Visa Lawyer Blog

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Since the June 2013 Visa Bulletin, the third preference employment-based immigrant visa category (EB-3) for individuals born in China has a more recent cut-off date than the second preference employment-based category (EB-2). This has held true even as recently as the December 2013 Visa Bulletin, which indicates that the EB-3 category has a priority date earlier than October 1, 2011 compared to the EB-2 category which has a priority date of November 8, 2008. Because of the more recent priority date for the EB-3 category, it is important to recognize what options to pursue when filing an I-140 petition under either category for a Chinese national.

Under 8 CFR section 204.5(a), an I-140 petition generally must be accompanied by an original labor certification to be considered properly filed. Section 204.5(e) allows the alien to retain the priority date of an approved I-140 petition and apply it to any I-140 petition that is subsequently filed on his or her behalf, whether the I-140 petitions were filed by the same or different employers. This is true even if the same labor certification, which would qualify for either EB-2 or EB-3, is the basis for multiple I-140s.

While there is a 180-day validity period for individual labor certifications, USCIS recognizes an exception to this period when “an amended petition is filed to request a different visa classification than the visa classification requested in the previously filed petition. Although it is more common to see petitions file an upgrade from an EB-3 preference category to an EB-2 preference category, the current circumstances for Chinese Nationals pose a situation where “downgrading” to the EB-3 category is more beneficial if the prior petition was based on the EB-2 category. Since it is possible to file an EB-2 and an EB-3 petition based on the same labor certification, there are some considerations to keep in mind for those who have gone ahead and pursued the EB-2 route, since it had normally been the faster route to permanent residence for Chinese nationals. Some of these considerations for filing a subsequent I-140 petition include the following:

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Nelson Mandela, South Africa’s first Black president and the symbol of the anti-apartheid movement has passed away. Through untiring and ever vigilant efforts, Mandela would work through the hardest circumstances, including 27 years in prison to see apartheid end in South Africa. Because of his work, Mandela was a Nobel Peace Prize recipient and elected as his country’s first Black President.

Nelson Mandela represents the virtues of those who work tireless to bring equality and justice to his country. He is quoted as saying “People tend to measure themselves by external accomplishments, but jail allows a person to focus on internal ones; such as honesty, sincerity, simplicity, humility, generosity and an absence of variety,” These values continued to show through his work fighting against apartheid in jail and the changes he tried implementing when he became president of his country.

What we can take from Nelson Mandela’s passing is that these virtues are important for accomplishing important changes in government and in society. The immigration reform movement stands for the kind of change that is necessary to benefit all Americans. The impact immigration has on our lives and in our communities is the kind of change that Mandela would strive for because of how many people and communities are affected by the changes that are truly needed. Let us follow Mandela’s example and continue to implore, to speak out, and to actively call on our government to pass immigration reform that Americans have been asking for.

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By Ekaterina Powell, Esq.

As H-1B season is about to begin and companies across the U.S. are preparing for the H-1B recruitment period, we would like to remind our readers about the employment terms specific to H-1B candidates.

H-1B nonimmigrants are a great way for many employers to supplement their workforce when there is a shortage of qualified American workers. H-1B program can be an alternative to outsourcing when the shortage of labor exists. The H-1B visa allows foreign nationals to enter the U.S. temporarily for an initial term of three years to engage in professional occupations. Hiring an H-1B nonimmigrant is not an easy task. Apart from the tedious visa process, employers spend considerable time and resources in screening candidates, lengthy international telephone interviews, arranging for relocation of the candidates, training, etc. Sometimes however, after all these efforts in trying to bring the workforce into the U.S., today’s competitive marketplace serves as a tough reality for these employers as some of the H-1B nonimmigrants choose to leave the employers shortly after entering the U.S. in search for better opportunities.

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Until 2011, the National Interest Waiver (NIW) category had been limited to persons holding advanced degrees or persons of extraordinary ability in the arts, sciences, or business whose work was in the national interest. In 2011, the NIW category was expanded to allow entrepreneurs to pursue a green card based on demonstrating the business and their services within that business being in the national interest.

