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    Published on 03-28-2018 01:07 PM

    Part 3: (In)Voluntary Statements of Visa Applicants at the US Consular Posts in India – Are US Consular Officers Engaging in Unethical and Unlawful Conduct?

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    So why don’t consular officers wish to give copies of these Voluntary Statements to visa applicants? Maybe because they are not so “voluntary” after all.

    As explained to me by several visa applicants from India, they do not voluntarily provide these statements. Rather, they are bullied, coerced, and compelled to write the statements. Worse, consular staff dictate the text of the statement under threat of permanent bar from the United States. Even worse, the statements often contain materially erroneous information.

    One applicant said that US consular staff “threatened me that they will [b]an me from going back to USA if I don't agree with their version of the story." Another stated: “At the end when she asked me to write down the statement, she especially [sic] dictated the whole thing to me.” Not only had this applicant been advised to indicate wrong information in her statement, but the officer attempted to ingratiate herself by saying that she was “only trying to help her.” One can guess the outcome: both of these applicants were permanently barred from the United States by consular staff.

    Other applicants were advised: "Please co-operate and write as I say, otherwise it will make you permanently ineligible for the visa." Consular staff then dictated the text of the statements for the applicants to sign. They too were permanently ...

    Published on 03-28-2018 10:07 AM

    What Are the Risks of Adding a Citizenship Question to the Decennial Census?

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    The U.S. Department of Commerce announced Monday night that a question on citizenship status will be added to the 2020 decennial census questionnaire. This decision, which was adopted in response to a request from the Department of Justice, has raised deep concern within both the immigrant rights and academic research communities.

    Having an accurate count of U.S. residents, as well as information on their demographic characteristics, is important for a number of reasons. Census information affects the distribution of Congressional seats among states, informs how federal funding is spent on infrastructure and services, and serves as the basis for many decisions that affect the country’s residents. Moreover, the decennial census is mandated by the U.S. Constitution.

    According to the memorandum issued by the Secretary of Commerce, the main reason for including a citizenship question is to “permit more effective enforcement of the [Voting Rights] Act.” In particular, the memorandum ...

    Published on 03-28-2018 09:41 AM

    Allowing Spouses of H1-B’s to Work Makes America More Competitive

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    As part of the April 2017 “ Buy American and Hire American ” executive order, the Trump administration announced that it intends to revoke the employment eligibility of the spouses of foreign workers with H-1B visas . These changes, if implemented, could have distressing effects on many of these workers, their families, and American competitiveness.

    Known as “ H-4 dependents ,” these individuals are the spouses and children (under 21 and unmarried) of temporary foreign workers in specialty occupations (H-1B), agriculture (H-2A), non-agriculture occupations (H-2B), and nonimmigrant trainees other than medical or academic. H-4 status is dependent on the status of the primary worker—if the status of the primary worker ...

    Published on 03-27-2018 04:08 PM

    Lawsuit Challenges the Government’s Policy of Indefinitely Detaining Asylum Seekers

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    A class action lawsuit was filed on March 15, 2018 challenging the U.S. government’s practice of detaining asylum seekers indefinitely and argues the practice is an attempt to deter future asylum seekers from seeking safety in the United States. The suit claims that the Department of Homeland Security has violated U.S. law by refusing to allow hundreds, or even thousands, of asylum seekers to be released on parole from prisons and immigration detention centers while their cases are being decided.

    The suit was filed by immigrant and civil rights organizations on behalf of nine plaintiffs, all asylum seekers who fled to the United States in search of safe haven, and all of whom passed a screening interview finding that they each have a credible claim for relief. The plaintiffs all submitted requests for release but were denied, despite proving their identity, identifying sponsors with whom they would live, and showing that they did not pose a flight risk or danger to the community.

    One plaintiff is a 41-year-old former ethics teacher who fled political persecution in Haiti—including beating and death threats. He remains in detention after 16 months even though an immigration judge ...

