Does Hiring an Attorney Increase Your Chances of Success with USCIS?

I have had many potential clients ask me this question, and I wish I could give a simimages-1.pngple “yes” or “no” answer. There are two things I can say for sure. First, just the fact that you have an attorney, while it does not make it more likely, in and of itself that the case would be approved, it does make sure that the officer is aware that they cannot (or should not) play games with your case (try intimidation tactics, raise issues not supportable by the statute or regulations, etc.). Second, hiring an attorney can, in most cases, help you get your case together and filed quicker than you would on your own, help to ensure that USCIS will get all information that they need up front to make their decision, and help to ensure that the application is presented in a way that USCIS prefers. All of these things can make it more likely that your case is approved, and approved quicker.

Complex cases (All employment based and self-sponsored green cards, H-1Bs, L-1s, E-1s, E-2s, E-3s, Os) can benefit quite a bit by having an attorney. Most attorney’s you hire for these types of cases will have filed many of these cases, so they are more familiar with what USCIS is looking for, especially in terms of what documents help and what documents hurt your chances of success. Similarly, they are more aware of how USCIS likes the case to be organized, and how it can be organized to prevent (as much as possible) the USCIS mailroom from loosing documents. A good attorney will also be able to help in terms of ensuring that the best evidence is put forth first, as opposed to evidence that, while it may seem important, does not impress USCIS and could, because it is put up front, obscure the better evidence in the packet.

Some other types of cases, such as family based cases, may not benefit quite as much from an attorney as generally, these types of case are more straight forward. However, there are still a couple of considerations to think of. First, many questions on the forms are not clear and easy to make mistakes on. Sometimes this is fine, but in other cases, it could lead to major issues as USCIS could decide that you are trying to commit fraud or make misrepresentations on major issues (or, at least, what they consider a major issue) to get a green card. Second, when more complex issues arise (crimes, time in the US out of status, illegal work, illnesses, etc.) it may be best to get an attorney to help sort out what they law is, and how these actions can affect your eligibility. Lastly, generally an attorney can help get the application together and filed quicker and can usually assure that all required documents are submitted with the application, preventing potential RFEs down the road (although these cannot always be avoided). In addition, an attorney could certainly help if any other issues arise during the case.

Overall, I would say you are certainly well served to meet with an attorney about your case to determine how they can help you with your case, especially if your goal is to get it filed as quickly, and easily as possible.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

USCIS Proposed New Regulations for Skilled Workers

USCIS has just submitted a proposal to amend and add to its regulations regarding highly skilled worker.  Below is a summary of the provisions of this proposed rule. Before discussing the proposed rule, however, let me be clear – this is proposed at this point, so it is not currently law.  The provisions may or may not be adopted as is (USCIS could also choose to make changes depending on the comments they receive). Once we have any information relating to the adoption of these rules, we will certainly let you know.

I have divided the summary into two parts: those provisions that I feel make major changes to current law and those provisions that, while they do make changes, the changes are not as major.

First, lets look at the major revisions, the ones that will make major changes to current practices:

H-1B Cap Exemptions: USCIS will clarify and codify its definition for two cap-exemptions. First, it will define who qualifies for a cap-exemption when they are working “at” a cap exempt location even though the employer for who they work is not cap-exempt. The new regulation will state that the H-1B is cap exempt if the employee is performing a majority of their duties at the cap-exempt location and such job duties directly and predominately further an essential purpose, mission, objectives or functions of the cap-exempt organization.

Second, USCIS would codify its definition of “related or affiliated nonprofit entity” plus add one additional ground (currently only institutions that are connected or affiliated with an institute of higher education through shared ownership, that are operated by an institute of higher education, or that are attached to an institute of higher education as a member, branch, cooperative or subsidiary). The new definition would also include entities that have entered into a formal written affiliation agreements with institutes of higher education. The agreement must establish an active working relationship with the institution of higher education for the purposes of research or education, and it must establish that one of their primary purposes is to directly contribute to the research or education mission of the institution of higher education.

