|July 3, 2015||Posted by admin under Uncategorized|
During March 2015, DHS/USCIS issued an updated L-1B Adjudication Policy Memo setting forth its standards for L-1B visa adjudication. The memo is scheduled to become effective on August 31, 2015.
The 15-page memo discussed the history of USCIS-issued memos pertaining to the agency’s L-1B adjudication policy, including congressional failure to define “specialized knowledge” and the previous requirement that L-1B visa applicants possess “proprietary knowledge not available in the U.S. market”. The new memo has clarified these issues.
The memo reiterates the regulatory requirements that the beneficiary must possess specialized knowledge, that the position offered must involve specialized knowledge held by the beneficiary, and that the beneficiary has at least one continuous year of employment abroad in a managerial, executive or specialized knowledge capacity with the petitioning organization or qualifying foreign organization within the preceding three years. There are additional requirements if the beneficiary will be located primarily at the workplace of an unaffiliated company.
The memo emphasizes that a beneficiary is deemed to have specialized knowledge if he or she has (i) special knowledge of the company product and its application in international markets OR (ii) an advanced level of knowledge or expertise of the processes and procedures of the company (advanced knowledge is knowledge that is greatly developed or further along in progress, complexity and understanding). In either case, the employer must demonstrate that such knowledge is not commonly held throughout the particular industry or within the petitioning employer, BUT no test of the U.S. labor market is required.
The memo provides a list of non-exhaustive factors that USCIS may consider when determining whether a beneficiary’s knowledge is specialized, including whether the knowledge can be easily imparted to other individuals. The memo notes that specialized knowledge need not be narrowly held within the petitioning organization, and that multiple employees within an organization may have obtained the same type of specialized knowledge. However, if too many employees have this same type of specialized knowledge, the USCIS adjudicators may question the need to transfer that employee.
The intent of USCIS in issuing the memo is to meet the workforce needs of multinational employees in a global marketplace. As such, the memo notes that specialized knowledge workers need not occupy managerial positions or command high salaries (“In creating the L-1B classification, Congress focused on the beneficiary’s “knowledge,” not his or her position on a company’s organizational chart or pay scale.”).
As with all visa applications, much evidence is required to prove that the applicants meet all eligibility requirements for the visa classification. USCIS notes that it reviews the entire record to determine whether the applicant possesses specialized knowledge by the preponderance of the evidence standard and under the totality of the circumstances.
|June 18, 2012||Posted by admin under Deportation & Removal||
President Obama passed an Executive Order last week allowing eligible young people to apply for an immigration benefit known as “Deferred Action”. This announcement was met with applause from the immigrant and immigrant-advocate communities and was viewed by many as passage of the Dream Act, a piece of legislation that has been debated but never actually passed in Congress, which would have provided a path to lawful status for young people who came to the U.S. through no fault of their own.
Deferred action however does not lead to a green card and does not provide a path to become a naturalized U.S. citizen. The benefit has been defined as an “administrative convenience” that merely de-prioritizes the grantee from deportation. On the up side, deferred action allows one to apply for work authorization. With work authorization, one can more easily apply for a social security card. As for driver’s licenses, Virginia is strict with who is eligible for one and who is not, and it will remain to be seen whether Virginia will allow those granted deferred action the right to apply for a driver’s license. Another plus is that it invites thousands of undocumented people to come out of the shadows and possibly sets the stage for a greater immigration benefit in the future.
It does not come without risks. The President announced that deferred action for eligible young people will be granted in increments of two years with renewal available at the end of that period. This is a benefit that can change with the political tide. If Mitt Romney is elected President, it may sunset long before the two years. The benefit will also require biometrics capture. Applicants must be aware that by applying they are coming out of the shadows for a benefit that does not confer substantive legal rights, all the while effectively putting them on the government’s radar screen.
