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November 25, 2014

L-1A Intracompany Transferee: Making Sure to File it Right


In planning an L-1A visa petition for a foreign investor, it is essential to take into careful consideration several qualifying requirements. Below is a description of some of these qualifying criteria, which have in recent years caused L visa denials or requests for evidence. Navigating these criteria requires a high degree of sophistication and planning on the part of immigration counsel.

Executive vs. Managerial

These terms are often misunderstood, since the job responsibilities for each may share some commonalities. However, it is critical to remember that each has a distinct statutory meaning and purpose. For instance, an L-1A coming to the US to occupy an executive position may not necessarily have any supervisory roles. Hence, if the foreign national is entering the US to "direct" the petitioning company rather than supervising subordinate employees, a better argument exists that the L visa recipient will fill an executive, not a managerial position.

Whether the L visa argument is for an executive or for a managerial position, the immigration counsel should present visual evidence to illustrate the role of the L visa recipient in the petitioning company. Such evidence may include an organizational chart clearly showing how the foreign national will undertake his or her duties. If the foreign national will occupy an executive role, then the organizational chart should show the level of supervision the beneficiary will exert, whether internally within the organization or externally through the use of outside professionals.

For smaller organizations, the immigration counsel might present evidence by expert opinions from renowned professionals in the field who would opine that the foreign national would indeed occupy such roles.

Functional Managers
L-1A visa regulations allow a foreign national to enter the US to oversee an "essential function" within the US enterprise. In such situations, the L-1A visa recipient is said to be a functional manager. However, extra care must be exercised when presenting such a case, as the foreign national must be positioned in a demonstrably higher-level position within the company's organizational chart exerting wide latitude in the exercise of her daily tasks. In such a position, the foreign national should not directly oversee any staff. Rather, the functional manager exercises control over a major "function" such as fiscal matters, productivity, optimizing operations, or to commit the company in agreements by interacting with similarly situated higher-level professionals internally or externally.

L-1A Considerations for Small Companies
When reading the L-1A visa regulations and guidance memoranda issued by the USCIS, one cannot help notice that these provisions seem to describe larger international corporations. However, L-1A visa petitions may be submitted on behalf of smaller corporations as well. But in doing so, the immigration counsel must exercise extra caution in providing the USCIS with sufficient details on how each L visa criterion is met. It must be remembered that the USCIS will examine an L visa petition submitted by a smaller corporation more closely; in some ways, a smaller corporation has a higher burden in proving that all the qualifying criteria are clearly met.

Does My Small Company Require the Services of a Manager or an Executive?
When planning an L-1A visa petition for smaller companies, one of the biggest challenges is to show that such an organization requires the services of a higher-level executive or a manager. It is easy to foresee that in smaller organizations, the L-1A visa applicant might in fact have overlapping duties between executive, managerial and sometimes lower level duties. Immigration counsel must be keen in recognizing the dangers of such overlap in roles; as the USCIS might determine that an L-1A visa in such situations is not warranted because it believes the foreign national will primarily exert lower-level functions.

Luckily, USCIS rules provide some guidance in dealing with such situations. The test is whether the foreign national will "primarily" spend his or her time in higher-level managerial or executive duties. The USCIS has given examples of what it constitutes as lower level duties, which include the operation of machinery, engaging in sales activities, and in supervising lower level employees.

Hence, in planning an L-1A visa petition for smaller companies, it is critical to phrase the position description to conform to the guidance issued by the USCIS insofar as the primary duties are concerned. One may have to point to the secondary duties of the position within the realities of running a small business such as conducting sales, or performing lower level duties. If the company is starting with relatively few employees, it might be helpful to describe outside independent contractors such as lawyers, accountants, marketing consultants and other vendors wherein the L-1A visa recipient will exercise control over in order to carry out the mission of the enterprise.

Planning an L-1A visa petition requires a deep understanding of the adjudicatory posture of the USCIS and the various regulatory provisions. It must be remembered that the USCIS will pay closer scrutiny to petitions submitted for smaller companies. Hence, immigration counsel must be keen to present sufficient illustrative evidence to present a persuasive case for visa approval.

November 25, 2014

L-1A Intracompany Transferee as a Means to Invest


In October 2011, the US Citizenship & Immigration Service began a new initiative called the "Entrepreneur in Residence" (EIR) program and launched a new interactive website a year later called "Entrepreneur Pathways," intending to emphasize a new USCIS horizon in the usage of various visa types to welcome foreign investors to the United States. One of the visa categories listed in the new website is the intracompany transferee (L-1) visa.

The USCIS announced its intentions to work with the investor community and to become more pragmatic in the manner the agency reviews and adjudicates visa petitions and applications filed by international investors wishing to establish new businesses in the United States. The investor community and their immigration attorneys hailed the program as a step in the right direction to utilize various visa categories including the B-1 visitor's visa, for example, and other unconventional visa categories as means to widen the visa path for international entrepreneurs to invest in the US.

Even after the introduction of the EIR initiative, the USCIS remains very cautious in the manner it reviews intracompany L-1 visa petitions. One can argue that the EIR did little to improve the adjudication personality of the USCIS when it comes to intracompany L-1 visa transfers. When planning to file an L-1 visa petition for a new or existing office, it is critical to work with competent immigration counsel specifically with experience in submitting intracompany L-1 visa petitions.

