As immigration practitioners, we file H-1B visa petitions all the time. We know that in each petition, the employer must demonstrate that the position requires a professional in a specialty occupation and that the foreign national – the intended employee - has the required qualifications. It’s become common knowledge that progressively responsible work experience may substitute for any deficiency in the foreign national’s education and everyone is pretty comfortable with the equivalency ratio of three years of work to one year of college training (the “three-for-one” rule). Under this rule, a foreign national with twelve years of work experience could be deemed to possess the equivalent of a four-year US baccalaureate degree and therefore qualified to hold a specialty occupation.
Going forward on new H-1B petitions and especially as we gear up for the upcoming H-1B cap season, a recent non-precedent decision by the Administrative Appeals Office (AAO) discussing USCIS’ recognition of any years of college-credit for a foreign national’s training and/or work experience is worthy of some careful review
You know how we’re innocent until proven guilty? Well, there’s also a federal law says that from the time a non-citizen’s bond is paid a jail can keep holding him (to wait for Immigration to come get him) for only 48 hours. 8 C.F.R. 287.7(d).
On Friday afternoon, 02/20/15, I called my local county jail.
“I need to send a fax to whomever is in charge,” I explained to the jailer. “It’s been more than 48 hours, so it’s illegal for the county to keep holding my client. Where should I send my fax?”
“You’re a lawyer,” the jailer said, derisively. “You should know where you can put your fax.”
Then he hung up on me.
Whaaaa—? Did he seriously just tell me to put my fax where the sun don’t shine?!
I then wrote and faxed an S.L.L. (Scary Lawyer Letter) to the chief of the jail. This was at 3:40pm. Government employees don’t answer their phones after 4pm, especially on a Friday. I didn’t expect anything to happen.
So I was surprised when, that evening at 8:30pm, my client called me to thank me. They let him out of jail. He was already back home with his family. My SLL worked!
Here’s a template you can use, based on my own SLL:
Most prospective H-1B employees and H-1B employers begin with either of the following two questions: “I would like to work in the U.S. using an H-1B visa, but am not sure if I qualify” or “I want to hire a foreign worker but not sure if the individual qualifies for an H-1B visa.”
As briefly touched-upon in our previous article[i]
, it is mandatory that both the proffered position and prospective employee should qualify for the H-1B visa. To build on previous article, this article will explore the importance of educational and/or experience equivalency evaluations, and explain certain precautions that an employer and/or a prospective H-1B employee can take in order to avoid a potential Request for Evidence (RFE) and/or denial of the H-1B nonimmigrant petition.
For a proffered H-1B position to qualify for an H-1B visa, it must be in a “Specialty Occupation”. A specialty occupation is an occupation that requires: (1) a theoretical and practical application of a body of highly specialized knowledge; and (2) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
Late last night, Judge Andrew S. Hanen, a federal district court judge, issued a decision in the lawsuit brought by Texas and 25 other states challenging President Obama’s new deferred action initiatives. In his decision, he issued a “preliminary injunction,” meaning that he temporarily blocked the implementation of the expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Legal Permanent Residents (DAPA) initiatives. These initiatives are intended to offer temporary deportation reprieves to many undocumented individuals who came to the United States either as children or who are undocumented parents of U.S. citizen and green card holders. These individuals must pass a background check and meet other requirements. The government had been preparing to launch the expanded DACA initiative this week and the DAPA program later this spring.
Here are five things you need to know about Judge Hanen’s decision:
1. This is a temporary setback, not a defeat.
The President’s executive actions announced last November are the result of hard fought battles in the streets, in the media, and in the halls of Congress. The Administration took great care in vetting the expanded DACA and DAPA initiatives ahead of time, obtaining a lengthy, detailed legal opinion from lawyers with Department of Justice’s Office of Legal Counsel (OLC). Judge Hanen’s views are not only at odds with the OLC opinion, but with Supreme Court precedent, decades of practice, and the views of 136 law professors as well. We are strong on the law and this decision will be overturned.
Immediately after the decision was issued, the White House announced its commitment to challenging the court’s order. As the White House said, “The district court’s decision wrongly prevents lawful, commonsense policies from taking effect and the Department of Justice has indicated that it will appeal that decision.” The case will now go to the Fifth Circuit Court of Appeals. It is unclear how long it will be before the appeals court ultimately rules. In the meantime, potential applicants for expanded DACA and DAPA should continue collecting documents and saving for filing fees so they
Citizenship and Immigration Canada (CIC) has announced that, effective February 21, 2015, work permit applications in LMIA-exempt categories will require additional compliance measures. LMIA-exempt work permits are now referred to as work permits under the ‘International Mobility Program’.
