Immigration Visa Lawyer Blog

The position of Market Research Analyst does qualify as an H-1B specialty occupation even though it does not require a baccalaureate degree in that single academic discipline, according to a recent decision by the United States District Court for the Southern District of Ohio, Eastern Division (Residential Finance Corporation v. U.S. Citizenship and Immigration Services, Case No. 2:12-cv-00008 03/12/12).

Residential Finance Corporation (RFC) filed a petition seeking an H-1B visa to employ a prospective employee in the position of a Market Research Analyst. The USCIS subsequently denied the petition on the basis that the "Market and Survey Researcher" section of the Occupational Outlook Handbook (OOH) does not indicate that market analyst research positions normally require at least a bachelor's degree in a specific specialty. The USCIS concluded that the occupational category was not a specialty occupation because the OOH did not specify that a specific specialty degree is required for the position.

RFC sought judicial review from the Court and filed a motion for summary judgment. The Court granted RFC's motion, overturned the denial, and ordered the USCIS to grant the H-1B petition and change the beneficiary's status to H-1B nonimmigrant.

The Court said that the USCIS approach was too narrow, and that the prospective employee's knowledge is what is relevant, and not the title of the degree. The Court held that diplomas rarely come bearing occupation-specific majors, and that what is required is an occupation that requires highly specialized knowledge and a prospective employee who has attained the credentialing indicating possession of that knowledge. The Court cited legal precedent that reasoned such narrow interpretation would preclude any position from satisfying the "specialty occupation" requirements where a specific degree is not available in that field.

The Court noted that a market and survey researcher is a distinct occupation with a specialized course of study that includes multiple specialized fields, that the prospective employee had completed such specialized study in the relevant fields of marketing and finance, and that RFC sought to employ him in such a position. The Court held that it was enough that RFC provided evidence that the position required a baccalaureate degree, and there is no apparent requirement that the specialized study needed to be in a single academic discipline as opposed to a specialized course of study in related business specialties.

The United States has announced today that Indian nationals who renew their visas, whether valid or expired, within 4 years, will not be asked by consular officers to attend a personal interview. The new rules will apply to visa categories B1, B2, C and D. Beneficiaries include tourists, business travelers, crew members, and students.

Assistant Secretary of State for Consular Affairs Janice L. Jacobs traveled to New Delhi, India, for the second U.S.-India Consular Dialogue with the Indian Ministry of External Affairs. Today, Jacobs unveiled a new program to streamline the visa renewal process for Indian visa applicants, the purpose of which is to encourage more visits to the United States and to deepening cultural and economic ties.

Although the new rules do not extend to employment-based immigration visas, such as those in the H and L categories, there are indications that employment-based visas could be included in the future as well. When asked whether the new rules would also apply to H-1B and L-1 visa renewals, Assistant Secretary of State for Consular Affairs, Janice Jacobs said that the issue of employment-based visas may come up during her meeting with Indian officials tomorrow.

The new rules allow consular officers to waive interviews for applicants who seek to renew their visas within four years of the expiration date of their previous visas if they are in the same classification.

Due to security and terrorism concerns, consular officers will still have the discretion to request visa applicants to attend an interview during the visa application process at any time and for any reason.

The Violence Against Women Act of 1994 (VAWA) is a federal law that provides for additional resources for the investigation and prosecution of violent crimes committed against women, including immigration provisions protecting people who may lack legal status but also need protection from an abusive spouse, parent, or child. After two renewals of the law in 2000 and 2005, it is up for reauthorization again in 2012.

Several Democratic Senators brought VAWA up for renewal again on Thursday, March 15, in the midst of an already-charged political climate. With debates over issues like insurance coverage of contraception dominating the news in recent weeks, this is either a very opportune time to bring up this issue, or a very bad time. It is important to note, however, that VAWA offers important protections to immigrants who may have a valid claim to a green card or visa, but who cannot obtain one because of a bad domestic situation.

VAWA authorized the expenditure of $1.6 billion towards law enforcement efforts to improve the investigation and prosecution of violent crimes against women. It also requires defendants who are convicted of a violent domestic crime to immediately pay restitution to their victim, and it allows civil claims against alleged abusers. The law provides funding for community programs, victim assistance services, and legal aid programs. It offers protection to victims who face eviction from their homes because of domestic violence issues.

In the immigration system, VAWA establishes a procedure for spouses, children, or parents of United States citizens or legal permanent residents to obtain an immigrant visa without the other person's involvement. Normally, a U.S. citizen or permanent resident must petition on behalf of their relative in order to obtain an immigrant visa, and they must sign off on an application to obtain a green card. The VAWA procedures are designed to protect the immigrant from the abusive relative.

