Update from Charlie Oppenheim RE: Visa Bulletin Movement

UnknownCharlie Oppenheim recently released a new update on possible movement of various visa categories.  While for the most part there are no surprises, it is good to review what he says on your particular category to ensure you are not surprised in future months.  However, overall, it was a short update this month.

EB-1:  All countries should remain current for the foreseeable future (including China and India)

EB-2:  Worldwide should remain current for the foreseeable future.  India and China will have some forward movement but not much.

EB-3:  Worldwide should remain current for the foreseeable future.  India will most likely hold steady and China will move forward slowly.  Charlie has been paying close attention to China especially because of the number of EB-2 downgrades.  To prevent any retrogression, Charlie is only moving forward slowly in that category.  The Philippines should also progress slowly.

Family based:  Mostly modest movement forward.  The only surprise is FB-4 for India, which is having lower than expected demand and may move forward more quickly than Charlie previously thought.

 

New Rule – All Employment Based I-485 application will have Interviews

Recently USCIS issued a new rule stating that all employment based green card applications will be subject to interview starting on October 3, 2017.  Just this week AILA members and the Ombudsperson for USCIS had a Stakeholder Call to discuss the new rule. Here are the details that came out of this call:

  •  All EB applications are subject to the new rule INCLUDING NIW and EA applications.
  • Any I-485 filed prior to March 6, 2017 (the date of the EO “Protecting the Nation from Foreign Terrorist Entry into the United States” the root of this new requirement) are NOT subject to the new rule.  Those cases will still be subject to random interviews, but only about 5% of cases are so selected.
  • The Service Centers will still adjudicate the I-140’s and the local offices have been instructed not to readjudicate the I-140s however they are allowed to evaluate the evidence used to support the I-140 for accuracy and credibility.  We will have to see how this plays out in real life.
  • Once the Service Center adjudicates the I-140, the file will be sent to the National Benefits Center (NBC) to determine if all documents for the I-485 are present.  If there is no medical, this is when an RFE will be sent out for the medical (and, considering that there will be longer processing times for everything, it may be wise to not submit the medical until an RFE is issues).
  • Surprisingly, USCIS does not feel that timelines will be significantly lengthened due to this requirement.  According to USCIS employment based I-485s are only about 17% of the Field offices caseload.  We will have to see how this plays out in the real world.
  • The top field offices that will be most affected are: San Jose, San Francisco, Newark, New York, Houston, Seattle, Chicago, Dallas, Atlanta and Los Angeles.
  • In most cases families will be interviewed together.

As we learn more information we will certainly let you know.  Please do contact us with any questions on how you may be impacted.

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.

30/60 Day Rule is Removed from FAM, Replaced with 90 Day Rule

images.jpegMany of you may not be aware of the 30/60 day rule.  The Department of State in its Foreign Affairs Manual (FAM) has a section on willful misrepresentations.  Part of this section describes how to determine willful misrepresentations in the case of people who enter the US on a non-immigrant visa but then undertake activities which contradict that status.  A good example is if someone enters the US on a tourist visa and then marries a US Citizen or begins to work without authorization.  Under its old rule, the Department of State would consider such activities as prima facie evidence of a willful misrepresentation if the activities occurred within 30 days of entry on the non-immigrant visa.  If the events occurred within 60 days of entry, they would not constitute prima facie evidence of a willful misrepresentation, however, if the facts of the case give the officer a reasonable belief that a misrepresentation was made they should ask for countervailing evidence from the foreigner.  If the activity took place more than 60 days after entry, then actual evidence of a misrepresentation would be needed.  DOS has now amended this section, and, instead, instituted a 90 day rule

The new rule states that if someone enters the US on a non-immigrant visa and undertakes certain types of activities (working without permission, undertaking a course of study (if not authorized to do so), marrying a US Citizen (only visas that require non-immigrant intent – including B and F visas), undertaking any other activity for which a change of status or adjustment of status would be required (and no such change of status or adjustment has been made) within 90 days, there will be a presumption that the person made a willful misrepresentation.

