Author Archives: Raya Samet

 Why Is It Taking So Long for My Labor To be Filed?

“Why is it taking so long for my Labor to be filed?”  

by Sandra Gross, Esq.Calendar Pages


Labor certification is a lengthy process, and at least 3-6 months or longer are needed in order to prepare a labor for submission.   The purpose of labor certification is to demonstrate to the Department of Labor that despite its best efforts, the employer was not able to fill the position with a qualified US worker, and in order to show this, the employer must follow the prescribed recruitment steps.

Before the process even begins, we need to have information about the company sponsoring the petition, the job (and its location) which the foreign worker has or is being offered, and the foreign worker’s education and past paid experience.  The job description is supposed to indicate the minimum requirements for the position and not be tied to the foreign worker’s experience.    This job description is critical because in filing the I-140 or immigrant visa petition after the labor is approved, we must demonstrate that the foreign worker has met all of the minimum requirements for the position, otherwise, the I-140 will be denied.  Another crucial issue at the I-140 stage will be the employer’s ability to pay the wage.

Once we have prepared the job description, we request a wage determination from the Department of Labor.  Currently, this step is taking about 2.5 months.   The wage determination information is included in the labor, since the employer is agreeing to pay this wage once the foreign worker gets his green card. After receiving the wage determination, the employer has to prepare and post a Job Posting Notice, notifying his other employers that he is offering the position, the job duties, location, and wage, and where to file any complaints.  The Job Posting Notice has to be posted for 10 business days either at the company headquarters or using other electronic or printed media which the company typically uses, and the employer must wait another 30 days before being able to file the labor.

We also post a job order with the state department of labor, which makes it available to people seeking work.  The job order must be posted for a minimum of 30 days with the state, and the labor cannot be filed for a further 30 days after the job order was posted (total wait time is 60 days).  The recruitment must be conducted in the location where the foreign worker’s workplace is located, and in the case of roving employees, the recruitment is conducted at the company’s headquarters.

In addition to the job order and the wage determination, the employer must publish two Sunday newspaper ads in a newspaper which is most suitable to find qualified workers, and must also pick 3 alternate methods of recruitment (from an approved list), which have to all be different from each other.  The employer must wait at least 30 days after all of the regular and alternate recruitment steps save one, but none of the recruitment can be older than 180 days.  Once all the recruitment steps are done, the employer must conduct screening and interviews with any applicants who have responded to the ads, and prepare a recruitment report to summarize the results.  If the employer finds any “minimally qualified” workers, the labor cannot be filed.  Even if the foreign worker is better qualified, if a US worker can fill the position by satisfying the minimum requirements, the labor is useless and cannot be filed.

Once all of the recruitment is done and if no US workers were qualified based on this recruitment, we prepared the ETA 9089 for review, and then the labor is filed online.  Since no corrections are possible once the labor is submitted, it is important to review all of the information carefully since even a minor error could result in a denial.  Right now, it takes between 3-6 months for the labor to be reviewed and decided (approved, denied or audited). None of the recruitment is attached to the filing, so about 25% of the time, the Department of Labor audits the case, meaning it asks for documentation of all recruitment steps and sometimes for additional documents such as resumes received or proof of “business necessity” for the requirements included in the recruitment.  The employer must respond within 30 days, and provide copies of the recruitment steps as well as other proof that the recruitment was done correctly.  For that reason, the employer and his or her attorney must keep accurate records of all of the recruitment steps and make sure all of the requirements mentioned are the same throughout.

As you can see, labor certification requires many steps and prescribed waiting times which cannot be rushed.

Disclaimer: The information provided here is not to be construed as legal advice nor pres http://gty.im/56194612 umed to be indefinitely up to date. This information is of a general nature and is not intended to apply to any specific or particular circumstance.

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L-1 versus H-1B

L-1 Visa Overview: Temporary, Nonimmigrant Visas for Intra-company Transferees

As you may be aware, bringing a foreign worker to the US on an H-1B temporary work visa is difficult because there are a limited numbers available each year, and the visa is so over-subscribed that only about 1 out of 3 are picked up in the lottery.  If there is a company with an overseas subsidiary, another possible visa for a foreign worker is an L-1 (intra-company transferee) which is a non-immigrant petition filed by a company on behalf of an employee coming to the United States temporarily to work for the company in a managerial, executive, or specialized knowledge capacity.  The employee must have worked for the company or its related entity overseas for at least one year, either in a managerial, executive, or specialized knowledge capacity within the three years preceding application for admission.

Qualifying Relationship Between Overseas Company and U.S. Company:  the overseas company and U.S. company must show a qualifying relationship such as parent, subsidiary, affiliate, joint venture, proprietorship ,or branch office.