Intracompany Transferee L-1A Visa - A Very Attractive Path to US Permanent Residence for International Executives
It is easy to illustrate why the L-1A visa category for executives or managers is so attractive. Unlike any other nonimmigrant visa, the L-1A visa category is a relatively fast path to entering the US to operate a business. In order to qualify, the foreign investor need only to have had executive or managerial capacities in one out of the three years preceding his or her admission into the US. In addition, the foreign investor needs only to be coming to occupy an executive or managerial position in a company with a "qualifying business relationship" with the foreign business entity. A qualifying business relationship is one of four types defined by regulations and USCIS guidance manuals and memoranda: they must either by a parent/subsidiary, affiliate, joint venture or a branch office. However, the USCIS regulatory provisions have created enormous and detailed definitions requiring careful presentation in order to achieve L-1A visa petition approval.

Once the L-1A visa is approved, the foreign national can apply for an immigrant visa and permanent residence through the multi-national executive first preference immigrant visa category (EB-1). This strategy presents great advantages to foreign nationals in several ways:

  1. No Educational Requirement: unlike other immigrant visa categories such as second preference visa category (EB-2), the multinational executive does not have built-in educational prerequisites for acceptance into this category. So long as the foreign national meets the regulatory qualifications (executive/managerial and qualifying business relationship), they can apply. Obviously, however, the foreign national must clearly demonstrate that he or she is qualified as a manger or as an executive.
  2. No Priority Date Cutoff (Waiting Period): the multi-national executive category is in the First Preference employment based immigrant visa classification (EB-1). As of the posting of this article, processing times for immigrants of all nationalities are shown as current in the visa bulletin for this category. Hence, there is a big advantage in going the L-1A--to--EB-1 multinational executive route.
  3. No PERM Process. The EB-1 process does not require showing that the permanent employment of the foreign national in his or her position will not displace an equally qualified US worker. This is yet another advantage, one that yields savings in time and money. A PERM process takes 9 months including recruitment and case processing. If the PERM case is audited, one adds another year to the process.

The L-1A visa category offers great advantages and provides faster pathway to invest, reside, and later apply for permanent residence. Due to the aforementioned attractiveness, it is not a surprise that the L-1A visa is one of the most sought visa categories by foreign investors. Despite the declared Entrepreneur in Residence Initiative, the USCIS remains exceedingly critical in its adjudicatory posture. It is therefore critical to carefully plan the L-1A visa strategy with competent and experienced immigration counsel.

November 25, 2014

Obama's Immigration Action, Part 2: Addressing the "Broken System"


Modernizing the PERM Process
There are some problems with the current labor certification process, which is also known the PERM process. PERM (which stands for program electronic review management), is the first step to obtaining employment based permanent residence. It must be approved before an I-140, immigrant petition for alien worker is filed. Its intended function is to be the vehicle in which an American company begins to hire someone who isn't in this country for a future position that no qualified American worker is now applying for. This creates much uncertainty for the employer and the alien future employee.

The law requires that employment-based immigrants aren't "taking away" jobs that qualified American workers are seeking, so the employer must place a job advertisement for at least thirty days. This step ensures that the company isn't hiding the job from American workers--that the process was open and fair. In addition, the company must prove it isn't trying to hire a foreign national because it thinks it can pay immigrants less than American workers. This procedure (known as the prevailing wage determination) involves the Department of Labor and can alone take several months.

The process has many places in which it can be interrupted or otherwise go wrong. If a company has a vacant roving position, or one that spans multiple locations, it is unclear where it must place advertisements (if it wants to hire a foreign worker for that position). If an American citizen applies for the position sometime later in the process, or if the company can no longer afford to pay the original documented wage, the whole process may have to be redone. The whole process necessarily has to be redone if there is any change in the original employment plan that was the basis for the immigrant visa. These aspects of the process cause much unnecessary hardship and potential for wasted resources.

The announced reform promises to "modernize" this process. Steps will be taken to simplify the employer's obligation to ensure that the alien's position was open to U.S. workers, and there may be a fast lane for processing in high-labor-demand fields. In addition, all immigrants may be able to pay for faster processing. And lastly, there may soon be a "harmless error provision." This means that if there are errors in the application that do not change the underlying meaning or obscure its intention, second chances may be given instead of an issuance of outright denial.

No Wait for I-485 Application
Currently, many of those who filed employment based petitions for immigrant visas have to wait for extended periods of time before they can apply for a green card. Some immigrants have had to wait eleven years, in one instance (EB-3 workers from India). However, with this change, an alien will be able to file the I-485, application to register permanent residence or adjust status, at the same as his or her employer files the I-140, immigrant petition for alien worker.

This change is significant because those who have a pending adjustment of status receive several benefits. They can apply to be able to leave the country without abandoning their place in the line for permanent residence, they can apply for work authorization, and they can stay in the country without non-immigrant status. This will reduce the hardship for up to 450,000 qualifying immigrants waiting to adjust their status, plus future applicants.

More Advantages for Investors
Currently, much needed investors may have to wait up to two years before gaining entry into the United States through EB-5 (even though their visa category is current). However, they may soon be eligible for paroling into the country and being allowed to enter and apply for work authorization much earlier in the process while their case is pending, perhaps within a matter of months. Or, they may be able to apply for a national interest waiver, which has great potential to make the process easier for attractive potential investors. There could also be an expansion in eligibility for the national interest waiver in general.