It is important to remember a few points here:

  1. This is a Department of State Rule, and, USCIS has not yet adopted it.  While USCIS has followed the 30/60 rule in the past, they did not consider it a bright line rule, rather one factor to look at.  In addition, they were much less likely to apply to marriage based cases based upon the date of marriage (they more looked at the date the I-130 was filed).  This is not to say individual officers did not apply the previous rules more strictly, but overall, USCIS did not use it a bright line test.
  2. The 90 day rule applies to when the activity occurred.  For example, in terms of a marriage based case, even waiting until 91 days has passed and then filing the I-130 does not matter if the marriage took place at day 34 – DOS would look at the date of the marriage and there would be a presumption of a willful misrepresentation.
  3. It is a presumption, not a definite finding.  In other words, you can still try to rebut the presumption if you have convincing evidence to show that you did not intend to undertake the activity when you applied for the Visa and entered the US.
  4. In terms of the marriage piece, this does not apply to those on H-1Bs, E visas, L Visas. K visas, O visas, and any other nonimmigrant visa that allows dual intent to one degree or another.

We will certainly be watching both USCIS and DOS and let you know any additional information about how this new rule is implemented.

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.

President Issues New Travel Restrictions

imagesOn September 24, 2017, the President issued a new Executive Order (“EO”) entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public Safety Threats”.  This new EO builds upon the last order, which was only valid for 90 days.  However, part of the old EO directed DHS to do a worldwide review to determine what additional information is needed from each foreign country to assess whether foreign nationals who seek to enter the United States pose a security or safety threat.  DHS completed that review and gave the President a list of seven countries that had “inadequate” information sharing practices.  The new EO implements certain types of restrictions against nationals of these seven countries (plus one additional country that the President felt posed security risks) in terms of their ability to get certain visas.

Who Does the Ban Affect?

The countries that are part of this new Executive Order are:

  1. Chad
  2. Libya
  3. Iran
  4. North Korea
  5. Syria
  6. Venezuela
  7. Yemen
  8. Somalia

As stated, the restrictions are not uniform for all the above countries.  The following table lays out what restrictions are placed on immigrant and non-immigrant visas for each country:

Country Non-Immigrant Visas Immigrant Visas
Chad No B-1, B-2 or B-1/B-2 visas No Immigrant or diversity lottery visas

 

Iran No non-immigrant visas except the F, M and J student visas No Immigrant or diversity visas

 

 

Libya No B-1, B-2 or B-1/B-2 visas No Immigrant or diversity lottery visas

 

North Korea No nonimmigrant visas No Immigrant or diversity lottery visas

 

Syria No nonimmigrant visas No Immigrant or diversity lottery visas

 

Venezuela No B-1, B-2 or B-1/B-2 visas of any kind for officials of the following government agencies: Ministry of Interior, Justice, and Peace; the Administrative Service of Identification, Migration and Immigration; the Corps of Scientific Investigations, Judicial and Criminal; the Bolivarian Intelligence Service; and, the People’s Power Ministry of Foreign Affairs, and their immediate family members.

 

No Restrictions

 

Yemen No B-1, B-2 or B-1/B-2 visas No Immigrant or diversity lottery visas

 

Somalia No nonimmigrant visas No Immigrant or diversity lottery visas

 

Dual Nationals:  Dual nationals can still travel and get visas based upon another nationality besides the ones listed above (So, for example, a national of both Iran and Canada can still get any nonimmigrant visa or immigrant visa based upon their Canadian Nationality).

Those in the US at the time the travel ban takes effect:  They are not affected by the travel ban as they are already in the US.

Those Outside the US with valid visas:  Exempt from the restrictions

Permanent Residents of the US:  These people are exempt from the Travel Ban

There are other certain exemptions as well, please make an appointment if you feel you may be affected by the travel ban and we can review the waivers and exemptions with you.

