Lang Wallace LLC Blog

Update: There is no news on H.R. 3012, the High Skilled Immigrants Act, which was put on hold by Senator Charles Grassley (R-IA).  But even without H.R. 3012, the January 2012 Visa Bulletin showed the China and India EB-2 category (for aliens with advanced degrees or equivalent, or in the national interest (NIW) advancing more than 9 months from 3/15/08 to 1/1/2009.  This rapid advancement demonstrates that demand for green cards amongst advanced degree professionals from countries other than India and China is decreasing, so unused green cards are being granted to those seeking immigration from China/India.  

More on H.R. 3012.  On 12/15/11, in order to release his hold, Senator Grassley offered an amendment that would make dramatic changes to the bill including elimination of family per country limit increase and reducing the employment based per country limit to 15%.  The amendment would also eliminate the diversity visa program and add provisions that would increase enforcement and U.S. worker protections to the H-1B and L-1 visa programs.

Agency focuses on fully realizing the job-creating potential of current immigration law

Released October 11, 2011

WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas joined the President’s Council on Jobs and Competitiveness in Pittsburgh to announce “Entrepreneurs in Residence.” This new innovative initiative will utilize industry expertise to strengthen USCIS policies and practices surrounding immigrant investors, entrepreneurs and workers with specialized skills, knowledge, or abilities. Mayorkas announced the initiative at the Jobs Council’s High Growth Entrepreneurship Listening and Action Session at AlphaLab in Pittsburgh before the Council’s quarterly meeting with President Obama.

H-1B Cap Update: As of 10/7/11, USCIS received approx 41,000 cap subject H-1B cases and another 19,100 towards the advanced degree cap.

The U.S. Department of State has published instructions relating to its upcoming Diversity Visa (Green Card) Lottery for the 2013 fiscal year. For DV-2013, natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the United States in the previous five years:

Bangladesh, Brazil, Canada, China (mainland-born), Columbia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haita, India, Jamaica, Mexico, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

In preparation for a long-delayed transition to online processing of immigration applications, the Homeland Security Department has released new rules for describing forms and filing procedures in official policies.

The 43-page federal notice published Monday instructs the U.S. Citizenship and Immigration Services, a unit of DHS, to stop typing on documents the traditional numbers and titles for various benefit claims, such as "Application for Naturalization, form N-400." Instead, to accommodate the new computerized Transformation system, USCIS policies and rules will carry more generic phrases, such as "the form designated by USCIS."

Question: I have 13 years of teaching experience, before moving to the US. My employer filed my Labor Certification (PERM) application and I-140 under the EB3 category with a priority date in 2009. Now, I am planning to port from EB3 to EB2. Is this possible with the same employer? My previous lawyer did not include my 11 years of experience. He just put my 2 years of experience in China. Also, what would happen to my eldest daughter, who will turn 21 in a couple of years, if I just wait for my 2009 priority date to become current?

Answer: Your current employer may indeed file a new PERM with EB-2 requirements, but not only do you have to be qualified, the position offered must also qualify. Filing a second labor certification with the same employer might be appropriate in several situations. A change to a different occupation classification as defined by the Department of Labor is one event that would require filing a second labor certification. In addition, a second labor certification might be justified when (1) the first labor certification was an EB3; (2) you qualified for EB2 at the time you began working in the current occupation; (3) your manager approves EB2 requirements; and (4) you experienced an objective change in the terms of employment such that EB2 qualifications are now required for the job. The objective change may consist of a promotion or a new work assignment that requires higher qualifications. Finally, as long as each I-140 would be accurate at the time of filing. You are entitled to the earliest priority date under the regulation 8 CFR 204.5(e).

Question: My I-140 was approved in May 2006, and my I-485 is still pending since July 2007. I have been working with Company A since 2003, and in January 2011 I moved from Indiana where I lived since 2003, to California. I still work for Company A in same position and with same salary. Do I have to move back to Indiana to get my green card or can I stay in California?

Answer: Yes, a labor certification (PERM) application IS location specific. But, based on your fact pattern, it sounds like you are eligible to port your I-140 to the California position under AC-21 section 106 (c). If so, you are not required to return to Indiana.

The Vermont Service Center has confirmed to AILA Liaison that its preferred order of Form I-129 petition and supporting documents at the time of submission is as follows:

1. Fee(s) - staple to first page

2. I-907 Request for Premium Processing Service (if filing as Premium Processing)

3. Form G-28

4. Form I-129 petition pages 1- 6 (and 7 if submitted)

5. Classification or Free Trade Supplement page

6. H-1B Data Collection and Filing Fee Exemption Supplement, if applicable

7. Form I-129 Addendums/Attachments

8. Labor Condition Application or application for temporary labor certification, if applicable

9. SEVIS form, if applicable

10. I-94 copies, passport pages, I-797 approval notices

11. Attorney letter

12. Company letter

13. Documents related to the beneficiary's qualifications

14. Other supporting documents

15. I-129 Duplicate Copy and supporting documentation

By submitting the documents in the preferred order, practitioners may help facilitate faster administrative processing of cases through the VSC intake process.

NATIONAL INTEREST WAIVER

Q11. Is there a “national interest waiver” (NIW)? And if so, what is it? Can an entrepreneur qualify for a NIW?

