Visa Lawyer Blog

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A few day ago, the U.S. Department of State (DOS) released the December visa bulletin, which shows significant forward movement in the availability of immigrant visa numbers for individuals born in India and China in the Second Employment-Based preference category (EB-2) for individuals with advanced degrees. Foreign nationals born in India or China with an approved I-140 petition in the EB-2 category with a priority date of March 15, 2008 or earlier will be eligible to apply for the last step of the permanent residence beginning in December 2011. This represents forward progress in visa availability of four months from the November 2011 Visa Bulletin.

The Visa Bulletin, which the DOS releases each month, summarizes the availability of immigrant numbers based on employment- (or family-) based category, country of birth, and priority date. A foreign national cannot apply for permanent residence (a green card) until a visa is available based on their priority date, preference category, and country of birth.

The DOS has predicted that it is possible that immigrant visa availability could move forward again in the January and February 2012 Visa Bulletins, but then retrogress later in the year. Last year, according to the DOS, there were 3,000 EB-2 petitions filed on behalf of individuals born in India who already have priority dates established through EB-3 petitions. Because those individuals can use their previous EB-3 priority date for the EB-2 category, the movement in EB-2 numbers for India is likely to slow down.

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A new Obama administration policy to avoid deportations of illegal immigrants who are not criminals has been applied very unevenly across the country and has led to vast confusion both in immigrant communities and among agents charged with carrying it out.

Since June, when the policy was unveiled, frustrated lawyers and advocates have seen a steady march of deportations of immigrants with no criminal record and with extensive roots in the United States, who seemed to fit the administration’s profile of those who should be allowed to remain.

But at the same time, in other cases, immigrants on the brink of expulsion saw their deportations halted at the last minute, in some cases after public protests. In other instances, immigration prosecutors acted, with no prodding from advocates, to abandon deportations of immigrants with strong ties to this country whose only violation was their illegal status, a sign that they were following the June memo from ICE.

For President Obama, the political stakes in the new policy are high. White House officials have concluded that there is no chance before next year’s presidential election to pass the immigration overhaul that Mr. Obama supports, which would include paths to legal status for illegal immigrants. Even still, immigration authorities have sustained a fast pace of deportations, removing nearly 400,000 foreigners in each of the last three years.

With Latino communities taking the brunt of those deportations, Latino voters are increasingly disappointed with Mr. Obama. White House officials hope the new policy will ease some of the pressure on Latinos, by steering enforcement toward gang members and convicts and away from students, soldiers and families of American citizens.

In a June 17 memorandum, John Morton, the director of Immigration and Customs Enforcement, laid out more than two dozen factors that its agents and lawyers should weigh when deciding whether to exercise prosecutorial discretion to dismiss a deportation. The memo called for “particular care and consideration” for veterans and active-duty troops, elderly immigrants and minors, and those brought here illegally as children.

In August, the homeland security secretary, Janet Napolitano, announced additional measures to put Mr. Morton’s guidelines into effect, including a review of all deportation cases — about 300,000 — currently in the immigration courts, with the aim of closing cases that do not meet the administration’s priorities.

In a report released Wednesday, the American Immigration Lawyers Association and the American Immigration Council collected 252 cases from lawyers across the country who had asked Mr. Morton’s agency, known as ICE, to exercise prosecutorial discretion to spare immigrants from deportation. “The overwhelming conclusion is that most ICE offices have not changed their practices since the issuance of these new directives,” the report found.

“This is a classic example of leadership saying one thing and the rank and file doing another,” said Gregory Chen, director of advocacy for the lawyers association. The report found that training for immigration officers on the new guidelines had been lacking.

Officials at the Homeland Security Department acknowledge the policy’s slow start. Mr. Morton’s June guidelines were followed by a three-month lull, when resistance grew among agents in the field. In late September, Ms. Napolitano and Mr. Morton went on the offensive to press the policy, and since then Mr. Morton has been on the road inaugurating training programs.