When will the Ban take effect?

From 3:30 pm on September 24, 2017, until 12:01 am on October 18, 2017, Nationals of Iran, Libya, Syria Yemen and Somalia will remain under the previous Travel Ban (i.e. only those with close family ties can get visas).  Sudanese national will no longer be subject to any ban as of that date and time.

From 12:01 am on October 18, 2017, forward the above travel restrictions will be in force and will replace the previous Executive Order Travel Ban.

If you feel you may be affected by the new travel ban, please do call our office.  We can assess your case and let you know if the travel ban does affect you, and if you are eligible for any of the waiver/exemptions.

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.

Did Water Damage your Passport and/or Visa? Here is what you should do

damaged_passport_bookIn the wake of the hurricanes that have brought massive flooding to parts of Texas, Indiana, Florida and many islands in the Caribbean, many foreign nationals in the US planning foreign travel (or those outside the US planning on coming back) have passports and visas that have been water damaged.  According to the Department of Homeland Security, you should replace such documents before attempting to enter the US.  The primary reason for this is that the ink that is used in the documents does not hold up to water, and if the damage is apparent by looking at the document, there is a high likelihood that the visa/ passport will not be machine readable. People who seek reentry to the United States by air will not be permitted to board an airplane if their passports cannot be scanned. There is very little room for discretion for those entering by air, as the airlines will likely deny boarding before CBP (Customs and Border Protection) ever sees the applicant.

Those who seek reentry by land may receive greater favorable discretion, as they may be granted a waiver of the required entry document (on Form I-193, pursuant to INA 212(d)(4)). Such waivers are granted on a case-by-case basis at the discretion of the port, and there is no guarantee that it will be done in any particular case. In cases that merit favorable discretion (e.g., emergency travel due to hardship), you should call your attorney as soon as you can so that they can facilitate your return at a border port of entry by contacting them and explaining why you warrant a favorable exercise of discretion.   While ports will never pre-adjudicate admissibility, your entry may be facilitated by having your attorney make this type of inquiry in advance. The I-193 waives only the lack of a travel document and does not waive any other grounds of inadmissibility which would require a waiver under INA 212(d)(3).

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.

National Interest Waiver (NIW): NYSDOT overturned, new standard introduced

pic.jpgOn December 28th, 2016 the Administrative Appeals Office issued a decision in Matter of DHANASAR that has changed the landscape for National Interest Waiver cases.  This is of major importance as the National Interest Waiver is one of only two self-sponsored applications and many scientists, researchers, entrepreneurs, and others use this application to obtain Permanent residence in the US.  In order to explain how this decision has changed the landscape, it is first important to understand what the previous standard was

In Re: New York State Department of Transportation

Under the Immigration and Naturalization Act, there are five Employment Based Immigrant Visa Levels.  Each level can have several categories.  The National Interest Waiver is laid out in the Second Level (EB-2) in section 203(b)(2) of the act.  Under subparagraph (B) of section 203(b)(2), the Secretary of Homeland Security may waive the requirement of a “job offer” (namely, that the beneficiary’s services are sought by a U.S. employer) and, “may, when the [Secretary] deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.” (See INA Section 203(b)(2)).

As can be seen, this does not provide much, if any, guidance on how USCIS should proceed in these types of cases.  USCIS did not help matters when it passed its regulations in this area.  All USCIS did was copy the language of the above statute verbatim.  It was the AAO that ended up defining how to show that your services are in the national interest.  The AAO did this in a case called In Re: New York State Department of Transportation (NYSDOT). In that case the AAO laid out a three-part test:

  1. Show that the area of employment is of  “substantial intrinsic merit”.
  2. Show that any proposed benefit from the individual’s endeavors would be “national in scope”.
  3. The petitioner must demonstrate that “the national interest would be adversely affected if a labor certification were required for the foreign national.”

