Visa Lawyer Blog

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The American Immigration Lawyers Association (AILA) recently released a report helping foreign workers and their employers answer the following question:

Where on the ETA Form 9089 should the employer enter the foreign worker’s qualifications which show that the foreign worker does in fact meet the minimum requirements to perform the job opportunity?

Such qualifications may include certifications, licensures, or other credentials. The ETA Form is meant to establish whether the foreign worker meets all of the qualifications for the job opportunity offered by their employer. The employer must list the foreign worker’s specific skills and other requirements for the job opportunity they are offering in Section H Question 14, and demonstrate that they in fact possess those skills and or requirements by utilizing Section K, and listing the foreign worker’s qualifications to prove that the requirements for the specified job opportunity listed in Section H have been met. Examples of qualifications that can be provided in Section K are; bar admissions, medical residency, ordination, professional exams, medical board certifications, professional certifications, teaching certificates, university or professional coursework, professional insurance, etc. For each special skill or requirement listed in Section H, the employer must demonstrate its respective business necessity. If not listed elsewhere, the qualifications to fulfill the job opportunity should be entered after all jobs held in the past three years are listed under Question 9 Job Details. It is advised that Question Numbers one to eight requesting job information can be left blank.

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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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Jose Antonio Vargas has quickly become the face that has humanized the struggle for immigration reform. Unlike other immigrants, Jose is a Pulitzer Prize winning journalist, Washington Post reporter, activist, and the founder of an immigration awareness campaign called ‘Define American’. Back in June of 2011, Vargas courageously revealed to the world that he was undocumented in a column he wrote for New York Times magazine. In it he describes what his move to the United States was like, the lengths he went to as a child to fit in to the American lifestyle, and what it has been like residing in the United States unlawfully. Jose’s journey to the United States began much like that of any other immigrant. He was smuggled into the United States from the Philippines when he was only 12 years old by an individual he believed to be his relative. Once in the United States, Vargas was raised by his hardworking grandparents who afforded him a better future. From the outset, his upbringing in the bay area of San Francisco appeared to be much like that of any other American child.

It was not until he made a visit to the DMV to obtain his driver’s permit that he realized the green card he was given by his grandfather was in fact fake when he was told by the woman at the DMV window not to come back there again. For years, Jose Antonio Vargas has dedicated his life to standing in solidarity with the thousands of undocumented immigrants residing in the United States illegally. He has done this by serving as the voice of the undocumented, attending hundreds of conferences and speaking engagements, in addition to writing as a distinguished columnist.

Up until July 15th Vargas was able to advocate for the plight of undocumented immigrants without being apprehended despite constantly being in the public eye. A few days prior to July 15th Vargas appeared at a shelter housing Central American children and refugees and attended a vigil to honor them near the Rio Grande Valley. His presence in the region was meant to call attention to the humanitarian nature of the subject. In order to attend the event, Vargas crossed the McAllen, Texas TSA checkpoint, an area known to be highly secured and militarized. Vargas had not given much thought to the possible risk of being detained once he would return to the United States through the same checkpoint. According to the Department of Homeland Security Vargas was detained once he told TSA officials that he was residing in the country illegally. He was then taken to the McAllen Border Patrol Station and was given a Notice to Appear before an immigration judge. He was released within the same day after speaking with Immigration and Customs Enforcement officials. Unfortunately for Vargas, until comprehensive immigration reform is passed, he will continue to be forced to live under the radar. Vargas was not able to qualify for the Dream Act or for DACA, because his age did not meet the cutoff age as required by law. Shortly after being released Vargas issued a statement saying that the undocumented are constantly having to live in fear as a result of the failure of Congress and President Obama to act and bring about a viable solution to the problem. Jose Antonio Vargas challenges Congress to act by asking them the question: how do we define American?

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It has been reported that this Wednesday, July 23, the State Department’s global database for issuing travel documents has crashed, resulting in major delays for potentially millions of people around the world waiting for U.S. passports and visas.

Unspecified glitches in State Department’s Consular Consolidated Database have resulted in “significant performance issues, including outages” in the processing of applications for passports, visas and reports of Americans born abroad since Saturday. Spokeswoman Marie Harf said the problem is worldwide and not specific to any particular country, citizenship document, or visa category.

This failure may cause hardship to applicants waiting on visas and passports. State Department is working to correct the issue as quickly as possible.

