Immigration Visa Lawyer Blog

The United States government has a long tradition of encouraging the world's top minds to teach and conduct their research in the United States. Since 1991, the EB-1-2 visa has been established for the purpose of allowing those foreign nationals who have been "recognized as outstanding in a specific academic area" to obtain a green card without the hassle of waiting for a priority date. While many people assume that America's universities can hire top talent world-wide, what is not so obvious is that America's private employers and companies may also take advantage of this attractive visa option.

The advantages of the EB-1-2 visa are enormous when compared to the normal Labor Certification process that must be endured in order to hire most foreign nationals with professional credentials. First, the EB-1-2 visa saves time. This means the PERM and Labor Certification process is completely cut out of the picture, saving a year or more of processing time with the Department of Labor. Secondly, once the USCIS determines that the foreign national is eligible for a green card under EB-1-2, a green card is immediately available allowing permanent residence. By comparison, persons from China or India who have been approved for green cards under the EB-2 category may need to wait up to five years to actually obtain legal permanent resident status.

Secondly, the EB-1-2 visa saves money. The Labor Certification through the PERM process usually involves significant cost. Again, the costs of the PERM process are avoided under EB-1-2.

Which Foreign Nationals Qualify?

The applicant must be a researcher who has been recognized internationally as outstanding in a specific academic area. Although not expressly stated, a PhD is almost always required to qualify for this visa category.

Where the real debate occurs is when defining what qualifies as "internationally recognized as outstanding." The Federal Government has constructed six categories of evidence that if met by the foreign national, will show the alien's academic work to be "outstanding" and "internationally recognized."

The categories of evidence are as follows: (1) Receipt of a major prizes or awards for outstanding achievement in the academic field; (2) Membership in associations that require outstanding achievements of their members; (3) Professional publications written by others about the applicant's work; (4) Participation as a judge of the work of others in the field; (5) Original research or contributions in the field; or (6) Authorship of scholarly books or articles in journals in the field.

The potential applicant must be able to produce solid evidence of at least two of these categories in order to qualify for the EB-1-2 category. The best practice is to try and prove as many of these categories as possible. Finally, these categories are not all created equal, meaning that receipt of a major international prize will be given more weight than fulfillment of any other one category.

The foreign national must also possess three years of experience in research after graduate studies have ended. However, a person may count research conducted while pursuing graduate courses if that research is considered outstanding. To prove the outstanding nature of such research, one should refer to the evidentiary categories above to prove this requirement.

Continue reading "EB-1-2 Visa for Outstanding Researchers: Allowing Employers to Attract and Retain the World's Top Research Talent" »

There are several visa alternatives for foreign business leaders and investors to engage in temporary employment in the United States. The following three visas are among the most widely utilized and attractive visa options for investment in the U.S.: Intracompany Transferee (L-1), Treaty Trader (E-1) and Treaty Investor (E-2). Multinational companies may seek to transfer foreign workers from their overseas operations to work temporarily for their United States operations in the L-1 visa category. Or a foreign national may engage in substantial trade with the U.S. (E-1) or may want to invest in a U.S. business or create a new company (E-2).

The L-1 visa category is a temporary visa for Intracompany Transferees. It allows companies abroad to establish a presence in the United States by transferring a worker with a qualifying employment position, i.e., an "executive" or "manager" (an L-1A) or a worker with "specialized skill" (an L-1B), to a qualifying business such as a U.S. affiliate, parent, or subsidiary entity on a temporary work basis. The employee must have worked for the foreign company for one continuous year out of the preceding three years. Larger multinational corporations who frequently transfer employees may seek a "blanket L-1" which allows it to transfer executives rather quickly. For an L-1 visa applicant, "dual intent" is allowed. That is, L-1 applicants may not be denied a visa on the basis that they are an intending immigrant to the United States, or that they do not have a residence abroad which they do not intend to abandon. Hence, the L-1 visa applicant may seek permanent residence (a "green card") while in the U.S.