L-1 Requirements: The L-1 individual may work in either a Managerial/Executive or Specialized Knowledge capacity, and the individual must have worked for the foreign entity at least one year in the prior three years.  Note:  If the individual wishing to come to the United States on L-1 is an owner or major stockholder of the petitioning company, the USCIS requests evidence that the individual is coming to the United States temporarily, and will be transferred to an assignment abroad, after completion of the temporary assignment in the U.S.

L-1A:  Managerial Capacity:   First line supervisors are not considered managerial unless they are supervising professional-level employees.   Therefore, to be managerial, the person must either be managing other managers or managing professional-level employees who have at least a bachelor’s degree or its equivalent. An L-1A managerial capacity employee may work for a maximum of 7 years in L-1A status.

L-1A Executive Capacity:  The person must direct the management of the company or one of its major functions; he or she must establish policies and goals; he or she must exercise wide latitude in discretionary decision making; and must only receive general supervision or direction from higher level executives.  An L-1A executive capacity employee may work for a maximum of 7 years in L-1A status.

L-1B: Specialized Knowledge:  For specialized knowledge capacity, the individual must have specialized knowledge in the company’s products, processes or procedures.  If individual is coming to the US in a specialized knowledge capacity, then the individual can only be located off-site, if the sponsoring company will continue to maintain control over the individual’s work.  Specialized knowledge of the company’s products or processes must be necessary for the job.  An L-1B specialized knowledge employee may work for a maximum of 5 years in L-1B status.  L-1B status is very difficult to get.

Blanket L-1’s:  A blanket L-1 allows a company to pre-qualify for L-1 status for its qualified employees.  With an approved blanket petition, there is no need for the company to file a separate petition for each L-1 employee.  Only certain companies can qualify for blanket petitions.  Namely, a company must meet normal L-1 requirements, plus have 3 or more branches, affiliates or subsidiaries and must have combined U.S. annual sales of at least $25 million, at least 1,000 employees (U.S.), or received approval of at least 10 L petitions in prior year.

Disclaimer: The information provided here is not to be construed as legal advice nor presumed to be indefinitely up to date. This information is of a general nature and is not intended to apply to any specific or particular circumstance.

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Supreme Court Splits 4-4 on Obama Immigration Case

The one-sentence opinion read: “The judgment is affirmed by an equally divided Court.”

The 4-4 split, caused by the vacancy left by Justice Scalia’s death, has stalled the Obama policy  (called called U.S. vs. Texas) that would have protected millions of people in the United States illegally from deportation.

The tie vote does not strike down the proposal, but means that the U.S. 5th Circuit Court of Appeals’ November 2015 decision rejecting the policy stands until the next president decides whether to continue defending this case in court. For the immigrants in question, it means their legal status remain unchanged and they remain subject to deportation.

Supreme Court Tie Dooms Obama Immigration Policy

The U.S. Supreme Court split 4-4 Thursday over a challenge to President Obama’s immigration policy, a result that prevents the administration from putting the program into effect during the rest of him term. Announced in late 2014, it would shield more than four million people from deportation.

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H-1B REQUESTS FOR EVIDENCE: The Basics

Requests for Evidence are issued by the USCIS service center where the petition was filed.  A Request for Evidence (RFE) may follow virtually any type of petition but the scope of this article will focus on requests for evidence on an I-129 Petition for an H-1B Nonimmigrant Worker.

First and foremost, the best way to avoid getting the dreaded RFE is to include enough documentation with the original H-1B petition to keep from getting one!  For this reason, we recommend working with an experienced immigration attorney.  Although the I-129 petition form seems simple enough to complete at first blush, working with an experienced immigration attorney will help to ensure not only that it is completed properly, but that the correct additional evidence is included, and is the best opportunity for getting an approval.  Most immigration attorneys agree, however, that there is no guarantee that even the most thorough I-129 petition will get approved without an RFE.    An RFE is issued if the USCIS feels that it has not received sufficient information to approve the case as it was originally filed.

Sample of an RFE cover page

Sample of an RFE cover page

An RFE may be issued on an I-129 that seeks a new H-1B classification filed in the quota, i.e. a new petition, seeking to grant a beneficiary H-1B status, as well as petitions that seek to:

  • Extend H-1B status
  • Transfer (change of employer)
  • Transfer and extend
  • Amend (changed project/position), and amend & extend

 

 

Time frames

Once a case is received by the USCIS, the service center will normally process the H-1B petition and come to a decision within approximately 5-8 months—which will result in an approval, a denial or an RFE.  If the petitioner elects to have the H-1B petition processed under premium processing, the time frame will be expedited and something will be issued within 15 calendar days.  Premium processing involves an additional fee but the fee will be refunded if the USCIS fails to act within the 15 day period.  There is always the danger with premium processing is that an RFE will be issued just to make the clock stop.  Once an RFE is issued, the clock stops until a response is sent back to USCIS.