Recently, our firm succeeded in approving an entrepreneur as someone whose work was in the national interest because their exceptional abilities as an individual and the business’ substantial prospective benefit to the U.S. warranted approval for their case. The entrepreneur’s business was in the field of private security, focusing on providing security to American interests in countries where terrorism and insurgents threaten our interests abroad. By demonstrating that the business is focused on fighting against organizations such as Al-Qaeda, the national interest is served by showing how the welfare of the U.S. is protected by the company’s services.

When it came to the entrepreneur’s exceptional abilities, a six factor test is used to determine if the entrepreneur qualifies for his services being in the national interest. Of those six factors, only three must be met. The six factors are: (1) a degree, diploma, certificate, or similar award from a college, university, or other institution of learning related to the area of exceptional ability; (2) letter/s from current and/or former employer/s establishing that the beneficiary possesses at least ten years of full-time experience in the occupation for which s/he is being sought; (3) a license to practice the profession or certification for a particular profession or occupation; (4) evidence that the beneficiary has commanded a salary, or other remuneration, which demonstrates exceptional ability; (5) membership in professional associations; or (6) recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.

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If one recalls the earthquake from back in 2010 that hit Haiti, USCIS provided some relief options for Haitians affected by the earthquake, whether it was those currently living in Haiti or Haitians still in the United States. Recently, USCIS issued a statement regarding immigration relief options for Filipinos affected by Typhoon Haiyan. USCIS understands that a natural disaster can affect an individual’s ability to establish or maintain lawful immigration status in the United States. Therefore, Filipino nationals impacted by Typhoon Haiyan may be eligible to benefit from the following immigration relief measures:

Change or extension of nonimmigrant status for an individual currently in the United States, even when the request is filed after the authorized period of admission has expired;

Extension of certain grants of parole made by USCIS;

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Great news to report about Visa Waiver Overstays and Adjustment of Status. USCIS has finally issued policy guidance on adjudication of adjustment of status (green card) applications filed by individuals admitted under the Visa Waiver Program (VWP). Until now, USCIS offices throughout the country have been inconsistent in adjudication of visa waiver overstay adjustment of status applications with some offices consistently granting adjustment of status and with the others outright denying such applications in the exercise of discretion without consideration of the equities and without providing any reasons for the denial. Our last update on this subject was from January 2012 and it left the subject very unclear.

The guidance issued by USCIS on November 14, 2013 is binding on all USCIS offices and is designed to ensure consistency in adjudication of VWP adjustment applications throughout the country. The following is a summary of the new guidance as prepared by Attorney Ekaterina Powell from our office.

What is Visa Waiver Program

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On November 15, 2013, a new policy was issued to allow undocumented spouses, children, and parents of active duty and former members of the U.S. armed forces, the selected reserve of the ready reserve, to enter or continue staying in the U.S. after approval of parole request.

The purpose of the new policy is to relief the stress and anxiety of active members of the U.S. armed forces and individuals serving in the selected reserve of the ready reserve and veterans because of the immigration status of their family members in the U.S.

The first issue addressed in the Policy Memorandum (PM) is whether parole in place should be granted to certain family members of active duty members of the U.S. military troops and veterans. The answer is yes. However, counsel needs to point out here that although immediate relatives of active military troops and veterans are allowed to make parole request, the decision whether to grant parole is discretionary. The fact that the individual is a spouse, child or parent of an Active Duty member of the U.S. Armed Forces, an individual in the Selected Reserve of the Ready Reserve or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve, weighs heavily in favor of parole in place. Criminal records or other serious adverse factors will also be part of the discretion for such an individual.

The other issue addressed in the PM is what the effects of parole are. The new policy will allow those undocumented family members to qualify for green cards through adjustment of status. Normally, to do adjustment of status, the person needs to be legally admitted in the first place. The new policy overcomes this requirement for those immediate family members of the U.S. military troops and veterans who entered without inspection and do not possess legal status. The alien must still satisfy all other requirements of a change of status though.

Once parole is granted, the undocumented alien is eligible to apply for an employment authorization document or EAD, which would allow them to work and pay taxes and to travel abroad for legitimate business or personal reasons, and then after reentering the U.S. to be essentially cleansed of such prior immigration violations as entry without inspection or failure to depart when required.

