Articles Posted in Work Visas

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.

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 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.

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.

As the H1B filing deadline approaches, lawyers and employers are scrambling to get the cases ready for filing on April 1. Our office sure is in a state of war as stacks of H1B files are moving between the copy machines into organized FEDEX envelopes.

This is a last minute tip from the USCIS Vermont Service Center (VSC) that will be receiving cases along with the California Service Center.

Officials from VSC confirmed that the “in process” screen shot from the Department of Labor (DOL) website indicating that a PERM application remains pending still is the best evidence to document eligibility for H-1B extensions under AC21 §106(a). If an application is under appeal or reconsideration and the status has not been updated on the DOL website, VSC has and will continue to accept copies of e-mail correspondence or affidavits from counsel or the employer attesting that a request for review/reconsideration or appeal of a denied labor certification has been filed with DOL. For correspondence sent by courier, it also is helpful to include the tracking report evidencing delivery to DOL.

This was expected and here is the latest update. The U.S. Department of Labor’s Employment and Training Administration and its Wage and Hour Division today announced the publication of a proposed rule that seeks to improve the H-2B temporary nonagricultural worker program. The proposed rule, to be published in the March 18 edition of the Federal Register, includes changes to several aspects of the program to ensure that U.S. workers receive the same level of protections and benefits as temporary foreign workers recruited under the H-2B program, and to provide better access for employers with legitimate labor needs.

The H-2B nonimmigrant visa program permits employers to hire foreign workers to come to the U.S. and perform temporary nonagricultural work, which may be one-time, seasonal, peak load or intermittent and there are no qualified and willing U.S. workers available for the job. Note that this visa is not available for “temporary” agencies or other work placement agencies.

There is a 66,000 per year limit on the number of foreign workers who may receive H-2B status during each USCIS fiscal year (October through September). The process for obtaining H-2B certification is similar to, but less extensive and time consuming, than permanent certification. You are eligible for the H-2B Visa provided that you have a valid job offer from a US employer to perform temporary or seasonal non-agricultural work and that you intend to return to your home country on expiration of the visa.

As we are gearing up towards H1B filing season, recent update from USCIS. U.S. Citizenship and Immigration Services (USCIS) announced today, in response to recent stakeholder feedback, that it is currently reviewing its policy on H-1B cap exemptions for non-profit entities that are related to or affiliated with an institution of higher education. Until further guidance is issued, USCIS is temporarily applying interim procedures to H-1B non-profit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education.

Effective immediately, during this interim period USCIS will give deference to prior determinations made since June 6, 2006, that a non-profit entity is related to or affiliated with an institution of higher education – absent any significant change in circumstances or clear error in the prior adjudication – and, therefore, exempt from the H-1B statutory cap. However, the burden remains on the petitioner to show that its organization previously received approvals of its request for H-1B cap exemption as a non-profit entity that is related to or affiliated with an institution of higher education.

Petitioners may satisfy this burden by providing USCIS with evidence such as a copy of the previously approved cap-exempt petition (i.e. Form I-129 and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, and any documentation that was submitted in support of the claimed cap exemption. Furthermore, USCIS suggests that petitioners include a statement attesting that their organization was approved as cap-exempt since June 6, 2006.

According to the LA Times, California reached a milestone late last month when federal immigration officials quietly announced that all 58 counties in the state are now participating in Secure Communities, a controversial program created to track and deport dangerous criminals.

Unveiled in late 2008, Secure Communities is billed as a showpiece of immigration enforcement. Under the Immigration and Customs Enforcement program, state and local police must check the immigration status of people who have been arrested and booked into local jails by matching fingerprints against federal databases for criminal convictions and deportation orders.

But today, Secure Communities is mired in problems. About 60% of the 87,534 immigrants deported under the program had minor or no criminal convictions, according to the U.S. Department of Homeland Security’s statistics, even though the program was aimed at dangerous criminals.

Our office has extensive experience assisting the clients in filing H-1B petitions. We also help the clients consider their options if the case is denied. Below is an example of the H-1B case that got approved even after the denial was issued.

The employer/petitioner was a large luxury hotel. The petitioner sought the services of the beneficiary in the position of a Food Service Manager.