Even though an RFE may not seem like good news, it is best to think of it as an additional opportunity to secure an approval.

Definitions

The H-1B is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers who have the equivalent of a US Bachelor’s degree to work in a “ specialty occupation”. An H-1B visa is granted for a period of up to 3 years, and is renewable once for an additional period of 3 years, for a total of 6 years.

A “specialty occupation” is defined as “an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” Immigration and Nationality Act (INA) §214(i)(1)(A)-(B).

Two Most Common H-1B RFE Issues

The two most common types of Requests for Evidence on H-1B’s, are (1) Is this job a Specialty Occupation? And (2) Does the employer have control over the employee?

From the above definition of specialty occupation, two major issues arise.  First, whether the position itself qualifies as a specialty occupation position (one which requires that type of specialized education/knowledge), and second, whether the beneficiary qualifies for the position, in other words, does his education prepare him to work in that type of occupation, or does he have some work experience or training to qualify him.

The next additional common H-1B RFE issues include whether the employer is the actual entity which has the right to direct and control the person’s work, and arises most often in the context of IT professionals who are placed at a client site for temporary assignments.  The USCIS seeks proof that the employer who pays them has the right to control and supervise their work, even though they are not working at the employer’s office.

In order to address these concerns, we have developed a list of possible documents and proofs to demonstrate the appropriate level of control.  Our goal is to work with the employer and employee in question, and prepare the documents which are needed in order to assure the USCIS that the position qualifies for an H-1B.

Disclaimer: The information provided here is not to be construed as legal advice nor presumed to be indefinitely up to date. This information is of a general nature and is not intended to apply to any specific or particular circumstance.

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STEM OPT Extensions Update

In view of the recent changes announced by USCIS to the rules for student work authorization, we recap some options especially geared for international  students who are intending to stay and work in the US using the H-1B visa.  Here are some guidelines on possible extensions for STEM (Science, Technology, Engineering, Math) graduates.

Optional Practical Training (OPT)

  • As of May 10, 2016, STEM graduates will be eligible for a 24-MONTH extension of the Optional Practical Training (OPT), knows as a “STEM Extension.”  
  • Those with previously issued 17-month STEM extension can apply for an additional seven month extension between May 10 and August 8, 2016, IF they have at least 150 days remaining on their current STEM extension.  See the DHS page about STEM OPT for more information.
  • If you have an H-1B pending under the quota and are also eligible for a STEM extension, we recommend applying for it, even if your H-1B is picked up in the quota and is pending for the following reasons:
    • If your H-1B is denied, then you will be able to continue on F-1 status with the STEM OPT work authorization.
    • Your H-1B may not be approved by October 1, 2016.
Mind the Gap: OPT Extensions & H-1B

Mind the Gap: OPT Extensions & H-1B (click on image to enlarge)

Cap Gap Work Authorization

  • Cap Gap work authorization only extends until October 1, 2016.
  • IF your OPT expires before October 1, 2016 and Cap Gap extends your OPT until 10, 2016, you might still have a gap in employment until the H-1B approval date.
  • In some years, some quota cases are still pending into the January or February of the following year.
  • In order to apply for the STEM extension, you must work for an E-Verify employer.
  • The new STEM extension regulations, which go into effect in May 2010 have additional requirements.  See the DHS page about STEM-OPT for more information.
  • In the worst case scenario, USCIS will approve your H-1B petition for CONSULAR processing.  You will need to leave the US, and get the H-1B visa stamped in your passport.

CAP-GAP OPT  

  • IF your OPT is valid as of April 1, 2016 and expires before October 1, 2016 – CAP GAP
  • If your OPT is valid as of the date that your H-1b petition is submitted, then your work authorization will automatically continue while your H-1b petition is pending up until October 1, 2016 unless your petition is denied prior to this date.  However, it is advisable to get a new I-20 from your foreign student advisor that shows the extension.

Grace Period

  • If your OPT is expired and you are in your 60-day grace period when your H-1b is filed, then your grace period will be extended while the H-1b is pending
  • You may remain in the U.S. while the H-1b is pending.
  • You will NOT be work authorized while on your extended grace period.

If your OPT is expiring and your H-1b is still pending

  • The USCIS has been slow about adjudicating some regular processed H-1B petitions.  Therefore, your H-1B petition might NOT be approved before your OPT expires.  If your H-1B is still pending as of two months before your OPT expiration date (including the 10/01/2016 cap-gap extension date), then please alert your employer and consider converting the case to premium processing.