Switching Occupations
The ability for employment based immigrants with pending I-485s to change employers could be improved. As of now, all that is known is that the future employment must be "the same or similar" to the original employment that was the basis for immigration. This has made changing employers at this time a difficult process with much uncertainty. It is expected that this clarification will make it easier to put together petitions to change employer while increasing certainty that well-crafted petitions will be approved.

Revival of L-1B
The L-1B was once a reliable way for international corporations with a U.S. presence to transfer workers from locations abroad to the U.S. locations if those employees had "specialized knowledge." However, the high volume of approved L-1Bs has led to increased scrutiny by USCIS. Indeed, these changes reduced the amount of L1B approvals without further inquiry to almost 35%. Per the announcement, guidance for achieving approval with the L-1B, including a clarification of "specialized knowledge" will be released. It is also speculated that this guidance will provide for less rigorous scrutiny of petitions.

Available Visas
Some steps are being taken that may increase the amount of available visas. Currently, children and spouses of visa holders who immigrate with the lead beneficiary of an immigrant petition count toward the same visa quota as the primary visa holder. These children or spouses are called derivative beneficiaries. They count toward the same visa quota as the lead beneficiary, even if the visa is employment based. This could change: they may count toward a separate quota or not at all until they receive permanent residence. The administration is also looking into whether or not it can recycle visas that were not used in previous years.

For Students and Dependents
Soon, some H-4 spouses could be able to apply for work authorization if they are already on the path to permanent residence. The regulations surrounding this are unclear at the moment. Additionally, the period in which international graduates from American universities can work in the United States without additional status (known as OPT) is going to be extended. STEM (science, technology, engineering, math) students currently get additional time on OPT, and the additional time they get will also be increased.

November 25, 2014

Obama's Immigration Action, Part 1: Keeping Families Together

DACA Expansion
Almost two years ago, the President created the Deferred Action for Childhood Arrivals (DACA) program as a substitute for the proposed DREAM act, which did not receive approval from Congress. (He did this too through executive action.) DACA provides the ability to stay and work in the United States to qualifying aliens who entered without inspection (illegally) as children. The stated goal of this policy change was to keep families together and help prioritize immigration enforcement resources to those who pose actual threats to this nation's security (and away from those who came as a result of their parents' actions).

Last week, President Obama announced expansions to this policy. To begin with, the current DACA program has an age cut-off; it applies only to those who were born after June 15th 1981. (Those born on or before that date are ineligible.) This would change; there would be no age limit. Another requirement--that aliens must have had a continuous presence in the U.S. starting June 15th 2007 in order to be eligible--has been relaxed to January 1st 2010.

DAP: DACA for Parents
A new deference of action program is created by this action: Deferred Action for Parents (DAP). DAP will provide the same relief as DACA (including eligibility for work authorization) to parents of permanent residents and citizens, regardless of age--as long as they meet three requirements. They must (1) have had a continuous presence in this country starting January 1st 2010 at the latest, (2) pass a background check, and (3) pay back taxes.

Expansion of Parole-in-Place for Military Families
Currently, some otherwise able to enlist in their desired branch of the armed forces are unable to do so because of a requirement that the enlistee have no undocumented immediate relatives. In order to remedy this, parole-in-place may be offered to these family members. This would allow them to stay and apply for work authorization in the United States as long as the enlistee remains in service or receives an honorable discharge. Parole-in-place puts an undocumented alien in the same legal position as someone who entered the country by paroling in, which is through special permission without using any legal cause for admission.

Provisional Waiver Expansion
One could view this change as increasing the avenues through which one can receive a provisional waiver--or as making it easier to qualify for one. When aliens commit unlawful entry, they are at risk of being deported and barred from the country, often for many years. The provisional waiver is an avenue for avoiding this and allowing the alien to undergo the consular process (which leads to permanent residence) without delay. A provisional waiver may only be approved if it can be shown that long-term absence of the alien would cause "extreme hardship" to "qualifying relatives."
Currently, the only relatives who qualify are the spouse and parents of the alien. With the apparent forthcoming change, however, there will be an expansion of the definition of "qualifying relatives" to include children of the alien. It is also expected that the definition of "extreme hardship" will be expanded or clarified.

Discontinuation of "Secure Communities" and Deportation Reprioritization
Secure Communities is a program that was started in the late Bush Administration and expanded under Obama. It asked local law authorities to send information on everyone in jail to the Department of Homeland Security, which would then look for undocumented immigrants and ask the local authority to hold them until deportation can begin. There was neither an official way of focusing on those who are threats, nor was there a protocol of ignoring those who had committed minor crimes. Unfair or not, the program caused great distrust toward the police among the undocumented and those who have undocumented family members. It should be easy to see how this can be problematic for local law enforcement.

Secure Communities is being replaced. Called the Priority Enforcement Program, the replacement will establish different conventions for accomplishing the same end goal: advancing U.S. safety. Local law enforcement will notify DHS if it captures someone who appears to represent a threat to national security (as defined by DHS). Then, Immigration and Customs Enforcement (ICE) must ask to be notified when there is a pending release of the alien if it too determines that he or she is a threat. If one of those two things doesn't happen, the alien will be released at his or her regular release date.

