Immigration Visa Attorney Blog

On May 5, 2010, President Obama held a Cinco de Mayo Reception to celebrate Latino culture in America. He used the opportunity to voice his concerns regarding Arizona's recently enacted immigration law and, more generally, to discuss comprehensive immigration reform. In his remarks, the President signaled the need for comprehensive immigration reform and his desire to begin work on such reforms this year. He also made his disapproval of Arizona's immigration law clear, stating "the answer isn't to undermine fundamental principles that define us as a nation. We can't start singling out people because of who they look like, or how they talk, or how they dress. We can't turn law-abiding American citizens --- and law-abiding immigrants --- into subjects of suspicion and abuse." The President is undoubtedly sensitive to the racial profiling and discrimination that will inevitably stem from the enforcement of Arizona's new law.

Though it may comfort some to know the Administration will be closely monitoring Arizona's law, and evaluating the civil rights and other implications it may have, the only solution in the end will be comprehensive immigration reform. Comprehensive immigration reform, as noted by President Obama, will be difficult, especially because it will require bipartisan support which has not been easy to come by as of late. Regardless, it is the only solution that will "close the door on [the] kind of misconceived action" that we recently witnessed in Arizona.

In his speech, President Obama called for "common-sense, comprehensive immigration reform." He did not provide many details regarding his vision for comprehensive immigration reform, but what he did say was enlightening nonetheless. The President predictably spoke out in favor of securing our borders and holding businesses accountable for "undermining American workers and exploiting undocumented workers." The most interesting comment, though, was what the President said regarding illegal immigration. Specifically, the President stated that people who are living illegally in the U.S. should "admit that they broke the law, and pay taxes, and pay a penalty, and learn English, and get right before the law -- and then get in line and earn their citizenship."

In one very carefully crafted yet informative sentence, the President laid out his proposal for how to handle the current population of people living in the United States illegally. Though he never used the word amnesty, the President appears to be endorsing a program that would ultimately allow undocumented foreign nationals to earn U.S. citizenship. The problem of illegal immigration is one of the greatest challenges facing comprehensive immigration reform and it is encouraging to know the President has a realistic and constructive solution to the problem. Before comprehensive immigration reform can be debated in Congress, however, a proposal must first be put forth. No bill has been introduced, but the Senate Democrats have developed a conceptual proposal for immigration reform. The introduction of the Senate Democrats' immigration reform plan is the first measure in what will surely become the next hotly debated issue of the Obama Administration and, needless to say, the world and history will be watching closely as the debate unfolds.

As of May 2010, the unemployment rate in the United States is close to 10%, representing at least 15.3 million people out of work. Cities such as Troy, Michigan and Columbus, Ohio continue to struggle. Indeed the economy is improving but unemployment rate is expected to hold steady and with tougher H-1B review by USCIS and higher rates of H-1B denials, it is expected that more H-1B holders will lose their jobs in the next few months. While U.S. Citizens and permanent residents can collect unemployment benefits as they search for a new job, H-1B visa holders do not have that option. In fact, for H-1B visa holders, losing their job means losing their status.

There is a fair amount of confusion concerning whether there is a "grace period" after an H-1B visa holder's employment is terminated. Rumors abound that the 60 day grace period applicable to F-1 student status applies to H-1B status. Moreover, many interpret CFR 214.2(h)(13)(i)(A) as providing for a grace period after the validity period of the H-1B ends. Technically speaking, an H-1B visa holder is out of status once their H-1B has been revoked or expires. The 10 day period provided for in CFR 214.2(h)(13)(i)(A), however, is intended to provide the foreign national time to wrap up their affairs and leave the United States. It is not, unfortunately, meant to provide the foreign national time to find and port to a new H-1B position. What, then, are the options for H-1B visa holders who have been laid off?

