Visa Lawyer Blog

Articles Posted in Work Visas

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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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Now that the H-1B cases have been filed, we are anxiously waiting to get the news from USCIS on the cap count.

Last year, USCIS announced on April 5 that it received approximately 124,000 H-1B petitions during the five day filing period, including petitions filed for the advanced degree exemption. Then, on April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select for processing a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit.

What to Expect This Year

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Our office receives many inquiries from start-up companies that want to hire employees under H-1B visa. As the H-1B season has begun, we would like to provide our readers with the updates and important considerations for this category of H-1B visas.

The following article was prepared by attorney Ekaterina Powell from our office and was featured as the cover article in VOICE, the American Immigration Lawyers Association publication.

Start-up Companies Still Fight for H-1Bs

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Reactions to the release of the House GOP leadership’s principles for immigration reform  tended more toward cautious praise for releasing something as a starting point, but with serious doubts about the shortcomings of the actual policy proposals. Because these principles are guidelines—without specific  detail—“cautious optimism” is probably the healthiest approach to take in understanding what the document means for reform. Summarizing what the document says doesn’t take long; understanding its nuances, particularly its omissions and departures from the past, requires a bit more digging. In reality, this new document should not be read as an unwavering set of principles, but rather  as a list of expectations and strategic choices. The first half, dealing with enforcement contains no real surprises, but the second half is full of them.

There is much rhetoric about the necessity of securing our borders and creating a zero-tolerance policy for people who violate our laws in the future. These standards endorse the use of an electronic work site verification program and the full implementation of an entry/exit registration program for tracking arrivals and departures to and from the U.S. They emphasize the necessity of enforcement of laws first, before turning to any more positive reforms. Ultimately, the enforcement section of the document merely repeats the idea that we must be able to measure enforcement successes and thwart efforts to get around the law.

The second half of the GOP stance is far more interesting, as it emphasizes rewarding hard work and merit, and puts a premium on outcomes. The authors declare that the legal immigration system needs to be reformed to avoid an over reliance on family ties or luck; instead, they prioritize rewarding foreign students who can contribute to the economy and meeting the needs of employers. Similarly, temporary work programs, particularly in agriculture, have to provide realistic and predictable means of entry to the U.S., without harming the interests of native-born workers. It is striking how the emphasis on finding a way to use the immigration system to improve the economy is an acknowledgment of the importance of immigration that has been lacking in the past.

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