Under the new measures, before employees can seek non-LMIA based work permits (see below re application types), employers will be required to meet certain guidelines. Employers will need to:
Provide specific company information
Specified forms and/or guidelines are anticipated, and readers will be apprised
Provide an offer of employment
Pay a $230 compliance fee online
Failure to Comply:
Failure by employers to comply with the above can lead to penalties not unlike those now in place for LMIA-based work permits. Penalties may include:
The H-1B season which begins on April 1st for capped petitions allows for 65,000 numbers with an additional 20,000 for those beneficiaries holding a U. S. Masters or higher degree. However, the U. S. Masters cap does not apply to those with degrees from U. S. for-profit colleges. A number of petitions were denied last year by those who asked for inclusion in the U. S. Masters cap, but attended and received degrees from for-profit colleges.
The reasoning for not including U. S. for-profit colleges is that those H-1B petitions are seeking an exemption from the 65,000 numerical limitation under the second provision for 20,000 numbers, but the limitation
Too many of our international students go back home after they graduate. There's a lot more that we could be doing to keep them.
Sitting across a conference table, she stared at me with wide eyes and said, "No, it didn't cross my mind." I'm an immigration lawyer, and I had just asked Emma, a new university graduate with a master of fine arts degree, whether she had thought about starting a business in America. The 25-year-old from Taiwan was facing the likelihood that she would soon have to leave the United States because her student visa was set to expire. But she saw her future in America, not Taiwan.
Work visas for professionals like Emma are in short supply. About 85,000 of
The Memorandum Opinion and Order is more than 120 pages long, so a full analysis is not feasible in a blog post, especially one being published just two days after the Memorandum Opinion and Order itself. In this blog post, however, I will focus on what I think is one of the most important conceptual flaws in the Memorandum Opinion and Order. It appears to overlook key sources of statutory and regulatory authority for DAPA and expanded DACA, particularly the portions of DAPA and expanded DACA which relate to the grant of employment authorization and related benefits.
In the Memorandum Opinion and Order, Judge Hanen accepts that the Department of Homeland Security (DHS), and in particular the Secretary of Homeland Security, Jeh Johnson, has the authority to set priorities regarding whom to remove from the United States. “The law is clear that the Secretary’s ordering of DHS priorities is not subject to judicial second-guessing.” Memorandum Opinion and Order at p. 69. “The States do not dispute that Secretary Johnson has the legal authority to set these priorities,” Judge Hanen writes, “and this Court finds nothing unlawful about the Secretary’s priorities.” Memorandum Opinion and Order at 92.
Judge Hanen asserts in his
Memorandum Opinion and Order, however, that DHS’s statutorily granted authority
to set enforcement priorities does not go so far as to authorize DAPA because
of the affirmative benefits which are to be granted under the program.He similarly holds that the usual presumption
against APA review of decisions not to enforce a statute, as set out by the
Supreme Court in Heckler v. Chaney, 470 U.S. 821 (1985), does not apply in this case because DAPA is not merely a
determination not to enforce:
of merely refusing to enforce the INA’s removal laws against an individual, the
DHS has enacted a wide-reaching program that awards legal presence, to
individuals Congress has deemed deportable or removable, as well as the ability
to obtain Social Security numbers, work authorization permits, and the ability
Memorandum Opinion and Order at 85-86. A similar theme is sounded later in the opinion when contrasting DHS’s statutory authority to set priorities, of which Judge Hanen approves, with the benefits conferred under DAPA:
The [Homeland Security Act]’s delegation of authority may not be read, however, to delegate to the DHS the right to establish a national rule or program of awarding legal presence—one which not only awards a three-year, renewable reprieve, but also awards over four million individuals, who fall into the category that Congress deems removable, the right to work, obtain Social Security numbers, and travel in and out of the country.
Memorandum Opinion and Order at 92.
Setting aside for the moment the
ability to travel internationally, which is offered only as part of a
subsequent application by those already granted DAPA or DACA and is granted when
appropriate pursuant to the discretionary parole authority of INA
U.S.C. §1182(d)(5)(A), the core of Judge Hanen’s concern (or at least a key
portion of it) appears to be with the grant of employment authorization and the
related documentation, such as a Social Security number, for which one who is
granted employment authorization becomes eligible.It is certainly true that those who receive Employment
Authorization Documents (EADs), and are thereby able to receive Social Security
numbers, become in an important sense “documented” where they were previously “undocumented”.But it is not true that DHS has acted
without statutory authority in giving out these important benefits.