November 24, 2014

Issues involving Third-Party Worksites


In most cases, guidance memoranda from USCIS to the field are met with praise. These memos are issued in many instances, often when a new law is passed, a court decision forces a reinterpretation of a current procedure, or when there are inconsistencies in a process. In 2010, then Associate Director Donald Neufeld issued a guidance memorandum regarding the placement of H-1B employees at a worksite not owned/operated/associated with the petitioning organization. While this memo has provided some guidance to attorneys and petitioners, the discretion allowed to USCIS adjudicators often relieves the Service of following the often clear directives this memo set out.

Many U.S. Citizen and Permanent Residents are able to "audition" for a position with a major company through a consulting firm. These firms have standing contracts to provide services to major organizations (think IBM, Microsoft, Nationwide, etc.). The consulting firm provides these services through the use of their employee, placed temporarily on-site with the major organization. While solely the employee of the consulting firm, the employee will work with employees/managers/executives of the major organization on a daily basis. Many times, the employee will prove to the major organization that they are an exemplary employee that fits their corporate culture, and be offered a position with the organization. Consulting firms are at a major disadvantage when attempting to fill needed positions due to the overreaching discretion of USCIS regarding third-party placements.

A shock to no one, the Government is often behind the times on many issues. This comes into play when reviewing the situation of the Consulting firm, and the IT field in general. Since the issuance of the Neufeld Memo, USCIS has made it overly burdensome for petitioners to show that an employer-employee relationship exists when the employee is placed off-site. Even when following the guidance provided in the memo, USCIS will often "move the goal post," stating that the evidence submitted does not meet their standards of proof. Immigration Attorney's must often be innovative in responding to requests for evidence from USCIS requiring proof of the employer-employee relationship, even when the Neufeld Memo requirements have clearly been provided.

By holding these consulting firms to a higher standard than most petitioners, USCIS is restricting the type of temporary employment that the H-1B was intended to promote, namely, employment where in specialty occupations where qualified U.S. workers are unavailable.

Practitioners and Employers must be fully aware of the increased scrutiny by USCIS when placing their employee's at a third-party worksite, and ensure that adequate evidence is submitted to assuage the concerns of USCIS in these situations, as site visits and subsequent H-1B revocations are becoming more widespread.

November 24, 2014

Alternatives to the H-1B


When one thinks about the nonimmigrant workforce in America, most turn first to the H-1B visa. However, there are often ample alternatives to the H-1B process that will spare employers and foreign nationals alike from waiting until April to submit and the stress of the current "wait-and-see" lottery system. Each of the categories below allow for an employee to begin upon approval of the petition, rather than waiting for the beginning of the fiscal year in October.

TN Visa
Based upon the North American Free Trade Agreement ("NAFTA"), the TN visa allows Canadian and Mexican nationals to enter the United States for employment in specific professional occupations. The beneficiary employee must meet any associated education requirement for the particular profession. This visa does not require any attestations by the employer to the Department of Labor via a Labor Condition Application ("LCA"). A TN may be extended indefinitely, unlike the six year cap on the H-1B visa. Additionally, for Canadians, this visa does not require approval from USCIS prior to entering. A Canadian may simply present themselves at the border to a CBP officer, and with the proper documentation, will be allowed entry in TN status. Depending on the intended Port of Entry, it is often safer to apply with USCIS and present an approval notice, rather than to rely on the knowledge and opinion of a Border Officer to grant status.

E-3 Visa
The E-3 visa is a great alternative for Australian nationals. Approvable in two year increments, the E-3 can be extended indefinitely like the TN. The beneficiary employee must meet an education requirement for the specialty occupation. The E-3 also provides additional benefit to the dependents of the primary visa holder, as a spouse may request work authorization of their own. Like the H-1B, the employer is held to certain requirements by the Department of Labor via a certified LCA necessary for the petition.

L-1 Visa
The L visa is broken into two major categories; L-1A for multinational executives and managers, and L-1B for specialized knowledge employees. This category was created to provide multinational organizations with flexibility to transfer important employees between foreign and U.S. organizations. There is no LCA requirement with the Department of Labor, and spouses of the principal L-1 visa holder may request work authorization. To be eligible for the L-1 visa there must be a qualifying relationship between the foreign organization and the U.S. petitioner, such as parent/subsidiary, affiliate, or branch office. Further, the beneficiary employee must have been employed by the foreign operation for at least one of the last three years. Unfortunately, due to blatant abuses by certain organizations, the L visa has come under a great deal of scrutiny from Congress. This has translated to excessively high RFE and denial rates for this category, particularly for L-1B specialized knowledge personnel.

L-1A Multinational Executive or Manager

The L-1A is perhaps the most versatile visa for international businesses. The beneficiary employee must have held an executive or managerial position abroad, and must be entering the United States to fill an executive or managerial position at the petitioning organization. This means more than a lofty title. The "President" of a company that spends his/her days playing golf and comes in to sign checks on Fridays would not qualify for an L-1A. As with most work visa's, it is the job duties of the employee that matter. Even those employees that may not manage people can be approved for an L-1A if they manage an important function of the organization. Though not dispositive, approval of an L-1A visa can often translate to a First Preference Employment Based Immigrant Visa (EB-1).