    Published on 03-27-2018 04:00 PM

    Part 2: (In)Voluntary Statements of Visa Applicants at the US Consular Posts in India – Are US Consular Officers Engaging in Unethical and Unlawful Conduct?

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    The first indicator of the questionable nature of these Voluntary Statements are the lengths to which consular officers go to obstruct their disclosure to the visa applicant. As a general rule and enshrined by Section 222(f) of the Immigration and Nationality Act, visa records are considered confidential and not subject to disclosure. However, there is an exception for documentation submitted by the applicant; such documents are subject to disclosure.

    In the case of the Voluntary Statements in India, the consular officer does not give a copy to the applicant ...

    Published on 03-23-2018 02:15 PM

    (In)Voluntary Statements of Visa Applicants at US Consular Posts in India - Are US Consular Officers Engaging in Unethical and Unlawful Conduct?

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    Consular officers at the US Consulates and Embassy in India periodically require visa applicants to write “Voluntary Statements.” These Statements are used as admissions of guilt to deny and permanently bar visa applicants. But what is little known are the circumstances under which these “Voluntary Statements” are written – and the legal aspects of these Statements, some of which may in fact implicate consular officers themselves in potentially unethical and unlawful conduct. In this four-part series of articles, visa applicant and consular behavior, as well as the circumstances under which these Voluntary Statements are used, will be examined.

    ...

    Published on 03-23-2018 01:59 PM

    The EB-5 Bill Failed: So now What?

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    With President Trump’s signing of the Omnibus bill, the most current attempt at EB-5 reform officially goes into the dustbin of history. There is a saying that goes something like, ‘when god convened a committee to create a horse, they came up with the camel’ (no disrespect intended to camels, of course). And so it went with the now aborted EB-5 legislation. It went from bad to worse to a point where there was enough in it for absolutely everyone to hate it. It’s at times like these when it is worth to take a step back so maybe we can take step forward.

    Firstly, where are we now? With the passage of the Omnibus spending bill, the Regional Center program has secured yet another short-term extension through September ...

    Published on 03-23-2018 10:02 AM

    The Invisible Wall That President Trump Has Already Built

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    Legal immigration and the number of foreigners visiting the United States has taken a serious hit within the last year, as the Trump administration makes changes to policies and procedures without any Congressional action or approval. These actions have already had a disturbing, cumulative effect as the administration begins to severely limit flows of immigrants and visitors without even beginning construction on a border wall.

    While building an actual, physical wall was the hallmark of the Trump campaign, this primarily depends on congressional action and funding—which the administration has so far failed to secure. However, it has slowly but quite deliberately started to restrict and attack legal immigration causing significant negative impacts on tourists and students choosing to come to the U.S., as well as employment-based, family-based, and humanitarian-based immigration.

    ...

    Published on 03-22-2018 08:32 AM

    H-1B Petitions Involving Third-Party Worksites: A look at what ‘specialty occupation’, ‘employment’, ‘employee’ and ‘employer-employee relationship’ now means – Part 2

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    In the earlier article [1] , much of the work was dedicated to analyzing the definitions of ‘employment’, ‘employee’ and ‘employer-employee relationship’, and how the H-1B adjudications have changed as a result of the narrow interpretation of these terms, and diluting the importance of 2010 ‘Employer-Employee’ memo. I now turn my focus on to ‘specialty occupation’.

    Specialty Occupation

    INA Section 214(i)(1)(B) defines specialty occupation:

    (i)(1) Except as provided in paragraph (3), for purposes of section 101(a)(15)(H)(i)(b)…, the term "specialty occupation" means an occupation that requires-


    (A) theoretical and practical application of a body of highly specialized knowledge, and


    (B) 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.

    Emphasis Supplied.

    In its decisions, as USCIS usually does, AAO put its initial focus on the proposed job duties to be performed onsite. The duties must show specificity and details necessary to support that the position is a specialty occupation. It cannot be a generic description, which means using static job descriptions is no longer safe. Rather, the position description must include sufficient details to substantiate that the petitioner has H-1B caliber work for the Beneficiary, such as:

    (1) the actual work that the beneficiary would perform on a day-to-day basis

    (2) the complexity, uniqueness and/or specialization of the tasks; and/or

    (3) the correlation between that work and a need for a particular level education of highly specialized knowledge in a specific specialty.