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On July 19, 2014 the Federal Bureau of Investigation’s San Antonio Office issued a press release discussing fraudulent attempts made by con artists targeting the families of unaccompanied children—mostly from Central America—coming to the United States through the Rio Grande valley and Tucson border. According to the press release, these con artists operate by making themselves appear as credible entities and reaching out to the family members of unaccompanied children, seeking payment in exchange for what the families believe will cover travel and legal expenses that will allow the children to be reunited with them. These plots are deceptive and fraudulent. The San Antonio FBI office confirmed that on July 18 two fraud schemes of this sort occurred via telephone. In one instance the perpetrator(s) disguised themselves as a charitable/non-profit organization aimed at reuniting unaccompanied children with their families. Another perpetrator disguised themselves as a reputable business organization from San Antonio. According to San Antonio FBI, the payment amounts demanded by these illegitimate sources ranged from $300.00 to several thousand dollars. The press release seeks to inform the public of these occurrences and encourage the public to be extremely cautious when receiving such a request. The FBI San Antonio Office has warned the public that fraudulent schemes such as these are abound especially in instances of crisis and natural disasters. The public should be extremely wary in such times. If you have been the victim or know someone who has been a victim of such a crime contact your local FBI office.

In general to protect the public from being victimized the press release provides several guidelines:

  • Be skeptical of individuals representing themselves as officials asking for payments or donations door-to-door, via phone, mail, e-mail or social networking sites.
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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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It is a pleasure for our law office to introduce associate attorney Nadia Galash to our readers

Bio: Nanadiadia Galash has been a California licensed attorney since 2009 and has been practicing immigration law since 2011. Nadia Galash specializes in adjustment of status/permanent resident processing; citizenship; deportation and removal proceedings before Immigration Court; law and motion work; and immigration appeals. Her practice although limited also includes criminal defense and family law matters.

Nadia is a Russian attorney with 3 children. In her free time she enjoys yoga and meditation.

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The rise in the number of unaccompanied children crossing into the United States illegally has dominated talks between lawmakers, pundits, political analysts, and humanitarian organizations, all of whom have a stake in bringing about comprehensive immigration reform. According to reports by the New York Times, since the month of October, over 50,000 children have been caught crossing the United States border illegally; a number that is double the amount of children who crossed illegally in 2013. This issue has become a point of contention not just for pro-immigration reform advocates, but has also transformed into a humanitarian issue worthy of continued debate, due to the dangerous nature a child succumbs to in making the dangerous trek to the United States unaccompanied and vulnerable.

Where are these children coming from you might ask? The vast majority of these unaccompanied children are coming from poverty stricken towns across El Salvador, Guatemala, and Honduras, which are also notorious for their violence. The New York Times reports that unaccompanied children from Mexico make up less than a quarter of the total amount of children coming to the United States illegally. The increase in the number of children crossing into the United States illegally began in 2012. Of the children that were apprehended, more than 70% were caught crossing through the Rio Grande Valley in Texas, while only 13% were caught crossing through Tucson, Arizona.

Though experts have continuously debated the reasons why these unaccompanied children are coming to the United States, most agree that there are various factors which drive these children to escape the conditions in their country: poverty, violence, and the desire to re-unite with their families. Among the countries mentioned, Honduras boasts the world’s highest murder rate. Children coming from Guatemala and El Salvador tend to come from very poor and rural towns. Some of the problem may lie in the fact that previously, minors who were detained were not immediately deported. This may have led many Central Americans with the perception that the Department of Homeland Security would allow these children to remain in the United States.

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By Lupe Lopez

Alan and Diana married in February 2014.  They quickly filed for Diana’s green card and because they had been married less than two years at the time of the interview, Diana received conditional permanent residence.  Everything was fine and there were no problems until Alan received a promotion to a position in one of the firm’s overseas offices.  Both Alan and Diana were concerned because they knew that Diana would not be able to spend much time out of the U.S. and still maintain her permanent residence.

Alan and Diana came to our office in to get an attorney’s opinion of their situation and to see if there was any way they could file a form that would maintain Diana’s permanent residence while living abroad.  Normally, if you are a permanent lawful resident, you cannot be out of the country for an extended period of time if you wish to maintain your residency; especially for the purpose of obtaining citizenship.  In order to be naturalized as a U.S. Citizen, the permanent resident must fulfill residency requirements and show evidence that he or she has been physically present in the United States for at least half of the three years (for people who have gained status through marriage to a U.S. Citizen – half of five years for all others).  Diana would not be able to accumulate the time needed if she is forced to live abroad with her husband.

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By Yingfei Zhou, Esq.

The Conrad 30/J-1 Visa Waiver program allows J-1 medical doctors to apply for a waiver of the 2-year residence requirement upon completion of the J-1 exchange visitor program. From October 1 through September 30 of each year, up to 30 waivers can be recommended by each state’s Department of Health. If the home government funded the physician’s exchange program, the physician also needs to obtain a “no objection” letter from his or her home country. Once the waiver is approved, applicants can file for cap-exempt H-1B visa to work for the health care facility.

In order to be eligible, the applicant must be a physician practicing clinical medicine full time (no less than 40 hours per week) in an area designated by U.S. Department of Health and Human Services (HHS) as a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), or Medically Underserved Population (MUP). The employment should commence within 90 days from the date the waiver is approved by the USCIS.

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