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Article: No Surprises In January 2018 Visa Bulletin; Dangers In Leaving The U. S. For Niv Consular Interviews; Varied H-1B Rfe Response Strategies By Alan Lee, Esq


  • Article: No Surprises In January 2018 Visa Bulletin; Dangers In Leaving The U. S. For Niv Consular Interviews; Varied H-1B Rfe Response Strategies By Alan Lee, Esq


    January 2008 visa bulletin

    A short summary of the bulletin is that the final action dates (A chart) for family and employment based cases generally advanced except for assumedly temporary unavailability of certain religious workers and regional center investment cases (tied in with the machinations of Washington’s budget bill), and that the filing dates (B chart) for both family and employment remained the same. So the rest of this part of the article will only talk about the A chart. Most countries in the world saw family-based advances in the F-1 category for unmarried adult sons and daughters of U. S. citizens from 2/1/11 to 3/15/11; F-2A for spouses and unmarried children under the age of 21 of permanent residents from 12/22/15 to 2/1/16; F-2B for adult unmarried children of permanent residents from 11/22/10 to 12/1/10; F-3 for married sons and daughters of U. S. citizens from 9/8/05 to 10/8/05; and F-4 for siblings of U. S. citizens from 6/8/04 to 6/22/04. On the employment-based categories, EB-1 for extraordinary aliens, outstanding professors and researchers, and multinational executives and managers remained current worldwide; EB-2 for those with advanced degrees or exceptional aliens remained current for all of the world except for China which moved from 7/1/13 to 8/8/13 and India from 11/1/08 to 11/22/08; EB-3 for skilled workers or professionals was current for most of the world except for China which moved from 3/8/14 to 4/15/14, India from 10/15/06 to 11/1/06, and the Philippines from 1/15/16 to 2/15/16; EB-W Other Workers was current for most of the world except for China which moved from 7/1/06 to 12/22/06, India from 10/15/06 to 11/1/06, and the Philippines from 1/15/16 to 2/15/16; EB-4 for special immigrants including ministers remained current with the exception of Mexico which moved from 4/22/16 to 6/1/16 and the 3 countries of El Salvador, Guatemala, and Honduras which went from current to 12/1/15; the other part of EB-4, certain religious workers, went from current for most of the world except for Mexico to unavailable worldwide; EB-5 direct cases remained current except for China which moved from 7/15/14 to 7/22/14; and EB-5 regional center cases went from current for most of the world except for China to unavailable worldwide.

    Dangers of Leaving the United States for NIV interviews

    Reports continue to pop up on the negative effects on adjudications of the Administration’s “Buy American Hire American” (BAHA) Executive Order which has found its way into the Department of State’s Foreign Affairs Manual which guides consular posts worldwide in nonimmigrant visa determinations. Cases involving applications from both new employer approved petitions and renewals have seen a spike in denials, administrative processing, lengthy questioning, and requests for further paperwork. Refusal rates have increased and telephonic investigations of local employers are up. As the risks attendant to consular interviews are now observably higher, persons who already have a change of status should well consider the factors before taking a trip back home which requires a new visa. Individuals with approved changes of status from U.S.C.I.S. should remember that a visa is not necessary to maintain legal status in this country. U.S.C.I.S. controls nonimmigrants in the country through I-797 approval sheets and paper or electronically retrieved I-94’s. A visa is usually only useful for traveling back and forth.

    Varied H-1B RFE Response Strategies

    Is there an immigration lawyer doing H-1B’s who does not have a response by now to U.S.C.I.S.’s barrage of RFEs attacking level I wages and the specialized nature of H-1B positions? I would wager not. The following just goes through some of the response strategies out there and a few of ours. At a meeting of the New York American Immigration Lawyers Association (AILA) Chapter last month, the observation was made that if U.S.C.I.S. gave an RFE just challenging the job as level I and you respond, then the agency would come back with the second RFE to say that the position was not a specialty occupation. Also that while the language in the OOH says that an occupation “typically” requires a bachelors degree, U.S.C.I.S. jumps on that by saying that not all people in the position have to have a bachelors degree. The panel pointed out the case, Residential Finance, for the proposition that even if an occupation’s requirements include disparate and various bachelors degrees, it is a specialty occupation if you can show that each field truly prepares one for the rigors of the duties. It recommended going to the unpublished AAO decisions in addition to citing Residential Finance to make a body of knowledge argument. One panelist viewed the language in the second part of the four-part regulatory criteria to prove specialized knowledge, “… In the alternative, an employer may show this particular position is so complex or unique that it can be performed only by an individual with a degree” as opening another avenue for response different from that of the fourth criteria to prove that “the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.” One agency specializing in working with attorneys and credentials evaluations proposed the solution of responding with an expert opinion letter explaining that level I does not mean that the job is entry-level, and then providing documentation that the job does require the level of specialization and higher education that meets H-1B requirements. AILA headquarters had earlier provided a practice pointer for responding to RFEs raising the level I or level II wage issue including arguing against the U.S.C.I.S. interpretation of DOL’s wage guidance of level I being only for those employees performing routine tasks requiring limited if any exercise of judgment by going through the entire wage guidance including walking the adjudicator through steps 1 through 5 of Appendix A; arguing that the regulations do not authorize U.S.C.I.S. to review the appropriateness of a wage level; that U.S.C.I.S. is misapplying the wage level system; that some positions are inherently specialty occupations regardless of the wage level; and that the wage level reflects the worker’s stature within the employer’s hierarchy, not whether the position falls within the regulatory definition of specialty occupation. Along with what I believe is a multitude of lawyers, we argue each of the 4 points of specialty occupation separately (if we can) pointing out exactly how the position fits within each of the points and supporting the first criteria that “a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position” with references to case law, the OOH itself, and dictionary definitions. We also use expert evaluation letters dependent upon the client organization’s wishes although cognizant that their use is also being attacked. In arguing level I, we point out in many pages that USCIS does not have statutory nor regulatory authority to adjudicate the levels of a wage, and support the view with statutory and regulatory language along with DOL’s own wage guidances over the years. There is probably no magic avenue or bullet to win the day, but the large volume of evidence shows that U.S.C.I.S.’s H-1B views as spurred on by BAHA are plainly wrong.

    This article © 2017 Alan Lee, Esq.

    About The Author

    Alan Lee, Esq. Alan Lee, Esq. The author is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2017), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell’s Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of “doing business” for multinational executives and managers to gain immigration benefits.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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