Revocation of Approved I-140s: USCIS is proposing to amend its regulations so that I-140 applications that have been approved for 180 days or more will no longer be subject to automatic revocation because the employer requests it, or because the employer goes out of business. Those I-140s will remain valid for priority date retention and for extending H-1Bs past the six year maximum. However, unless the I-485 was filed and remained pending for at least 180 days before the withdrawal request or the employer went out of business, the I-140 cannot be used to file an I-485 or have it approved as the underlying offer of employment is no longer valid. If the I-485 had already been filed and remained pending for 180 days prior to the withdrawal request or the company going out of business, the applicant can still use the I-140 for 204(j) portability purposes (showing an offer of employment that is in the same or similar category). If that is not possible, a new I-140 would have to be filed in order to obtain an adjustment of status.

Retention of Priority Dates: As stated above, USCIS would change its regulations relating to retaining the priority date of an I-140. For those applications that require a labor certification, the filing date of the labor certification (or the I-140 in the case of Schedule A case) is the priority date for those I-140s. USCIS would clarify that the priority date for all other I-140s is the date it is properly filed with USCIS. Furthermore, USCIS would clarify that the priority date could be retained on any I-140 except if the I-140 is denied (or otherwise not approved), or if the approval is revoked based upon fraud/misrepresentation. If the employer subsequently withdraws the application or if the employer goes out of business, the priority date will be retained. This is true regardless of how long ago the I-140 was approved (i.e. it applies if it was approved yesterday or 2 years ago). In other words, the 180 day rule above does NOT apply to priority date retention.

Non-Immigrant Grace Periods: USCIS already has in place a provision that allows for a person entering the US on an H-1B to come up to 10 days before the start date, and to get an additional 10 days after the expiration of their H-1B (it is important to remember that currently, these extra 10 day periods MUST be included on the I-94 when you enter, they are not automatic). This will be extended to L-1, E-1, E-2, E-3 and TN visa statuses as well. In addition, these statuses would also receive a one-time, up to 60 day grace period if the employment is terminated prior to the end date on the I-94. The actual grace period time would be the SHORTER of 60 days, or the amount of time left until the expiration of the current I-94. During this period the person would still be considered in status and could file a new H-1B, L, E or TN applications (as listed above) or an application to change status. The above grace periods are also extended to dependent family members.

Eligibility for EAD in Compelling Circumstances: USCIS will amend its regulations to allow EAD issuance to certain non-immigrants (those who have an approved I-140 and are in the US in E-3, H-1B, H-1B1, O-1 or L-1 status) if there exists compelling circumstances. The EAD would be valid for 1 year, and could be renewed as long as the compelling circumstances remained, and the priority date is within 1 year of the current cut-off date. In addition, if the person has a priority date that has already passed (so there is an immigrant visa available) and is more than 1 year beyond the posted date, they would be ineligible for either an initial or renewed EAD. In terms of defining compelling circumstances, USCIS will not do so. They do give certain examples, however. The four examples give are: Serious illness or disability that significantly changes employment circumstances (has to move to a new area for treatment, etc.), employer retaliation, other material harm to worker (such as on an H-1B in a industry specific job, company goes out of business, industry does not exist in home country, so lack of job would cause hardship), or Significant Disruption to Employer.

H-1B licensing Requirements: USCIS will amend the regulation to reflect that, those applying for an H-1B in an occupation that requires licensing will be able to get the H-1B approved (for up to 1 year) prior to receiving the license if they can show that they have the application pending, or the application has been denied because they do not have a social security number or employment authorization and that the ONLY reason they cannot get the license is because they cannot get a social security number and/or they do not have employment authorization. USCIS will also allow approval in cases where the applicant does not have a license if the state in which they are practicing allows such persons to work under the supervision of a licensed practitioner. However, USCIS will review these cases to ensure that the duties will still be specialty in nature.

