Employment based Immigration

The US Department of Labor tags a case once it is certified, denied, withdrawn or denied or certified-expired (they expire 6 months after approval so file your I-140 within that 6 months).  Trackitt posts statistics about DOL here:  http://stats.trackitt.com/

The latest update on PERM processing time as of June 1, 2015 is as follows:

The Visa Bulletin for September 2014 moved forward.  Big news for many.  Some of our clients want to know if they will indeed receive their green card next month, if their I-485 has been pending.  The things to know or consider are the following:

1. Your spot in line will open (check the Visa Bulletin here http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2014/visa-bulletin-for-september-2014.html ).

    

2. The number of applications filed and pending is large.  Will US CIS be able to process and spit out Approval Notice for everyone who deserves it?  We assume they will.  Nonetheless, here is the chart of employment-based I-485 applications pending at CIS  -- sorted by month/year: http://www.uscis.gov/sites/default/files/EB-I-485-Pending-Inventory-July2014.pdf

    

3. Item #2 brings up another good point: Did your Medical RFE Response and/or employment RFE that was mailed back (in response the mass-RFE’s issued in June 2014) meet up with the filing on time. In other words, will is your file re-reviewed, finalized and tagged to simply need the issuance of an Approval Notice? … or does it require yet another look by an officer? 

    

4. And not least, US CIS will be ready to issue an approval of your Adjustment of Status, so make sure your address is current with CIS! See the CIS cite link about retrogressed visas pending adjudication: http://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/visa-retrogression.

We hope that things have gone smoothly on your case and it is queued for approval now.  No way to be sure until the moment of potential approval comes and goes starting Sept 1st (when approval notices start getting issued) and near the end of October (when all mail has surely arrived and the lack of approval would also be telling).

It’s time to gear up for H-1B cap season! The upcoming H-1B season looks to be an active one already, harkening us back to years when the economy is strong and employers are hiring.

Last April, the maximum allowable slots for 65,000 petitions plus the additional 20,000 for graduates of U.S. advanced degree programs were filled within days of USCIS accepting H-1B applications. So many petitions were filed in the first five days that USCIS used a lottery to pick the H-1B petitions that would make it to the finish line, while all others were rejected.

Thankfully, Lang Wallace successfully made the cap for every H-1B petition filed for our clients – owing to the luck of the draw, but also to a standard of meticulous care so that we do not get rejections.

No one can guarantee cap-subject H-1B acceptance, but to take a shot at the lottery, US employers must act now to onboard highly-skilled, foreign workers. 

A few interesting facts about cap-subject H-1Bs …

• Filing may occur no sooner than April 1st (however, no later than April 1st either, given foreseeable lottery conditions);

• New H-1Bs cannot start their new status on payroll (or on the Form I-9) until October 1st;
• People who use new, cap-subject H-1Bs are typically F-1 Students, sometimes prior J visa holders, sometimes G-4 employees, and L-1s moving to a new job, among others;
• F-1s who graduate in the spring may qualify for the “cap-gap” letting them stay on US soil until their H-1B start date on October 1st;  if not,  plan a longer summer overseas and process for the visa stamp 10 days prior to October 1st ;
• An advanced degree earned on US soil allows the Petition to go into the second lottery for selection out of the additional 20,000;
• F-1 Students who are STEM graduates may ask their prospective employer to help them qualify for 29 months of OPT so they can try for H-1B status twice;

• Employer viability is still problematic with US CIS, notwithstanding the fact that US CIS should be fostering entrepreneurs and new business. A US entity that is less than 2 years old or which is operating in the red will require additional evidence of current and projected business flow.