“Like any major change in enforcement policy, this is a work in progress,” Mr. Morton said by telephone from Miami, where he was joining in a training session. “I have been handling much of the initial explanation myself, because I feel so strongly about it.”
Officials say they need time to transform federal agencies accustomed to cut-and-dried immigration enforcement, with any illegal immigrant a target for deportation. Ms. Napolitano says immigration agents must become more like other police officers, using “sound prosecutorial practice” to follow priorities. Those priorities are to deport convicted criminals, serial violators of immigration law and recent border crossers, officials said.

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So why are we so stressed out in the past week or so, H1B time is on us. U.S. Citizenship and Immigration Services (USCIS) announced that, as of November 14, 2011, it has received approximately 56,800 H-1B petitions counting towards the congressionally-mandated 65,000 limit. USCIS also confirmed that it has received approximately 20,000 H-1B petitions for employees with advanced degrees from U.S. colleges and universities. The annual limit on H-1B petitions in the advanced degree category is 20,000. However, USCIS is still accepting H-1B petitions under the general cap for employees with advanced degrees from U.S. colleges and universities.

So looks like the economy is doing better, just look at H1B numbers from last year. In mid-November 2010, USCIS had received approximately 46,800 H-1B petitions counting towards the mandated 65,000 limit and approximately 17,200 H-1B petitions for employees with advanced degrees from U.S. colleges and universities. We expect even less visas to last next year.

So bottom line, call your Lawyers and let the filing begin!!

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There is a movement going on right now on YouTube. The Define American movement has launched a social media campaign on YouTube to open up the dialogue on immigration here in the U.S. and how we can reform the immigration system. Jose Antonio Vargas, the journalist famous for outing himself as an illegal U.S. immigrant in The New York Times, and his campaign encourages Americans all across the world to share their personal stories about “what it means to be an American” and the effects of the immigration system on their lives. Users can share their story via text, audio or in the form of a YouTube video.

The campaign follows the same formula that turned the It Gets Better campaign into a worldwide phenomenon. The goal, says Vargas and Define American co-founder Jake Brewer, is to open an honest dialogue across the country about immigration and immigration laws’ effects on families and communities.

“Only the Internet and only social media is vast enough to make room for an actual dialogue and an actual conversation,” Vargas tells Mashable.

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A new report out today says more than 700,000 foreign students came to the U.S. to study last year. That’s a record high for U.S. colleges and universities. Why the influx? It has a lot to do with state budgets.

The F1 visa is a nonimmigrant visa for international students who are qualified to attend a full course of study at colleges, universities, conservatories, academic high schools (subject to strict regulations) and institutions with language-training programs in the U.S.

Guess who sent the most students to the US in 2011 – China.

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Heading into Veterans Day, the Senate unanimously passed a bill to help unemployed veterans seeking jobs as well as federal contractors facing a new tax burden in 2013.

As we observe Veterans day, We wanted to send warm wards of support to our Veterans and the active duty men and women fighting for our country day and night.

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The P1 Visa is for Internationally recognized athletes or athletic teams entering the U.S. to participate in an event of international standing. The B1 Visa is for Professional athletes to compete for tournament money and not for a salary among other things. Department of Homeland Security reserves B-1 visas for non-contracted players who are coming to training camp to try out. In reality, many players entering the U.S. with a standard contracts on a B1, even though it violates the letter of the law. The B-1 can cost up to $1,550 less than the P-1.

Chad Starling hopes something will change, and that he’s the last ECHL player who gets turned around at the U.S.-Canadian border because he doesn’t have the proper work visa.

ECHL commissioner Brian McKenna said if something does change, it will be up to the member teams. He’s comfortable with the league’s immigration policy as it currently stands.

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To qualify for an H-1B visa foreign nationals must have the a U.S. Bachelor’s Degree or its equivalent in their specialty and, in fields that require licensing, such as teaching or pharmacy, a full unrestricted license to practice in the U.S. You must also have a U.S. employer to sponsor you; you cannot be self-employed or self-petitioned.

Thus, if you wish to come to the U.S. on an H-1B specialty occupation visa, and all your degrees are foreign degrees, you will need your educational credentials evaluated and submit that evaluation with the H-1B petition.

