nonimmigrant – Immigration Briefs

Possible new H-1B Regulations to Limit H-1Bs

It appears that the current administration will soon have USCIS issue a new regulation regarding H-1Bs. There are three elements of the new regulation that are the most significant:

1) The regulation will be published as an “interim final rule,” which would allow it to go into effect immediately without public input but also makes the rule more vulnerable to legal challenge;

2) The regulation will impose a new, restrictive definition of a “specialty occupation” for H-1B visa holders; and

3) The rule will make it more difficult for H-1B professionals to conduct work at third-party customer locations.

The first part is making it an “interim” final rule. The purpose for this is that it allows the rule to go into effect BEFORE comments are received, meaning that it will go into effect immediately upon being published. The only real silver lining is that this also makes it more susceptible to challenge in the courts as the administration would have to justify skipping public comment (while the argument is it is not skipping it, just allowing the rule to go into effect first, in my mind it is the same as skipping public comment).

The second part, the new definition of “specialty occupation” was not spelled out in the summary provided to the news sources. However, most likely, it will be in line with the recent court cases that USICS lost in which it tried to limit the scope of specialty occupation to only occupations that ALWAYS require a bachelors degree, as opposed to those that USUALLY require a bachelors degree. In addition the administration has also tried to limit H-1Bs to positions that only require a specific degree, as opposed to several degrees. There are two situations that this comes into play: First, when a so called “general” degree is required when there are specialty degrees in that area (for example, requiring an engineering degree as opposed to a mechanical engineering degree); The second is if the position could be filled by someone with, for example, a degree in Computer Science or Information technology. USCIS has tried to limit both types by saying that they are not specialty occupations (but they have lost in Court in all those cases).

Lastly, USCIS will most likely be trying to limit placement of H-1B employees of IT firms at other locations, as those have been the big cases in the news with H-1B violations. However this could affect more than just IT companies, depending on the exact regulation. USCIS has, in the past, tried to get itineraries and firm contracts for the entire period of the H-1B, which can be difficult for some companies that have the need for the person, but they are working on various contracts, etc. as needed. USCIS may not accept them if the person is not specifically mentioned (something they attempted to do on some occasions as well).

We will have to see what the final rule states, but it seems as though the current administration is going to try to ensure that the H-1B program has limited use in the near future. We will update you as we learn more.

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

Many 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:

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.
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.
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.
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.

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

For 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.

The Visa Stamp in My Passport Expired, am I in the United States Illegally?

What Happens if the Visa Stamp in your Passport Expires or is revoked? Are you required to leave the United States? Or are you allowed to stay? Many people seem confused as to what a visa stamp is for, what an I–94 is for, etc. Therefore, every once in a while, we think it is good to review these concepts.

As most people know, in order to enter the US, generally you will need a visa stamp in your passport (the big colerful stamp that takes up a whole page – not the entry stamp you get when coming to the US with the date you need to leave the US). There are, of course, exceptions to this. Permanent Residents and citizens do not need visas. Also, those entering under the visa waiver program are not required to get a visa stamp either (although they do have to use the online system prior to any trip to the US). However, as stated above, generally most people will need to visit a US Consulate and receive a visa stamp in their passport before entering the United States. The purpose of the visa stamp is just that, to allow you to enter the United States. It does not control your status in the US, it does not indicate when you need to leave the US. It is simply a tool to allow you to travel and enter the United States.

Whenever you do enter the United States, you are required to go through an immigration control line, in which Immigration and Customes Enforcement (ICE) Officers, and perhaps USCIS officer, will review your passport, visa stamp, immigration history, etc. and determine if you are admissable to the United States. Despite having the visa stamp in your passport, these officers can still deny you entry to the United States if they believe that you meet one of the grounds of inadmissability or are not eligible for the status you are seeking. If they determine that you are eligible they will allow you to enter and will provide you with an entry stamp in your passport and an I–94 online. It is these documents, the entry stamp and I–94 that control your status in the United States. Whatever date is listed on these documents is the date your stay will expire and when you need to leave the US. Therefore, if your Visa Stamp expires it does NOT affect your stay in the US. Just recently, the DOS confirmed that this is the case, and further confirmed that even if DOS revokes your visa, this does not affect your stay in the US either. It is up to ICE and USCIS to revoke your status in the US and to kick you out, if they are so inclined. DOS simply does not have that power.

Why would your visa be revoked? Well, there are many reasons, including that you no longer qualify for the status (i.e., a tourist visa for someone who filed a green card application or you move to an H visa, etc.), or some other information comes to light that shows you no longer qualify (security concerns, etc.). While a visa revocation alone will not affect your stay in the US, it is a good idea to talk with your attorney (or an attorney) if you do receive such a letter in the mail, as it could be a harbinger of other things to come.

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.