A11. Yes. A NIW exempts the petitioner from the normal requirement of a job offer, and thus from obtaining a labor certification from the U.S. Department of Labor. Entrepreneurs, if they qualify, can obtain a waiver of the job offer requirement if it is in the national interest.

Q12. If an entrepreneur wants to file for a NIW, does he or she still have to be a member of the profession holding an advanced degree or an individual of exceptional ability? A12. Yes. The entrepreneur must first demonstrate that he or she is either a member of the profession holding an advanced degree or an individual of exceptional ability.

Q13. If an entrepreneur wants to file for a NIW must he or she have an actual employer in the United States?

A13. No. Pursuant to INA 203(b)(2)(B), an entrepreneur does not need to have an actual job offer from a U.S. employer if he or she qualifies for a NIW. In other words, an entrepreneur may be able to petition for him or herself and fill the role of both the petitioner and beneficiary. The law provides that the Secretary of the Department of Homeland Security may, if he or she deems it to be in the national interest, waive the requirements that an individual’s services in the sciences, arts, professions, or business be sought by an employer in the United States.

Q14. Is there a definition of “national interest”?

A14. The term “national interest” is not defined in the statute or the regulations, and Congress did not specifically define the phrase in the relevant legislative history. However, USCIS issued a precedent decision concerning NIWs, Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT).

While NYSDOT does not involve an entrepreneur, the decision contemplates that entrepreneurial or self-employed beneficiaries may qualify for the NIW under limited circumstances. Footnote 5 in the decision states:

"The Service acknowledges that there are certain occupations wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for a labor certification…[T]he petitioner still must demonstrate that the self-employed alien will serve the national interest to a substantially greater degree than do others in the same field."

NYSDOT lays out a three pronged test for NIW applicants to qualify for a waiver of the job offer requirement.

Q15. What are the three prongs laid out in the NYSDOT decision?

A15. 1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.

2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope.

3. The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant. Stated another way, the petitioner, whether the U.S. employer or the NIW applicant, must establish that the entrepreneur will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

Q16. How does the first prong of NYSDOT relate to entrepreneurs?

A16. Under the first prong of the NYSDOT test, the entrepreneur must seek employment in an area that has substantial intrinsic merit. It is important for the entrepreneur to focus on the proposed employment rather than the entrepreneur’s qualifications. In NYSDOT, the beneficiary was a structural engineer working on highway bridges. This activity was found to have substantial intrinsic merit.

Q17. How does the second prong of NYSDOT relate to entrepreneurs?

A17. The second prong of the NYSDOT test requires that the entrepreneur demonstrate that the proposed benefit to be provided will be national in scope. For example, the entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation. Or, as another example, the entrepreneur might be able to establish that the jobs created locally will have a positive national impact. As described below, and as the law contemplates, USCIS will give due consideration to entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field.

Q18. How does the third prong of NYSDOT relate to entrepreneurs?

A18. NYSDOT’s third prong is best understood in light of the labor certification process and the assumed benefit that it provides to the United States. An individual seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process. NYSDOT’s third prong requires that the entrepreneur “present a significant benefit to the field of endeavor.” The field should be the same as that identified in prong one of the analysis and the entrepreneur must document how the entrepreneurial enterprise will benefit that field.

NYSDOT states:

“In all cases, while the national interest waiver hinges on prospective national benefit, it clearly must be established that the beneficiary’s past record justifies projections of future benefit to the national interest. The petitioner’s subjective assurance that the beneficiary will, in the future, serve the national interest cannot suffice to establish prospective national benefit if the beneficiary has few or no demonstrable achievements.”

The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an NIW. For example, the entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

Below please find a copy of a January 2011 AAO [Administrative Appeals Office] decision which overturns a denial issued by USCIS in an L-1 “New Office” extension case.

L-1 “New Office” petitions are commonly used when an established foreign company wants to expand in the United States and send a manager/executive or specialized knowledge employee to work for the NEW U.S. entity.

New Office L-1s are granted for one year by showing, among other things, physical premises in the U.S. and the financial viability of the U.S. entity.

Question: I am on an H1B visa and my wife is on H4. We came to the US in the year 2007. My I-129 and I-94 was extended in September 2009, however due to lack of information we did not apply for my wife’s I-94 extension. She went back to India on June 19, 2010, having overstayed her I-94 by 270 days. She finally got her H-4 visa stamp from the Delhi Consulate last week. We made a full disclosure about her overstay on the visa application [DS-160] to Delhi Consulate. My question is can CBP at the San Francisco Port-of-Entry refuse her entry due to her earlier overstay? If yes, can we do something about in advance? 

Answer:Excellent work securing the visa after the overstay! Unless CBP finds that your visa application was fraudulent, for example, that you did not disclose the overstay to the US Consulate, I see no reason for CBP to refuse entry. Your wife might expect to be pulled into secondary inspection however, and answer questions about her immigration history and visa application. I might help for her to carry copies of her visa application with supporting documentation to present, if necessary. There is not much else one can do in advance. In some cases, I might call CBP [contact information for CBP at the SF International Airport provided below] to ask them what their policy is. But again, in your case, unless there was fraud, or she is otherwise not eligible to enter as an H-4 [for example if you were no longer working in H-1B] CBP should not have a problem honoring the valid visa stamp.