Visa Bulletin for August 2008 came out today, there was jump in the EB2 category for Indian Born individuals to June 2006 and EB1 for Indian Born is still current. If your labor certification has a priority date of June 2006 or below or qualify under an EB1 category, please call our office at (510)742.5887 or email info@peerallylaw.com
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Adjustment of status portability is a creation of the American Competitiveness in the 21st Century Act (AC21) Pub. L No. 106-313, 114 Stat. 1251 (October 17, 2000), which amended Section 204(j) of the Immigration and Nationality Act. This law allows employees to accept a job that is in the same or similar occupational classification as the job on which the I-140 petition was based, if an adjustment of status application (I-485) has been pending for 180 days or more. The underlying I-140 petition remains valid, even though the applicant has changed jobs.
The determination that the new job is in the same or similar occupational classification is made by
Jobs with very different responsibilities may still fall under the same occupational classification because the substantive knowledge required for those jobs can be identical. If the originally intended employer withdraws the previously approved I-140 on or after the I-485 has been pending for 180 days, the I-140 remains valid. If the applicant has not already submitted evidence of the new qualifying offer of employment, the USCIS officer should issue a notice of intent to deny.
An applicant can “port” before the 180 days have passed because there is no requirement that the applicant ever have been employed by the original petitioner while the I-485 was pending. The only requirement is that there was an intent to accept that employment at the time that the adjustment of status application was filed.
With our experience dealing with the immigration issues for United States Citizenship and Immigration Services (UCIS), Department of Labor (DOL) and other immigration entities, we have noticed few common mistakes that most small IT companies make. Such mistakes result in lengthy Request for Further Evidence (RFE) or even denials. As such we have tried to compile in this short release the most common mistakes. Note that the list is non exhaustive but it only includes the common mistakes that our own office have noticed after the filing of more than 300 cases. We are sure that there are many other mistakes that can easily be corrected. This list is also limited to issues pertaining H1Bs new cases and transfers. We will compile another list for Labor Certifications and I-140 soon.
Supplemental Guidance Relating to Processing Forms I-140 Employment-Based Immigrant Petitions and I-129 H-1B Petitions, and Form I-485 Adjustment Applications Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313), as amended, and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), Title IV of Div. C. of Public Law 105-277
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STARTING JUNE 16, 2008 U.S. Citizenship and Immigration Services (USCIS) will make available Premium Processing Service for designated Form I-140 petitions1 (Immigrant Petition for Alien Worker) filed for alien workers in H-1B nonimmigrant status who are reaching the end of their sixth year in H-1B nonimmigrant status. Starting on June 16, 2008, USCIS will begin accepting Form I-907, Request for Premium Processing Service, for Forms I-140 filed for alien beneficiaries who, as of the date of filing the Form I-907: |
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In order to remain in the United States permanently after termination of the J-1 period of stay, many foreign nationals must first obtain a waiver of the two-year foreign residence requirement found in INA section 212(e).
This requirement is a very broad prohibition which prevents previous J visa holders from adjusting status, obtaining a K, H or L visa, applying for cancellation of removal or changing to any other nonimmigrant status except A or G. It is a significant hurdle.
There are 3 ways that certain J visa holders become subject to the two-year foreign residence requirement:
1. The area of training in which they are engaged is on the skills list for their home country;
2. The visa holder came to the US for graduate medical training;
3. The J-1 program was funded by the home country or by the U.S. government.
A waiver of the INA 212(e) foreign residence requirement can be obtained on four different bases:
1. Hardship to a qualifying relative;
2. Risk of persecution to the applicant;
3. Recommendation from an interested government agency;
4. A no objection statement from the foreign government. (This basis is not available to J-1 holders who came to the US for graduate medical training.) The no objection statement must be submitted by the applicant’s embassy directly to the State Department Waiver Review Division and must have the applicant’s case number on the envelope and on the statement itself or it will be rejected. In no objection-based cases, it may be advantageous to have the embassy forward the entire application package so that all of the documents are received together in the same filing.
PROCEDURAL STEPS IN APPLYING FOR THE WAIVER
A data sheet and DS-3035 must be completed and mailed to the Department of State’s Waiver Review Division along with two self-addressed stamped envelopes and a cashiers check or money order for the filing fee.