Despite the lack of a formal grace period, one option may be for an H-1B visa holder to port to another H-1B employer. Depending upon the amount of notice the employer has provided, the H-1B visa holder may be able to secure a new H-1B position before their termination is effective. For example, if the H-1B employer gave the H-1B visa holder two months notice before their termination became effective, the H-1B visa holder may be able to find and port to a new H-1B position before their H-1B is revoked. Under the American Competitiveness in the Twenty First Century Act, the H-1B employee can begin working with their new H-1B employer as soon as the new employer files a portability petition with the United States Customs and Immigration Services (USCIS). Thus, it may be possible for the foreign national to port to the new H-1B position before their original employer revokes their H-1B status.

If the H-1B employer has not provided sufficient notice or porting is not an immediate possibility, another option is for the foreign national to change status. A change of status, though, is highly dependent upon each individual H-1B visa holder's situation. For instance, an H-1B visa holder may be able to change their status to F-1 student status. This may be difficult, though, considering the H-1B visa holder must be accepted and begin classes within a short period of time. Another option may be a temporary change of status to a B1/B2 visa or to a dependent status such as H-4 or L-2, again depending upon the foreign national's specific circumstances. Additionally, if an H-1B visa holder has commenced the permanent resident process, they may be eligible to work in a substantially similar position on an EAD card.

An H-1B visa holder that is being laid off should immediately consult with an experienced immigration attorney about their individual situation. The H-1B employee should thoroughly understand their options for remaining and working in the United States after the lay off. And it is important to remember that time is of the essence, because for an H-1B visa holder losing their job means losing their status.

In the absence of national-level immigration reform, Arizona has passed its own version. Unfortunately, it is not the type of immigration reform that most in the immigration community would appreciate. Specifically, Arizona's new law requires foreign nationals to carry their immigration documents at all times and allows law enforcement to question any individual suspected of being in the U.S. illegally. Aside from the obvious problems of racial profiling and discrimination, laws such as this one continue to fracture an already cracked immigration system. This law will also, as many in the law enforcement community have pointed out, impede law enforcement's efforts. Not only will this monopolize police time with questioning individuals "suspected" of being an illegal immigrant, but individuals who have witnessed crimes may not be willing to come forward if they fear being deported.

Arizona's recent immigration law demonstrates why nationwide, comprehensive immigration reform is so desperately needed in this country. If not for the benefit of the foreign nationals whom have waited so patiently for a better system, then to prevent radical legislation like that passed in Arizona. Immigration is a federal issue under the constitution. By allowing individual States to dictate immigration reform, the system is going to become even more inconsistent and piecemeal. Arizona's recent legislation should send a clear message to Congress that it needs to regulate this area of the law and it must act promptly. If not, each State will take it upon itself to pass its own version of immigration reform, as Arizona has done. Clearly, other States will be inspired to introduce similar legislation or perhaps even worse.

Interestingly, Janet Napolitano, Homeland Security Secretary, preceded Jan Brewer as Governor of Arizona and vetoed several comparable bills that were placed on her desk for signature. Many different civil rights and immigration groups have staunchly opposed the bill, and the Mexican Government has even voiced its criticisms of the bill. Various groups have also vowed to challenge the law on constitutional grounds if signed into law by Governor Brewer. One can only hope that Governor Brewer realizes this law would do much more harm than good -- socially, politically and economically -- and veto the bill. The Governor has not made her position known and has another day to veto or sign the bill. Undoubtedly, the country, and perhaps other countries, will be watching closely to see what the Governor's decision will be.

For Canadian professionals who qualify, the L visa combines the faster processing of the TN visa with the path to permanent residency provided by the H-1B. As with the TN visa, a Canadian professional can apply for an L visa at a U.S. port of entry. This makes the application process faster than applying for other nonimmigrant employment classifications, such as the H-1B, that must be processed through a USCIS Service Center. Moreover, Canadian professionals working in a managerial or executive capacity do not usually need a labor certification to begin the green card process, which can also significantly expedite the permanent resident process. These benefits make the L visa an attractive option for Canadian professionals, especially those seeking permanent residence in the United States.