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Recently, US Consulates are reportedly increasing their scrutiny of H-1B visa applications with respect to the wage rates paid to H-1B workers. Before a H-1B worker may apply for a H-1B visa, his or her US employer obtain a certified labour condition application (LCA) from the Department of Labor before filing a petition with USCIS. The certified LCA lists the wage rate that the employer promises to pay the H-1B worker in the United States. This wage rate is based on the wage level selected by the US employer on the LCA, and is based on the complexity of the job duties and the amount of education and experience that is required to perform those duties. The Department of Labor issued guidance in 2009 that defines each of the four wage levels that US employers may select.

The four wage levels are based on the level of experience the H-1B worker has and the complexities of the job duties for the H-1B worker. For instance, the first level is the “entry” level position concerns those employees who perform routine tasks that require limited, if any, exercise of judgement. The tasks provide experience and familiarity with the employer’s methods, practices and programs. These employees may perform higher-level work for training and development purposes. These employees work under close supervision and receive specific instructions on required tasks and expected results. Their work is closely monitored and reviewed for accuracy.

On the other end of the wage level spectrum is the Level 4 (Fully Competent) H-1B worker. These workers are for competent employees who have sufficient experience in the occupation to plan and conduct work requiring judgement and the independent evaluation, selection, modification and application of standard procedures and techniques. Such employees use advanced skills and diversified knowledge to solve unusual and complex problems. These employees receive only technical guidance and their work is reviewed only for application of sound judgement and effectiveness in meeting the establishment’s procedures and expectations. They generally have management and/or supervisory responsibilities.

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The United States has traditionally been viewed as one of the most emigrated-to countries in the world. A nation of immigrants in its own right, the federal government has long been tasked with developing an immigration policy that balances the benefits of foreign human capital with the drawbacks of increased competition for local jobs. Today, the lexicon of the economics of immigration is one of start-ups; federal immigration policy seeks to create incentives for talented and skilled foreigners to contribute to the U.S. economy through the creation and facilitation of startups. That said, there are a number of problems facing the U.S. immigration system that have threatened this overall goal.

Causes for Concern

While the policies implemented by the U.S. Citizenship and Immigration Service (USCIS) are relatively sound in their purpose and overall trajectory, there are a number of procedural hurtles facing the immigration system today. Studies have shown dramatic increases in visa denials to employees with specialized knowledge, and in particular, Indian nationals are facing the highest increase in the rate of denials. Even where visa’s are not actually denied, there are less burdensome but nevertheless taxing hurdles for many immigrants with specialized skills; USCIS authorities have increasingly required applicants with special knowledge to provide additional information supporting their petitions in 63% of cases in 2011, as opposed to 17% in 2007. Finally, there is an enormous delay in processing of visa applications; for example, the EB2 visa applications for Indian nationals currently being reviewed date back to 2004, and biannual government shutdowns have only exacerbated the problem.

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In June, same-sex marriages resumed in California after the state’s ban on it back in May 2008. The new decision made it possible for local government to issue marriage certificates for same-sex couples. Its effect on immigration law has also been revolutionary, because U.S. citizens can now petition for his or her same-sex spouses. Recently, our office has successfully assisted with a handful of same-sex couples with their marriage interview, and we would like to share our experience with all those who are still on the way.

Since same-sex marriage interviews are relatively new to immigration officials as well, many clients came to us with tensions and nervous. One of the reasons is that they don’t know how their interviews will be different from those opposite-sex couples, whether higher level of scrutiny will be applied, and what questions to expect. This article will brief the same-sex marriage interviews and provide you tips to success based on our professional experience.

First and foremost, always be on time for your immigration marriage interview. We always suggest our client to arrive at least 15-20 minutes before the scheduled interview time, to leave enough time for security check before entering the federal building and for check-in at the field office front window. USCIS officers expect you to be on time and it is important to leave a good impression before the conversation starts. If you have an attorney to accompany you, it is very important that you begin the interview only when your attorney is present. Another reason we want our clients to arrive a little earlier is that we will go over the entire process one more time with clients, let them know what to expect in the interview so they will walk in calmly and confidently, and make sure all documents, originals and photocopies, are all there and well organized.

Second, dress formally and conservatively. It takes less than 3 seconds to leave an impression. So you definitely would like to give a good impression to the adjudicating officer who will be interviewing you, because the way you dress is the first thing that an officer will see. For men, we suggest you at least business casual attire. For women, business casual will also be fine.

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