EAD Processing: USCIS is making two proposals here. First, they will allow automatic extension of EADs (up to 180 days) and work authorization incident to status in cases where the applicant is seeking renewal of their EAD, files the application prior to the expiration of the old EAD, files the application in the same category in which it was initially granted AND either they continue to be employment authorized incident to status beyond the expiration period or they are applying for renewal in a category that does not first require adjudication of an underlying application. In addition, for I-9 purposes, they would amend the regulations to show that an expired EAD and an I-797 receipt notice would be sufficient to show employment eligibility. USCIS states that this would apply to those seeking to renew their EAD based upon: refugee or asylum status; a grant TPS; a pending I-485, as well as additional categories. It specifically does NOT apply to H-4s applying for work authorization – as their grant depends upon the maintenance of H-1B status of the underlying H-1B Principal. The second proposal would eliminate the 90 day processing period for EADs now required in the regulations for I-485 applicants.

Next are the provisions that, while important, do not represent as much of a change to existing policy.

3 and 1 year extensions of H-1B:  First, USCIS will codify a couple of long standing USCIS policies in relation to AC21 and the granting of additional H-1B time past the six year maximum. For the three year renewals (allowed to those with an approved I-140 who are unable to file an I-485 based upon visa backlogs) USCIS is codifying that the three year extension can be renewed in three year increments for as long as the visa backlog exists. They are also codifying that the extension is available to those both in the US and outside the US, and to those currently in H-1B status and those not in H-1B status but who previously held H-1B status.

They are also codifying that any employer (not just the one who filed the I-140) can request the extension and that the extension is ONLY available to the principle beneficiary of the I-140, not dependents.  For the 1 year renewals, available to those whose green card process has been ongoing for 1 year or more, they are codifying similar provisions (available to those currently in the US and those outside the US and those in and not in H-1B status at the time the renewal is filed and it is only available to principle beneficiary).  In addition, they would codify that the denial or revocation of an underlying petition is not considered a final action (thus stopping the ability to get the 1 year renewals) until the time for appeal has elapsed, or, if an appeal is filed, the appeal is finalized – but an expired PERM would not be grounds to get an extension.

Lastly, a beneficiary must seek to get their permanent residence within 1 year of the visa becoming available or the extension is not longer available to them.

Job Portability:  USCIS will codify that, once the I-140 is approved and the I-485 has been pending for at least six months, the adjustment of status can be approved if the underlying employer continues their sponsorship OR if you provide a new letter of employment from a new employer (or through self-employment) in a same or similar occupation.

In addition they are extending this to cases where the old employer has gone out of business.  USCIS will also define “same” and “similar” in a manner consistent with their latest memo on this issue.

H-1B Portability:  USCIS would codify that those in H-1B status can begin working for a new employer upon the filing of the new H-1B application, that such ability is ONLY available to those in the US in H-1B status, and that you can file subsequent H-1B portability applications and begin working for those employers prior to approval of  the other underlying H-1B application.

Counting H-1B time:  USCIS will codify the ability to recapture time outside the US. Anytime spent outside the US, regardless of the reason or the amount of time, can be recaptured at the end of the six year H-1B period. The burden of proof is on the applicant to show that they were out of the US during that period (passport stamps, etc.)
Whistleblower Protections: USCIS will institute certain protections for whistleblowers (those who alert the government to certain to illegal activities of their employers).
Again, once the above provisions are adopted (or if changes are made) we will post an update on this blog. Please do let me know if you have any specific questions.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

January 2016 Visa Bulletin Update

The Department of State issued its visa bulletin for January of 2016.  The following are the highlights in terms of movements forward and backwards of priority dates:

Family Based:

Final Action Dates:  For most of the world (including China and India), the dates moved forward in all categories by about 1 month (except spouses and children of Permanent Residents (F2A) which moved forward 2 months to August 14, 2014).  The Philippines and Mexico each moved forward around 1 month (or less) in all categories.

