H-1B “AFFILIATION” DEFERENCE CONTINUES; AR-11 NOTICE REQUIRES ALL APPLICATIONS

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H-1B “affiliation” deference continues – U.S.C.I.S. reaffirmed in the American Immigration Lawyers Association/Service Center Operations (AILA/SCOPS) teleconference agenda of September 30, 2015, that it is still giving deference to prior cap exempt determinations made since June 6, 2006, in accordance with its April 28, 2011, policy memorandum (“Additional Guidance to the Field and Giving Deference to Prior Determinations of H-1B Cap Exemption Based on Affiliation, PM-602-0037”). AILA had said that a number of recent reports from members complained of Requests for Further Evidence (RFEs) challenging the affiliation issue for employers previously approved under the policy and SCOPS recommended that petitioners should document the prior cap exempt determinations in order to avoid an RFE.

AR-11 notice requires all applications – SCOPS reminded the public in the AILA/SCOPS teleconference agenda of August 19, 2015, that when people make AR-11 electronic changes of address, U.S.C.I.S. must be given notice of change of address for every pending application –“A separate request is needed for each receipt number in order to match the new address to each pending application or petition.” Two steps are required for proper notice, step one which changes the AR- 11 database and step 2 which changes the address on each individual pending application or petition. If only step one is completed without making a request to change each pending application or petition, the change does not take effect with respect to those filings. If the AR-11 is filed telephonically, the applicant/petitioner must be sure to have the receipt number for each pending application or petition available.

Reprinted with permission.

About The Author

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), 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.

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