L-1B Specialized Knowledge
The L-1B is perhaps one of the most difficult visa's to qualify for in the last three years. The intent of this category was to allow organizations to bring employees with extensive knowledge of their processes, procedures, products, etc., from their overseas operations into the United States. Unfortunately, USCIS has recently taken a position on what "specialized knowledge" means that severely restricts the ability for viable candidates to be approved. Our recent experiences with this category have shown that approvals are possible with strong evidence and a well-crafted support letter.

O-1 visa

The O-1 visa is intended for those with "Extraordinary Ability". It is reserved for those at the upper echelon of their respective profession. A good indicator of qualification for the O-1 is the prominence of the candidate in the field. There are two categories of the O-1 with slightly different requirements, based upon the field of endeavor. The O-1 is often used by artists, musicians, actors, athletes, and scientists.

November 24, 2014

Government Must Cite Specific Violations to Issue Visa Denial

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DIN V. KERRY, requires the Government to allege a specific violation of law and must also allege specific illegal actions by the alien before denying a visa application and excluding the alien.

The case of Din v. Kerry from the Ninth Circuit (2013), recently accepted for review by the Supreme Court, provides relief for United States citizens who have received a denial of a petition for an alien relative due to alleged involvement with terrorism alleged under Section 212(a) of the Immigration and Nationality Act ("INA"), a section of the INA that lists a wide variety of conduct that renders an alien inadmissible due to "terrorist activities."

The Appeals Court acknowledged that most visa decisions are not judicially reviewable. However, the Court "recognized a limited exception to the doctrine of consular nonreviewability." Specifically, "when the denial of a visa implicates the constitutional rights of an American citizen, we exercise "a highly constrained review solely to determine whether the consular official acted on the basis of a facially legitimate and bona fide reason," citing Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir.2008).

In Bustamante, the Court recognized that a citizen has a protected liberty interest in marriage that entitles the citizen to Appeals Court review of the denial of a spouse's visa.

Specific Violation of Law if Required
The Court found that the Government offered no reason at all for denying the visa. The government simply pointed to a statute. At a minimum, the Government must cite to a specific portion of the law within INA § 212(a)(3)(B), 8 U.S.C. § 1182(a)(3)(B) to allow the Court to determine that the law has been "properly construed."

The court went on to explain that "the sweeping nature of the cited section of the INA, Section 1182(a)(3)(B) exceeds 1,000 words. It contains ten subsections identifying different categories of aliens who may be inadmissible for terrorism reasons.3 The section defines "terrorist activities" with reference to six different subsections, containing different kinds of conduct. It defines "engage in terrorist activity" in seven subsections, some of which are divided into further subsections. The conduct described in § 1182(a)(3)(B) ranges from direct participation in violent terrorist activities to indirect support of those who participate in terrorist activities." Such a broad reference to prohibited activity did not give the complainant enough specificity to respond to the government's reason for denying the visa.

This is necessary because "some of the subsections in § 1182(a)(3)(B) confer upon an alien the right to present evidence to rebut the cited reason for inadmissibility. For activity in support of organizations that have not been designated by the Secretary of State as terrorist organizations, an alien may offer "clear and convincing evidence that the alien did not know, and should not reasonably have known, that the organization was a terrorist organization." Without knowing the specific subsection applicable to this case, the Court could not determine whether the consular officer should provide the alien an opportunity for rebuttal.

The Court will not "look behind" a consular decision to exclude an alien, but the Court must at least look at the decision, meaning that the Court must know what a decision means before it can review it. The Court sought to verify that the facts asserted by the Government in the visa denial constitute a permissible basis for denying the visa under the statute.

Specific Allegation of Illegal Activity Committed by Alien is Required
In addition, the Court held that the fact that the government cited INA § 212(a)(3)(B) is an insufficient basis for denying the visa, when combined with a complete failure by the government to allege any facts about the alien's actions in violation of this law.
The Court stated that it did "not think that even the most limited judicial review is so restrained as to ask only if the Government has successfully provided a citation to the U.S.Code." The Court further stated that "State Department regulations require consular officers to 'inform the applicant of the provision of law or implementing regulation on which the refusal is based and of any statutory provision of law or implementing regulation under which administrative relief is available,' and make no exception for denials" based on alleged terrorist activity.

Additionally, the Court held that the fact that Congress created a limited disclosure obligation in the context of visa denials does not mean that Congress otherwise prohibited the disclosure of all other information. The statute does not compel nor prohibit disclosure in this case.

Because the Government did not offer a legitimate reason for the visa denial, the Court can review this denial. The United States citizen, Din, has a constitutionally protected due process right to limited judicial review of the visa denial, stemming from her "freedom of personal choice in matters of marriage and family life." See Bustamante

Din alleged that the Government deprived her of due process by refusing to provide her (or her alien husband) with a legitimate and bona fide reason for denying her visa.

Finally, the Court concluded that Government citation to a law that prohibits terrorist activity without alleging any illegal conduct on the part of the alien seeking a visa is not a sufficient basis to deny the visa and exclude the alien. The Appeals Court remanded the case back to the District Court for further proceedings consistent with the decision.