The Immigration Service issued a Request for Evidence (RFE) in that case prompting the employer to submit additional evidence to establish that the position offered qualifies as a specialty occupation.

If an L petition presented by a Canadian citizen in conjunction with an application for admission is lacking necessary supporting documentation or is otherwise deficient, the inspecting CBP officer shall return it to the applicant for admission.

The officer should instruct the applicant for admission to obtain the necessary documentation from the petitioner to correct the deficiency. Id. The officer should not accept the filing fee for a petition lacking necessary documentation or that is otherwise deficient. Id. Instead, the filing fee should be accepted once the necessary documents are presented or the deficiency overcome.

The foregoing paragraph contains several noteworthy observations. First, the Code of Federal Regulations governing the Canadian L petition adjudication procedures uses mandatory language, not permissive language. The regulations clearly state that the CBP inspecting officer “shall return” such a petition to an applicant. Officers do not have discretionary authority in this matter. Accordingly, CBP officers are required to return to the applicant any L‐1 petition lacking necessary documentation or that is otherwise deficient.

Second, officers should not accept a petition filing fee for any petition that lacks necessary documentation or is otherwise deficient. Of necessity, officers will be required to conduct an initial review of an L petition presented by a citizen of Canada concurrently with an application for admission to the United States in order to determine if the petition includes all necessary documentation or is otherwise deficient. Only after making such a preliminary review will an officer be able to determine whether the petition includes sufficient documentation and information or whether it should be returned to the applicant along with the tendered filing fee. Only when an applicant returns with sufficient documentation or information to overcome a deficiency may the officer accept the filing fee for the L petition.

Third, there is an implicit rationale underlying the procedures described in 8 CFR §214.2(l)(17)(iv). As noted in the section above, the petitioner, not the Canadian citizen applicant for admission, is responsible for preparing and filing the L petition. Furthermore, the petitioner is not required to appear when an L petition is filed, whether this takes place at a USCIS Service Center or at a port of entry.

Therefore, the Canadian applicant for admission, in most circumstances, will not have documentation or information demonstrating that the petitioner is a qualifying organization. Documentation relating to the duties to be performed by the beneficiary also is unlikely to be available at a port of entry. Such documentation normally would be needed to provide details concerning the qualifying nature of the duties performed. In apparent acknowledgment of these realities, the regulations instruct inspecting officers to return incomplete or deficient petitions to the applicant in order to gather the needed documents or information from the petitioner.

Clearly Deniable Petitions

In some cases, an L petition presented by a Canadian citizen concurrently with an application for admission to the United States will be clearly deniable. In such circumstances, the inspecting officer should accept the petition with the filing fee and notify the petitioner of the denial, the reasons for the denial and the right of appeal. 8 CFR §214.2(l)(17)(iv).

It may initially appear that there is a conflict between the regulatory mandate to return to an applicant an L‐1 petition lacking documentation or otherwise deficient, with the instructions to deny clearly deniable petitions. Upon closer examination, however, these two instructions are not difficult to reconcile. Consider first the definition of the term “deficient.” This word is defined as an item “lacking in some necessary quality or element.”1 Useful synonyms are terms such as incomplete, fragmental, fragmentary, partial. Id. In contrast, the term “clearly” is defined as an activity performed “in a clear manner.”2 Useful synonyms are terms such as “inarguably, incontestably, incontrovertibly, indisputably.”
When a petition is deficient, it is incomplete. Information or documentation will not be present with the petition. The absence of information will leave a question remaining about whether the petitioner is a qualifying organization or whether the beneficiary is eligible for classification as an L‐1 intracompany transferee. When a petition is deficient, it is only partially complete. There remains the possibility that production of additional documentation or information may demonstrate the petitioner and/or the beneficiary are eligible to utilize the L‐1 intracompany transferee category.

Conversely, a petition that is clearly deniable cannot be cured by presentation of additional documentation or information. No question remains unanswered by the documentation or information presented with such a petition. Instead, the facts will indisputably demonstrate that the petitioner is not a qualifying organization or that the beneficiary does not satisfy the eligibility requirements for L‐1 classification.

Continue reading