So what is all this talk about “eligible” young people? The criteria is as follows: applicants must have entered the US prior to the age of 16; resided in the US for 5 years prior to June 15, 2012; must currently be no older than age 30, must be a high school graduate, possess a GED or have honorable discharge from the US military; and must have no serious criminal convictions or multiple misdemeanors. The government has also warned that fraud in the application will not be tolerated and those who submit fraudulent documents or information can expect full prosecution including referral for removal (deportation).
Deferred action is a good benefit for those in removal proceedings or who are subject to a final order of removal. For those who apply affirmatively – a group who are permitted to do so under Obama’s announcement – applicants should consult with a qualified attorney and carefully weigh the risks before applying.
|April 9, 2012||Posted by admin under Consular Processing||
The Department of State – not USCIS/Department of Homeland Security- has announced that it will be changing its fee schedule for both nonimmigrant and immigrant fees effective April 13, 2012. The fees will be paid to the US embassy or consulate in the country where the interview will take place.
For family-based petitions, the fiance(e) visa processing fee will be $240 and the processing fee for immediate relative and family preference petitions will be $230.
The B-1/B-2, F-1, J-1 and Transit and Crewman Visas will now carry a nonimmigrant visa processing fee of $160.
The new processing fee for the H, L, O, P, Q and R visas will be $190.
The new processing fee for the E visa will be $270.
The new processing fee for the Border Crossing Card for those age 15 and older will be $160 and for those under age 15 the fee will be $15.
The returning resident visa fee will be $275.
The diversity visa program fee will be $330.
Employment based applications will be $405 and other immigrant visa applications will be $220.
|March 7, 2012||Posted by admin under Business Immigration||
The U.S. Government allocates 60,000 visas per fiscal year for the H-1B specialty occupation visa program. An additional 20,000 visas are set aside for Master’s degree applicants.
The term specialty occupation is defined as an occupation that requires the theoretical and practical application of a body of highly specialized knowledge and attainment of a Bachelor’s degree or higher for that specialty. The government will accept the work equivalent of a Bachelor’s degree in the specialty. The H-1B program includes special rules for H-1B dependent or willful violator employers, and has provisions regulating the “benching” of employees, roving and short-term placement employees, and proper termination of employment.
The first step in the H-1B process is filing the Labor Condition Application (LCA). The H-1B employer signs the LCA thereby making four attestations to which the employer promises to abide relating to the payment of wages, working conditions, strikes / labor disputes and notice of the LCA filing. The employer must maintain a Public Access File and have the file on hand in the event that the government chooses that employer for a randomly selected audit. The second step is filing the H-1B petition itself. There are numerous documents which must be supplied to your attorney so that she or he may thoroughly prepare a strong H-1B presentation on your behalf. Employers may begin filing H-1B petitions on April 1, 2012, until the cap has been reached (unless cap-exempt). It is recommended that the employer file on April 1, 2012 if at all possible, since the cap fills up quickly in some years.
The H-1B visa is not for everyone. If you are no longer in a period of authorized stay after your last entry into the United States, you are not eligible to change your status to an H-1B. If you entered on a B-2 visitor visa and you worked for the employer who wants to petition for you while you were on the B-2 visa, then you are not eligible to change status because you have worked without authorization on the B-2 visa.
A more common scenario for initial applicants is where the H-1B applicant is an F-1 student visa holder who has been granted Optional Practical Training (OPT) and who has been authorized to work for a specific employer. As long as the applicant meets all requirements for the H-1B visa, his or her employer may apply. Dependents of H-1B visa applicants may apply for the H-4 visa, but should be aware that this visa category does not permit employment.
|January 27, 2012||Posted by admin under Admission & Admissibility||
U.S. residents, also called “green card” holders, often hold strong ties to their home country. They may have family back home or a business they are still tending to. They may stay outside the United States for more than a year intentionally or accidentally or because circumstances arose beyond their control.