April 17, 2014

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On April 7, 2014, the U.S. Citizenship and Immigration Services announced that it received approximately 172,500 total H-1B cap-subject petitions between April 1, the first day USCIS began accepting H-1B cap-subject petitions, and April 7, the last day to file an H-1B cap petition for FY 2015. This figure includes both regular cap-subject petitions and petitions filed under the U.S. Master's cap exemption and far exceeds the statutory limit of 65,000 for regular cap petitions and 20,000 for U.S. Master's cap petitions. Given the excess number of petitions, the USCIS completed the computer-generated random selection process ("lottery") to determine which petitions would be accepted for adjudication. In the lottery process, the USCIS first selects 20,000 qualifying H-1B U.S.-Master's cap-subject petitions from the pool of U.S. Master's Cap petitions received. Those U.S. Master's cap petitions that were not selected in the first lottery are then added to the pool of regular H-1B cap subject petitions. The USCIS then randomly selects 65,000 H-1B cap-subject petitions from the unselected U.S. Master's cap petitions and the regular cap petitions. Our team has received questions regarding this process. Here is a summary of those questions and our answers:

Q: How will I know if my petition has been accepted?

A: While it is unlikely that the USCIS has processed all of the cap cases yet, the earliest way to know if your petition was accepted is to see if the filing fee checks have been deposited by the USCIS. If you have access to the check information, you may look to see if your filing fee checks were deposited. On the back on the checks, you will find your receipt number.*

Otherwise, the USCIS will notify our team by email or my regular mail (on the Form I-797) whether your petition was accepted or rejected. Please rest assured that the moment our team receives any notifications from the USCIS, we will immediately inform you of such correspondence.

* If our firm issued the checks, we kindly ask that you refrain from contacting our accounting team to request this information.

Q: When will I find out if my petition has been accepted?

A: With 172,500 petitions on their hands, it will take some time for the USCIS to inform you as to whether your petition was received or rejected. While we have received email notifications a few of our clients who filed under Premium Processing, notifying us that the petition was received, do not be alarmed if you have not received any communication from us or the USCIS regarding whether your petition was accepted or rejected. Right now, it's simply a matter of waiting for the USCIS to process the numerous petitions they have on their hands.

Continue reading "Post-H-1B Q & A" »

April 17, 2014

DACA: Two Years Later Many Approach Renewal Deadline

In September of 2012 the United States Citizenship and Immigration Services (USCIS) began issuing work authorization cards to those that had applied through the Deferred Action for Childhood Arrivals (DACA) program. This program allows those who entered the United States without status to have action deferred in their case and receive a work permit valid for two years. Every two years, those granted DACA are required to renew their work permits as well as the grant of deferred action. For those who were the first to apply when the program was announced, their expiration dates are quickly approaching and USCIS has released preliminary information on how the renewal process will proceed.

The DACA program came into effect on June 15, 2012 through a presidential order signed into law by President Barack Obama. You may qualify for DACA if: (1) you were under 31 years of age on June 15, 2013; (3) you arrived in the United States before the age of 16; (3) you have lived in the United States since June 15, 2007 until the present time; (4) you were physically present in the United States on June 15, 2012 as well as at the time of requesting DACA; (5) you entered the United States without inspection or you entered with lawful status that expired before June 15, 2012; (6) you are currently in school, have received a GED, graduation from high school, were honorably discharged from the Coast Guard or Armed Forced of the United States, or are currently enrolled in a GED program; and (7) you have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and you do not pose a threat to national security or public safety.

Those who applied as soon as the DACA program took effect, June 15, 2012, will be coming up for renewal of their benefits within the next few months. Many applicants as well as attorneys have been wondering how the renewal process will proceed since this is the first time that anyone will have to renew and the DACA program is one of a kind.

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April 17, 2014

Reflecting on H-1B season

Thumbnail image for visa-approved11.jpgLooking back on the most recent H-1B Cap season, it becomes clear that the H-1B process works best when employers, employees and attorneys work clearly and efficiently together. There are many things that your employer's attorney will need from you to determine if you qualify for a H-1B visa and to prepare the best petition possible for you. The basic things that will be needed from you include:

  • Your current passport

  • Your educational credentials (diplomas and transcripts)

  • Evidence of your current status, if applicable.

Your employer's attorney will then use this information to demonstrate to USCIS that you meet the qualifications for an H1B visa. For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria:

  • Have completed a U.S. bachelor's or higher degree required by the specific specialty occupation from an accredited college or university

  • Hold a foreign degree that is the equivalent to a U.S. bachelor's or higher degree in the specialty occupation

  • Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment

  • Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

Thus, ensuring that the attorney has sufficient time to review your job description and your relevant education and experience will help give them an opportunity to thoroughly review your credentials and determine if you qualify or require and academic evaluation. An academic evolution will demonstrate to USCIS that your degree is the equivalent of a US degree in the specialty occupation field, or that your degree plus experience is the equivalent of a bachelor degree in the relevant field. It is very important to get a quality education evaluation as USCIS can reject poor ones. Thus, it is very important to get the attorney all your education information early so that they can review and determine the best course of action for your petition.

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February 11, 2014

H-1B Cap - The Ten Day Commitment

April 1st is just around the corner, which means...It's time to start the H-1B process! This year, there is no time for hesitation. The H-1B cap was reached within the first week last year, and this year will likely see an even higher demand. Thus, it is essential that when the U.S. Citizenship and Immigration Services Processing Centers open their doors on April 1st, your H-1B petition is on their welcome mat.

