Category: I-129


DHS Publishes Major Regulation on High Skilled Foreign Workers

January 4th, 2016 — 9:40am

On December 31, 2015, the Department of Homeland Security (DHS) published a massive proposed regulation addressing both nonimmigrant working visa categories and green card sponsorship by employers. Comments on the proposal must be filed within 60 days.

DHS refers to the proposal as “Improvements Affecting High-Skilled Nonimmigrant Workers.” While the proposed regulation does contain some positive changes, there are other provisions that will be a step backwards from current practice (i.e., some EAD processing) or will fall far short of the promises made by President Obama in his November 2014 announcement on Executive Action on business immigration.

Job Portability for Certain Adjustment of Status Applicants

Under existing law when a foreign national has an approved immigrant visa petition and an adjustment of status application that has been pending for more than 180 days they may change jobs or even employers so long as the new position is the “same or similar” to the position for which an immigrant visa petition was previously approved.

The proposed regulation provides that an immigrant visa petition for EB-1 (but not “extraordinary ability”), EB-2, or EB-3 remains valid if the petition is approved and either:

  • The employment offer from the petitioning employer is continuing and remains bona fide; or
  • The beneficiary has a new offer of employment in the same or a similar occupational classification as the employment offer listed in the approved petition, the application for adjustment of status based on this petition has been pending for 180 days or more, and the approval of the petition has not been revoked. A new offer of employment may be from the petitioning employer, from a different U.S. employer, or based on self-employment.

A new supplementary form to the application for adjustment of status (Form I-485) will assist the Department in adjudicating “same or similar.” There is no fee attached to the supplement but DHS may consider a fee in the future.

The proposed regulation contains the following language modestly expanding the current DHS interpretation of “same or similar”:

The term “same occupational classification” means an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved. The term “similar occupational classification” means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based visa petition was approved.

Note: The proposed regulation does NOT expand portability to those foreign nationals who are the beneficiary of an approved I-140 immigrant visa petition but who do not have an I-485 application for adjustment of status that has been pending for more than 180 days. For both employers and foreign national employees, this is the most disappointing aspect of the proposed regulation. The proposed regulation does not change the existing requirement that a new PERM labor certification and I-140 immigrant visa petition must be approved for any material change in job duties.

Retention of Priority Dates

The proposal clarifies that the priority date of a properly filed employment-based immigrant visa petition that does not require a labor certification is the date the completed, signed petition is properly filed with DHS.

The priority date in an EB-1, EB-2, or EB-3 petition may be used for a subsequently filed EB-1, EB-2 or EB-3 petition, unless USCIS denies the petition (or otherwise fails to approve it) or revokes the petition’s approval due to: (1) fraud or a willful misrepresentation of a material fact; (2) a determination that the petition was approved in error; or (3) revocation or invalidation of the labor certification associated with the petition.

Note: If the prior I-140 petition can be revoked by DHS if they determine the earlier petition was approved in error then uncertainty will continue on the ability of foreign nationals to recapture an earlier priority date.

Changes to Rules on Revocation of Approved Immigrant Visa Petitions

The proposed rule also provides that EB-1, EB-2, and EB-3 immigrant visa petitions that have been approved for 180 days or more would no longer be automatically revoked based only on withdrawal by the petitioner or termination of the petitioner’s business. As long as the approval has not been revoked for fraud, material misrepresentation, the invalidation or revocation of a labor certification, or USCIS error, the petition will generally continue to be valid for various purposes including: (1) the retention of priority dates; (2) job portability, and (3) extensions of status.

Exception to 6-year maximum stay rule for certain H-1B nonimmigrants

The proposed regulation implements current agency guidance and authorizes approval of H-1B status beyond 6 years, in 3-year increments, until USCIS adjudicates the adjustment of status application, for beneficiaries of approved EB-1, EB-2, and EB-3 petitions who can demonstrate that an immigrant visa is not available at the time the H-1B petition is filed because the immigrant visa classification sought is already over-subscribed. This applies only to the principal beneficiary and not any dependents who may also be in H-1B status.

The proposed regulation implements current agency guidance and authorizes approval of H-1B status beyond 6 years, in 1-year increments, for certain H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status if 365 days or more have passed since the filing of a labor certification application or employment-based immigrant visa petition. Extensions are generally available until a final decision is made to grant or deny the labor certification application or immigrant visa petition, or to grant or deny permanent resident status.

Licensure

Under the proposed regulation, DHS may approve an H-1B petition for a 1-year validity period if a state or local license to engage in the relevant occupation is required and the appropriate licensing authority will not grant such license absent evidence that the beneficiary has been issued a social security number or granted employment authorization. A beneficiary who has been approved for a 1-year validity period may not obtain an extension of H-1B status without proof of licensure.

