Visa Lawyer Blog

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USCIS confirmed on October 23, 2013 that change of employment location within the same MSA does not require an amended H-1B petition. This is an important clarification from USCIS’ position on the issue was unclear.

Under USCIS regulations, amended H-1B petition is required if there is a material change in employment terms. However, there has been inconsistency in USCIS’ treatment of the changes in job location. While past USCIS guidance (Efren Hernandez letter, October 23, 2003) suggested that location changes, without any other changes in the employment relationship, do not constitute “material changes,” as a practical matter, USCIS has often denied H-1B petitions when during FDNS inspections the beneficiary could not be found at the job location that was provided to USCIS with the H-1B petition. USCIS, contrary to its own guidance, insisted that an amended H-1B had to be filed whenever the place of employment changes. This presented significant challenges to many employers who move offices within the same Metropolitan Statistical Area or who place employees at another job location not anticipated at the time of filing of H-1B petition. For employers who have a significant H-1B workforce that means thousands of dollars in USCIS filing fees.

The policies of USCIS and DOL seemed contradictory when it came to changes in job locations within the normal commuting distance of the place of employment. Under the DOL’s regulations, no new LCA is required to be filed if the employee moves within the “area of intended employment,” which is the area within a normal commuting distance of the place of employment. The normal commuting distance is not defined and has to be analyzed on a case by case basis. Normally, moves within the same Metropolitan Statistical Area (MSA) are considered to be within the normal commuting distance. Thus, any moves in job location within the same MSA generally do not require filing of a new LCA.

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When an applicant is facing the deadline to remove the conditions of his or her lawful permanent residency status, and the marriage on which the initial I-130 petition and conditional residence were based is on life support, deciding how and when to file the Form I-751 Petition to Remove the Conditions of Residence requires careful planning. The following provides a summary of the I-751 available waivers.

Differences Between Jointly-Filed Petitions and Waivers

There are some key differences between I-751 Petitions filed jointly and those filed under one of the waiver provisions. If a conditional permanent resident (CPR) is filing an I-751 Petition jointly, with the petitioning spouse, and files after the expiration date of the LPR card, he or she will need to include an explanation of the late-filing with the I-751 Petition. However, if filing under one of the waiver grounds, the CPR does not need to provide such an explanation. A waiver can be filed prior to or after the expiration of the LPR card up until the date an immigration judge issues a final order of removal.

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An eleventh hour deal was finally struck between Democrats and Republicans to reopen the government while they work out a long term fiscal budget for the federal government. The deal calls for the government to remain open until January 15, 2014 while Congress works on a long term budget over the next few months. The debt ceiling was also raised until February 7, 2014, meaning Congress spending and borrowing power remains in effect until that date. The impact of this deal has some very important, short term effects on some of the operations concerning our immigration matters. Some of these include the following:

– The Department of Labor is back in operation, meaning business employers can petition for immigrant workers again and that iCERT and PERM services are available.

– E-Verify is back in operation, meaning employers can verify their employees immigration statuses again

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Can undocumented immigrant lawyers practice law in the U.S.? That is a question that some states have been considering for several years now. Recently, a bill was passed in California that now permits undocumented immigrant lawyers to practice law in California. Last week, Gov. Jerry Brown signed AB 1024 into law, allowing undocumented immigrant lawyers to practice law in the state of California.

The bill was inspired by Sergio Garcia, 36, who had been waiting for four years to have the opportunity to practice law in California. In 2009, he graduated from Cal Northern School of Law, passed the bar exam and the moral character requirement but was denied a license because of his immigration status. Due to Sergio Garcia’s case, California is the first state in the nation to allow undocumented immigrants to practice law in the U.S. When he got the call from Assemblywoman Lorena Gonzalez (D), the author of the bill, telling him that his battle was over, Garcia said he let out “happy tears.” “I got choked up. I allowed myself to relieve the stress and everything I have felt,” he said. “But more than being happy for myself, I am just happy for people in my same situation who are not going to have to suffer in making their dream of becoming an attorney a reality”
A San Diego criminal immigration attorney, Narciso Delgado-Cruz, whose clientele is nearly 95 percent Latino, said the greatest impact this new law will have on the profession is the change in perspective. There will be new lawyers with a different “worldview,” he said. “It’s not only about being able to communicate,” Delgado-Cruz said. “Clients want to be understood, they like it when a lawyer can relate to their struggles, their fears and their dreams.”
On the same token, Garcia, who plans on practicing civil litigation and some immigration law, said the immigrant community is “extremely underserved” and they need lawyers that understand their challenges. “The ability to be of service to the community and be a vehicle for social change and equality is a great thing that will help not only society but the economy in general,” he said.