    AAO heavily applies standards established by court in Defensor [2] when it comes to evaluating H-1B petitions filed by IT consulting companies. The petition analysis will always begin with where the proposed duties will be performed by the beneficiary. In third party-placements, the duties and requirements as provided by the petitioner is now considered irrelevant to the specialty occupation determination. If the recipient of beneficiary’s services is a third-party end-client, then AAO had routinely taken a position that specialty occupation standards must be established through the job duties and educational requirements as acceptable by the end-client, and not that of the petitioner. [3] Submission of this evidence becomes even more complex in situations where there is layer of sub-contractors. Even in such a situation, if the petitioner does not provide any documentation from end-client, AAO’s position is that the position does not qualify for a specialty occupation. [4] Therefore, it has become critical now that the end-client must provide detailed job duties, and educational requirements, to be performed for that entity. Without this information, AAO said it will be difficult to determine if the beneficiary will be assigned to the end-client, and the term, scope, and nature of duties to be performed at the client site. An important caveat to note is that any end-client documentation that is being submitted must show that there is a legitimate assignment involving specialty occupation that exists for the duration of the requested validity period at the time the petition is filed. If any documentation is is being submitted post-filing, and that documentation would show it was signed AFTER the petition was filed, the documentation is being rejected on the ground that such post-filing material will NOT impact the present petition. [5]

    Next, AAO looks to see if the duties and academic requirements meet the regulatory standard. In order to establish that the position in U.S. qualifies as a specialty occupation, it must be shown that the position requires the theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation [6] . A petition may be approved, if the evidence meets at least one of the regulatory standards:

    (1) First Criterion – A bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for entry into the particular position;

    (2) Second Criterion – The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree;

    (3) Third Criterion – The employer normally requires a degree or its equivalent for the position; or

    (4) Fourth Criterion – The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with attainment of a bachelor’s or higher degree. [7]

    Consistently, AAO case laws have established that the word ‘ degree’, as mentioned in INA Section 214(i)(1)(B), does not mean any bachelor’s degree, but must be one in a specific specialty that is directly related to the proposed position, unless the petitioner can demonstrate that an alternative, closely related specialty degree applies to the position. Combining several arguments in relation to the four prongs mentioned supra, AAO denied several cases for IT related positions, a few of which are listed below:

    Degree in disparate fields

    The primary factor that AAO looks at when determining degree requirements, as defined in INA Section 214(i)(1)(B), is what is the minimum specific specialty (or its equivalent) for entry into the occupation. One of the common mistakes noticed is petitioner’s inconsistency in listing the specific fields of study in their support letter at various places. Petitioners must avoid inconsistency in use of academic requirements, duties, projects and job titles. In first stating what degrees would be accepted for the proffered position, petitioners must be clear that the degrees must be related to each other. AAO and USCIS does not narrowly interpret the word “ specific specialty (or its equivalent)” to mean it will not accept seemingly disparate specialties provided the petitioner explains how these disparate fields are directly related to the duties and responsibilities of the particular position. For example, if the degree requirements are mentioned as computer science, engineering, business administration, statistics, electronics engineering, commerce, science or mathematics , petitioners would be required to show how these degrees are closely-related to the proffered position such that the knowledge and skills required for the position would be the same. AAO’s position now is also that if such disparate fields are required, without any explanation as to how they are related, then the position is not considered as a specialty occupation as there is no specific specialty required for the position. Petitioner must also avoid using generic degree names, such as “Business Administration”, “Science” or “Engineering” without any qualifying concentration, as that will be even more difficult to defend (for e.g., if petitioner states “Engineering” as its requirement, but does not identify any specific concentration, then it is difficult to defend how a civil and/or industrial engineering is relevant for a computer related position). Therefore, broad use of the degree terms, without explaining how it is related to the proffered position, is most likely to be rejected.

