Announcement

Collapse
No announcement yet.

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

Collapse
X
Collapse

  • 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

    by


    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.

      Posting comments is disabled.

    Categories

    Collapse

    article_tags

    Collapse

    There are no tags yet.

    Latest Articles

    Collapse

    • Article: The EB-5 Immigration Program and the Investors Process By H. Ronald Klasko
      ImmigrationDaily
      The EB-5 Immigration Program and the Investors Process by H. Ronald Klasko At Klasko Immigration Law Partners, LLP, we represent businesses, individuals, and organizations across the world with various aspects of employment-based immigration. The EB-5 Immigrant Investor Visa Program is one program through which we help wealthy foreign nationals with no employment sponsorship or family in the United States gain permanent residence status. In the infographic below, we highlight the steps of the EB-5 program and the investment requirements associated with it, so individuals and companies alike can understand the program before coming to Klasko Immigration Law Partners, LLP for assistance. This post originally appeared on www.klaskolaw.com. Reprinted with permission. About The Author H. Ronald Klasko is recognized by businesses, universities, hospitals, scholars, investors and other lawyers as one of the country's leading immigration lawyers. A founding member of Klasko, Rulon, Stock & Seltzer, LLP and its Managing Partner, he has practiced immigration law exclusively over three decades. Under his leadership, the firm was chosen with five other firms by Chambers Global in 2006, 2007, 2008 and 2009 as the top U.S. business, hospital and university immigration law firm. Ron, himself, was named as the world's most respected corporate immigration lawyer (The International Who's Who of Business Lawyers 2007 and 2008) and one of the country's top immigration lawyers by clients and other immigration lawyers who said he is revered for coming up with unique arguments that can save a clients (Chambers Global). A former National President of the American Immigration Lawyers Association (AILA), Ron served as General...
      08-20-2018, 08:15 AM
    • Article: Immigration Judges’ Union Fights for Judicial Independence By Karolina Walters
      ImmigrationDaily
      Immigration Judges’ Union Fights for Judicial Independence by Karolina Walters The National Association of Immigration Judges (NAIJ), the union that represents the nation’s immigration judges, is challenging the government’s decision to remove an immigration judge from a well-known case and replace him with a judge who immediately ordered the immigrant in the case deported. NAIJ’s grievance addresses the treatment of one immigration judge, but its resolution will have implications for judicial independence throughout the entire immigration court system. The grievance was filed on behalf of Philadelphia-based immigration judge Steven A. Morley, who was presiding over the case of Mr. Reynaldo Castro-Tum. Castro-Tum’s case rose to national importance earlier this year when Attorney General Jeff Sessions chose to refer the case to himself to reconsider the Board of Immigration Appeals’ previous decision in the case. In reconsidering the decision, Sessions effectively eliminated judges’ use of administrative closure, a docket management tool. Sessions sent Castro-Tum’s case back to Judge Morley, noting that the immigration court order Castro-Tum removed if he did not appear at his next hearing. Castro-Tum did not appear at the next hearing. However, Judge Morley continued the case to resolve whether Castro-Tum received adequate notice of the hearing. Due process requires, at a minimum, that an individual be given notice of proceedings and an opportunity to be heard by a judge. But before the next hearing could take place, the Executive Office for Immigration Review (EOIR) replaced Judge Morley with an Assistant Chief Immigration Judge who ordered Castro-Tum removed when he did not appear at court again. In their grievance, NAIJ asserts that the decision to remove Judge Morley from Castro-Tum’s case and reassign many other cases from his docket resulted in unacceptable interference with judicial independence. The grievance specifically claims that EOIR’s actions violate immigration judges’ authority under the regulations to exerci...
      08-17-2018, 11:12 AM
    • Article: Indirect Refoulement: Why the US Cannot Create a Safe Third Country Agreement with Mexico By Sophia Genovese
      ImmigrationDaily
      Indirect Refoulement: Why the US Cannot Create a Safe Third Country Agreement with Mexico by Sophia Genovese The Trump Administration is seeking to create and implement a safe third country agreement with Mexico . Under this agreement, asylum seekers arriving at the US border who have travelled through Mexico would be denied the ability to file their asylum claims in the US. Such an agreement would trample on the rights of asylum-seekers, violating both international and US asylum law. In particular, the US would be violating the international principle of non-refoulement , which provides that no State “shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened,” where Mexico has a proven track record of being anything but safe for asylum seekers . The US has also codified Article 33(1) of the Refugee Convention into Section 208(a)(2)(A) of the Immigration and Nationality Act (INA) which provides that it will not return an asylum seeker to his or her country of origin, but may, at the determination of the Attorney General, remove the asylum seeker to a “safe third country… where the [asylum seeker] would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.” Although Mexican officials have not yet indicated whether they would sign a safe third country agreement with the US, asylum advocates should proactively seek to prevent such a devastating policy with a country that lacks adequate asylum protections. As reported by Human Rights First and Amnesty International , 75 percent of asylum seekers apprehended and detained by the National Institute of Migration (INM), the Mexican immigration enforcement agency, were not informed of their right to seek asylum. Even if asylum seekers are able to make their claims, only 30% of the asylum proceedings are ever concluded , and even fewer are granted, leaving many bona fide asylum seekers stranded without a resolution. The treatment of unaccompanied minors’ asylum claims in Mexico are even more dismal. Of the 35,000 minors apprehended by the INM in the first half of 2016, only 138 were able to apply for asylum , of which only 77 were granted protection. Beyond the failing asylum system in Mexico, asylum seekers are also in extreme danger of kidnapping, murder, rape, trafficking, and other crimes by INM officers and civilians. A safe third country agreement with Mexico would violate the United States’ international obligations under the 1967 Optional Protocol to the Refugee Convention, to which we are a signatory, which adopts by incorporation the obligations outlined in the 1951 Refugee Convention, to which the US is not a signatory. Take the example of an asylum-seeker, Mrs. H, who is fleeing politically-motivated violence in Honduras. Her husband, Mr. H, was a vocal political activist who opposed the National Party and members of the Honduran government. Mr. H began to receive death threats due to his political beliefs and reported such threats to the authorities. The authorities, however, di...
      08-16-2018, 02:32 PM
    • Article: Flawed Statistics Undermine USCIS/ICE/SEVP’s Restriction of D/S for Unlawful Presence By Eugene Goldstein, Esq.
      ImmigrationDaily