The L visa is available for intracompany transferees in either specialized knowledge positions or executive or managerial positions. The intracompany transferee must have worked abroad with a parent, affiliate, subsidiary, or branch of the U.S. employer for one continuous year out of the preceding three years. Interestingly, time spent by the Canadian professional in the United States in lawful status for business or pleasure will not interrupt the continuity of employment abroad; however, such periods will not be counted towards the accrual of one year employment abroad. To qualify as a specialized knowledge individual, the Canadian professional must have special knowledge or expertise regarding their employer's product, service, research, equipment, techniques, management, processes or procedures. A specialized knowledge employee is eligible to hold L status for a maximum of 5 years.

Continue reading "Work Visa Options For Canadian Professionals: L Visas" »

Ironically, Canadian professionals have many work "visa" options, even though Canadians for the most part are visa-exempt due to the special relationship between Canada and the U.S. Despite not needing an actual visa in many instances to enter the United States, Canadian professionals must still qualify for an employment classification to work in the U.S. One of the most popular employment classifications for Canadian professionals is the TN. The TN is especially attractive because there is no limit to the number issued each year, the processing times are significantly faster when applying at a port of entry, and it can be renewed indefinitely. However, Canadian professionals should understand and appreciate the benefits, as well as the limitations, of TN status before determining if it is an appropriate classification for their situation. One important characteristic of TN status is that it does not allow for dual intent. Thus, a Canadian professional seeking U.S. permanent residence would want to seriously consider the fact that TN status does not lead to a green card.

The TN classification is an immigration benefit provided by the North American Free Trade Agreement (NAFTA), a treaty between the United States, Canada and Mexico. In addition to being a Canadian or Mexican citizen, to qualify for TN status one must work in a NAFTA-approved profession and possess the requisite qualifications. There are over 60 professions designated as TN eligible under NAFTA, such as Computer Systems Analyst, Engineer, Research Assistant, Pharmacist, Psychologist, Veterinarian, Plant Breeder, and University Professor just to name a few. The education/experience requirements for each NAFTA profession are also outlined in the agreement. For example, to work as a Computer Systems Analyst one must have a Baccalaureate or Licenciatura Degree, or a Post-Secondary Diploma/Certificate and three years of experience.

Continue reading "TN Visa Options For Canadian Professionals" »

For Fiancé and Marriage visa applicants, the interview at the Embassy can be the most stressful part of the process. The interview is also, arguably, the most important part of the process and, thus, it is important for applicants to be prepared. Though one might expect the application process to be somewhat standardized, each U.S. Embassy has different policies and procedures governing how visa applications are processed. Therefore, it is imperative for the visa applicant to research the Embassy they will be visiting in order to adequately prepare for the interview. It is highly advisable for any visa applicant to review the website of the Embassy they will be visiting for information on the specific policies and procedures of that Embassy. A Fiancé or Marriage visa applicant's interview will be scheduled at the Embassy with jurisdiction over their residence abroad.

Visa interviews are conducted by appointment only and it is vital that the applicant be on time for the interview. There is usually some form of security screening at the Embassy and applicants should allow time for security when planning their visit. Generally, after entering the Embassy, the applicant will check-in with a Consular Official and may be required to provide their visa application(s)/documentation for review. Upon checking-in, the visa applicant will usually be told to remain in the waiting area until their name/number is called. At some point, the visa applicant will be asked to complete a digital fingerprint scan. The applicant's documents , if previously collected, will be returned prior to meeting with the Consular Officer.

Continue reading "What To Expect In A Fiancé Or Marriage Visa Interview At The Embassy" »

1. The memorandum is in violation of the Administrative Procedures Act (APA), which governs rule-making by government agencies and sets forth minimum procedures which must be followed by government agencies issuing new rules. The United States Citizenship and Immigration Services (USCIS) did not follow the procedures required by the APA when it unilaterally changed the requirements for an H-1B employer-employee relationship.

2. Though the intended target of the H-1B memorandum was clearly IT Consultants, its consequences extend far beyond the IT Consulting profession. For example, doctors in many circumstances would no longer meet the H-1B employer-employee requirements because many are employed by entities other than the hospitals in which they perform their day-to-day services.