If you are an employer seeking to hire a foreign worker, you should be making final determinations about the position they seek to fill, the proffered salary and the foreign worker they wish to hire. If you are a foreign national seeking H-1B sponsorship, you should pinpoint your prospective U.S. employer(s) and gather the necessary documentation, keeping in mind that all supporting documentation must include a certified English translation. To ensure your petition is properly filed, contact an experienced immigration attorney now to give yourself time to perfect your case.

Having filed thousands of H-1B petitions, the Law Firm of Shihab & Associates has mastered the art of skillful and efficient filing. With your full cooperation, our team is able to complete your classic H-1B petition from start to finish in 10 days.

From our hands to the USCIS Processing Center's doorstep, here is a breakdown of our 10-day commitment to you:

Day 1: Hit the Ground Running

Our Collaboration with U.S. Employers on Day 1. On the first day that your case is opened, we will create your case file. Your case file is made up of the information that you are able to provide to us on Day 1. In order to hit the ground running, you should at least be prepared to provide us with the proposed position title, a detailed job description and the proffered salary. Using this information, we will determine the appropriate Standard Occupational Classification (SOC) Code and occupation title to be used on the Labor Condition Application (LCA). In addition, we will confirm that the proposed salary complies with the prevailing wage requirements.

Once the job title and salary are finalized, we will draft an internal posting notice for you to post in compliance with the federal regulations. As soon as you confirm with our team that the notice has been posted in compliance with the federal regulations, we will file the LCA with the U.S. Department of Labor (DOL). It typically takes the DOL seven (7) days to certify the LCA. However, if this is your first time filing for a foreign worker, you must first have your Federal Employer Identification Number (FEIN) verified by the DOL's Chicago National Processing Center. This process usually takes about three (3) days and should be completed prior to filing the LCA to prevent the possibility of denial due to an unverified FEIN.

Our Collaboration with Foreign Workers on Day 1. If you are a foreign worker seeking an H-1B visa and you have a degree from a foreign university, a foreign academic equivalency evaluation will be required. Although this process usually takes between three (3) and five (5) business days, it is a good idea to send the request to an evaluator on Day 1 to guarantee that it is received by the time the H-1B petition is ready to be mailed to USCIS. Thus, if a foreign academic equivalency evaluation is required, you should be prepared to provide our team with your academic credentials, including the diploma and transcripts ("marksheets") from the foreign academic institution. As soon as we receive these documents, our team will request a foreign academic equivalency evaluation.

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February 10, 2014

L-1 Visa Function Managers

To be eligible for an L-1A Intracompany Transferee Executive or Manager visa, you must first determine whether your position in the United States will be an "executive capacity" or in a "managerial capacity." The requirements regarding executive capacity are much simpler than the regulations for managerial capacity. If at all possible, it is best to argue that your position will be in an executive capacity. However, if you believe that your employment will be in a managerial capacity, but you do not supervise any subordinate employees, you still may qualify for an L-1 if you can establish your position meets the requirements of a "function manager." The elements of a managerial capacity position are:

  1. The position manages the organization, a department, subdivision, function, or major component of the organization;
  2. The position supervises and controls the work of other supervisory or professional employees; or manages an essential function of the organization, a department or subdivision of the organization;
  3. If the position directly supervises other employee(s), the position has the authority to hire and fire or take personnel actions over said employee(s); or if no employee(s) is directly supervised, acts as a senior level supervisor within the organizational or managed function; and
  4. The position must exercises discretion over the day-to-day operations over the areas s/he has authority. If the position supervises employees, simply being a first-supervisor is not enough; to be managerial the position must supervise professionals

The functional manager analysis is relevant to the second element of the managerial analysis. The second element is fulfilled even though the position does not supervise any employees. As long as the position manages an essential function of the organization, or a department or subdivision of the organization the position still meets the managerial capacity requirements Therefore, to meet the second requirement of the managerial capacity analysis, an employee may either supervise and controls the work of other professional employees or manage an essential function, department or subdivision of the organization.

Case law supports the approval of L-1A petitions for "functional" managers with small or no staff. The AAO approved a scrap metal company's L-1A petition filed for its only employee and president. See Matter of X, 16 Immig. Reporter B2-84 (AAO Feb. 29, 1996). The beneficiary's primary function was to obtain scrap metal for export and develop real estate through independent contractors.

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February 10, 2014

My Criminal Defense Attorney Never Told Me I Could Be Deported!

At some point in their lives everyone comes in contact with the police, many times for simple traffic violations that do not carry serious consequences. However, many criminal offenses can and often do carry serious consequences, especially if you are not a United States Citizen. The majority of non-citizens have no idea that a conviction for certain criminal offenses could lead to the loss of their current status and deportation.

The intersection of criminal and immigration law is extremely complicated. Many times the criminal defense attorney has no idea that there are immigration consequences to pleading guilty to an offense let alone the seriousness of those consequences. If you are a non-citizen who entered a guilty plea and your defense attorney did not advise you of the immigration consequences then there may be some relief if you come in contact with the immigration system as a result.