The Waiver Review Division will assign the applicant a case number and will mail the applicant a set of instructions and a list of required documents to support the waiver application. All supporting documents sent to the Waiver Review Division must contain this case number on the envelope and on the documents.
The Waiver Review Division makes its recommendation on the case to USCIS directly. A copy of that recommendation will be mailed to the applicant in cases involving no objection statements and interested governmental agencies. If the waiver is based on exceptional hardship or persecution, the applicant will not receive a copy of the recommendation.
An interested governmental agency must submit a statement explaining how the public interest would be served by the granting of the waiver and how the applicant’s compliance with the two-year foreign residence requirement would be detrimental to a program or activity of official interest to the agency. The statement must make clear the connection between the applicant’s proposed employment and the agency. Typically, this statement is accompanied by letters from experts in the field and documentation regarding the applicant’s credentials.
Applicants basing their waiver request on hardship or persecution must seek prior consent from USCIS by submitting Form I-612 with a copy of the I-94, documentation of the citizenship or LPR status of the applicant’s spouse or child and of the relationship between the applicant and the spouse or child, Form DS-3035 (Data Sheet), copies of all DS-2019 forms issued to the applicant, documentation of the hardship or persecution, a declaration from the applicant containing all pertinent information, and the filing fee. If USCIS approves the waiver application, it sends its recommendation on Form I-613 directly to the State Department. Denials of such waiver requests made to USCIS may be appealed to the Administrative Appeals Office.
The Waiver Review Division will make a request for the position of the applicant’s sponsor regarding the waiver request, and generally will follow its recommendation. Applicants who have received financial support from a US government source are far less likely to have their waiver granted.
If the Department of State makes a favorable waiver recommendation, the applicant may file for adjustment of status, employment and travel authorization. In cases based on hardship or persecution, the applicant may file for adjustment of status once they receive notification that USCIS has approved the waiver application. In no-objection and interested governmental agency cases, the adjustment of status application can be filed once the Department of State recommendation has been received.
Introduction:
Most employers believe that the most difficult part of the H1-B Visa process is the H1-B Visa approval process. However, seasoned immigration attorneys realize that after the U.S. Citizenship and Immigration Services (“USCIS”) approves an employer’s H1-B Visa application, maintaining the valid H-1B Visa is arguably even more difficult.
This is where an experienced immigration attorney becomes a company’s invaluable asset. Employees and their employees must adhere to strict H1-B Visa guidelines that carefully define an H1-B employee’s place of employment, job duties, and hours of employment. A change or addition to any of those categories can potentially trigger a loss of status, or even subject the employer to liability.
Therefore, this article explores (1) possible situations where an employer must notify the USCIS of changes in a H-1B employee’s duties, (2) whether a new or amended H-1B petition must be filed, and (3) how an employer can properly terminate an H-1B employee to avoid liability.
1. Material Changes – When must an Employer File a New or Amended H1-B Petition
The USCIS requires employers to notify the USCIS of “material changes” in an H1-B holder’s employment. Though a material change is sometimes defined as a substantial alteration of terms or conditions, it is best to take a case-by-case analysis of whether the USCIS must be notified. Some examples that constitute a material change include:
• Place of Employment:
Typically, an H-1B employee must work at the location that is listed in his or hers Labor Condition Application (“LCA”). If an employer wants an employee to work at a location other than the one mentioned on the LCA, the employer must notify the USCIS and file a new LCA before the employee begins work at the new location. Otherwise, the court may decide that the employee worked without proper authorization. Note that an employer does not have to notify the USCIS if the new workplace is “within the area of intended employment” listed on the LCA, or if the employee’s job duties require constant travel – i.e. a circus employee.
• Job Duties
Since an H-1B employee is employed in a “specialty occupation”, an employer must notify the USCIS of any changes in an H-1B employee’s duties that alter or change the specialty occupation. The USCIS will determine if there is a material change in the employee’s specialty occupation by considering such factors as new duties and whether these changes place the employee in a different prevailing wage category.
• Hours of Employment
Generally the employer does not have to contact the USCIS of a change in an H-1B employee’s hours unless it falls below full-time employment (usually at least 35 hours a week). An employer does have an option of temporarily laying off an employee, but the employer still must pay the employee the prevailing wage. Otherwise, the employer may be civilly liable.