It is at this point in the
analysis that Judge Hanen appears to have overlooked a very important part of
South Carolina Governor Nikki R. Haley and Attorney General Alan Wilson join the states' lawsuit against President Obama's executive actions on immigration on December 3, 2014. (Photo: Zach Pippin)
In the coming weeks, the most dramatic executive action on immigration of the Obama presidency—a directive that could protect up to 3.7 million unauthorized immigrants who are parents from deportation—will face a series of legal and political tests. However, the administration and supporters of the directive are pressing ahead with its implementation, even as more than half of U.S. states have challenged it in federal court, and the House of Representatives has voted to block it from taking effect and to strip current Deferred Action for Childhood Arrivals (DACA) beneficiaries of their protection.
The Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and expansion of the existing DACA program are part of a series of sweeping executive actions on immigration announced by President Obama in November 2014. The DAPA program offers temporary protection from deportation—and work authorization—to unauthorized immigrants who are parents of a U.S. citizen or lawful permanent resident (LPR) and have resided in the United States for five years or more. Initiated in June 2012, DACA is a similar program for unauthorized immigrants who entered the United States before the age of 16 and are enrolled in school.
The Department of Homeland Security (DHS) will begin accepting applications for the expanded DACA program on February 18, and for the DAPA program sometime in May. Up to 3.7 million unauthorized immigrants could qualify for DAPA, while the DACA expansion could increase the eligible population by 290,000, bringing the total potential DACA pool to 1.5 million. In all, the Migration Policy Institute (MPI) estimates that up to 5.2 million unauthorized immigrants could benefit from the combined DACA and DAPA programs.
States’ Lawsuit against the President’s Executive Actions
The most serious threat to the executive actions to date comes on the legal front. A federal district court judge in Brownsville, Texas is soon expected to issue his first ruling in a lawsuit brought by a coalition of 26 U.S. states against the new deferred action programs. The states are seeking a preliminary injunction to prevent the implementation of DAPA and the DACA expansion while the merits of the lawsuit are decided, a process that could take months. The plaintiffs argue that the new relief programs, unless enjoined, will cause irreparable harm to their states. They claim that the programs will ”trigger a new wave of undocumented immigration” and lead to increased state costs for law enforcement, health care, and education. The lawsuit also asserts that President Obama’s executive actions violate provisions of the Administrative Procedure Act (APA) because they failed to go through the necessary “notice and comment rulemaking” process. The plaintiffs further contend that “the lawsuit is not about immigration. It is about the rule of law, presidential power, and the structural limits of the U.S. constitution.”
If the judge declines to enjoin the executive actions, it will clear the way for the administration to begin accepting DACA expansion applications in late February, and DAPA applications in May. If the judge hands down an injunction, however, DHS would be temporarily blocked. In that case, the administration would undoubtedly seek a stay on the injunction and if denied, request an emergency stay from the 5th U.S. Circuit Court of Appeals. If a stay were granted, DHS would be permitted to proceed with implementing the programs; if denied, the all but certain appeal would move to the U.S. Supreme Court. Depending on how long it takes for the question of injunction to be resolved, DHS may be forced to delay the rollout of one or both programs.
While most legal experts do not expect the states’ lawsuit to ultimately succeed on the merits, many predict that the judge hearing the case, Andrew Hanen, may be
A Texas Judge has placed a preliminary hold on the two initiatives announced by President Obama last November that would expand the two-year-old Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of U.S. Citizens and Legal Permanent Residents (DAPA). These two programs would provide temporary relief from deportation to approximately 5 million undocumented immigrants currently living in the United States. The order issued overnight, and two days before the government was set to begin the DACA expansion, bars federal immigration officials from implementing “any and all aspects” of these programs.
This is only the first chapter in a long legal battle as the U.S. government will likely file an emergency stay to allow the initiatives to continue. When Obama issued his executive orders last November, 136 law professors
In June 2014, Citizenship and Immigration Canada (CIC) released Operations Bulletin 575, containing new guidelines with regard to Intra-Company Transfers for personnel with specialized knowledge (ICT-SK). These pronouncements had tremendous impact on the Canadian immigration system, particularly since Intra-Company Transfer provisions are among the most widely-used means by which foreign workers are granted work permits. Some of these guidelines altered well-established concepts upon which employers had relied for many years. (There was no modification to the other branch of the Intra-Company Transfer allowance – the allowance for those with senior managerial or executive level positions.)
Among the new requirements were:
ICT-SKs would now need to meet the median wage requirements for their occupation (based on the National Occupational Classification).
[The new guidelines relieve officers of this consideration with regard to Free Trade Agreement (FTA) based Intra-Company Transfers (notably NAFTA), but indicates that the issue is still a factor to be considered, even under FTAs.]
Previously, there was no such requirement.
ICT-SKs would have to have ‘advanced expertise’ with the