The qualifying employment positions necessary for the L-1 visa are narrowly defined terms under Federal law that must be rigidly followed when applying for this category. Generally, "mangers" and "executives" are higher-level employees who have significant managerial, supervisory and policy making authority. A person with "specialized knowledge" is a vital employee with unique knowledge of the company product or service that does not meet the definition of an executive or manager. It is not necessary for the employee to have held the same position abroad as the intended job in the U.S., as long as the employee was a manger, executive or worker with specialized knowledge and continues to be one of those qualifying positions in the U.S. company. L-1B workers can remain in the U.S. up to five years, while L-1A executives and managers are allowed to stay for up to seven years.

It is also necessary to prove there is a "qualifying business relationship" between the foreign and U.S. companies which means that the relationship is either one of parent/subsidiary or affiliate. Key corporate documents will therefore be necessary components of the application. Federal Regulations allow a new parent, subsidiary, branch or affiliate office in the U.S. to employ a manager or executive under a "new office" petition which will only be approved for one year. Thereafter it may be extended upon proof that the business is active and operating and requires an executive or manager. Click here for a list of the top L-1 visa employers.

Continue reading "Nonimmigrant Visa Solutions for Multinational Companies and Foreign Investors" »

Our law firm has 4 lawyers and our practice includes a vigorous H-1B visa processing for numerous clients spreading over Columbus, Ohio, Cleveland, Ohio, Washington, DC and Southfield, Michigan. One of my clients in Columbus, Ohio called me earlier this month greeting me stating: "Good morning Gus Shihab my H-1B Lawyer." I laughed and said "good morning to you as well but I am more than just an H-1B visa lawyer." He said: "I know, but I am really worried about this new memo recently issued by Donald Neufeld entitled: "Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements". He added: "is it the Neufeld Memo or the Neufeld Memo, I get the spelling confused." I responded by saying: "it is indeed the latter and what is so "new" about the Neufeld Memo anyway?" After talking to him for about 30 additional minutes, he left me with a huge "thank you" and said: "I will be sure to spread the word."

Now, if you are a company and have processed H-1B visas during the past couple of years, or you are an employee on whose behalf a specialty occupation, or H-1B visa petition was filed in that time period, you know that the USCIS was issuing, on a frequent basis, long, convoluted and nonsensical Requests for Evidence ("RFE"). The RFEs asked for the submittal of voluminous documentation, a lot of which had nothing to do with position offered itself or the specialty occupation nature of such position. Basically, the USCIS was using a "kitchen sink" approach in requesting documentation from H-1B visa petitioning companies. I have processed thousands of H-1b visas in my career, and I can comfortably tell you that the majority of these RFEs were targeting small to medium consulting companies; ones which contract most if not all of their employees to be placed at a third party client locations. It appeared to me that the USCIS was denying H-1B visa petitions where there was more than one entity contracting for the services of the alien employee between the petitioning company and the end client. In other words, if there was more than one contracting entity between the H-1B visa petitioning employer and the end client company, the H-1B visa petition is doomed for denial. The denial never talked about the element of control but instead it stated that the petitioning company is not an "employer" but maybe an "agent."

I must share with you that it took a lot of head scratching, thinking and brainstorming at the Law Firm of Shihab & Associates until we finally figured it out! I am saying that we figured out what the USCIS was after, long before the January Neufeld memo was issued. What was between the lines of the numerous RFEs and the H-1b denial letters was a tacit but loud USCIS concern: who is actually controlling the actions of the employee. In essence, even though it never said so, the USCIS wanted to make certain that the H-1b visa petitioning employer exercised dominion and control over the alien's actions; if the USCIS felt that there were too many layers between the H-1B visa petitioning employer and the end client, that the element of employer-employee relationship was lacking.