H-1B Cap Exemption Provisions

The proposed regulation implements current agency guidance and codifies which

H-1B nonimmigrants are exempt from the cap if they are employed directly by: (a) an institution of higher education, (b) a nonprofit entity related to or affiliated with such an institution, (c) a nonprofit research organization, or (d) a governmental research organization.

Miscellaneous H-1B Provisions

The proposed regulation implements current agency guidance and authorizes:

  • H-1B nonimmigrants who are beneficiaries of new H-1B petitions seeking an amendment or extension of their stay in H-1B status to commence new or concurrent employment upon the filing of a non-frivolous H-1B petition.
  • H-1B beneficiaries to recapture time spent outside the United States during the validity of an H-1B petition.

Grace Periods

The proposed rule provides a 10-day grace period (similar to that which is currently extended to H-1B nonimmigrants) to individuals in E-1, E-2, E-3, L-1, and TN classifications and their dependents.

It also authorizes a one-time grace period, up to 60 days, curing the period of petition validity (or other authorized validity period) for E-1, E-2, E-3, H-1B, H-1B1, L-1, and TN nonimmigrants whose employment has ended. Such nonimmigrants may seek new employment, seek a change of status to a different nonimmigrant classification, or make preparations for departure from the United States.

Employment Authorization (EAD Cards) for Certain Employment-Based Nonimmigrants

The proposed regulation permits one year of employment authorization for an individual who: (1) is currently in the U.S. in valid E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status; (2) is the beneficiary of an approved EB-1, EB-2 or EB-3 immigrant visa petition; (3) does not have an immigrant visa number immediately available under the quota; and (4) can demonstrate compelling circumstances that justify an independent grant of employment authorization.

A limited number of individuals will be able to demonstrate compelling circumstances justifying an independent grant of employment authorization. The fact that the individual is approaching or has reached the statutory maximum period of time in nonimmigrant status is not deemed to be compelling. Employment authorization generally would not be available if the tendered compelling circumstances are within the individual’s control.

The proposed regulation does not define “compelling circumstances” in order to “retain flexibility” but DHS has identified four circumstances in which it may consider granting employment authorization under the proposed change:

  • Serious Illnesses and Disabilities. The nonimmigrant or his or her dependent is facing a serious illness or disability that entails moving to a different geographic area for treatment or otherwise substantially changing his or her employment circumstances.
  • Employer Retaliation. The nonimmigrant is involved in a dispute regarding the employer’s illegal or dishonest activity as evidenced by, for example, a complaint filed with a relevant government agency or court, and the employer has taken retaliatory action.
  • Other Substantial Harm to the Applicant. Due to compelling circumstances, the nonimmigrant is unable to timely extend or otherwise maintain status, or obtain another nonimmigrant status, and absent continued employment authorization under this proposal the applicant and his or her family would suffer substantial harm.
  • Significant Disruption to the Employer. Due to compelling circumstances, the nonimmigrant is unexpectedly unable to timely extend or change status, there are no other possible avenues for the immediate employment of such worker with that employer, and the worker’s departure would cause the petitioning employer substantial disruption to a project for which the worker is a critical employee.

The one-year EAD card can be renewed only if the individual can show that he or she continues to be the principal beneficiary of an approved EB-1, EB-2 or EB-3 immigrant visa petition and either: (1) the worker continues to face compelling circumstances; or (2) the worker has a priority date that is less than one year from the current cut-off date for the relevant employment-based category and country of nationality in the most recent Visa Bulletin.

The proposal prohibits employment authorization (initial or renewal) if at the time of filing the EAD application, the beneficiary’s priority date is more than 1 year beyond the date on which immigrant visa numbers were authorized to be issued to individuals with the same priority date for the relevant employment-based category and country of nationality. The proposal also prohibits employment authorization if the applicant has been convicted of a felony or two misdemeanors.

The proposal requires biometrics and payment of biometrics fee. Also, it extends employment authorization eligibility to those dependent spouses and children who are also present in the United States in nonimmigrant status, but only if the principal spouse or parent is granted employment authorization under this rule and such authorization has not been terminated or revoked.

Note: Obtaining an EAD under this provision would require relinquishment of nonimmigrant status, thus restricting the ability to change status in the future. Also, the proposal does NOT provide the blanket EAD eligibility for all those with an approved I-140 immigrant visa petition that many immigrant advocates had hoped for.

Employment Authorization (EAD Card) Adjudication

 The proposed regulation authorizes an automatic 180 day extension of EAD of employment authorization if:

  • The individual files a request to renew his or her EAD prior to the expiration date.
  • The individual is requesting renewal based on the same employment authorization category under which the expiring EAD was granted, or the individual has been approved for Temporary Protected Status.
  • The individual either continues to be employment authorized incident to status beyond the expiration of the EAD or is applying for renewal under a category that does not first require adjudication of an underlying application, petition, or request.