Dates for Filing:  For most of the world (again, including China and India) dates moved forward by about 3-4 months, with the F2A category moving to June 15, 2015.  F2A jumped about 6 months to December 15, 2010.  The Philippines and Mexico again moved forward only about 1 month (or less) in all categories.

Employment Based:

Final Action Dates:  EB-1 remained current for all countries.  EB-2 is current for all countries except China and India.  China remained at February 1, 2012.  India moved forward about 8 months to February 1, 2008.  For EB-3, world-wide numbers progressed about 1 month to October 1, 2015.  China progressed about 3 months to July 1, 2012.  India moved forward about 1 month to May 15, 2004 and the Philippines moved forward several months to November 1, 2007.

Dates for Filing:  These were the same in January as they were in December EXCEPT for one change, EB-3 Worldwide moved to January 1, 2016.

 

USCIS Reaction:

USCIS has agreed to use the Dates for Filing for family based application, so those whose priority date allows it can file their Adjustment of Status application based on those dates.

USCIS will NOT allow use of the Dates for Filing for Employment Based application.  They did not indicate why, or give any clue as to the issue. However, you can only file the adjustment application based upon the Final Action dates.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

 

December Visa Bulletin and Update from Mr. Oppenheim

 

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The Department of State recently released the December 2015 visa bulletin and Mr. Charlie Oppenheim, the person at the Department of State in charge of the Visa Bulletin also recently gave AILA an update on his predictions for future movement of the Bulletin.  I will summarize both of these documents below.

Family Based:

Final Action Date:

Most categories moved forward about 1 months.  The one date to highlight is the F2A Category (Spouses and Children of Permanent Residents) which is now at June 15, 2014.

Application Filing Dates:

No Movement

Guidance:

Here is what Mr. Oppenheim has to say on family based categories:

F-2A and F-2B: Last year, the family-based 2B category advanced very quickly because the demand did not initially materialize. The dates have now advanced to the point where demand is materializing. A similar phenomenon is occurring with regard to F-2A. The agent of choice letters are not spurring sufficient demand, so until demand materializes, we can expect to see continued advancements in this category. As noted previously, the response rate is low in many of the family-based preference categories.

Employment Based:

Final Action Dates:

EB-2: The only real movement was India, which jumped from August 1, 2006 to July 1, 2007.  China stayed in 2012 and the rest of the world is still Current.

EB-3:  Everyone, except India moved forward about 1 month.  China moved to April 15, 2012, the Philippines moved to August 1, 2007 and Mexico and the rest of the World moved to September 15, 2015.  Unfortunately India stayed at April 22, 2004.

Application Filing Dates:

No Movement.  USCIS did indicate they would accept I-485 application based upon these dates in December 2015.

In giving his guidance, Mr Oppenheim stated that the forward movement on the India EB-2 numbers is attributable to correcting the large rollback in the dates that occurred at the end of last fiscal year.  Mr. Oppenheim projects that EB-2 India may advance monthly by as much as eight months over the course of the next few months. However, this would be the best case scenario, and the actual advancement is likely to be around four to six months at a time. On the downside, this forward movement will most likely spur  EB-3 upgrades which will eventually impact demand, slowing EB-2 India advancement. Mr. Oppenheim expects the upgrade demand will start to materialize in December/January which will slow advancement in early 2016. Should the demand fail to materialize at the expected rate, then the “up to eight” month movement could occur.

Guidance:

In terms of China, the EB-2 China final action date will remain the same in December 2015 and Mr. Oppenheim does not anticipate much, if any movement in this category over the next few months as he already expects that number use will exceed the targeted usage for the first quarter of the fiscal year.  Since the final action date for EB-3 China is later than the EB-2 China final action date, Mr. Oppenheim expects that some EB-2 China cases will downgrade to EB-3, which will take some of the demand pressure off of EB-2 China. This phenomenon has happened the last two years and ultimately results in increased EB-3 demand which slows movement or even retrogresses that category, while at the same time allowing EB-2 China to advance once again. Mr. Oppenheim expects this rebalancing to occur at some point next year, possibly as early as April.