A petition made under VAWA by an abused spouse may include the spouse's children under the age of 21, whether or not the children are themselves victims of abuse. A parent of a child who has been abused by another parent who is a U.S. citizen or legal permanent resident may petition for their child. A parent who has been the victim of abuse by a U.S. citizen son or daughter may also petition for benefits under VAWA.

Continue reading "Democrats in Congress Bring the Violence Against Women Act, Which Can Impact Immigration Cases, for Reauthorization" »

A Mauritanian woman named Marieme (a pseudonym) who lives in Cincinnati recently shared her story with CNN, telling how she escaped a life of slavery in her home country and obtained asylum, followed by citizenship, in the United States. Asylum is a means by which people who fear persecution in another country can obtain legal immigration status in the United States. Her story demonstrates how people who fear the conditions in their country of origin may find hope here.

Mauritania, a country in west Africa, was the last nation in the world to formally abolish slavery, according to CNN, only doing so in 1981. Still, slavery remains an "open secret," with as much as ten to twenty percent of the Mauritanian people living in a state of slavery. The CIA's World Factbook states that half of the population still relies on livestock and agriculture to survive. The country has extensive natural resources, but most are subject to extraction by foreigners. A military junta currently runs the government, according to the CIA, after a 2008 coup deposed the democratically-elected president. The country faces conflict between different ethnic groups.

Marieme reportedly began working for her master at the age of 3 or 4 in an area of southern Mauritania near the border with Senegal. Her brothers and sisters disappeared from the master's household when Marieme was 12, possibly because he made gifts of them. The master began sexually abusing Marieme around this time as well. Luckily, the master's son helped her, teaching her to read and write and telling her about the outside world. This gave her the courage and the resources to escape.

After one unsuccessful attempt, Marieme escaped across the border into Senegal. She had to leave her six children behind. She spent about two years living with a man who hosted a group of refugees in Dakar, the capital of Senegal. The man eventually put her on a cargo ship bound for a place she had never heard of, the United States. She spent some time in a Mauritanian community in the Bronx before settling in Cincinnati in 2003. She sent as much of her salary as she could back to Senegal, where the people who helped her escape were working on a plan to get her children out. Gradually, all six children made it to Ohio.

Continue reading "Ohio Woman Tells How She Escaped Slavery in Mauritania and Gained Asylum in the United States" »

The Fairness for High-Skilled Immigrants Act, H.R. 3012, passed the U.S. House of Representatives this week with almost unanimous approval with a 389 to 15 vote. The legislation would remove the per-country quotas on immigration work visas. The current quota system places a limit on the number of visas available to each country. For example, Iceland has a population of 320,000 and is allotted the same number of visas as China, which has a population of 1.3 billion people. The result is that foreign nationals of some countries can obtain U.S. permanent residency fairly quickly, yet foreign nationals from China and India face huge backlogs and must wait several years.

After the bill sailed through the House, it was stopped in the Senate by Republican Senator Chuck Grassley from Iowa. Grassley put a hold on the bill, blocking the legislation from being debated on the floor. Grassley said he would lift his hold on H.R. 3012 if Senator Chuck Schumer will stop pursuing the Irish-visa proposal. Chuck Schumer, Democrat Senator from New York and chairman of the Immigration Subcommittee of the Senate Judiciary Committee, wants to add another special visa category to the H.R. 3012 bill that would provide an immigration benefit for Irish Nationals.

Schumer says that he is not the only one holding up the bill. Republican Senator Scott Brown of Massachusetts also wants to tack on the Irish-visa proposal to H.R. 3012, but won't say whether or not he will block H.R. 3012.

Several versions have of The Fairness for High-Skilled Immigrants Act H.R. 3012 have been introduced in recent months, but each has failed to pass. And with this latest version, those Senators who are blocking H.R. 3012 from the Senate floor say they actually do support it, but it seems they would rather hold the bill hostage until their own proposals get tacked on first.

Immigrants who wish to become citizens of the United States must pass an examination administered by U.S. Citizenship and Immigration Services (USCIS). The test has four parts: three of the parts test the applicant's proficiency in the English language through speaking, reading, and writing, and a civics test covers the applicant's knowledge of American history and values. The civics test faces criticism from a study conducted at Michigan State University (MSU), which concluded that it is not a reliable indicator of an applicant's knowledge, and that the results of the test are subjective enough to appear random in some cases.