3. The policies set forth in the memorandum will negatively impact H-1B employers and employees alike. The memorandum imposes evidentiary obligations that an H-1B employer may not necessarily be able to fulfill at the time of the petition, such as letters from the end clients in the context of IT Consultants. These requirements are extremely cumbersome and make it very difficult for H-1B employers to petition for legitimately needed H-1B employees.

4. The adjudication policies outlined in the memorandum will undoubtedly spread to other nonimmigrant visas and further the effects of this illegal rule-making. If the Neufeld Memorandum is not withdrawn, not only will such policies have an adverse effect on adjudications in the H-1B visa category, but will embolden the USCIS to continue illegal rule-making in other visa categories.

5. The Neufeld Memorandum introduces new factors to be considered when evaluating an H-1B employer-employee relationship. The current regulations define an H-1B employer as one which is "indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee." The memorandum's employer-employee relationship requirements far exceed the scope of the current regulation.

6. The Neufeld Memorandum creates more confusion than clarity surrounding the requirements for an H-1B employer-employee relationship, especially because the memorandum contains internal inconsistencies regarding the requirements of employee control. The memorandum is riddled with contradictions regarding whether the legal standard is "actual control" or the "right to control" the H-1B employee.

Continue reading "10 Reasons Why The Neufeld H-1B Memorandum Should Be Withdrawn" »

Many permanent residents consider attaining a green card to be the final step in the immigration process. Most green cards are valid for 10 years and can be renewed indefinitely. Consequently, a surprisingly large number of permanent residents renew their green cards for decades and never naturalize or, in other words, become citizens of the United States. While it is true that the green card provides a foreign national with the ability to live and work permanently in the United States, there are a multitude of benefits conferred to U.S. Citizens for which green card holders are not eligible. All permanent residents should be aware of the advantages of U.S. Citizenship and make an informed decision about naturalization.

First, U.S. Citizenship is not a status that needs to be maintained or renewed and, barring the existence of any fraud or misrepresentation in obtaining citizenship, cannot be revoked. Accordingly, U.S. Citizens can travel abroad for extended periods of time without the risk of abandoning their privileges to live and work in the U.S. A U.S. Citizen can even live permanently in another country and return to the U.S. as often or as little as they desire. A naturalized citizen can obtain a U.S. passport and avail themselves of the U.S. Government's assistance abroad. As U.S. Citizenship cannot be revoked except for fraud or misrepresentation, U.S. citizens are immune from deportation. While it is certainly not assumed that any foreign national would willfully or intentionally violate the law, if placed in such circumstances a green card holder would be deportable whereas a U.S. Citizen would not.

Continue reading "Why Is Citizenship Better Than A Green Card?" »

A Columbus, Ohio Client asked me What has changed at the embassy interview and what to expect due to recent H-1B policy changes. So I thought a blog on this topic is appropriate. The H-1B visa is an employment-based, non-immigrant visa available for foreign national workers in specialty occupations. Unless a foreign national is already in the United States and eligible for a change of status, they will have to visit a U.S. Consulate or Embassy to obtain an H-1B visa. Notably, the U.S. Department of State has recently reiterated that "visa applications are now subject to a greater degree of review than in the past." Thus, it is more important than ever for an H-1B visa applicant, especially those in consulting positions in the IT industry, to know what to expect at the U.S. Consulate or Embassy interview and how to prepare themselves.

An H-1B visa applicant should always check the website of their specific Consulate or Embassy for a list of items to bring to the interview. The foreign national should bring the following documents to the interview regardless of which U.S. Consulate or Embassy they will be visiting:

• The original I-797 Approval for the H-1B Petition;
• A copy of the entire I-129 Petition for Nonimmigrant Worker, including certified Labor Condition Application;
• Their original passport, as well as a copy;
• Their original educational documents - such as diplomas, transcripts and certificates - as well as copies.
• The completed Nonimmigrant Visa Application Form (DS-156 or DS-160) and, if necessary, the Supplemental Nonimmigrant Visa Application (DS-157);
• Two passport style photographs; and
• A letter from the prospective U.S. employer confirming the specialty occupation, wage and intent to hire the foreign national.