But some argue the law goes too far – particularly because lawyers take an oath to uphold the law and, critics say, are breaking it by being in the country illegally. “…If you are a lawyer who knowingly is breaking the law,” wrote Tod Robberson, an editorial writer for the Dallas Morning News, ”why should anyone trust you?”

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In recent news, despite the government shutdown, immigration reform is still on the minds of many who want that change to happen. Amid the political gloom of a government shutdown and the threat of default if a budget compromise is not brokered soon, immigration reform advocates are hardly basking in the momentum they enjoyed this summer. But backers of a path to citizenship for undocumented immigrants are keeping up the public fight in spite of a bleak outlook for legislative action this year.

Thousands descended on the National Mall on Tuesday, chanting “Si se puede” — “Yes we can”– as mostly Democratic lawmakers told them not to give up the push for reform. Despite the gridlocked political climate, many in attendance remained optimistic, but frustrated.

“I’m not sure when it’s going to, but I think it’s going to happen. We have momentum, like a snowball that is rolling,” said Juan Frias, a Fairfax, Va., a resident originally from Mexico. “But we know this will not be easy.”
“Congress needs to get their act together,” said Rebecca Diaz, a Puerto Rican who moved to Washington, D.C., one year ago. “I’m going to fight for immigration reform right now. Not in a year, not in five months, right now,” she said.

That fight meant a trip to jail for some, including some lawmakers. Eight House members outspoken about the immigration issue — including Rep. Luis Gutierrez, D-Ill., and civil rights icon Rep. John Lewis, D-Ga. — were among those arrested for civil disobedience during a march after the organized rally and charged with “crowding, obstructing, and incommoding” near the Capitol.

With the ongoing shutdown, the rally’s location on the National Mall was itself the subject of controversy. A week after World War II Honor Flight participants made national headlines for fighting for access to the shuttered national memorial honoring their service, critics said that immigration rights ralliers – including some who might be undocumented immigrants – should not be able to use space that would otherwise be closed because of the funding lapse.

The National Park Service granted the host organizations access to the area for “First Amendment activities.”
House Minority Leader Nancy Pelosi, D-Calif., commended the park service for “bending over backwards” to ensure the rally took place on the National Mall, directly between the Washington Monument and the Capitol.

Legislative progress on a comprehensive immigration bill –once seen as on track to being signed by the president after a bipartisan Senate vote to advance it – has all but halted. House Speaker John Boehner declined to put the Senate-passed bill up for a vote, waiting instead on “piecemeal” legislation from GOP House members. A years-in-the-making effort by a coalition of bipartisan House members to create their own comprehensive bill gradually crumbled.

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While immigration news of late has not been too positive with Congressional immigration reform being stalled while the U.S. government works on resolving its own budget situation, California recently passed a law that will have a positive impact on the immigration community. Governor Jerry Brown signed into law the Trust Act, a law that rejects the cloud of suspicion that the Obama Administration has cast over immigrant communities and sets the immigration debate in the right direction.

The TRUST Act ensures that California law enforcement will not submit to requests by ICE to hold people who have been charged with or convicted of only minor crimes for extra time in order to facilitate their transfer to immigration. The bill was considered, drafted, and passed by the California legislature as a response to the overly common experience of an interaction with law enforcement resulting in deportation, which sent a chilling effect throughout California communities and endangered public safety by making people afraid to call the police. A recent study showed that 40% of Latinos in Los Angeles were less likely to call police even when victim of a crime due to the police’s perceived involvement in immigration. If it is more important to prevent crime from happening in our communities, then people need to know they can trust the police are focused on that over any other issue.

Under the new policy, California law enforcement will no longer blindly comply with every immigration hold request from ICE. Instead, California officials will only detain a person for immigration if that person meets any of the following criteria:

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The “green card marriage based interview,” which both of the Petitioner and Beneficiary are required to attend as part of the green card process, should not be presumed as a walk in the park; it has the possibility of being a very intense and painful event. You can take the stress and anxiety out of the event through thorough smart preparation. Check out our Tips for success and good Luck!

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Post by San Diego Immigration Lawyer, Jacob J. Sapochnick.
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Since the Government Shutdown announced, I keep getting calls about the impact on Immigration Matters. Clients on H1B visas working for the government want to know how this will affect their legal status; Applicants in removal proceedings are wondering when the next hearing date will be scheduled. The bottom line this is a real mess.

Most of the country’s immigration courts are either closed or working limited schedules because of the United States government’s shutdown. That means some immigration court decisions could be delayed for months.