In doing so, the USCIS was quietly putting smaller information technology companies out of business and was in essence forcing the larger employers to petition for the H-1B visas, who had made a business decision to retain such consultants on as independent contractors. I would also add, that the USCIS in issuing these enormous RFEs and denial letters, were altering the course of free enterprise in putting smaller more agile companies out of business and by rearranging the business decisions of the larger end client companies.

Having said all of that, we wrestled with all of these issues advising our clients to make certain that they are keenly involved in the management of their employees and to make certain that they control their actions contractually through the middle layers of consulting companies. This is what we call in my firm as the evidence of "collaboration" and "proving the contractual path."

As the reader can clearly see, it took on a lot of effort to "read the minds of the USCIS so to speak and to come up with a strategy to clarifying the issue of whether or not there existed a bona fide employer-employee relationship between the H-1B visa petitioning company and the alien/employee who is being placed at a third party end client worksite.

Continue reading "The January 8, 2010 Neufeld Memo, a Reason to Panic or Breathe the Sigh of Relief?" »

Obtaining a Green Card through employment is the dream of millions of workers world-wide. For better or worse, the USCIS and the Department of Labor have placed various barriers that need to be overcome before an alien can even apply for an employment based immigrant petition, or green card. For educated and specialized workers in the EB-2 and EB-3 employment based preferences, the tallest barrier is the PERM process and the recruitment that needs to be undertaken before a visa can be applied for. To the chagrin of many, the culmination of the Labor Certification process is a big fat DOL Audit, asking why the employer required someone with so much skill for the position offered. Don't panic! You are not overqualified. There are business necessities for employing highly qualified individuals. A business necessity letter will show the DOL just that.

The Federal Government seems to have placed so many restrictions on the job related skills that an employer can look for, that there appears to be a disconnect between business reality and business need. This is where a business necessity letter can help an alien and employer put forth a good faith effort in recruiting skills that meet a company's needs, without unjustifiably disqualifying American citizens from a job. Simply put, a business necessity letter shows the government that a certain amount of experience and education is needed for the employer's particular job, even if the government thinks that a person without that skill would perform satisfactorily in that job.

For example, an employer, during the PERM recruitment process has asked that potential applicants for the position of systems consultant possess a master's degree and two years of experience. The Department of Labor may Audit this labor certification application, pointing out that an entry level consultant with only a bachelor's degree should be able to do the job of systems consultant. The employer can then rebut the government's argument showing a business necessity for needed a worker with a master's and two years of experience. In this case, a possible business necessity could be that the employer's client demands a systems consultant with at least a masters and two years of work experience. Other valid business necessities for education and experience include the complexity of the job or the knowledge and familiarity with a client's product.

The object of the business necessity letter is to shift the focus from what the government perceives as normal for the occupation to what the reality of the situation is. To do this, the employer needs to show two things; First, that the requirements are reasonably related to the job offered in the context of the employer's business and, Second, that the extra job requirements are essential to perform, in a reasonable manner, the job duties as described by the employer. The concept is easy, however, the careful drafting of such an explanation can be deceptively difficult, and should be left for a qualified attorney.

This blawg has focused only on the instances where the employer asks applicants for an elevated amount of education and experience. However, other classic forms of business necessity include requiring a combination of occupations, knowledge of a foreign language, or that the employee live at the site of employment. All of these instances will raise red flags before the Department of Labor, making them appear as if they have tailored the job requirements to the alien's particular skill set. These instances can also be overcome with a thorough, accurate and complete explanation of the reasons that this skill is needed.

Continue reading "Employment Based Green Cards: Justifying the job requirements of your job with a business necessity letter" »

Representing a refugee before an Immigration Judge (IJ) in removal proceedings gives rise to an advantageous form of relief from removal - asylum. One of the main obstacles in removal proceedings is that the Respondent carries the burden of proof to establish eligibility for relief. This burden may be quite onerous depending on your client's circumstances. But if your client came to the U.S. as a refugee, applying for asylum before the IJ can level the playing field by shifting the burden to the government to prove the case is not meritorious. This can be a high hurdle for the government depending on which country your client is from.