At a recent meeting between AILA and USCIS officials, the following issue came up: We request that Service Center Operations Director advise on how the Service treats foreign degrees, for equivalency purposes, if the programs were structured differently at the time

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Recently, many employers have been receiving Requests for Evidence (RFEs) on their petitions for L-1B Specialized Knowledge nonimmigrant worker visa. The L-1B visa is filed by a company who wants to transfer someone with specialized knowledge of the company or product of the company to their U.S. branch to help with its operations. Because of so many RFEs sent to employers on their L-1B petitions, the United States Citizen and Immigration Services held a stakeholder meeting to address the issues related to L-1B filings. In particular, many attorneys for employers raised the issue concerning the factors in determining Specialized Knowledge. At our law firm, we received an RFE for our own L-1B case that raised many of the same issues other attorneys have faced in their filings. This article will address those issues and how we overcame them in our case.

The main issue being the L-1B visa is the specialized knowledge requirement. Specialized knowledge means special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures (8 C.F.R. 214.2(l)(1)(ii)(D and (E)). From this definition of specialized knowledge, the application of it has varied greatly in many cases. First, what constitutes special knowledge seems to be confused with the standard of the O-1 visa requirements. The O-1 visa requires the individual to hold extraordinary ability in the sciences, arts, education, business, or athletics where “extraordinary ability” means sustaining national or international acclaim. This standard confuses the meaning of someone simply having an advanced level of knowledge or expertise within their organization’s processes and procedures.

In answering how our client’s employee held the specialized knowledge for the position he was being transferred to, we had to go back through the description of the position held in the foreign company and the position going to be held in the U.S. After going through those descriptions, we responded to each duty in both positions to show how the specialized knowledge of the employee was required for both positions. We further confirmed that knowledge through use of many letters of reference from higher up executives and other individuals who recognized the employee’s importance within the organization.

There has been some indication that specialized knowledge is different from proprietary knowledge and should not be confused. Some attorneys reminded USCIS that the L-1B nonimmigrant classification did not require the individual to be extraordinary, and that specialized knowledge need not be proprietary. It has pointed out that specialized knowledge is a special knowledge of the product or processes of a company. It was also stated that specialized knowledge need not to be narrowly held by a select few individuals within a company. These concerns were raised in our own case wherein it was requested to show how the employee held proprietary knowledge of the company’s product. Although there is nothing in the definition of the L-1B visa that says proprietary knowledge is required to show specialized knowledge, nevertheless, by providing other documentation to show how the employee was directly involved in the development of the company’s product, it was indisputable that he held specialized knowledge within the company.

Another issue raised was that skilled individuals required to keep the company competitive in the field were becoming difficult to bring over with RFEs in these cases. In cases where the knowledge relates to the industry rather than a particular company or it is not unique to the company, but rather enhances a company’s competitiveness, the importance of the individual’s skilled work cannot be understated. It was noted that in certain industries such as the software industry, the information is not unique to the company in that there are other individuals who have knowledge of the software as well. All of these considerations make it clear that a specialized knowledge individual is the one whose knowledge makes the company more competitive in its field. This RFE was also asked for in our case and easily responded to through statements from the senior executives of the company attesting to how the employee’s use in the U.S. will make the company more competitive.

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We have been reporting on the increase in unjust H1B denials for weeks. In many cases applicants and their lawyers are left with the option to appeal or refile. But when the media gets involved, USCIS are forced to change course.

Earlier this week “World News” shared the story of Amit Aharoni, an Israeli national and a graduate of Stanford Business School, who secured $1.65 million in venture capital funding with two cofounders to launch CruiseWise.com, an online cruise booking company. The company hired nine Americans in just one year.

But Aharoni hit rough waters after he received a letter on Oct. 4 from U.S. Citizenship and Immigration Services denying his request for a visa and notifying him that he needed to leave the country immediately. Aharoni moved to Canada, where he was forced to run his company via Skype from a friend’s living room. While “World News’ viewers voiced their disappointment, this morning, Aharoni received an email from USCIS. He was told that his petition had been reconsidered and approved. He is once again able to work in the U.S.

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