Posted July 18, 2018 Articles
On July 13th USCIS published a new policy memorandum, Issuance of Certain RFEs and NOIDs. Effective September 11, 2018 USCIS will reverse 2013 guidance that state that an RFE should be issued unless there was no possibility that the deficiency could be cured by submission of additional evidence. USCIS claims that in effect only statutory denials could be issued with an RFE or NOID.
USCIS states that denials will be issued for the following reasons without RFEs.
This would include any filing in which the applicant, petitioner, or requestor has no legal basis for the benefit/request sought, or submits a request for a benefit or relief under a program that has been terminated.
An example would include filing an L-1 application for someone who has not worked for your company at any time.
Denials Based on Lack of Sufficient Initial Evidence
If all required initial evidence is not submitted with the benefit request, USCIS in its discretion may deny the benefit request for failure to establish eligibility based on lack of required initial evidence.
Examples could include failure to submit all required forms, such as an H-1B without an LCA, or petitions without required supporting evidence, such as an O-1 petition with no evidence of extraordinary ability.
This policy memo will not dramatically change how Meltzer Hellrung LLC practices and prepares petitions. We may push back on filing petitions that are skeletal or lack supporting evidence in anticipation of an RFE. Similarly, we do not believe this memo will significantly impact how the USCIS reviews petitions we file. However, this memo demonstrates the Trump administration's continued commitment to making the immigration system less compromising, more antagonistic, and less just.
Posted July 18, 2018 Articles, H-1B
The USCIS has begun returning petitions that were not accepted in the H-1B cap lottery. For companies whose petitions were rejected, the next question is whether any alternative methods of work authorization for their employees are available. Below, we briefly outline some of the potential visa alternatives.
- E-1/E-2 Treaty Trader & Investor Visas
The E-1/E-2 Visa can be utilized not only for the primary investor of a US business but also for managerial, executive, and specialized/essential employees with the same nationality as the majority ownership of the company. For companies with foreign ownership or for entrepreneurs, the E-1/E-2 visa remains a viable option. One of the restrictions to keep in mind for the E-1/E-2 visa is that it only applies to certain countries.
- E-3 Certain Specialty Occupation Professionals from Australia
The E-3 visa has identical criteria as the H-1B visa which makes it an ideal alternative if your employee is an Australian citizen. An issue to keep in mind, however, is that the E-3 visa is not dual-intent and moving from the E-3 to a green card requires specific timing considerations.
- L-1B Intracompany Transferee
The L visa is a viable alternative for companies with foreign offices seeking to transfer employees form a foreign office to the U.S. For an employee to qualify for an L-1B visa they must meet the following criteria: (1) at least 12 consecutive months of employment with a related foreign entity within the last 3 years; (2) have spent at least 12 months with the related foreign entity in a “specialized knowledge” position; and (3) are being sponsored for a “specialized knowledge” position inside the U.S. The definition of specialized knowledge is a gray area in immigration law. However, in recent the USCIS has taken a stricter view of what qualifies as specialized knowledge within a company and generally requires that the employee have knowledge/experience that is beyond the average employee within the company/industry.
- H-1B1 Free Trade Agreement Professional from Chile or Singapore
As with the E-3, the H-1B1 has the same criteria as the H-1B but applies only to citizens of Chile and Singapore. Employees that qualify can apply directly at a US Consulate or Embassy abroad or can apply directly to the USCIS. The H-1B1 is also not dual-intent so certain considerations must be made if filing for permanent residency.
- NAFTA (North American Free Trade Agreement) Professionals
The TN visa is for certain professional occupations and is available to citizens of Mexico and Canada and is defined under NAFTA. A benefit of the TN visa is that employees can apply directly at the US Consulate in Mexico (for Mexican citizens) or directly at the US border (for Canadian citizens). A difficulty of the TN visa, however, is that only certain professions are included in the TN NAFTA list. The list of occupations can be found here.
- O-1 Individuals with Extraordinary Ability or Achievement
The O-1 visa may be an option if your employee possesses “extraordinary” abilities in their field. An employee can qualify by evidencing a major, internationally recognized award (i.e. Nobel Prize, Academy Award, Olympic Medal), or, more commonly, by proving at least three of the ten criteria listed by the USCIS.