In deciding to relook at this framework, the AAO stated that they felt that there has been confusion, especially as to the third prong, about how to demonstrate the above three prongs.  In addition, the AAO felt that this confusion has caused USCIS to be too narrow in the cases it has approved.  More specifically, the AAO seemed to feel there were two main issues.  First, in terms of the national in scope, the AAO wanted to make clear that this was NOT a geographic issue. Instead, it is an issue of national importance.  Second, in looking at the third prong, too much emphasis has been placed on requiring a showing of harm to the national interest if the application is not approved as well as too much emphasis on showing influence on the field and using that as a yardstick to determine if a person meets the standard.  Because of the above, the AAO decided to reformulate the above test.

New Test in Matter of DHANASAR

Under the new framework, and after eligibility for EB-2 classification has been established, USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence:1. that the foreign national’s proposed endeavor has both substantial merit and national importance; that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.

  1. That the foreign national’s proposed endeavor has both substantial merit and national importance;
  2. That the foreign national is well positioned to advance the proposed endeavor; and
  3. That, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.

Prong 1: That the foreign national’s proposed endeavor has both substantial merit and national importance

Looking at the first prong first, this is what the AAO states:

Evidence that the endeavor has the potential to create a significant economic impact may be favorable but is not required, as an endeavor’s merit may be established without immediate or quantifiable economic impact. For example, endeavors related to research, pure science, and the furtherance of human knowledge may qualify, whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.

In determining whether the proposed endeavor has national importance, we consider its potential prospective impact. An undertaking may have national importance for example, because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances. But we do not evaluate prospective impact solely in geographic terms. Instead, we look for broader implications. Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance. In modifying this prong to assess “national importance” rather than “national in scope,” as used in NYSDOT, we seek to avoid overemphasis on the geographic breadth of the endeavor. An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.

Comparing this to the first two prongs of NYSDOT, it is clear that many more people should be able to meet these standards.  First, in terms of substantial merit, the AAO is removing any required proof about economic benefit and is willing to accept more esoteric benefits.  While we have used this in many cases, it is good to see it immortalized into the actual standard.

Second, it show national importance, the AAO is specifically allowing local impacts that affect national priorities to be used in this regard.  In other words, with such a big emphasis these days on the economy and especially on creating jobs, you can use the potential jobs created for a particular endeavor in one state to justify the national importance of the project.  This is a major broadening of this criteria.

Again, we have used these arguments already in many cases (especially the global importance equals US national importance) and it is good to see this more formally allowed.

Prong 2:  That the foreign national is well positioned to advance the proposed endeavor

This prong is, perhaps, the most interesting.  According to the AAO:

The second prong shifts the focus from the proposed endeavor to the foreign national. To determine whether he or she is well positioned to advance the proposed endeavor, we consider factors including, but not limited to: the individual’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.

We recognize that forecasting feasibility or future success may present challenges to petitioners and USCIS officers, and that many innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution. We do not, therefore, require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed. But notwithstanding this inherent uncertainty, in order to merit a national interest waiver, petitioners must establish, by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.

It seems that, what the AAO is getting at, is that just saying you want to continue working in your field is not enough.  While you may not need a job offer, you do need a plan as to how you will continue your work in your field (be it collaborations you are planning or something similar.  It also is looking at your past successes to ensure that you will be able to continue to have success in your area of expertise.  In this way, it is also very similar to what was already required under the old standard.  It seems that the AAO is trying to open up that standard by saying that you do not have to show substantial success in the past, just a record of success, which is easier to show.

Prong 3: The petitioner must demonstrate, that, on balance, it would be beneficial to the US to waive the requirements of a job offer and thus a labor certification.

Again, as above, this is very similar to what the AAO said in NYSDOT, however, it is also much broader.  Under the old standard, this was phrased in the negative, you had to show that the National Interest would be adversely affected if you were not granted the waiver of the job and labor certification requirement.  The AAO felt this was too restrictive:

In performing this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process. We emphasize that, in each case, the factor(s) considered must, taken together, indicate that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

Under the old standard, you had to show why you would help the national interest to “a substantially higher degree” than an available US worker.  Under this new standard, you need to show that the US would still benefit from your work (or, at least, this is part of the test).  Again, this new standard helps broaden the scope of the NIW and helps many people who may not have qualified previously, to now, at least, have an argument for qualifying.

