Category: I-140


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of status based on this petition has been pending for 180 days or more, and the approval of the petition has not been revoked.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

Obama Executive Action Includes Business Immigration Reforms

November 21st, 2014 — 10:22am

While most of the media attention concerning President Obama’s November 20 speech on immigration issues focused on the deferred action plan for certain undocumented immigrants, the White House also announced a number of significant business immigration initiatives.

Pre-Registration for Adjustment of Status and Enhanced Worker Portability

This was the big surprise of the night.

Individuals with an approved employment-based immigrant petition (Form I-140) who are caught in the green card quota backlogs will be able to pre-register for adjustment of status to obtain the benefits of a pending adjustment application.  Presumably this will include the ability to secure an EAD card and advance parole travel authorization for the employee and dependents. This is expected to impact about 410,000 people and  will be implemented by a formal regulation.

A memorandum released by Department of Homeland Security (DHS) Secretary Jeh Johnson stated that DHS will look to amend it regulations to “insure that approved, long standing visa petitions remain valid in certain cases where [the foreign national employees] seek to change jobs or employers.”

If adjustment of status (AOS) portability is expanded to include those who qualify for pre-registration, the implications for the businesses that sponsor foreign national employees for PERM labor certification are enormous. First, a company could promote an employee or transfer them to a new job location without having to file a second PERM application. Secondly, the foreign national employee would be able to change employers so long as the new job is the “same or similar” to the position for which a labor certification was obtained.

Secretary Johnson announced that DHS will issue policy guidance clarifying the “same or similar” standard. His memorandum included the following language: “This guidance should make clear that a worker can, for example, accept a promotion to a supervisory position or otherwise transition to related jobs within his or her field of endeavor. By removing unnecessary restrictions to natural career progression, workers will have increased flexibility and stability, which would also ensure a more level playing field for U.S. workers.”

Foreign Entrepreneurs

Certain “foreign inventors, researchers, and founders of start-up enterprises wishing to conduct research and development and create jobs in the U.S.” will be able to be paroled into the U.S., or be granted parole in place if already in the United States, for job creation. This will be done by regulation. Also, this group will be eligible for national interest waivers. This will be implemented through policy guidance.

L-1B Specialized Knowledge Workers

DHS will soon release a policy memorandum that will “provide clear, consolidated guidance on the meaning of specialized knowledge.” We hope this guidance will reign in the arbitrary and capricious decisions coming out of the USCIS Service Centers in recent years as the denial rate for L-1B petitions has skyrocketed.

Work Permits for H-4 Visa Holders

A regulation will be finalized, probably in December or January, that will allow H-4 spouses of H-1B employees to apply for an Employment Authorization Document (EAD card).

Optional Practical Training (OPT)

The length of time in OPT for STEM graduates will be expanded and the relationship between the student and the school will be strengthened. Other changes, such as allowing STEM OPT after receipt of a master’s degree where only the first degree is in a STEM field is under consideration. The number of degree programs eligible for OPT may be expanded. This will be done by regulation.

PERM Labor Certification

A full rulemaking will be undertaken to modernize the PERM program.

Visa Modernization.  A Presidential Memorandum will be issued directing federal agencies to look at modernizing the visa system with a view to making optimal use of the numbers of visa available under law.  Issues such as whether dependents should be counted against the employment based green card quota and whether past unused visa numbers can be recaptured will be included in this effort.

Important Reminder

None of the initiatives listed above have been implemented and no applications can be filed at this time. It could be weeks or even months before policy guidance or formal regulations are published. We will advise our clients as soon as any additional information is available.

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

Administration Announces Initiatives to Promote Foreign Entrepreneurial Talent

August 22nd, 2011 — 10:28am

For years, America has sought the best and the brightest from business, academia, science, and the arts.  And, U.S. companies have sought to attract key, highly skilled professionals needed to manage, expand, and re-invigorate their operations here. But visa backlogs, limited visa availability, restrictive agency interpretations, and rigid adjudications all have had a chilling effect on those companies who seek to expand and create jobs in the U.S. through the petitioning of foreign personnel. Entrepreneurs, self-styled capitalists, and other self-employed self-starters, large and small, have experienced particular difficulty and uncertainty when applying for nonimmigrant or immigrant visa eligibility, never knowing whether their cases would be approved.  In many instances, the evidentiary burden as applied to them has been disproportionately onerous; in other instances, the documentary evidence required has been misconstrued and disconnected from real business practices.

It is against this backdrop and a tanking economy that USCIS Director Alejandro Mayorkas and Secretary of Homeland Security Janet Napolitano recently outlined – with much fanfare – “a series of new policy, operational, and outreach efforts” designed to help invigorate the economy and stimulate investment by making it easier for highly-skilled immigrants to start and grow companies and create jobs in the United States. Citing the need to attract foreign entrepreneurial talent of all kinds, immigration officials announced plans that could positively affect immigration visa eligibility in several categories if their plans are more than mere fantasy and hype.