- F-1 Student Visa with Optional Practical Training or Curricular Practical Training
If your employee is currently on CPT or OPT training, they can simply continue with their current work authorization and, if possible, extend it. For employees nearing the completion of their F-1 work authorization, they can seek a new academic program and enroll to continue their F-1 status. Many schools require that the candidate complete at least one year of studies before issuing any new work authorization so a gap in work authorization may occur in such cases.
J-1 visas, especially those for "Interns" and "Trainees," can be an option for some companies. The viability of a J-1 visa is dependent on several factors including the nature of the position, the education and experience of the employee, and the ability of the company to provide a training or internship track within their company. There are also country and work authorization restrictions that may affect a candidate's J-1 eligibility.
- Entrepreneur Parole for Equity Founders
Beginning in July 2017, a new program for entrepreneurs will begin. For companies formed less than 5 years before the date of filing, equity owners with at least a 10% stake will have the ability to apply for parole and work authorization to work for their company.
- PERM/Green Card Application for STEM OPT Employees.
Finally, employees in F-1 status may benefit from beginning the green card process with a PERM application and an adjustment of status. This method of work authorization would not be applicable for employees born in countries with long waiting period for a green card, namely China and India. In order to avoid any gap in work authorization, the employee would need adequate time remaining on their OPT/STEM EAD authorization card.
We encourage employers seeking another method of work authorization to reach out to see if any of the options above would be plausible for their company.
Posted July 13, 2018 Articles
Travel Ban 3.0 is Upheld by the Supreme Court On June 26, 2018, the Supreme Court upheld the Trump Administration’s third version of the Travel Ban (Travel Ban 3.0). The court held that the travel ban is within the President’s authority and upheld the travel restrictions on the following seven countries: Iran, Libya, Somalia, Syria, Yemen, North Korea, and Venezuela. Citizens from these countries may apply for waivers which will be issued on a case by case basis if they are able to prove the following: Denying entry would cause the foreign national undue hardship; Entry would be in the national interest; Entry would not pose a threat to the national security or public safety of the United States. The Department of State has advised that the undue burden criteria can be met if the applicant demonstrates to the consular officer that an unusual situation exists which requires immediate travel by the applicant. Further, the applicant must show that delaying the issuance of the visa would defeat the purpose of travel. Secondly, the national interest prong can be met by showing that a U.S person or entity would experience hardship if the applicant could not travel to the U.S. Lastly, the consular officer will consider the information sharing and identity management tools used in the applicant’s home country to determine if the applicant will pose a threat to national security. If all of the above are met an office may issue a visa with the approval of a consular manager. Should you have any questions regarding Travel Ban 3.0 or obtaining waivers for individuals from the impacted countries, please contact your designated Meltzer Hellrung attorney.
Posted July 13, 2018 Articles
In June, USCIS rolled out a new InfoPass pilot program where the USCIS National Customer Service Center will coordinate InfoPass appointment scheduling in select cities. The pilot program is currently run in five cities: Hartford, CT; El Paso, TX; Jacksonville, FL; Sacramento, CA; and San Francisco, CA.
Under the new program, appointments can only be scheduled for document services and emergencies. Individuals looking to schedule an appointment in those cities will do so by calling the USCIS National Customer Service Center at 1 (800) 375-5283. The appointment can be requested with the Tier 1 officer, who will then escalate the call to a Tier 2 officer to confirm that an InfoPass appointment is necessary and appropriate. Appointment can also be requested by contacting USCIS online at https://my.uscis.gov/help/schedule.
The purpose of the pilot program is to cut down on the number of InfoPass appointments made for inquiries that could be address by the National Customer Service Center. Appointments requested for issues other than document services and emergencies may be refused by USCIS.
Posted July 9, 2018 Articles
On July 5th the USCIS published a policy memo titled "Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens".
As the USCIS stated in its press release:
A Notice to Appear (NTA) is a document given to an alien that instructs them to appear before an immigration judge on a certain date. The issuance of an NTA commences removal proceedings against the alien. Under the new guidance, USCIS officers will now issue an NTA for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.
USCIS has not historically issued Notices to Appear. The USCIS has historically viewed itself as an adjudicatory body that reviews whether individuals qualify for immigration benefits. The enforcement of immigration laws in terms keeping people out of the US or removing them from the US has been left to sister agencies under the Department of Homeland Security, namely Customs and Border Protection (CBP) and Immigrations and Customs Enforcement (ICE). The move to have USCIS issue NTA's is both a change in policy and function for the agency.