Conclusion

Overall, the AAO tried to open up the NIW to people who it felt should qualify, but whom USCIS was not qualifying under the old standard.  While the intent of the AAO is clear it remains to be seen how USCIS will interpret this new standard.  We are hopefully that they will interpret it in the spirit in which it was annunciated, that is liberally. We are also hopeful that this new standard will especially help those in the areas of international relations, scientists whose fields do not garner large number of citations or who have moved to non-traditional jobs as well as the aforementioned business people and entrepreneurs.  We will certainly update you as we learn more about how USCIS will implement this new standard.

Lastly, please keep in mind that, even if you filed your NIW case prior to this ruling, this is now the rule that USCIS will apply in your case.  Please also 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.

H-1Bs: What is a Specialty Occupation? (Part 1)

Unknown.jpegFor those seeking an H-1B, the most important criteria that must be met, is that the occupation that they are applying for be a “specialty occupation”.  USCIS has listed four methods of determining if a position is a specialty occupation:

  • A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position;
  • The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor’s degree in a field related to the position;
  • The employer normally requires a degree or its equivalent for the position; or
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

We will look at each method individually.  We will discuss the first method in this article and each additional method in a new article.

A Bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position

The first method of showing that a position is a specialty occupation is that the position is one for which a bachelor’s degree or higher degree in a particular field or fields, or its equivalent, is normally the minimum requirement for the particular position.   How would one prove this?  Generally, USCIS will look at the Occupation Outlook Handbook (OOH) put out by the Department of Labor each year.  That book lists a number of position as well as the normal entry level requirements for the position, including what degree is normally required for entry into the field.  If the position in question is covered squarely by a position in the OOH, then that is what USCIS will generally go with.  However, there are a number of positions that do not necessarily fit squarely (or at all) in the positions listed within the OOH. These cases are much trickier to try and use this method.

The primary reason it is harder to use this method with such position is because USCIS often confuses the SOC code used in the application process with the actual position in question.  In other words, USCIS will ASSUME that the SOC code used in the application correctly correlates to the position when this is not always the case.  For example, let’s say a person is an accountant intern – someone who has an accountant degree but is still required to complete a certain amount of accountant experience under the guidance of another certified accountant.  While it is clear that this position requires attainment of a bachelor’s degree in a particular area as the minimum qualification, many times employers or the DOL will issue a SOC code of “bookkeeper”, because the title of the position usually does not include the word “accountant”, as the person cannot use that title until they complete the requisite experience requirements.

If the SOC code of bookkeeper is used, USCIS will assume that a bachelor’s degree is NOT required and could deny the H-1B.  While it may be possible to convince USCIS that the position qualifies under another method, many officers will just ignore any evidence submitted trying to show that the position is one other than the one described by the SOC code.  It is just as important to accurately describe the position and all requirements as it is to ensure that the correct SOC code is used in ALL paperwork.  So for the above example, when filing the LCA, determining the Prevailing Wage, and filing the I-129, if n SOC code of accountant is used, the case is more likely to be approved.

Another issue that can come up using this method is if the position is so general that many different degrees could qualify someone in the position, or a general degree is sufficient.  This can come into play if USCIS feels that the position is too general OR if you are trying to hire someone into the position who has a degree that is less connected to the position.  A good example is trying to hire a computer person with an English degree.  They may have taken computer courses, learned on their own and received all the required certificates, but the degree just does not match the position.  Another example is a manager at a store.  In most cases, such positions do not even require a bachelor’s degree.  However, even a particular store did require such a degree, there are a number of degrees that could qualify someone for such a position – which means that it is not a specialty occupation.

We will discuss the other methods in subsequent emails.  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.