So, as you prepare for the H-1B season, remember these extra points:

• Begin early.  Ideally, cases should be initiated with the law firm by mid-February in order to allow for any unanticipated delays or problems.  Beginning your case early allows us to file on “Day 1” which is April 1, 2014—giving your petition the best chance possible of being selected for processing. 
• See if your employees might be cap-exempt, if the filing organization is an entity that is
• an institution of higher education
• a nonprofit entity related to or affiliated with an institution of higher education
• a nonprofit research organization or government research organization

– or if the place of employ for an employee is a qualified government research organization pursuant to an existing contract.

Spring 2014 will be a real nail-biter for the many U.S. employers who need highly-skilled foreign-born workers.  Call one of our business immigration attorneys for a consultation to see if you may be eligible to file a cap exempt petition and to strategize for the upcoming H-1B cap season.

Christina Wallace, Suzette Blackwell and Christine Faller contributed to this article

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.

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.

Q: My employer wants to file a Labor Certification “PERM” based green card application for me. What are the regulations regarding advertising the position? 

A: A labor certification application is commonly referred to as “PERM” application and is submitted electronically to the U.S. Department of Labor after the U.S. employer [sponsor] performs a good faith test of the U.S. labor market. The PERM based green card process consists of three Stages:

Below please find a link to a blog post from the USCIS Director Alejandro Mayorkas, and some relevant excerpts, which discuss this current administration’s efforts to attract and retain high-skill entrepreneurs.

http://blog.uscis.gov/2011/08/encouraging-entrepreneurs-and-high.html

As part of the Administration’s comprehensive effort to attract and retain high-skill entrepreneurs, USCIS announced today [8/2/2011] that it will:

• Clarify that immigrant entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States;

H-1B season opened several weeks ago on April 1st and we are off to a SLOW start. This comes as great news for employers and foreign nationals who would like to secure Hs this year [for a start date of October 1, 2011] but is also a clear indicator that U.S. employers are simply not hiring as much as some reports would like us to believe.

Below you will find an update on how many H-1Bs have been used this year and a look back at H-1B usage since 2007. Clearly, H-1B usage is WAY down from ‘07 and ’08, when the 65,000 H-1B cap was met in the very first days of April!

In comparison, since 2009, the H-1B Cap of 65,000 has not been met for at least nine months or more, and based on usage in the first two weeks of this year, we estimate this year's Cap will be open through to March 2012.

2011 H-1B Season [FY2012]

Cap Subject H-1Bs filed as of April 15: 7,100
Cap Hit: To Be Determined [estimated March 2012 based on first two weeks usage]

2010 H-1B Season [FY2011]

Cap Subject H-1Bs filed during first week of April: 13,500
Cap Hit: January 27, 2011 [ten months later]

2009 H-1B Season [FY2010]

Cap Subject H-1Bs filed during first week of April: 42,000
Cap Hit: December 21, 2009 [nine months later]

2008 H-1B Season [FY2009]

Cap Subject H-1Bs filed during first week of April: 140,000
Cap Hit: Immediately! First days of April 2008

2007 H-1B Season [FY2008]

Cap Subject H-1Bs filed during first week of April: 123,000
Cap Hit: Immediately! First days of April 2007

We recently were successful in helping a Florida based platform development company secure the services of a software engineering technician with no post-secondary (high school) education, through the NAFTA TN Scientific Technician/Technologist temporary worker classification.

This is significant because while a scientific technician/technologist is theoretically not required to have post secondary education, in practice, it is not unusual for applicants without a two-year associates degree to be refused by the United States Customs and Border Protection (CBP).

Question: I am a July 2007 filer with a Oct 2006 PD. My labor was filed as a Software Developer. Recently I got a job offer in a fortune 500 firm as a technical lead architect. My labor certification (PERM) application was filed for the position of Electrical Engineer (SOC 17-2071.00). My new position falls under the Computer Software Engineer (SOC 15-1031). My new employer said that he will not file under AC-21 and they will take appropriate action if I get an RFE. I want to know how strict the same similar job requirement is? Do you feel that taking a Lead Architect job with an Electrical Engineer labor cert would jeopardize my green card ?