Visa Lawyer Blog

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USCIS has released a new interim memo which clarified the method of analysis by USCIS officers that they must use in adjudicating Form I-140, Immigrant Petition for Alien Workers, filed for 1) Alien of Extraordinary Ability EB1A cases; 2) Outstanding Professor or Researcher EB1B cases; and 3) Alien of Exceptional Ability EB2 cases. The requirements for these types of I-140 petitions have not changed but this new method of evaluating the merits of cases may adversely impact those applying for immigration in these categories. This interim memo is a response to the U.S. 9th Circuit Court of Appeals decision in Kazarian v. USCIS on March 4, 2010. In the Kazarian ruling, the court held that USCIS was being too strict in deciding EB1A petitions by requiring extensive citation evidence and specific types of peer review work in order to meet the EB1A criteria. However, the court did rule that USCIS could consider evidence such as extensive citations in making a final merits review of the case to determine whether an alien is at the very top of his or her field.

In essence, the new USCIS interim memo breaks the evaluation process up into two parts – 1) evaluating whether the applicant meets the baseline criteria for the immigration category and 2) determining whether the applicant’s evidence demonstrates the required high level of expertise for the immigration category. In the second part of the review process the USCIS will evaluate the evidence to see if, as a whole, it proves by a preponderance of the evidence that the applicant is at the very top of his or her field of endeavor. This article will explain how the evaluation will be handled for affected EB1A and EB1B I-140 petitions.

For the first step in evaluating EB1A cases, the officer will check to see if evidence is provided to show that the applicant has met at least three of the following ten criteria:

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ICE officials provided a copy of a new policy memo dated Aug. 20 that instructs government attorneys to review the court cases of people with pending applications to adjust status based on their relation to a U.S. citizen. ICE estimates in the memo that the effort could affect up to 17,000 cases.

The Department of Homeland Security is systematically reviewing thousands of pending immigration cases and moving to dismiss those filed against suspected illegal immigrants who have no serious criminal records, according to several sources familiar with the efforts.

Opponents of illegal immigration were critical of the dismissals.

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This is a recent USCIS update announcing that any U.S. citizen seeking to adopt a Nepali child, whose case is not affected by the suspension of processing cases involving Nepali children claimed to have been found abandoned, should file the Form I-600 with the U.S. Embassy in Kathmandu.

This change in the filing location for the Form I-600 petitions applies to two groups of prospective adoptive parents who are not affected by the suspension. The first group is those who received a referral letter from the Government of Nepal’s Ministry of Women, Children and Social Welfare before Aug. 6, 2010, informing them of a proposed match of an abandoned child. The second group is those who seek to adopt Nepali children who were relinquished by known parent(s) and whose identity and relationship can be confirmed.

USCIS strongly encourages prospective adoptive parents to follow this procedure for their own benefit, based on growing concerns about unreliable documents, irregularities in the methods used to identify children for adoption in Nepal, and the resulting difficulties in classifying those children as orphans under U.S. immigration law. Please see the Aug. 6, 2010 announcement online regarding the suspension.

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U.S. Citizenship and Immigration Services will celebrate the grand opening of its new field office and application support center in Bedford on Thursday, Sept. 2, with a ribbon-cutting ceremony, naturalization ceremony and tours of the facility. USCIS Associate Regional Director Shelley Goodwin will preside during the naturalization ceremony and will administer the Oath of Allegiance to 25 citizenship candidates. She will be joined by USCIS’ Boston District Director Denis Riordan and USCIS’ Manchester Field Office Director Simon Abi Nader.

Gov. John Lynch will join USCIS and delivering remarks for the special naturalization ceremony. Joining USCIS for the ribbon-cutting ceremony will be Bedford Town Manager Russell Marcoux, Mayor of Manchester Ted Gatsas and Glenn C. Rotondo, acting regional administrator of General Services Administration, New England region.

The new office, at 9 Ridgewood Road, will provide a range of immigration services, including naturalization interviews, lawful permanent resident processing, fingerprinting and photographic services and is well-suited to serve the area’s immigrant community. The new facility replaces the former Manchester location on Canal Street. The new office is based on a national model for new USCIS office locations throughout the country.

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Great Analysis from AILA to share with our readers. PL 111-230 requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after August 14, 2010. Petitioners subject to this new fee include employers with more than 50 employees in the U.S., for which 50% of their workforce is on H and L visas. The fee will remain in effect through September 30, 2014.

