News & Resources
Posted August 18, 2017 Green Card
When starting an employment-based green cards attorneys and companies generally consider the PERM process and the EB-1 categories for individuals of extraordinary ability, outstanding researchers, and multi-national managers and executives. However, the EB-2 category for individual of exceptional ability is rarely considered. This can be a great option for avoiding the PERM process for employees who may not meet the standards for an EB-1 petition but still have notable achievements.
Department of Labor regulations allow certain types of petitions under Schedule A to have pre-certified labor certification petitions. These petitions do not need to go through the traditional recruitment process and submission of a PERM. In Group I physical therapists and nurses are exempt from the traditional labor certification process.
In Group II the Department of Labor exempts certain individuals in the sciences, arts, and performing arts. "Science or art" means any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/or skill. Individual must have been practicing his/her science or art during the year prior to application and intend to practice the same science or art in the United States.
In order to qualify the individual must demonstrate qualifications in two of the following seven areas:
Documentation of the alien’s receipt of internationally recognized prizes or awards for excellence in the field for which certification is sought.
Documentation of the alien’s membership in international associations in the field for which certification is sought, which requires outstanding achievement of their members, as judged by recognized international experts in their disciplines or fields.
Published material in professional publications about the alien, relating to the alien’s work in the field for which certification is sought, which shall include the title, date, and author of such published material.
Evidence of the alien’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which certification is sought.
Evidence of the alien’s original scientific or scholarly research contributions of major significance in the field for which certification is sought.
Evidence of the alien’s authorship of published scientific or scholarly articles in the field for which certification is sought, in international professional journals or professional journals with an international circulation.
Evidence of the display of the alien’s work, in the field for which certification is sought, at artistic exhibitions in more than one country.
These standards are similar to those for an EB-1 for an individual of extraordinary ability. However, the EB-1 category requires demonstration of meeting three standards, whereas the EB-2 schedule A requires only two areas of demonstrated success.
The EB-2 Schedule A still gets treated as a traditional EB-2 petition for the purposes of the visa bulletin, so it provides limited utility for employees from India, China or the Philippines. For employees from other countries the EB-2 Schedule A can be faster than the PERM process, less expensive for employers since there are no recruitment costs, and an easier administrative burden overall.
Posted August 9, 2017 Articles
The United States Citizenship and Immigration Service (USCIS) Ombudsman’s office has published its annual Report to Congress, highlighting numerous challenges employers and foreign nationals are facing with USCIS. The USCIS Ombudsman’s office was created by Congress to improve the immigration system by identifying problems, suggesting improvements, and assisting sponsors and foreign nationals. In the 2017 report, the Ombudsman identified persistent challenges for employment and investment based immigration, including inaccurate posted processing times, mailing issues, a decreased likelihood of success of appeals, and backlogs for EB-5 investor visas.
Inaccurate Processing Times
USCIS has taken steps to improve how processing times are posted on its website, now posting the specific filing date of the last case the office completed. However, the Ombudsman still points out that these times are not always accurate and do not transparently state the goals of the service center, making it harder for sponsors and individuals to plan for their future.
The Ombudsman reported that a number of documents sent by USCIS are not delivered to the intended recipient or are returned to USCIS as undeliverable, potentially resulting in missed appointments, deadlines, falling out of status, or identity theft. The Ombudsman has urged USCIS to consider new alternatives for mailing, but in the meantime urges individuals to update their address with USCIS as soon as possible after moving, due to delays in USCIS’s updating of information, and to ask the local post office to hold their mail. Most noncitizens are required to notify USCIS of an address change in the US within 10 days of moving by submitting Form AR-11.
Decreased Likelihood of Success for Appeals and Motions
The Ombudsman’s Office found that processing times are not made publicly available for Appeals and Motions sent to the USCIS Administrative Appeals Office and in some case types, the likelihood of success upon appeal is lower than in the fiscal year 2015.
The rate of H-1B denials overturned on appeal in 2016 was two percent, as opposed to three percent in 2015. Similarly, L-1 denials overturned also dropped from 15 percent in 2015 to nine percent in 2016. EB-2 petitions for individuals with an advanced degree or exceptional ability also dropped to 15 percent in 2016, as did EB-3 petitions for professional and skilled workers, which fell to five percent. On the other hand, the overturning of denials for EB-1 petitions for multinational managers rose slightly to 14 percent, from 11 percent in 2015.
The Ombudsman is urging USCIS to post processing times for the Form I-290B to increase transparency, in part so sponsors and applicants can make informed decisions about whether to refile an application or petition rather than filing an appeal or motion.