      Flawed Statistics Undermine USCIS/ICE/SEVP’s Restriction of D/S for Unlawful Presence

      by


      On August 9, 2018 USCIS published a “Policy Memorandum” restricting the 20-year-old calculation of Duration of Status (D/S) for F-1, J-1 and M-1 entrants (and their derivative families). https://www.uscis.gov/sites/default/...immigrants.pdf

      USCIS also published an announcement (hereinafter “announcement”) “USCIS Issues Revised Guidance on Unlawful Presence for Students and Exchange Visitors https://www.uscis.gov/news/uscis-iss...hange-visitors , and a general discussion “Unlawful Presence and Bars to Admissibility” ...

      08-15-2018, 12:57 PM
    • Article: Update On Express Entry Immigration To Canada By Edward C. Corrigan and Selvin Mejia
      ImmigrationDaily
      Update On Express Entry Immigration To Canada by Edward C. Corrigan and Selvin Mejia On January 1, 2015 the Federal Conservatives introduced significant changes to Canada’s economic immigration program. Formerly called the Skilled Worker program the new program was re-branded as Express Entry which included Skilled Workers, the Federal Skilled Trades program, and the In-Canada Experience Program. Canada modelled its revamped economic immigration program on New Zealand’s. There is also an Atlantic Immigration program. In addition there is a separate Live-In Caregiver program where individuals can apply for Permanent Residence after two years employment in this category. EXPRESS ENTRY The initial object of the changes was to create a list of Applicants where the Federal Government could select the best and the brightest from the list of Applicants. The Express Entry was supposed have applicants who had an approved Labour Market Impact Assessment (LMIA) and a valid job offer from an approved Canadian Employer. Under the Comprehensive Ranking System (CRS) candidates were award 600 points for having an approved job offer. Applicants would have achieved a point score of around 1,000 with the 600 points for having a valid offer of employment under the CRS. The provinces in Canada were also allowed to select Applicants according to their economic needs and these applicants that were selected through the respective provincial nominee programs by a province were awarded 600 points to be added to their score. Ontario also has a program where graduates from an Ontario University with a Master’s or who were in a PhD. program would be approved and awarded 600 points which virtually assured that they would be approved and provided with an invitation to apply. There is a quota that governs this graduate program. LABOUR MARKET IMPACT ASSESSMENTS Things did not go according to plan with Federal Express Entry. Very few Applicants were able to attai...
      08-14-2018, 12:50 PM
    • Article: USCIS Finalizes Unlawful Presence Policy Putting F, J and M Nonimmigrants In Great Jeopardy By Cyrus D. Mehta
      ImmigrationDaily
      USCIS Finalizes Unlawful Presence Policy Putting F, J and M Nonimmigrants In Great Jeopardy by Cyrus D. Mehta The USCIS finalized its unlawful presence policy for F, J and M nonimmigrants on August 9, 2018. The final policy makes no significant changes from the draft policy of May 10, 2018. My earlier blog noted the flaws in the draft policy, which persist in the final policy. The final policy incorrectly breaks down the distinction between violating status and being unlawfully present in the US. As of August 9, 2018, F, J and M nonimmigrants who have failed to maintain nonimmigrant status will start accruing unlawful presence. Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. See INA § 212(a)(9)(B)(i)(I) & (II) . Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled, are permanently inadmissible. See INA § 212(a)(9)(C)(i)(1). Prior to August 9, 2018, foreign students (F nonimmigrants) and exchange visitors (J nonimmigrants) who were admitted for, or present in the United States in, Duration of Status started accruing unlawful presence on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigrant benefit or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first. F and J nonimmigrants, and foreign vocational students (M nonimmigrants), who were admitted until a specific date certain accrued unlawful presence on the day after their Form I-94 expired, on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit, or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first. This will no longer be the case. Under the new policy effective August 9, 2018, any status violation will start the accrual of unlawful presence. The nonimmigrant will not be provided with any formal notice of a status violation, and any violation from the past that has been discovered would have already started the accrual of unlawful presence. According to the pol...
      08-14-2018, 10:51 AM
    Working...
    X