    The key element is in explaining that the ‘body of highly specialized knowledge’ is essentially same across all the fields identified in the support letter. [8] Secondly, the petition must be accompanied by a clear description of the position such that the duties markedly show knowledge in one of the identified fields is required to perform them. Therefore, it may be best to define the project in which the beneficiary will work, and relate your duties in context of that project, and highlight how the degree fields, and what courses the beneficiary took are relevant for the proffered position. In case the beneficiary qualifies for the proffered position through a combination of education and experience, ...

    Published on 03-21-2018 11:42 AM

    EB-5 Program to Be Extended to September 30, 2018 – Regulations to Increase Investment Amount Likely Meanwhile USCIS Approves Minors as Principal EB-5 Investors

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    Invest in the USA (“IIUSA), the national EB-5 Regional Center trade organization, announced today that the EB-5 Immigrant Investor Visa and Regional Center Program Comprehensive Reform Act (the “ EB-5 Reform Act ”) will not be included in the omnibus appropriations legislation this week. The legislation does however, include an extension of the current EB-5 Regional Center Program through September 30, 2018 with no changes in the minimum investment amount.

    Wolfsdorf Rosenthal LLP is a strong proponent for reform and predictability to the EB-5 Regional Center Program, but only if it provides a fair deal to current EB-5 investors who are waiting their turn to immigrate. We also support future reform attempts which include meaningful provisions to increase the number of immigrant visas to EB-5 investors and reduce the backlog for Chinese and Vietnamese investors (and possibly in the future, for Indian and South Korean investors too) who are presently subject to the 7% per country allocation ...

    Published on 03-21-2018 08:26 AM

    Trump Claims the Wall Will ‘Pay for Itself’ – That Isn’t True

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    Contrary to much overblown rhetoric, President Trump’s preeminent symbol of immigration enforcement—The Wall—is not a cost-effective way to enhance the security of the U.S.-Mexico border. The direct costs of the border wall are likely much higher than the Trump administration’s estimates; and indirect economic and social benefits which a wall might yield are much smaller than its supporters claim.

    Proponents of the border wall nevertheless argue that the wall will eventually “pay for itself” by reducing the fiscal and social costs associated with undocumented immigration . They claim a wall will mean fewer immigrants collecting “welfare,” “stealing” jobs from the native-born, and committing crimes. None of which is true.

    The Trump administration claims that a wall can be built along the U.S.-Mexico border for $12 billion. But other ...

    Published on 03-20-2018 01:39 PM

    What If My Case Did Not Get Chosen In The H-1b Lottery: Exploring Work Visa Options Beyond The H-1b Cap (Part VII of an VIII Part Series)

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    Last year USCIS announced earlier that it received approximately 236,000 H-1B petitions for the fiscal year 2017. Once the lottery (also referred as “random selection process”) has been completed USCIS starts to send receipt notices. With uncertainty looming large as to who may or may obtain an H-1B in the 2018-2019 H-1B Fiscal Year Lottery, it is time that prospective H-1B visa beneficiary hopefuls start exploring other work visa options that may allow them to work and live in the United States on a temporary basis. This article provides a snapshot of possible work visa options that may be available to prospective H-1B nonimmigrant work visa beneficiaries who do not get chosen to be among the lucky few who are chosen to be in the 2017-2018 Fiscal year H-1B cap.

    CAP-EXEMPT H-1B VISAS:

    There are certain categories of cap-exempt H-1B visas. One such category is for foreign nationals having (or hoping to have) an employment offer from an institution of higher education (or related or affiliated nonprofit entities), or from a nonprofit/government research organization.

    To be classified as cap-exempt, it not mandatory that the prospective H-1B employee should be employed by the institution of higher education (or related or affiliated nonprofit entities), or nonprofit/governmental research organization. Prospective H-1B employees, employed by any employer, who will perform the majority of his/her work ...


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