In applying for asylum in Immigration Court, the Respondent has the initial burden to show that she is a refugee. The Respondent must proof past persecution or a well-founded fear of future persecution in their country of nationality. The Respondent's own testimony is sufficient evidence to meet this burden. Additionally, showing that your client was previously approved for refugee status is easy and adds probative evidence to the claim. Once your client establishes past persecution, well-founded fear of persecution on the basis of the original claim is presumed.

This presumption shifts the burden to the government to prove by a preponderance of the evidence that there has been a fundamental change in circumstances in the alien's country of nationality or that the respondent can avoid future persecution by relocating to another part of the country of nationality. If the country is still experiences the strife that brought the alien to the United States in the first place, the government may be unable to meet this burden. The Department of State's country reports are excellent resources to determine whether such strife is still ongoing.

The Law Firm of Shihab & Associates is kicking off 2010 with a bang. We're making changes, thinking creatively, and are launching some exciting new initiatives that will make your immigration attorneys more accessible and your case progress more interactive. Our goal for this upcoming year is to increase collaborative efforts with our clients, create more transparency in our operation, make our attorneys more accessible to our clients, and disseminate accurate and timely information to our clients. The future of legal services will require innovative solutions, more timely connection with counsel and higher sensitivities to clients needs. In a nutshell, the legal profession will have to experience a "face lift" to increase the level of service. Here are some of the things that we are going to implement in 2010 to assure that all these objectives are implemented at the start of this decade:

• Intuitive electronic client data, document collection and storage methodology
• Virtual file creation
• Employee management and reporting tools for maximum regulatory compliance
• Automatic reminders for critical deadlines
• Robust communication tools

• Open call times and weekend meetings to increase our availability
• Talk to an attorney while he's on the treadmill or meet him personally for a cup of coffee on Saturdays
• Daily phone appointments and weekly in-person meetings assure that an attorney is available when it is convenient for you, our client.

We're committed to keeping you updated about the latest developments in immigration law, as well as providing top-notch professional commentary on the cutting-edge developments that affect your case.

Customer service is a top priority! With the addition of Matthew M. Nierman, Capital University Class of 2009, our attorneys bring you over 20 years of combined experience in business and family immigration. More staff additions are planned for 2010 to make sure that you get the industry's best service and response.

Several clients working for large bona fide corporations in Columbus and Cleveland, Ohio had to appear for H-1B visa stamping in India recently. After submitting the customary documentation that we as immigration lawyers had been used to giving our clients to submit, these clients were given a pink letter issued pursuant to INA section 212(g). I have also had a client though our Washington, DC offices, who also works for a large Information Technology firm, face the same dilemma as well. This 212(g) letter asks the alien to e-mail back to the US Consulate a file in text format providing documentation and description regarding the following points:

• An invitation letter from the sponsoring organization in the US
• Resume
• An itinerary of all locations the alien will visit in the US including contact names, organizations, addresses and telephone numbers
• A complete description of any equipment the alien plans to purchase or examine
• Export license
• A complete and detailed description of the alien's current and past research
• A detailed purpose statement of the visit
• Information on who is funding the visit
• A list of all travelers
• The alien's current position.

The document further advises the alien that it could take up to 8 weeks to review such material and to make a decision on the visa stamping application. The scariest thing about this experience is that once the applicant does a quick internet research on section 212(g) of the Immigration Nationality Act he finds that it applies to "Classes of Aliens Ineligible to Receive a Visa." What were they thinking?? How can a simple case of an H-1B visa stamping result in a Pandora's Box? What has recently happened? This situation occurred several times during the last couple of months were applicants appearing for a simple H-1B visa stamping interview are faced with "everything but the kitchen sink" approach of visa examination.

Continue reading "H-1B Visa Stamping in India is Becoming More Challenging" »