The 180-day extension is automatically terminated upon issuance of a decision denying the individual’s renewal application, upon written notice to the applicant, notice published in the Federal Register, or any other applicable authority.

The expired EAD, in combination with a Notice of Action (Form I-797C) indicating timely filing of the renewal EAD application would be considered an unexpired EAD for purposes of complying with Employment Eligibility Verification (Form I-9) requirements.

The proposal removes the current regulatory requirement that DHS complete the adjudication of EAD applications within 90 days of receipt and the requirement that it issue interim EADs with validity periods of up to 240 days when such an application is not adjudicated within the 90-day period.

DHS will instead address processing timeframes through operational policy guidance that reinforces the Department’s continued commitment to a 90-day processing timeframe and provides recourse to individuals whose case is nearing the 90-day mark, including the ability to contact USCIS to request prioritized processing.

Note: DHS cannot process EAD applications in a timely basis and their approach to “fixing” the problem is to remove the 90-day mandate and treat EAD extension applications like H-1B extensions for I-9 purposes. This should work for those seeking an EAD extension but is likely bad news for those filing an initial EAD application such as newly arrived L-2 spouses.

Comment » | Department of Homeland Security, H-1B, I-129, I-140, I-485

Turning the Corner? Draft Memo Points to Limited Progress on L-1B Visas

April 28th, 2015 — 5:12pm

The U.S. Citizenship and Immigration Services (USCIS) has released a guidance memo on L-1B visas for “specialized knowledge” workers, finally fulfilling a promise made in 2012. Issued as a draft, the agency will accept comments through early May and the final version will go into effect at the end of August 2015.

Employees are said to hold “specialized” or “advanced” knowledge if their expertise isn’t easily transferrable to another employee. The L-1B visa category is one of few tools available to multinational companies to transfer staff with specialized knowledge from a foreign branch to a related U.S. office, but recent dramatic increases in L-1B denial rates have frustrated many businesses. This guidance offers modest clarification to the current USCIS concept of “specialized” and “advanced” knowledge and includes a checklist of acceptable conditions for L-1B applications.

Recent denial rates for L-1Bs have been staggering. Based on recently released data from USCIS, the National Foundation for American Policy (NFAP) found that the denial rate for L-1B petitions increased from six percent in 2006 to an historic high of 35 percent in 2014, even as applicable laws and regulations remained unchanged.1 Incredibly, the denial rate for L-1B petitions for Indian employees stood at 56 percent for 2012 through 2014, compared to an average denial rate of 13 percent for all other nationalities. The NFAP report also found that the number of applications received by USCIS dropped by 23 percent between 2012 and 2014, demonstrating that denials have discouraged U.S. employers from transferring these skilled individuals into the United States.

The American Immigration Lawyers Association (AILA) welcomed the draft of the long-awaited policy memo. “Uneven adjudication of L-1B visa applications over the last several years have stymied businesses trying to ramp-up production or services in the United States, hurting the economy and costing American jobs,” notes AILA President Leslie Holman. “The tenor and tone of the memo is a positive step forward, reiterating and expanding on many of the principles in previous memos. We hope for a more seamless, straightforward, and consistent adjudication system for L-1B visas. Training USCIS staff on the guidance laid out in this memo will be critical to making a real difference in how applications are evaluated, and essential to bringing common sense back to this process.”2

The principal concerns about the memo are whether certain restrictive adjudication practices will become institutionalized and if Service Center personnel will follow the guidance on recognizing an earlier approval for the same employer and employee when the approval was granted by a U.S. Consulate for a blanket L-1B petition.

 

References:

1“L-1 Denial Rates Increase Again For High Skill Foreign Nationals.National Foundation for American Policy, NFAP Policy Brief, March 2015.

 

2 “Welcome Changes to Business Visas but Implementation Means Everything.” American Immigration Lawyers Association, March 25, 2015. http://www.aila.org/advo-media/press-releases

Comment » | Department of Homeland Security, I-129, L-1

USCIS Processing Times: Separating Fact from Fiction

February 28th, 2011 — 3:50pm

USCIS processing times may be accessed on the Zulkie Partners website at http://www.zulkiepartners.com/processing.html.

