Articles Posted in Work Visas

immigration-rally-2-520993-m.jpgModernizing 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.

seattle-offices-1432221-m-thumb-150x236-89857.jpgIn 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.

travel-1194402-m.jpgWhen 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.[Crown]-Keep-Calm-And-H-1b-Season-Is-Over
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.
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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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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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Indian nationals currently living in India who wish to receive an immigrant or non-immigrant visa to travel to the United States typically must attend an interview at a U.S. Embassy or Consulate. These interviews are conducted in order to determine applicant’s eligibility to receive a visa prior to traveling to the United States. As such, being prepared to answer whatever questions are posed by the Immigration Officer in addition to presenting documentation to support any answers provided by the applicant are the keys to a successful interview.

Immigration Officers have indicated that they are typically more interested in what the applicants say over what is reported on the documents that are submitted in support of their applications. Despite this emphasis on applicant responses during the interview, it is essential that the applicant has documentation to support what is said during the interview to corroborate the statements made. Applicants should be completely prepared to answer any questions posed by an Immigration Officer in a clear and articulate manner and be able to put forth evidence to substantiate a claim.

General Interviewing Tips

In general, applicants must be able to confidently answer questions about why they are traveling to the United States, their intent to abide by the terms of the visa and their overall plans while in the United States. For nonimmigrant visas, Immigration Officers will likely ask questions that will evoke from the applicant any intent to permanently reside in the United States. If the Immigration Officer believes you intend to permanently remain in the United States, the nonimmigrant visa will be denied. For immigrant visa applicants, Immigration Officers will ask questions to verify the truthfulness of applicant statements.

Some questions asked by the Immigration Officer might be: “What are your ties to India” (social, economic, family)?”; “Why did you choose the particular university?”; and “How did you and your spouse meet?” In addition, Immigration Officers may pose hypothetical “what if” questions, such as: “What would you do if you won the lottery in the United States?” or even “What if a U.S. citizen proposes marriage to you?” Finally, applicants for work visas should be able to talk about the specifics of job duties in the United States. The applicant’s ability to clearly, confidently and consistently answer these types of questions will be the ultimate deciding factor in the approval or denial of a visa.

Although these questions might begin to feel uncomfortable and accusatorial, the U.S. Embassy and consular offices in India have indicated that they are working on making the interview process less adversarial in nature.
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calendar.jpgIn 2013, we saw some interesting changes in processing times, from rapid progressions in some visa categories to retrogression in others. Using the latest Visa Bulletin for January 2014 along with the predictions made by Charles Oppenheim of the Visa Office, our team has come up with some of our own predictions for processing times for the upcoming year. Here is a highlight of the Visa Bulletin predictions for 2014:

The Good

  • It is possible that the cut-off dates for India EB-2 visas will return to pre-retrogression dates (circa December 2008) in August or September of 2014.
  • computer-room-751288-m.pngF-1 students who are currently in post-completion Optional Practical Training (OPT) may obtain a 17-month STEM extension even if they have not yet fulfilled the thesis or equivalent requirement for their STEM degrees. A restricted reading of the regulations may lead to the erroneous conclusion that F-1 students must first have completed all course requirements including any thesis requirement or equivalent. A careful reading of the regulation proves that a thesis requirement or equivalent is not required. This is according to a recent Policy Memorandum issued October 6, 2013 by the US Citizenship and Immigration Services (USCIS).

    Regulations specifically state that a completed thesis or equivalent is not required
    According to 8 CFR 214.2(f)(10)(ii)(A)(3), a student is eligible to apply for OPT temporary employment if the employment is directly related to the student’s major area of study provided that all course requirements for the degree have been completed, excluding a thesis requirement or equivalent.
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    USImmigrationemblem-thumbPNG.pngDepartment of Homeland Security office of Inspector General recently issued a memorandum August 9, 2013 in which it proposed several recommendations aimed at improving the L-1 visa program. Among these are to provide guidance to several federal departments on how to define the slippery term “specialized knowledge.”

    The memorandum explains the problems caused by the lack of a good definition. In order to get an L-1B intercompany transferee visa, it must be established that the foreign national has “specialized knowledge.” The problem with this is that there really is no bright line definition. The definition of this term has been subject to numerous revisions by statutes, regulations, and official memorandums. On top of this, it has also been shaped and formed over time on a case-by-case basis since every new occupational fact pattern seems to bring a different and unpredictable result based upon the adjudicators own subjective interpretations.
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