If the foreign national is going to be working for a consulting company, the H-1B visa applicant needs to bring two employer letters to the interview. Not only should the foreign national bring a letter from the petitioning employer, but they should also bring a letter from the end client confirming the details of the project for which the foreign national's services are being contracted.

Given the current downturn in the economy and the recent USCIS guidance on the employer-employee relationship for H-1B purposes, it is even more essential for an H-1B visa applicant to know how to respond appropriately to questions asked during the interview. The foreign national should be able to succinctly answer questions about the prospective U.S. position and actual employer (not to be confused with the end client), their qualifications for the position including educational information and prior experience, and how long they intend to remain in the U.S. It is important to remember that although the H-1B visa ultimately allows for dual intent, it is a nonimmigrant visa and the consular officer will be looking for indications that the foreign national has immigrant intent. The H-1B visa applicant should always stress that their intended stay in the U.S. is temporary to comply with the nonimmigrant nature of the H-1B visa. Moreover, H-1B visa applicants working for consulting companies will likely need to prove the employer has positions to fill, that the foreign national will not be benched and that the petitioning employer will have sufficient control over the H-1B employee. It is highly recommended that any H-1B visa applicant preparing for an interview at the U.S. Consulate or Embassy consult with a knowledgeable immigration lawyer in advance of the appointment. Consular officers are reviewing H-1B visa applications, especially those for IT consultants, with increased scrutiny due to the downturn in the U.S. economy and, therefore, it is more necessary than ever for H-1B applicants to be fully prepared for the visa interview.

Many H-1B visa holders were alarmed by the recent news that several H-1B workers attempting to enter the United States at Newark Airport were either denied entry and sent back to their home countries or placed in expedited removal proceedings. While it has become clear in the weeks since that Customs and Border Protection (CBP) was targeting certain H-1B workers and petitioning companies involved in a fraud investigation, such incidents raise legitimate concerns amongst H-1B visa holders seeking to travel outside of the U.S. Is it safe to travel outside of the U.S. and, if so, what is to be expected at the port of entry? It is certainly still safe for H-1B visa holders to travel outside of the U.S, but travelers should be cognizant of the fact that they will be required to prove their admissibility to re-enter the United States.

Though a foreign national may have a valid H-1B visa in their passport, they must prove their admissibility to the Customs and Border Protection (CBP) Officer at the port of entry each time they return to the United States. It is important for any visa holder, but especially H-1B visa holders, to be prepared at the port of entry to prove any assertions made by the petitioning employer in the I-129 Petition for Nonimmigrant Worker. This will likely require the H-1B visa holder to carry additional documentation they would not necessarily carry anyway. It is advisable for H-1B workers to possess a copy of their entire I-129 Petition for Nonimmigrant Worker, including the certified Labor Condition Application, as well as their two most recent pay stubs reflecting the fact that they are currently employed and being paid the prevailing wage or higher. The petitioning employer should also be prepared to field on-the-spot questions from a CBP Officer calling to verify information provided by the foreign national at the port of entry. Indeed, the CBP has made no secret of the fact that they will compare publicly available information, such as company websites or media reports, to the information provided in a petition. Thus, it is imperative that information in the petition be consistent with, if not identical to, publicly available information.

In light of the events transpiring at the Newark Airport, CBP has stated that random security checks will be implemented at Newark Airport, particularly for those individuals traveling with an employment-based visa. Moreover, the Newark Airport will be instituting additional screening measures, including detaining lawful permanent residents with a post-1998 criminal conviction and automatically sending individuals with a pending I-751 petition for secondary inspection. While these changes have only been implemented at the Newark Airport thus far, they are likely a sign of things to come at other ports of entry. Therefore, an H-1B visa holder should not be afraid to travel outside of the United States, but should always remember they can never be too prepared for inspection at the port of entry upon return to the United States. If a foreign national has questions regarding whether they should travel outside of the U.S. and what they should expect at the port of entry, they should contact an experienced immigration attorney to discuss their specific situation prior to departure.