The EB-5 program for immigrant investors is seeing delays, due in part to its demand and short-handed USCIS staff. The Ombudsman has recorded an increase in processing times, currently about 16 months for the initial immigrant petition, and 27 months to remove conditions on permanent resident status. Each year 10,000 immigrant visas are allocated to EB-5 investors. The report estimates that there are about 88,000 individuals currently waiting for immigrant visas under the program, which are disproportionately Chinese nationals who will likely wait about 10 years or longer to receive their immigrant visas.
Posted July 24, 2017 H-1B
Effective immediately, the USCIS will resume accepting premium processing petitions and upgrades for cap-exempt companies. This means companies that qualify as cap-exempt can submit premium processing upgrades for pending cases or with new filings. Qualifying Cap-Exempt Institutions include:
- An institution of higher education;
- A nonprofit related to or affiliated with an institution of higher education; or
- A nonprofit research or governmental research organization.
The USCIS will also accept premium processing where the employee will be working at a qualifying cap-exempt institution.
Unfortunately, non-cap-exempt companies whose employees are working at their premises or at an end-client that is also not cap-exempt are still not allowed to submit premium processing petitions. The USCIS stated they hope to resume all premium processing soon as their work load allows.
Posted July 19, 2017 H-1B
USCIS is now issuing Requests for Evidence for H-1B positions filed with a level 1 wage on the Labor Condition Application. USCIS is inquiring whether positions are truly entry level when a level 1 wage is utilized. Based on the RFE's coming into our office and reports from fellow attorneys USCIS appears to be targeting technology-centered positions and companies with these RFE's. These RFE's are a new tactic from the Trump administration.
When preparing an H-1B petition an employer must first file a Labor Condition Application with the Department of Labor confirming that the company will pay at least the prevailing wage for the position in the designated work location. The Department of Labor provides four wage levels in each occupational category.
Department of Labor guidance provides information on the purpose of the four wage levels:
- Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation. These employees perform routine tasks that require limited, if any, exercise of judgment. The tasks provide experience and familiarization with the employer’s methods, practices, and programs. The employees may perform higher level work for training and developmental purposes. These employees work under close supervision and receive specific instructions on required tasks and results expected. Their work is closely monitored and reviewed for accuracy. Statements that the job offer is for a research fellow, a worker in training, or an internship are indicators that a Level I wage should be considered.
- Level II (qualified) wage rates are assigned to job offers for qualified employees who have attained, either through education or experience, a good understanding of the occupation. They perform moderately complex tasks that require limited judgment.
- Level III (experienced) wage rates are assigned to job offers for experienced employees who have a sound understanding of the occupation and have attained, either through education or experience, special skills or knowledge. They perform tasks that require exercising judgment and may coordinate the activities of other staff. They may have supervisory authority over those staff.
Frequently, key words in the job title can be used as indicators that an employer’s job offer is for an experienced worker. Words such as ‘lead’ (lead analyst), ‘senior’ (senior programmer), ‘head’ (head nurse), ‘chief’ (crew chief), or ‘journeyman’ (journeyman plumber) would be indicators that a Level III wage should be considered.
- Level IV (fully competent) wage rates are assigned to job offers for competent employees who have sufficient experience in the occupation to plan and conduct work requiring judgment and the independent evaluation, selection, modification, and application of standard procedures and techniques. Such employees use advanced skills and diversified knowledge to solve unusual and complex problems. These employees receive only technical guidance and their work is reviewed only for application of sound judgment and effectiveness in meeting the establishment’s procedures and expectations. They generally have management and/or supervisory responsibilities.
The RFE's we have received ask us to prove that the positions are truly entry level.
Going forward we may try to ascertain whether software-related positions are truly entry level when using a level 1 wage. We may ask employers whether they can demonstrate that there are higher level positions to contrast a proposed level 1 occupation with inside the company.
The International Entrepreneur Rule that was set to go into effect this month, has been delayed until March 14, 2018. The Department of Homeland Security (DHS) announced its decision to delay the Rule so it can further review its effect and a proposal to rescind the Rule entirely. DHS will also allow for public comments to be submitted on the proposal until August 10, 2017.
Were the rule to go into effect as planned, it would have allowed for parole and work authorization to be granted to entrepreneurs for up to 30 months. Entrepreneurs could then apply for an extension for an additional 30 months.
The Rule published to the Federal Register by the DHS on July 11, 2017 states it is “highly likely” that the Rule will ultimately be rescinded. We will continue to keep our clients updated as we learn more.