The civics test formerly consisted of a series of short-answer questions such as the name of the current U.S. president or the number of stars on the flag. In 2006, the government introduced a new test consisting of ten oral questions, drawn from a total set of 100 questions, that focus on "the principles of American democracy, such as freedom," rather than basic facts of American history. The test questions cover three broad areas. Questions on "American Government" address American democracy, the system of government, and the rights and responsibilities of citizenship. "Integrated Civics" questions look at American geography, symbols, and holidays. The "American History" questions cover the entire span from the Colonial period to the present. Sample questions from each category include:

- What is the "rule of law"?
- Why does the flag have 13 stripes?
- Why did the colonists fight the British?

Applicants must answer six of the ten questions correctly to pass. If an applicant fails any of the four parts of the test, they may be retested within ninety days. A spokesperson for USCIS told the Associated Press that the new civics test helps new citizens "fully incorporate" into American society. She also said that about ninety-three percent of applicants since October 2009 pass the test on their first try.

The MSU study administered two mock citizenship tests to a group of 414 volunteers consisting of both citizens and noncitizens. Of that group, 136 participants failed both tests, and 181 passed both of them. The study's author says her main concern is for the ninety-seven participants, twenty-three percent of the group, who passed one of the tests and failed the other.

Continue reading "Michigan State University Study Suggests the U.S. Citizenship is Unfair and Unreliable" »

The USCIS released new guidance that clarifies that staffing firms are eligible to file petitions under the H-1B visa program even when they place workers at third-party sites. An amended FAQ was released on Monday, March 12 to the January 2010 USCIS Neufeld memo. The Neufeld memo originally made it unclear whether staffing firms could establish the employer-employee relationship necessary to file H-1B petitions since the employees would be at third-party work sites.

This new guidance clarifies that the staffing firm model is indeed eligible to participate in the H-1B program. According to the new guidance, staffing firms can demonstrate an employer-employee relationship if they can prove whether they will pay the beneficiary's salary, determine the beneficiary's location and relocation assignments, and perform supervisory duties such as conducting performance reviews, training, and counseling for the beneficiary.

If the H-1B worker, the beneficiary of the H-1B petition, will perform services at an end-client/third-party location, the petitioning H-1B employer is not required to submit a letter or other documentation from the end-client that identifies the beneficiary to demonstrate that a valid employer-employee relationship will exist between the petitioner and beneficiary.

According to the USCIS, while documents from the end-client may help determine whether a valid employer-employee relationship will exist, this type of documentation is not required. The H-1B petitioner may submit a combination of any documents to establish, by a preponderance of the evidence, that the required relationship will exist. The types of evidence listed in the memorandum are not exhaustive. Adjudicators will review and weigh all the evidence submitted to determine whether the petitioner has met the burden in establishing that a qualifying employer-employee relationship will exist.

There are myths surrounding the H-1B nonimmigrant visa that may be fueling some of the anti-immigration sentiment of late. Some misconceptions are that H-1B workers work for low salaries, are not qualified, lack education, and/or are merely cheap labor from overseas to undercut and replace US workers. A released report has debunked these myths.

A January 2012 report by Magnun Lofstrom and Joseph Hayes at the Public Policy Institute of California, titled "'H-1Bs: How do they stack up to US born workers?" has some interesting findings.

The report found that H-1B workers are younger and more highly educated than both naturalized immigrant and US born workers. The average age for foreign workers is 32 years old while the age for US workers is 43.

The report concludes that most US born workers, about 60%, in high skilled areas of the workforce have no formal education beyond a bachelor degree. Conversely, only about 40% of foreign workers in high skilled areas have not gone beyond a bachelor degree. Moreover, H-1B workers are more likely to possess a non-professional doctoral degree that US workers, 12.7% of H-1B workers vs. 4.6% of skilled US workers.

A very large number of H-1B workers are in the information technology field, at 42%. Only 10% of US born workers with bachelor degrees are in this field. This also holds true for other related fields of industry such as engineering, mathematics, and sciences.

According to the report, H-1B workers are not cheap labor from overseas. Annual earnings for H-1B workers are actually higher than their US worker counterparts, about 10% higher on average, according to the report.

Manufacturing companies in the United States are frustrated with the shortage of skilled U.S. factory workers, and are seeking more skilled foreign nationals from abroad to fill these empty factory positions though H-1B visas. This is the result of a recent surge in demand for skilled factory workers including machinists, tool and die makers, computer controlled machine operators, architecture, and engineering. These jobs are essential to the manufacturing industry, and the number of available talented workers in these areas in the U.S. is dwindling.