Employers filing for permanent residency on behalf of their employees must meet the financial ability test set forth in the regulations. In addition to examining whether a foreign national beneficiary meets the qualifications for the position in the I-140 Immigrant Petition For Alien Worker, the United States Citizenship and Immigration Services (USCIS) also scrutinizes the sponsoring employer's ability to pay the foreign national the proffered wage. Though the sponsoring employer does not have to pay the foreign national the proffered wage until the foreign national has received their green card, the employer has the on-going burden of proving their ability to pay. This obligation begins when the foreign national's priority date is established and ends only when the foreign national receives their green card, at which point in time the employer is responsible for actually paying the proffered wage. While the process has been criticized by courts as illogical and not an honest or accurate test of the employer financial ability, it remains today as the method by which employers financial ability is determined.

Pursuant to 8 CFR § 204.5(g)(2), an employer can prove its ability to pay through different methods, depending upon the size of the employer. All employers can, but those with fewer than 100 employers must, prove their ability to pay through Annual Reports, Federal Tax Returns and/or Audited Financial Statements ("initial evidence"). Employers with greater than 100 employees have the option of submitting a statement from the company's financial officer attesting to the employer's financial stability and ability to pay. This can be done in lieu of or in addition to submitting Annual Reports, Federal Tax Returns and/or Audited Financial Statements with discretion exercised by USCIS in accepting the financial officer's statement.

The burden of initial evidence can be heavy for smaller petitioning companies, especially during turbulent economic times when financial statements and tax returns might not portray an accurate picture of the employer's long-term ability to pay. Absent an acceptable company financial officer's statement, the employer must show financial ability using the net income approach, or the net current assets approach. Employers must show that their net income or net current assets exceed the total shortage in offered wage compared to actual pay for the cumulative of all pending permanent residency petitioned employees. The impact of this rule can be very difficult to meet for employers absent proper and advanced planning with a competent immigration attorney.

Continue reading "Financial Ability Standard In The I-140 Petition" »

Employees whose work requires them to continually travel to different work locations, typically called roving employees, requires special attention during the labor certification process. If an Employee works a short period in Columbus, Ohio then moves to Troy, Michigan and then to Dublin, Ohio in one year, this employee is a roving employee in all likelyhood. Normally, a labor certification is filed in the area of intended employment in order to test the U.S. labor market for qualified workers in that area. Arguably, if a foreign national's work location is constantly changing, it becomes difficult to properly test the appropriate labor market and certify there are no qualified employees available to fill the position. If an employee's work location changes after the labor certification and the employer has no intention of returning the employee to the labor certification work location, the labor certification may no longer be valid.

There are certain exceptions for roving employees, but the Department of Labor (DOL) and United States Citizenship and Immigration Services (USCIS) have indicated they review such applications with heightened scrutiny, especially when an employer is downsizing or laying off employees. Thus, it is of utmost importance to ensure all PERM recruitment steps are precisely followed and roving employee issues are preemptively addressed in the I-140 Immigrant Petition for Alien Worker. Employers need to conduct their labor certification recruitment in strict compliance with the PERM regulations or risk drawing the DOL's attention to the case, possibly resulting in supervised recruitment.

A primary concern for roving employees is where the Notice of Filing should be posted. The DOL has indicated that if the employer does not know where the employee's work location will be, a Notice of Filing should be placed at each of the employer's current client worksites. If the employer does know where the employee will be working, the Notice of Filing can be limited to those work locations. Another concern is what prevailing wage should appear on the Notice of Filing. In the situation of roving employees, the prevailing wage should be derived from the area of the petitioner's headquarters.