• Employer
Once an employee is granted H-1B status, the employee can work for a new employer (besides the initial sponsor) provided that the new employer immediately notifies the USCIS and files a new LCA before the employee joins the new company.
2. Should I File a New or Amended H-1B Petition?
A new employer should file a new H-1B and LCA before the employee joins the new employer. Though the USCIS has not expressly stated any timelines about amended H-1B petitions, it would be prudent for the employer to file before any material change occurs to avoid possible liability or immigration problems.
However, not all changes in employment conditions must be reported to the USCIS. These include:
• Name of the Employer
There is no need to immediately notify the USCIS if the sponsoring employer has merely changed their name, as long as the employee’s job duties remain unchanged. The employer can simply notify the USCIS when they file for the employee’s H-1B extension.
• Changes in Wages
An employer does not have to notify the USCIS of a change in an employee’s wages unless it falls below the required prevailing wages.
• Corporate Restructuring – The “Successor-in-Interest” Doctrine
In today’s business world, mergers, acquisitions, or consolidations have become quite common. An employer is not required to notify the USCIS of such an occurrence provided (1) the employee’s duties remain unchanged and (2) the new corporate entity that resulted from the merger agrees to take on all immigration related obligations and liabilities. This is known as the “successor-in-interest” doctrine.
Note that though the new corporate entity does not have to file a new H-1B petition, the new employer must meet the following requirements before the corporate change: (1) the new employer must keep a record of which H-1B employees transferred to the new employer, and (2) the new employer must update its public access files – this includes (a) each affected LCA number, (b) how the new employer’s wage system complies with the H-1B requirements, (c) the new employer’s identification number, and (d) a sworn statement by an authorized official from the new company agreeing to assume all immigration obligations and liabilities.
3. Termination of Employees – Protecting Employers from Liability
Because an employer has to notify the USCIS of any material changes in an H-1B employee’s duties, this naturally includes situations where the employer fires or lays off an employee before the H-1b expires. An employer is not discharged from the employer’s obligations or duties (included paying wages) by merely terminating the employee; a “bona fide termination” must occur. A bona fide termination requires (1) formal notice to the USCIS that the employee was fired, (2) that the employer offer to pay the terminated employee’s “reasonable costs” of returning home.
Note that the termination is effective as soon as the USCIS receives notice, not necessarily the date the USCIS revokes the employee’s H-1B Visa. Also, though an employer must offer to help pay for the employee’s return trip home, there is no requirement that the employer also pay for the costs of relocating the H-1B holder’s family or property. Once a bona fide termination occurs, the H-1B employee is in unlawful status and therefore advised to return to his or her home country. If a company has any questions about whether they complied with this requirement, they should consult their attorney.
Conclusion:
As detailed above, once an employer’s H-1B petitions are approved, it must be carefully monitored to comply with USCIS requirements. A company’s attorney can alert the company of when USCIS notification is needed by consulting (1) immigration statutes, (2) Department of Labor (DOL) regulations, (3) case law, and (4) advisory memoranda. Because of the complications that may arise, it is best for a company to err on the side of caution and immediately notify their attorney if they think that a change may be material.
The Law Offices of Shah Peerally has successfully handled numerous H1B cases including transfers. We will be glad to assist you with all your immigration needs.
The Law Offices of Shah Peerally practice exclusively in US immigration law and Canadian Immigration law (in collaboration with the Law Office of Massood Joomratty). The law firm is headquartered on 4510 Peralta Blvd, Ste 23, Fremont CA 94536. Ph 510 742 5887, email: info@peerallylaw.com Website: www.peerallylaw.com
The information contained in this article is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this article, clients or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. Shah Peerally is the managin
The EB-1 category grants an individual the “priority worker” status. To qualify, the individual has to show that he or she is internationally renowned in a particular field, and that the individual will continue to work in that field upon arriving in the U.S.
Each year, the USCIS allocates approximately 40,000 visa numbers specifically for qualified EB-1 candidates; EB-1 candidates also share any visa numbers left over from the EB-4 and EB-5 preferences. The USCIS grants individual priority according to the order that the petitions are filed.
Requirements
Three categories of individuals qualify for EB-1 classification: (1) aliens of extraordinary ability; (2) outstanding professors and researchers; and (3) transferring executives and managers.