LPRs will hear from friends, family or a lawyer who tell them that staying outside the United States for more than one year will cause them problems. They are right. Customs and Border Patrol (CBP) may deny your admission for having abandoned your permanent residence (and it will affect you when you apply to become a naturalized U.S. citizen). This article discusses the former.
What can you do? Depending on your situation, the options below may protect you from losing your lawful permanent resident status.
- Apply for a Reentry Permit. A re-entry permit is good for 2 years. The application requires that USCIS capture your biometrics (fingerprints) for which you must be present in the United States. Your biometrics appointment will be scheduled within 2-3 months from the date that you file your application for a reentry permit.
- Apply for a Returning Resident or “SB-1” Visa from the US Embassy in Your Country. This visa is very fact and circumstance specific and is available to LPRs who have been outside the United States for one year or longer (or two years or longer where a Reentry Permit had been obtained) due to circumstances beyond their control. Retention of all documents to explain your situation is essential. Even if the SB-1 Visa is granted, be prepared to explain your case again when you reach a U.S. port of entry.
- Applicants for lawful permanent residence, that is those who have a Form I-485 pending with USCIS, must obtain an “Advance Parole” document before departing the United States. If you have no other status in the United States and you are waiting for your green card application to be approved, you will not be allowed to reenter the United States without an approved and valid advance parole document.
|March 3, 2011||Posted by admin under Admission & Admissibility||
When entering the United States all travelers go through “U.S. Customs”. We are all familiar with the lines at each station where the agent checks our passport and ask questions. These agents are known as Customs and Border Patrol (CBP) officers and they are empowered to grant or deny your admittance to the United States. They are not lawyers, but they are trained to have knowledge of the basic laws governing proper documentation, admissibility and classification of foreign persons into categories such as arriving alien, lawful permanent resident, nonimmigrant visitor, etc.
There are many potential reasons why someone could get turned away at the border. The traveler may have used fraudulent documents (or no documents) to obtain admittance, may be a lawful permanent resident who stayed outside the United States for too long without advance permission, failed to apply for “advance parole” while an adjustment of status application was pending, been pulled aside due to mistaken identity and a “false hit” was made in CBP’s Lookout system, or the traveler may have a criminal history that prevents their lawful admission.
The CBP has its own internal records and the agency claims that they only go back as far as 1982. The truth is the records go back even further and an unwitting traveler may be pulled into secondary inspection and questioned about a crime for which there has not been a disposition yet (only an arrest) or which is many decades old. The CBP officer may tell you to obtain a copy of your criminal disposition (result) for that conviction before you seek admittance again. Until you become a naturalized citizen, it is important to carry this information on you when you travel.
There are a number of ways to address the issue. You or your lawyer can submit a request through the Traveler Inquiry Redress Program (www.dhs.gov/trip). After you contact them online, you will receive a Traveler Redress Form which the traveler must sign and date and submit along with a copy of the biographic page of the traveler’s passport. Attorneys should be aware that clients must sign Form 590, which authorizes the attorney to speak to CBP on behalf of the client. If the problem appears serious, the traveler should consult with a lawyer as he or she may need to apply for a “waiver” to gain admittance. If you are seeking to enter the United States on a nonimmigrant (or temporary) visa, there is no specific form to fill out. Your attorney can prepare a nonimmigrant waiver for you. If you have been denied admittance on an immigrant visa, your attorney can evaluate your eligibility for an immigrant waiver depending on your immigration history and the reason for the denial.
Oversea consulates and U.S. embassies are charged with issuing both immigrant and nonimmigrant visas. Travelers should keep in mind that just because your home consulate or embassy issued your visa, this does not guarantee that you will be admitted by CBP at your port of entry into the United States. If your lawful status in the United States is anything but a U.S. citizen (for example, a lawful permanent resident or nonimmigrant visa holder) you should consult with a lawyer before planning a trip outside the United States, especially if you have a criminal arrest or conviction anywhere in your history.