 

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Recent PERM Issues resolved by BALCA

dol Recently, BALCA (Bureau of Alien Labor Certification Appeal), the agency that hears appeals when a Labor Certification is denied, has made several important decisions.  This post will describe a couple of the most important decisions.

Accent-Media Productions, Inc., 2012-PER-712 (September 23, 2015)

We advise all our clients on the documents that need to be kept.  In that list we include documentation of contact with those who apply for the position.  While this documentation is not listed as a required document that needs to be retained under the statute or regulations, we have seen DOL ask for it before and it is a good practice to keep it.  Now, this is doubly true.

An employer was requested by the DOL during an audit to provide the evidence of his contact with the applicants.  The employer had contacted the applicants by email, but  did not provide such documentation to the officer and the case was denied.  While it should have been a simple matter for the employer to provide the emails in a motion to reconsider, that is not allowed.  Only documentation that is either asked by the officer (for the motion to reconsider) OR information that was unavailable to the employer at the time of the initial request can be included in the Motion to Reconsider.  Instead, the employer appealed the case to BALCA claiming that the documents were not required to be retained by the employer, and, therefore the the employer was not required to provide them to the officer and the case could not be denied on that basis.

While the above is correct, there is a provision that allows the officer to request additional evidence if the request is reasonable and a failure to provide the additional evidence would amount to “substantial failure…to provide required documentation.”  Now, while it is clear that the evidence requested was reasonable, how could it be said that by not providing this information (which is not “required documentation”) could be viewed as a substantial failure to provide required documentation?  According to BALCA it was necessary evidence to determine whether the applicants were rejected for lawful, job related reasons.  I think what BALCA is trying to say is that the officer has a right to have confirmation that what they employer states on the recruitment report actually occurred as reported.  In other words, the officer is not required to trust the word of the employer that it did what it said it did.

DGN Technologies 2012-PER-00423 (September 3, 2015)

In this case, the employer filed a PERM case with the DOL.  The DOL officer sent out a Audit Notification Letter requesting documentation about the recruitment process to the employer.  When the employer did not respond, the case was denied.  In a Motion to Reconsider, the employer argued that it had not received the notice send out by the employer and requested the case be reopened and the notice send out again.  BALCA re-opened the case and ordered that the officer re-send the notification and give the employer the requisite time to reply.

BALCA stated two reasons for overturning the denial:  First, since the Officer had no proof that the document was mailed (outside of its word) and did not provide proof of the mailroom procedures to the judge to show that such procedures would lead one to believe that the document was mailed, that there is no presumption that the document was mailed or received.  Second, the judge stated that even if such documentation were available and there were a presumption that it was mailed and received, it is a weak presumption and the affidavit of the employer that it did not receive the documents, and the lack of motive for the employer to ignore the audit notice, all lead to the conclusion that the notice was not received by the employer.  Therefore, the denial was vacated.

This shows that BALCA is not above requiring the same type of documentation (proof of mailing, etc.) from the DOL as it requires from employers.  But more importantly, it also shows that when there is sufficient indication of honesty, the DOL should trust the word of the employer.  This is in contrast to the above case in which an employer could have serious reasons to mis-represent the reasons for denial of a particular applicant as it could help the case be approved.  Therefore the DOL does not have to rely solely on the word of the employer in that case.

It is always important to remember that PERM cases are difficult not because the procedures are necessarily difficult, but because the Department of Labor is looking for any reason to deny the application.  Even the fact that the employer did not receive a notice from the DOL, is enough for them to deny a case and make you start over from the beginning.  Competent is important for these type of cases.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.