It is important to keep in mind that an employer's obligation to employ the foreign national employee at the work location specified in the labor certification does not begin until the employee receives their green card. Thus, it will likely be years before the foreign national employee is required to remain permanently at the worksite listed on the ETA 9089 application. Until that time, the foreign national employee can continue to work at various locations as a roving employee. The fact that the employee is not working at the location specified in the ETA 9089 application may cause the USCIS to inquire at the I-140 stage and it is best to preemptively explain such issues in the I-140 Immigrant Petition for Alien Worker.

The PERM process exists to test the U.S. labor market for qualified U.S. workers that could fill a permanent position prospectively being offered to a foreign national. The purpose of PERM labor certification is to establish that the foreign national employee is the only individual with the necessary combination of education and experience for the position who is willing and able to accept the job opening within the employment geographic area. For more information visait PERM FAQ's on our website.

If the foreign national employee gained all or part of their experience in a position with the sponsoring employer, it is arguable that a U.S. worker could have gained that same experience with the employer. To address this issue, the PERM regulations require that any experience gained by the foreign national employee with the petitioning employer be gained in a position that is "not substantially comparable to the position for which certification is being sought." This includes any positions the foreign national has held as a contract employee with the sponsoring employer.

The PERM regulations define substantially comparable as "a job or position requiring performance of the same job duties more than 50 percent of the time." Despite this definition, it can be difficult for employers to determine what constitutes a substantially comparable position. Employers should examine the core skills and responsibilities of the positions, as well as the job duties. One method for assessing whether two positions are substantially comparable is to compile a list of the job duties for each position, including the amount of time the foreign national spends on each duty. If the job duties and time dedicated to each largely overlap, it is likely that the two positions are substantially comparable. It is highly recommended that sponsoring employers consult with experienced immigration counsel regarding whether two positions are substantially comparable to avoid irreparable issues at the I-140 stage.

Continue reading "Labor Certification Attorney On Experience Acquired With The Same Employer" »

This is one of multi-blog series about degree requirements and equivalency in PERM Labor Certification. Additional PERM FAQ's are available on our website.

Overview:

A U.S. employer that wishes to sponsor a foreign national employee for a permanent position must usually establish that there are no qualified U.S. workers to fill the position. The PERM process was developed as a method for testing the U.S. labor market for qualified workers and, as part of the process, the U.S. employer must outline the minimum educational and experience requirements for the position. If no qualified U.S. workers are found, the foreign national being sponsored for the position must demonstrate, at the I-140 stage, that they meet the qualifications for the position as stated in the U.S. employer's recruitment. As not all educational systems are created equally, it is incumbent upon the foreign national to sufficiently establish that their foreign degree is equivalent to the required U.S. degree. Degree equivalency can also be extremely important when determining a foreign national's employment-based preference category and, essentially, their place in line for a green card.

Second Preference Category

To qualify for the second employment-based category, a foreign national must have the equivalent of a U.S. Master's degree or Bachelor's degree plus five years of progressive, post-baccalaureate experience. As a general rule, a combination of 6 years of graduate and undergraduate education that culminates in a Master's degree will be considered the equivalent of a U.S. Master's degree. Such combinations could include 4 years of undergraduate education and 2 years of graduate education, 3 years of undergraduate education and 3 years of graduate education, or 3 years of undergraduate education, a 1 year post-graduate diploma and 2 years of graduate education. Ultimately, it is important that the foreign national's transcripts and dates of attendance reflect 6 full years of education, resulting in the award of a Master's degree.

Third Preference Category:

Foreign Nationals may qualify for third employment-based category if they have at least of two years of experience. If a deree is required for the position, a foreign Bachelor's degree must be evaluated to ensure it is the equivalent of a U.S. Bachelor's degree. In some countries, a Bachelor's degree can be completed in only 3 years and, thus, may not be considered equivalent to a U.S. Bachelor's degree which requires 4 years of study. To be the equivalent of a U.S. Bachelor's degree, the foreign degree must consist of equivalent to 4 years of undergraduate education which culminates in a single-source Bachelor's degree. The foreign national must have transcripts reflecting 4 full years of education, as well as dates of attendance, that result in a single-source Bachelor's degree.