Information technology companies employ the majority of H-1B visa workers, and manufacturers account for only 10% of H-1B visa petitions. But due to the increase in U.S. manufacturing, these numbers are increasing as more manufacturers rely on foreign workers to fill these positions through the H-1B program.

The H-1B program grants 65,000 visas per year to high-skilled foreign nationals to work in the United States. This number would be higher, but the number is capped at 65,000 by law as an annual quota. Industries are forced to compete against each other to get their H-1B petitions approved before the cap is reached each year.

There is a shortage in the U.S. skilled production workforce, which is not growing fast enough through career and technical institutes in numbers high enough to fill the void.

The H-1B visa permits a foreign national to work temporarily in the U.S. for a maximum of six years, at which time the worker must depart from the U.S. unless the worker is able to adjust status to permanent residency.

In a letter to the US Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas, Senators Chuck Grassley and Dick Durbin have voiced concerns over proposed changes in the L-1B visa category.

The L-1B visa allows companies to transfer foreign employees with specialized knowledge from overseas to their company offices in the United States. "Specialized knowledge" is defined by the Immigration and Nationality Act (INA) as a special knowledge of the company product and its application in international markets or an advanced level of knowledge of processes and procedures of the company. The L-1B is a nonimmigrant visa valid for up to seven years.

The Senators say they are concerned that the L-1B visa program is harming American workers because some employers, especially foreign outsourcing companies, use L-1B visas to evade restrictions on the H-1B visa program. For example, the L-1 program does not have an annual cap and does not include even the minimal labor protections of the H-1B program, according to the Senators.

Durbin and Grassley believe the USCIS should adopt the reasoning of a January 2011 Department of State letter that issued new guidance to consular officers on how to adjudicate visas under the L-1B specialized knowledge category visa. That letter states that consular officers should use certain criteria to assist in making an L-1B adjudication. The criteria include: 1) the proprietary nature of the knowledge possessed by the visa applicant; 2) whether the visa applicant is "key" or normal personnel; and 3) whether the applicant possesses more skills or knowledge than an "ordinary" employee.

The Senators agree that "specialized knowledge" employees should possess "special" knowledge of a company product and its application in international markets or an "advanced" level of knowledge of processes and procedures of the company. They are concerned that a comparison to the knowledge held by workers in the company's industry generally would be unacceptable and only undermine the specialized knowledge standard established by congress.

A Florida immigration judge has paved the way for the possible deportation of General Eugenio Vides Casanova, the former defense minister of El Salvador. The judge ruled that Vides Casanova is deportable under a 2004 law that permits the deportation of immigrants charged with war crimes or human rights abuses. Observers have called this a "groundbreaking decision," as it is the first time an immigration judge has applied the 2004 law against a top foreign military officer.

Prior to immigrating to the United States in 1989, Vides Casanova served as national guard director and then minister of defense in El Salvador. He held the defense minister post from 1983 until his emigration in 1989. El Salvador fought a civil war from 1980 until 1992, waged between the military-run government and a coalition of leftist groups. The United States offered support to the government throughout the 1980's, and Vides reportedly retired from government and moved to the United States with the government's full support. The war ended with a 1992 peace accord creating a civilian government. Both sides in the conflict committed atrocities against civilian populations, although investigations after the war concluded that the Salvadoran military and allied forces were responsible for the majority of war crimes.

Vides Casanova faced two previous court cases related to his own conduct during the Salvadoran Civil War. The families of four churchwomen murdered in El Salvador in 1980 sued Vides Casanova for wrongful death, alleging that he was responsible as the head of the National Guard. The plaintiffs lost the case on appeal, and the Supreme Court declined to hear it. Five Salvadoran National Guard soldiers served lengthy prison sentences for the killings.

Vides Casanova lost a civil case filed by three victims of torture during the war. He was ordered to pay $54 million in damages to the victims.

The Human Rights Violators & War Crimes Unit (HRVWCU) on Immigration and Customs Enforcement (ICE) began investigating Vides Casanova in 2009 to see if a 2004 law could be used to deport him. The new law built on a law that had barred convicted war criminals, adding legal charges of human rights abuses as a category of deportability.

The Miami immigration judge concluded that Vides Casanova was responsible for the killings of the four women in 1980, as well as the killings of three people in 1981. Two Salvadorans who allege that Vides Casanova was responsible for their torture during the war testified against him at a hearing last year and have filed civil suits against him. The judge also held Vides Casanova responsible for their torture as part of his ruling.

Continue reading "Immigration Judge Declares Former Salvadoran Politician Deportable Under Human Rights Law" »