On March 31, 2010 the United States Supreme Court decided Padilla v. Kentucky which affirmatively established that the Sixth Amendment of the United States Constitution requires a defense attorney to advise anyone who is not a citizen of the United States of the immigration consequences of pleading guilty to a criminal offense. If the criminal defense attorney did not advise of immigration consequences then the non-citizen could bring a claim of ineffective assistance of counsel.

In order to bring a successful ineffective assistance of counsel claim, you must demonstrate that the attorney's representation fell "below an objective standard of reasonableness" and there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668. This means that the attorney did not do what a reasonable person would have done knowing that a non-citizen was about to plead guilty to a criminal charge and that had the attorney not made that mistake, the non-citizen would be in a better position (e.g., the non-citizen would not have plead guilty).

The criminal defense attorney does not need to be well versed in immigration law and is not required to give the non-citizen a list of "what-ifs" but he is required to, at the very least, tell the non-citizen that the pending criminal charges against him may carry negative immigration consequences.

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January 16, 2014

BIA Makes Important Decisions Regarding Aggravated Felony Convictions

There are several crimes that qualify as aggravated felony convictions under immigration law. Even if a crime is considered a misdemeanor under state law, it can be seen as an aggravated felony conviction for immigration purposes. A conviction for a crime that qualifies as an aggravated felony will foreclose a non-citizen from applying for most types of relief from removal such as asylum and cancellation of removal.

A non-citizen may be put into removal proceedings due to a conviction for an aggravated felony. Before the non-citizen can apply for relief with the immigration court, he must show that the crime he was convicted of does not qualify as an aggravated felony. This analysis depends on several factors: the language of the state statute of conviction, whether the state statute is divisible, what type of evidence is contained in the conviction record, and the language of the corresponding federal statute.

Recently, the Board of Immigration Appeals (BIA) made some important decisions concerning whether certain convictions qualify as aggravated felonies. The first case comes from North Dakota where the respondent was convicted of the crime of contributing to the delinquency of a minor under North Dakota law. The government charged him as being removable from the United States for being convicted of an aggravated felony, specifically sexual abuse of a minor under section 237(a)(2)(E)(i) of the Immigration and Nationality Act (INA). First, the court looks to the elements of the statute of conviction. In this case they determined that the North Dakota statute did not contain any reference to sexual conduct. Since the elements did not line up, the North Dakota statute is not divisible. Since the statute is not divisible the court may not look at the record of conviction to determine what the actual conduct of the underlying conviction was. A statute is divisible when some but not all of the elements of the offense give rise to removability. In that case, the court can look at the record of conviction to see exactly which part of the statute the person was convicted for and then see if that matches up with an immigration violation. The BIA ended up terminating the removal proceedings against the respondent.

In a second case, the BIA remanded the case back to the Immigration Judge due to the recent Supreme Court decision of Descamps v. United States. The decision in Descamps states that the Immigration Judge can use a modified categorical approach if the statute under which the respondent was convicted is divisible, that is if it sets out various offenses for which someone can be convicted of, and only some of those offenses are a match to the federal standard for the crime. In this case, the respondent was convicted in Minnesota of criminal sexual conduct. That qualifies as an aggravated felony of sexual abuse with a minor. However, the Minnesota statute did not make any reference to the age of the victim. At the time of the Immigration Judge's decision, the Descamps decision was not yet available. The Immigration Judge decided that the statute was divisible and looked at the record of conviction to find that the victim was 15 years old and indeed a minor. Therefore, the Judge decided that the respondent was guilty of an aggravated felony and not eligible for any immigration relief. Since the Immigration Judge did not have the Descamps decision available, the BIA remanded the case in light of that decision so that the Immigration Judge can conduct further proceedings on the case.

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January 15, 2014

Academic Equivalency: H-1B v. PERM

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Depending on your degree, you might meet the educational requirements to file your H-1B petition but when you go to file your PERM application, be denied for not have the required level of education. The important distinction to remember when reviewing the educational requirements for these two types of petitions is that the Department of Labor (DOL) does not use the same standard as the United States Citizenship and Immigration Service's (USCIS). The DOL has stated that it will treat years of education, work experience and training as interchangeable and that this interchangeability will only work on a one-for-one basis. This is unlike the rule the Three for One Rule that USCIS applies to H-1B adjudications. Under the three for one rule, three years of specialized training and/or work experience is equivalent to one year of college level training. This means that how the term "equivalence" is defined by each adjudicating body will have a significant impact on the analysis of the educational requirements for these two types of petitions.

To meet the educational requirements for an H-1B petition, an employer must show that the foreign national worker meets the educational requirements specified in the regulations. Generally, this means that the foreign national worker must have obtained a Bachelor's degree or higher from an accredited college or university and that degree must be a requirement to qualify for the specialty occupation. The Three for One Rule makes the analysis of the equivalent of a three year bachelor degree for an H-1B petition much easier. The equivalent of a U.S. bachelor's degree can be established by showing that the foreign national worker has obtained a three year foreign bachelor's degree plus additional university level education or work experience.

To meet the PERM academic requirements, the employer must demonstrate that the academic requirements for the offered position are not greater than those defined in the OES Job Zones level and Specific Vocational Preparation (SVP) level for that position. If the educational requirements are above those listed, then the employer is required to provide a business necessity justification for the additional requirements. Applying this standard to the main categories of immigration petitions results in a higher level of proof required than for H-1B petitions.

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