The posted USCIS processing times represent data that is approximately 45 days old at the time of posting. In addition, the listed dates reflect the most-recently filed case in the particular product line on an examiner’s desk at the time the data as gathered. This means that there are many cases with substantially earlier receipt dates than those officially listed that have not been processed as of the date of publication of the processing times schedule. The National Customer Service Center (NCSC) is not using the processing times listed on the USCIS website when it considers whether a case is beyond the official USCIS processing times. The processing times used by NCSC are substantially longer than those on the posted processing time schedule in many cases, particularly in H and L filings, causing NCSC to refuse to submit a case inquiry in some instances.

Sign-up for Case Updates

USCIS Customers (applicants or petitioners) can create an account to more conveniently access information on pending applications and petitions. 
In addition, USCIS Customers can choose to receive automatic case status updates, which will be sent via e-mail. A new pilot program provides the additional option to receive a text message notification that a case status update has occurred, which will be sent to a United States mobile phone number. USCIS Customers who select the option to receive the text message notification acknowledge that Standard Messaging Rates or other charges related to these notifications may apply.

Click here to access this USCIS service.

Zulkie Partners is nationally recognized for its command of immigration law. We offer services that cover all aspects of corporate immigration law, including nonimmigrant work visas, permanent residence sponsorship and more.

Connect with us today to learn how we can help you further your hiring goals.

Comment » | Department of Homeland Security, I-129, I-140, I-485

VIBE System Introduced to Facilitate Employer Vetting by USCIS

February 20th, 2011 — 3:54pm

USCIS has begun the beta testing of a new tool called the Validation Instrument for Business Enterprises (“VIBE”).  VIBE is purported to enhance and assist USCIS in assessing employers filing employment based immigration petitions.  The VIBE system will utilize commercially available data from independent information providers such as Dun and Bradstreet, and will allow USCIS to validate basic information about companies or organizations filing employment based petitions.  

USCIS has stated that it will not deny a petition based exclusively on information obtained via the VIBE system, rather, that it would give the petitioner an opportunity to respond to agency concerns regarding the business.  Employers are hoping to avoid the obstacles they faced when the Department of Labor used a similar commercially available database to implement its iCERT Portal, resulting in numerous Labor Condition Application denials for allegedly incorrect Federal Employer Identification Numbers.

Zulkie Partners is nationally recognized for its command of immigration law. We offer services that cover all aspects of corporate immigration law, including nonimmigrant work visas, permanent residence sponsorship and more.

Connect with us today to learn how we can help you further your hiring goals.

Comment » | Department of Homeland Security, H-1B, I-129, I-140

“Deemed Export” Attestation by Employers To Be Required on some I-129 Petitions

December 21st, 2010 — 3:38pm

Beginning December 23, 2010, a new “deemed export” attestation will be required on Form I-129 nonimmigrant visa petitions for H-1B, H-1B1 (Chile/Singapore), L-1, and O 1A petitioners.

The Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) require U.S. persons to seek and receive authorization from the U.S. government before releasing controlled technology or technical data to foreign persons in the United States. Under both the EAR and the ITAR, release of such information to a foreign national, even by an employer, is deemed to be an export to that person’s country or countries of nationality. One implication of this rule is that a U.S. company must seek and receive a license from the U.S. government before it releases controlled technology or technical data to its nonimmigrant workers employed as H-1B, L-1, or O-1A beneficiaries.

While these licensing requirements will affect only a small percentage of employer-petitioners because most types of technology are not controlled for export or release to foreign persons, a new certification attestation will be included on Form I-129. Most employers will simply certify that no license is required, but if an export license is required, then the employer must further certify that it will not release or otherwise provide access to controlled technology or technical data to the foreign national until it has received the required governmental authorization to do so.

For many years now, companies as well as universities have been required to comply with export control laws, but compliance is generally not managed by the same units that prepare I-129 petitions. Even though many activities at companies and universities can benefit from several exclusions to the export license requirement (e.g., the “basic research” exemption), to properly complete the new deemed export attestation on Form I 129, the petitioner would first have to inquire with the appropriate office at his or her company or university that handles export control issues. It would behoove these institutions to develop an institutional protocol for completing the form and assuring the signatory of the I-129 that their attestation is true and correct.

Employers considering sponsoring foreign workers should familiarize themselves with these laws and discuss with immigration counsel their impact on future visa petitions.

The technology and technical data that are controlled for release to foreign persons are identified on the EAR’s Commerce Control List (CCL) (generally “dual use” items) and the ITAR’s U.S. Munitions List (USML) (generally defense-related articles).

The CCL is found at www.access.gpo.gov/bis/ear/ear_data.html#ccl; the USML at www.pmddtc.state.gov/regulations_laws/itar.html. Additional information about applying for the appropriate licenses can be found at www.bis.doc.gov/deemedexports and www.pmddtc.state.gov/faqs/license_foreignpersons.html.

Comment » | Department of Homeland Security, H-1B, I-129

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