National Interest Waivers (NIWs) for Entrepreneurs

First, the government announced that it “will clarify,” presumably with field adjudicators, that immigrant entrepreneurs may obtain employment-based second preference (EB-2) immigrant visas if they satisfy the existing requirements.  The law has always provided for such eligibility and perhaps USCIS is instructing adjudicators to merely apply the law. More notably, USCIS makes clear that entrepreneurs can qualify for an EB-2 National Interest Waiver (NIW), and sheds light on how such individuals can demonstrate that their business endeavors will be in the interest of the United States. Significantly, an individual seeking an EB-2 national interest waiver can self-petition; he does not need an employer to hire him.

Historically, the first step in proving EB-2 NIW eligibility, even for entrepreneurs, has been relatively easy. It requires that an individual is a professional holding an advanced degree or possesses “a degree of expertise significantly above that ordinarily encountered,” or exceptional ability. The second step, proving that the entrepreneur’s investment in a business venture will substantially serve the national interest, has been more challenging. To do so – to qualify for a national interest waiver – the entrepreneur must demonstrate that (1) the proposed employment or work has substantial intrinsic merit; (2) that the benefit to be provided will be national in scope; and (3) that the national benefit is so great that it exempts the individual from undergoing the lengthy and costly process of testing the labor market for U.S. workers through the labor certification process.

In its August announcement, USCIS provides some examples on how an entrepreneur can meet the NIW, or second-step requirements.  To establish the national scope of the proposed benefit of the work, for instance, an entrepreneur could, describes USCIS, show a linkage between job creation in a locality and the spinoff of related jobs in other parts of the country. Alternatively, he could show that local job creation will have a positive national impact. USCIS also opines that an individual entrepreneur might be eligible for exemption from the labor certification process if he establishes that the enterprise is creating new job opportunities for U.S. workers or that it otherwise enhances the welfare of the United States. Through these examples and its broader pronouncement, USCIS seems to be signaling a break from current constructions of what is required and setting out new expectations for these kinds of cases.

Immigrant Investor (EB-5) Program

USCIS plans to enhance and streamline the Immigrant Investor (EB-5) Program. Some components of the streamlined program include a fast-track for applications of enterprises that are fully developed and ready to be implemented, premium processing for certain cases, and the implementation of direct communication between the applicant and USCIS to, among other things, resolve issues without the need for formal requests for additional evidence (RFEs). USCIS is developing a rollout of these changes with the first to be implemented in early September.

Expansion of Premium Processing for Immigrant Multinational Executives and Managers

USCIS also announced that it will expand premium processing service to multinational executives and managers immigrant visa petitions (EB-1-3). Premium processing, which guarantees adjudication in 15 days, is currently available for many other employment-based immigrant visa petitioners, including extraordinary ability foreign nationals and outstanding professors and researchers. However, EB-2 National Interest Waiver petitions remain conspicuously still absent from the premium processing list, an anomaly that is hard to explain. Surely, the certainty of a decision in 15 calendar days through premium processing would encourage a reluctant entrepreneur-petitioner to go forward and invest.  We hope USCIS will rethink this and add EB-2 NIW petitions to the list.

Nonimmigrant Visas

On the nonimmigrant side of the ledger, USCIS unfortunately provides little new guidance. It does, however, state that an H-1B beneficiary who is the sole owner (an employee-entrepreneur) of the petitioning company may establish a valid employer-employee relationship for the purposes of qualifying for an H-1B visa. This has long been a gray area and fraught with tremendous uncertainty in adjudication.

USCIS also announced plans to undertake extensive outreach efforts, including a series of engagement opportunities with stakeholders to seek input and feedback on how to address the unique circumstances of entrepreneurs, new businesses, and startup companies.  Certainly, other nonimmigrant work visas that are suitable for those in business – Es, Ls, and Os – will be the subject of such efforts and must be addressed. And, given the fanfare associated with the recent announcement, USCIS must be prepared to lay out its implementation plan in real and concrete terms.

Will New Policy Translate into Nonimmigrant and Immigrant Visa Approvals?

Long advocated for by immigrant practitioners, economists, business, and others, the ideas outlined by Secretary Napolitano and Director Mayorkas are welcome news, even if symbolic. The United States needs capital and talent to jump-start the economy, and foreign investors and entrepreneurs — natural risk takers – have long sought status in the United States to conduct business here. Moreover, these initiatives require no new visa category to be enacted and no expansion of visa numbers. What these initiatives do require, however, is flexibility and a common sense application of the law by USCIS and State Department adjudicators. Such decision-makers must be instructed and trained to adapt the specific particularities of everyday business practice to immigration visa criteria, and abandon their more widespread rigid, checklist approach to adjudication.

So, will foreign companies that operate and expand operations in the U.S. see fewer hurdles when seeking to transfer their executive and managerial employees? Will self-starters with big ideas, some capital, and job creation prospects secure green cards? Will EB-5 immigrant investors have greater assurance that the conditions on their residence will be removed? Will foreign E-1 traders and E-2 investors – while not specifically addressed – have more confidence in their renewal applications? Most importantly, will these initiatives trickle down to the field?  Or, is the Emperor wearing no clothes.  Stay tuned….

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-140, Lawful permanent resident

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

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