Aliens of Extraordinary Ability:
The Immigration and Nationality Act (“INA”) lists three requirements for an individual of extraordinary ability:
1) The individual has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim, and whose achievements have been recognized in the field through extensive documentation;
2) The individual seeks to enter the U.S. to continue work in the area extraordinary ability, and
3) The individual’s entry into the U.S. will substantially benefit prospectively the U.S.
Establishing “Extraordinary Ability”
To establish an individual’s “extraordinary ability”, documentation is needed – a person’s opinion is insufficient. A major, internationally recognized one-time achievement, such as a Nobel Peace prize, suffices. Otherwise, an EB-1 candidate can qualify that he or she has a career of acclaimed work by satisfying at least three of the following requirements:
1) Documentation of the individual’s receipt of lessor nationally or internationally prizes or awards for excellence in the field of endeavor;
2) Documentation of the individual’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
3) Published material about the individual in professional or other major trade publications or major media, relating to the individual’s work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;
4) Evidence of the individual’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field for which classification is sought;
5) Evidence of the individual’s original scientific, scholarly, artistic, or business-related contributions of major significance in the field;
6) Evidence of the individual’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;
7) Evidence of the display of the individual’s work in the field at artistic exhibitions or showcases;
8) Evidence that the individual has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
9) Evidence that the individual has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
10) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disc, or video sales.
It is important to remember that the EB-1 candidate’s documentation evidences sustained national or international acclaim – not merely a lengthy resume. EB-1 candidates of extraordinary ability must continue to work in that area of expertise once he or she arrives in the U.S. The requirement that the individual “substantially benefit” the U.S. is somewhat open-ended, but the prevailing belief is that if the individual continues to work in the individual’s field of expertise, then the U.S. will substantially benefit.
Outstanding Professors and Researchers:
Academics may also qualify for EB-1 status if they establish the following requirements:
1) The individual is recognized internationally as outstanding in a specific academic area;
2) The individual has at least 3 years of experience in teaching or research in that area, and
3) The individual seeks to enter the U.S. –
• For a tenured position (or tenure-track position) within a university or institution of higher education to teach in the academic area,
• For a comparable position with a university or institution of higher education to conduct research in the area, or
• For a comparable position to conduct research in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least 3 persons full-time in research activities and has achieved documented accomplishments in an academic field.
“Academic field” refers to a body of specialized knowledge taught at an accredited U.S. institution of higher learning. Though the USCIS allows teaching or research to satisfy the required 3 years of experience, the USCIS stated research conducted to acquire a degree does not count.
Academics applying for EB-1 status must also submit documentation that objectively establishes excellence in that particular academic area. This can include articles published in international or nationally renowned peer-reviewed journals.
Transferring Executives and Managers:
Finally, intracompany transferees may qualify if in the 3 years preceding the EB-1 petition, the individual has been employed as a multi-national manager or executive for at least 1 year by the same firm or any of the firm’s subsidiaries or affiliates.
During that 1 year period, the individual must also have been employed as a multi-national manager, executive, or a position that shares the same qualities. The USCIS will analyze the individual’s job functions to see if it includes duties such as:
1) Managing professionals, including power to dismiss personnel,
2) Discretion in establishing the company’s goals and policies,
3) Employment at a senior level in the company’s hierarchy.
This is similar to the L-1’s requirement, except that the EB-1 classification does not require an individual to possess “specialized knowledge.”
Filing Procedures
There is no Labor Certification Attestation required. Though aliens of extraordinary ability may self-petition for EB-1 status, an employer must petition on behalf of “outstanding professors and researchers” and “transferring executives and managers.” Finally, the petition must include documentation evidencing the individual’s renowned excellence.
Some U.S. citizens and immigrants are facing extensive questioning, intrusive luggage searches, and lengthy delays each time they return to the United States after traveling abroad. These tips are intended for U.S. citizens, permanent residents, foreign students, and others lawfully living in the United States who may be experiencing such questioning and searches as a result of the government’s broad national security investigations at U.S. borders. Below is a compilation done by the Asian Law Caucus.
Treaty E- Visas
Overview
The E-visa category was created to encourage international commerce between the U.S. and foreign traders and investors. An individual may qualify for an E-visa if the individual is a national of a country that has a commercial trade treaty with the U.S., and the individual is entering the U.S. to trade with or invest in a U.S. business.