USCIS indicated that Vermont Service Center and California Service Center were instructed to hold any H or L petitions sent after that date, pending guidance on how to determine whether the petitioner is subject to the new fee. USCIS will be modifying the I-129 or H-1B Data Collection Form to include information on whether this fee applies.

In the interim, USCIS suggested that petitioners could proactively include a “certification” regarding the fee, including a notation of whether the fee is required in bold capital letters at the top of the cover letter. The sample certification that the petitioner is not obligated to pay the fee would be:

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USCIS updated its count of FY2011 cap-subject H-1B petitions and advanced degree cap-exempt petitions receipted. As of 8/20/10, approximately 33,900 H-1B cap-subject petitions were receipted. USCIS has receipted 12,600 H-1B petitions for aliens with advanced degrees. This is a major jump from the last update of August 13, 2010 where only 29,700 filings were reported.

Is this trend likely to continue? We think so, expect visas to run out by the early weeks of December.

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Great Videos to share from the U.S. Consulate General in Ciudad Juarez on what to expect when going to the Consulate for a visa interview as well as a video on how to avoid people who engage in unlawful practices outside the consulate, such as people who sell false documents.

Here are links to both videos:

https://www.youtube.com/user/pasjuarez

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In the recent concluded 2010 AILA Annual Meeting, many attorneys shared their experiences which are similar to those experienced by our firm -a surge of H-1B RFEs. The California Service Center (CSC) has been especially tough or “ridiculously tough” in adjudicating H-1B applications, according to some attorneys. However, according to USCIS statistic information, only 17% of H-1B petitions filed at CSC have been issued RFEs, while 20% of H-1B petitions filed at Vermont Service Center (VSC) have been issued RFEs. This number reflects the total opposite situation of what we have experienced.

The new H-1B guidance issued by USCIS on January 8, 2010 has undoubted contributed to the surge of H-1B RFEs. This guideline tries to clarify what kind of standards and documents are used to determine whether an employee-employer relationship exists. However the guideline limits the opportunities of obtaining an H-1B visa for 3rd party off-site work, consulting firm practices, self-employed business owners, and agent-staffing company petitions. In evaluating petitions, USCIS uses key definitions provided by common law principles and Supreme Court decisions. Essentially, in order to qualify as an employer, the right to control when, where, and how a beneficiary does his/her job is key. This is different than actual control. However, in practice, USCIS relies heavily on evidence of actual control to determine the right of control. It is also the reason we have seen an increase of H-1B RFEs in petitions filed for 3rd party off-site work, consulting firm practices, self-employed business owners, and agent-staffing companies.

How do we deal with the surge of H1-B RFEs? Are those 3rd party off-site work, consulting firm work, self-employed, and agent-staffing company jobs totally out of the picture of H-1B visa holders? These are some tips that are helpful:

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According to Public Law 111-230, which contains provisions to increase certain H-1B and L-1 petition fees. Public Law 111-230 requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions. The law became effective upon signing and will expire on September 30, 2014.

The additional fees apply to a petitioner that employs 50 or more employees in the United States and has more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status.

The single additional fee, if applicable, is in addition to the base processing fee, the existing Fraud Prevention and Detection Fee, and any applicable American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee needed to file a petition for a Nonimmigrant Worker (Form I-129), as well as any premium processing fees, if applicable.

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Many clients have been calling my office in the past week or so, they have been reporting denials of adjustment of status applications at the San Diego District Office for applicants, that entered under the Visa Waiver program and later overstayed. The overstay took place before marriage to a US Citizen and filing the adjustment of status case.

Is this is a new trend and change in procedures, yes it is! An internal email released July 9, 2010, (I saw it today at one of my interviews but was not allowed to take a copy out) released by the San Diego District Director to all Officers processing adjustments states the following:” To all Adjudicators effective immediately, any immigrants that have entered to the US under the Visa Waiver program and failed to file for adjustment of Status before the expiration of the 90 days authorized stay, MUST BE denied at the time of the interview.” The email was not very long but that was the general idea.

But why and why now? Under the Visa Waiver Program, citizens of certain countries can enter the U.S. for 90 days without a visa with the condition that the visitor waive his or her right to contest removal (other than on the basis of asylum). The “no-contest” provision of the Visa Waiver Program is fundamental; if someone could enter under the VWP and then contest removability, it would defeat the whole purpose of the Program which is to make it easy for certain nationals to come to the U.S.

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