here are some of the pointers we used in our RFE response.

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By Ekaterina Powell, Esq.

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

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

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The Chief of the Visa Control and Reporting Division at the U.S. Department of State, Charles Oppenheim, recently shared the expected projections for monthly and annual visa demand and Visa Bulletin projections regarding family and employment based green cards. It is important to note that these projections may be subject to change based on the reported or observed visa demand witnessed by USCIS and the U.S. Department of State.

Important developments to look forward to this year include significant advancement of EB-2 category for India and unmarried sons and daughters of LPR over 21 years old. On the other hand, several immigrant visa categories are expected to retrogress due to high demand, such as the category of spouses and children of LPR, EB-5 for Chinese nationals and EB-3 for Chinese nationals. The expected projections are as follows:

Family Based Second Preference 2A Worldwide (FB-2A) –Spouses and Children (under 21) of Permanent Residents:

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By Yingfei Zhou, Esq.

Q: How can I apply for EB-5 visa?

A: There are two requirements on foreign investors seeking a green card. First, you must invest sufficient funds in an approved project of your choice. Second, ten new full-time jobs must be created as a direct result of that investment. The investment must be either in a new business or an existing business and the investment will spur either a 40% increase in net worth or employees of the existing business.

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On April 07, 2014, in a much awaited public announcement, U.S. Citizenship and Immigration Services announced that it had already reached the statutory cap of H-1B petitions allotted for the 2015 fiscal year. According to the announcement, on the first five days USCIS began to count H-1B petitions, it was already flooded with more than 65,000 of regular cap H-1B petitions and more than 20,000 H-1B petitions qualifying for the advanced degree exemption.

USCIS began accepting H-1B petitions subject to the 2015 fiscal year cap on April 01, 2014. The H1-B visa program is utilized by U.S. businesses seeking to employ foreign workers in what are known as ‘specialty occupations’. Specialty occupations are those that necessitate highly specialized knowledge, whether theoretical or practical, as stated on the USCIS website. Specialty occupations include but are not limited to scientists, doctors, mathematicians, or engineers.

According to the announcement, USCIS completed initial intakes for all filings received by the filing deadline (April 07, 2014), and will conduct a random computer generated selection process also known as a lottery system of selection. Under this process, USCIS will select the number of petitions necessary to fulfill the 65,000 visa cap limit for the general category, and the 20,000 visa cap limit under the advanced degree exemption. Those whose cap-based petitions are not selected will have their cases rejected and filing fees returned to them. As stated by USCIS, the computer generated selection process will consider the advanced degree exemption first. Advanced degree petitions that are not accepted through the initial lottery system will be subjected to the lottery system for the general category.

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