If the individual’s E-visa is approved, the USCIS grants the individual nonimmigrant status to remain in the U.S. The investor’s spouse and children (under 21) are also allowed to accompany the investor. The E-visa initially lasts 5 years, but the individual may apply for a 2-year extension of status. Note that the USCIS does not limit the number of times an individual can renew an E-visa. Therefore, an individual can remain indefinitely in the U.S. under E-1 or E-2 status.
What Type of Individual Qualifies for an E-Visa
Typically, an individual must be coming to the U.S. to engage in “executive” or “supervisory” duties. Otherwise, the individual must have “special qualifications” that make the individual necessary to the company’s efficient operation.
The USCIS has stated that an individual’s job title is not dispositive of whether an individual is an executive or supervisor. Instead, the USCIS engages in a holistic analysis to determine whether an individual is actually an executive or supervisor by considering multiple factors, including:
• The individual’s title and salary;
• The individual’s required duties, including the individual’s degree of decision making and the number of employees the individual supervises;
• Where the individual’s title or position is located in the company structure or hierarchy.
The USCIS applies a similar analysis to determine whether an individual has special qualifications that warrant an E-visa. The USCIS considers multiple factors including:
• The individual’s title and salary;
• The individual’s specialized training and experience;
• The individual’s duties at the company, and whether these duties are essential for the company’s operation;
• Whether the individual’s skills are unique or highly specialized.
There are generally two types of E-visas: E-1 for Treaty Traders, and E-2 for Treaty Investors.
E-1 Treaty Trader Visa
This visa is for individuals who wish to enter the U.S. to engage in trade or to establish trade ties between U.S. companies and companies of the foreign national’s country. The trade must already exist when the individual applies for an E-1 visa – i.e. there needs to be an actual contract. Mere negotiations or preliminary discussions are insufficient.
Requirements
To qualify for an E-1 visa:
• The individual must be a national of a country that has a trade agreement or treaty with the United States;
• If the individual is in the U.S. on behalf of a foreign employer, that employer must also be a national of a treaty country. If the individual’s employer is in the U.S., the employer must also maintain treaty trader or investor status. Note that if the individual is employed by a company located in the U.S., at least 50% of company must be owned by nationals of a treaty country;
• The trading must be “substantial.” “Substantial” refers to a constant pattern of transactions that evidences an active business, not necessarily transactions of large monetary value;
• Trading can involve services, goods, or technology. This is broadly interpreted and can include tangible goods, international banking, e-commerce transactions, and transportation;
• The trading must primarily be between the U.S. and the treaty country, which means at least half of the total trading activity.
E-2 Treaty Investor Visas
An individual can acquire an E-2 visa if the individual is entering the U.S. to invest in a continuing commercial enterprise. Note that E-2 Treaty investors should be distinguished from EB-5 immigrant investors. Unlike EB-5 visas that grant conditional residency, an E-2 only confers nonimmigrant status.
Requirements
To qualify, the investor must establish the following: (1) the individual is a national of a treaty country; (2) the individual has a “substantial investment” or plans to substantially invest in a “real, continuing commercial enterprise”; and (3)the individual is coming to America to develop the investment.
• The investor must establish that the investment is funded by lawfully obtained capital;
• The investment must be an “at-risk” investment. This means that the investment must be active, with the potential to produce a profit. Therefore, the investment cannot be primarily a charitable organization, nor would a passive investment (such as merely purchasing a building) qualify.
• Though there is no minimum requirement for a “substantial investment,” the general rule is that the less the business is worth, the greater the percentage the investor must own.
Filing Procedures for E-Visas
An individual applying for either an E-1 or E-2 visa must submit a DS-156 Form and the accompanying DS-156E questionnaire to the American consular office of the treaty country - no prior INS approval is required. Also, documents supporting the DS-156 Form should also be filed, including:
• Evidence of an established trade or investment, such as a business contract;
• Financial documents detailing the source of the individual’s funds, and what the individual plans to trade or invest in;
• Proof of an active, ongoing business such as lease or purchase agreements, or copies of a company’s articles of incorporation;
• A description of the individual’s employment position, including job title, salary, duties, experience, and training;
• A description of the trader or investor’s future business plans.
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