If the shutdown goes on for days, it means some immigration cases could languish in the already backlogged system.

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With the U.S. Government shutdown looming, many are wondering how immigration will be directly impacted by U.S. Congress’ failure to pass a budget bill to keep our services in operation. The American Immigration Lawyers Association has passed on information regarding key services that will be directly impacted by the government shutdown. These key services directly affect business immigration the most with respect to employers being able to hire foreign workers because of the involvement of the Dept. of Labor in that process. The Dept of Labor put out this notice to practitioners and individuals who will be affected by the government shutdown:

“OFLC functions are not “excepted” from a shutdown and its employees would be placed in furlough status should a lapse in appropriated funds occur. Consequently, in the event of a government shutdown, OFLC will neither accept nor process any applications or related materials (such as audit responses), it receives, including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification. OFLC’s web site, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online accounts.”

Basically, the statement from the DOL is that many of the services that business immigration clients use to allow individuals to work in the U.S. will be placed on hold until the budget is resolved and appropriations are made to allow those functions to work again. As of tomorrow, no further services by iCERT and PERM’s websites will put a lot of those cases on hold until the U.S. Congress has resolved its budgetary concerns.

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This informative article is provided by Attoney Ekaterina Powell from our office. In light of a recent AAO decision of September 4, 2013, that reviewed and overturned the finding of USCIS that the beneficiary was not qualified for the H-1B position, we have decided to revisit the issues associated with H-1B petitions based on the beneficiary’s work experience and provide explanations on how you can still qualify for H-1B even if you do not have a degree.

Despite USCIS’ restrictive interpretation of the regulations, it is still quite possible to obtain H-1B petition even if you do not possess baccalaureate-level education or if you have a degree in a field that is unrelated to the offered H-1B position.

To help our readers better understand the trends in USCIS adjudication, the author will first point out the regulations pertaining to H-1B petitions based on the beneficiary’s work experience.

The law states that in absence of a U.S. or the foreign equivalent degree, in order to qualify for H-1B position, the beneficiary can show education, specialized training, and/or progressively responsible experience that is: (1) equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and (2) the beneficiary has to show recognition of expertise in the specialty through progressively responsible positions directly related to the specialty. See 8 CFR 214.2(h)(4)(iii)(C)(4).

So, what do you have to present to qualify under this rule?

(1) Proving Equivalence to U.S. Bachelor’s Degree in the Specialty

First of all, you have to show that your work experience or the combination of your education and work experience is equivalent to completion of a U.S. bachelor’s degree in a related field.

In other words, you will need to establish that you have achieved a level of knowledge and competence in the occupation that is equal to the level of knowledge associated with completion of a U.S. bachelor’s degree in the field.

How do you do that? There are several ways to show equivalency. You have to show at least one of the following: (a) an evaluation by a college official authorized to grant credit for training and/or experience in the specialty at an accredited college or university which has a program for granting such credit; (b) an evaluation of education by a credentials evaluations service which specializes in evaluating foreign educational credentials (*NOTE: while this method is mentioned, it refers to evaluation of education only and cannot be used to evaluate work experience); (c) the results of college-level equivalency examinations or special credit programs; (c) certification or registration from a nationally recognized professional association for the specialty that is known to grant certification or registration to persons in the occupational specialty. See 8 C.F.R. 214.2 (h)(4)(iii)(D).

While the law states that one of the ways to show equivalency is an independent determination of USCIS that a baccalaureate level of knowledge has been achieved through work experience or a combination of work experience and education (that falls short of a bachelor’s degree or is a bachelor’s degree in an unrelated field), the author of this article does not find it prudent to rely on USCIS to determine equivalency as USCIS is reluctant to grant its own equivalency determination in absence of proof for one of the other methods.

Practically speaking, we have found that among all the methods available the most widely used way to show equivalency is to obtain an evaluation by a college official authorized to grant credit for training and work experience, also known as experiential credits.

A number of universities nowadays have formal programs for granting college level credit for work experience that employ professors on staff in charge of evaluating candidates’ work experience to determine equivalency to a U.S. bachelor’s degree in a specialty occupation. Our office has had quite a lot of experience dealing with the professors in a variety of fields who evaluate the H-1B beneficiary’s credentials to determine equivalency to a U.S. bachelor’s degree in a particular field.

The evaluators use the USCIS-established “three-for-one” rule to determine equivalency. Under this rule, three years of specialized work experience can be substituted for each year of college-level education that the beneficiary lacks. Thus, if you do not have any college-level education, then you will need to show 12 years of relevant work experience.

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