Continue reading "Labor Certification Attorney Explains PERM Degree Equivalency Issues: An Introduction " »

The American Bar Association recently released an executive summary on the findings of a study conducted to understand the current U.S. system for removal. It discribed the current system as "crisis." The study focused on the four governmental bodies that handle removal cases, namely the Department of Homeland Security (DHS), the Immigration Courts, the Board of Immigration Appeals (BIA) and the Federal Circuit Courts of Appeals. Not surprisingly, the report found that the four governmental bodies have actually contributed to the problems associated with the overwhelming number of removal cases and "are not doing as good a job as they should" in providing fair decision making and due process. To rectify these problems, the executive summary suggests a complete overhaul of the current removal system, but also provides scaled-back reforms that would require less political impetus to be realized.

With the goals of ensuring political independence and adjudicatory fairness, as well promoting greater efficiency and professionalism, the executive summary proposes three alternatives for revamping the system. The first option would be to create an independent Article I Court to replace the Immigration Courts and BIA. The trial function of the Immigration Courts and the appellate function of the BIA would both be handled by the Article I Court. The second approach would, similarly, eliminate the Immigration Courts and BIA, but replace them with an executive adjudicatory agency. The third, and final, proposal is considered the hybrid approach. The Immigration Courts and BIA would be replaced by an administrative agency that would handle trial-level cases and an Article I Court that would hear appeals. The executive summary ultimately concludes that the Article I Court is the best option, with the administrative agency being a close second. Despite the apparent advantages of the hybrid approach, the authors of executive summary do not endorse this method "since it is too complex and too costly relative to the other two options."

Acknowledging that overarching changes would take significant time to implement, if ever fully realized, the executive summary makes recommendations for smaller scale initiatives that could be undertaken to foster more immediate change. The suggestions, which would require the enactment of legislation, include:

• Requesting additional immigration judges;
• Permitting all eligible non-citizens to adjust to lawful permanent residence or eliminate bars to entry;
• Amending the definition of "aggravated felony" and eliminating retroactive application of such provisions;
• Curtailing the use of the administrative removal process by DHS and the use of expedited removal for non-citizens at the border or within the U.S.;
• Amending the definition of "crime involving moral turpitude";
• Eliminating or narrowing the mandatory detention provisions to persons who are clearly a risk;
• Restoring judicial review of discretionary decisions under an abuse-of-discretion standard;
• Permitting the Federal Circuit Courts of Appeals to remand cases to the BIA for further fact finding;
• Extending the deadline for filing a petition for review of a BIA decision; and
• Establishing a right to representation in adversarial removal proceedings and for individuals in groups with special needs.

Given the current contentious political climate, reforms that can only be accomplished through legislation seem highly unlikely to come to fruition anytime soon. Alternatively, the governmental bodies should concentrate on implementing the proposed reforms that do not require legislative action. These reforms include:

• Increasing the use of prosecutorial discretion by DHS officers and attorneys and giving DHS attorneys greater control over removal proceedings;
• Requiring asylum claims arising in expedited removal proceedings be adjudicated by asylum officers;
• Reducing the use of detention and expanding alternatives to detention;
• Requiring more written and reasoned decisions from immigration judges and more written decisions from the BIA;
• Increasing training opportunities for immigration judges;
• Limiting the conduct of hearings by videoconference to procedural matters in which the non-citizen has given their consent;
• Increasing three-member panel review at the BIA;
• Permitting de novo review by the BIA of immigration judge factual findings and credibility determinations;
• Amending regulations to require BIA removal orders to contain notice of appeal rights; and
• Modifying and expanding the Legal Orientation Program to reach additional non-citizens needing legal assistance.

The executive summary's objectives are certainly honorable and commendable, but unfortunately not completely plausible given the current political climate in the U.S. The governmental bodies should, at the very least, work towards implementing the recommendations that do not require legislation. And, hopefully, they will continue to strive towards the larger reforms that are necessary to ensure independence, fairness, efficiency and professionalism in the adjudication of removal cases