Curricular Practical Training (CPT)

The Immigration Agencies appear to have changed their opinion (and have conflicting opinions) as to when CPT is appropriate.  If you have CPT now (or had it in the past), then USCIS MIGHT consider that you have violated your status and you might have trouble getting a change of status from F-1 status to H-1B status.

Disclaimer: The information provided here is not to be construed as legal advice nor presumed to be indefinitely up to date. This information is of a general nature and is not intended to apply to any specific or particular circumstance.

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How the new Visa Waiver program rules will affect my Wedding

Iraqi passports, military documents and

Iraqi passports, military documents and Iraqi-Palestinian travel documents are sold in a street market in Baghdad, 11 June 2003. US Iraq overseer Paul Bremer set his sights on tackling Iraq’s chronic… Get premium, high resolution news photos at Getty Images

How the new Visa Waiver Program Rules will affect my Wedding

By Sam R. Saif

This year, I am getting married to an Iraqi-American. As an Iraqi-American myself, I have many close family members living all around the world. You can imagine that after the Gulf War, and then later the 2003 Iraq War, many people fled Iraq in search of a better, more stable life. That’s what my family and my Fiancée’s family did. The nice thing about our families is that they are willing to come from all parts of the world (i.e. Australia, Sweden, Denmark, Holland, England, Canada, and the list goes on) to get together to celebrate our wedding. However, many of them do not know that it will not be an easy process for them to come to the US as visitors.

Most of the countries listed above are Visa Waiver Program participant countries. That means that it would usually be very easy for them, as citizens of those countries, to travel to the United States. They would simply complete a short application online, receive an approval, and take that approval to any airline to get on a plane to the US. However, the new VWP rules require that those with dual nationality of VWP countries and four other countries – Iraq, Iran, Sudan, and Syria – must apply for a B1/B2 visitor visa. Applying for a B1/B2 visa means that they must go through a more complex and stringent process. There are other new rules to the VWP, but we will just focus on the one just mentioned.

These are the general steps and issues with applying for a B-1/B-2 nonimmigrant visitor visa:

  1. Complete a long and complicated DS-160 application online;
  2. Pay the $160 application fee;
  3. Gather the required documentation, including:
    • Passport that is valid for travel to the US – Valid for at least 6 months
    • Non-immigrant Visa Application, Form DS-160 confirmation page
    • Application fee payment receipt
    • Passport photos (Usually uploaded while completing the online DS-160 form)
    • Documents establishing the individual is qualified for the B1/B2 nonimmigrant visa:

a) Showing the purpose of the trip;

b) That the individual intends to depart the US after the trip;

c) The individual’s ability to pay all costs of the trip;

d) Otherwise not inadmissible (ineligible) from entering the US;

e) Mainly, an individual must show ties to their home country such that they can convince a consular officer that they are in fact planning on returning to that country upon completion of the purpose of the trip.

  1. Schedule and attend an appointment to have fingerprints and photo taken with the Visa Application Center;
  2. Schedule and attend an Interview at the US consulate/embassy:
    • The consular officer will review the application and necessary documents and will make a determination whether the individual is eligible for the visa.
    • The consular officer has wide discretion to approve or deny an application.

Instead of just filing a short application online, getting an approval within minutes, and easily traveling to the US, my family members must now apply for a B-1/B-2 visa simply because they are still Iraqi citizens. Most of them arrived to their respective countries as refugees, fleeing the violence in Iraq. Most, if not all, have not been to Iraq in decades. They also no longer have any ties to Iraq since all of their family members and friends have traveled to other countries and sought asylum. They are simply coming to the US temporarily to attend my wedding. Yet, they are being singled out for being Iraqi citizens.

Not all of our family members are necessarily willing to go through the expense and stringent process of applying for a B-1/B-2 non-immigrant visa. And should one of them be unable to produce documentation showing strong ties to his/her resident country (no bank account, no school, temporary jobs, not married, no children, etc.) he/she will have a much more difficult time overcoming the presumption that he/she intends to depart the US after fulfilling the purpose of the trip.

For more information on the new VWP rules, please follow these links:

http://www.cbp.gov/travel/international-visitors/visa-waiver-program/visa-waiver-program-improvement-and-terrorist-travel-prevention-act-faq

http://www.nytimes.com/2016/01/22/us/politics/us-tightens-visa-rules-for-some-european- http://gty.im/2091633 visitors.html?_r=0

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How Scalia’s Death Could Affect Major Supreme Court Cases in 2016

With the passing of Justice Antonin Scalia this week, the balance of the Supreme Court has shifted, which may have serious implications for cases set to be heard in the upcoming term. There is an important immigration case, United States v. Texas, of particular interest. To learn more about how the Supreme Court decisions in 2016 might be effected, read the entire article from The New York Times below. To learn more about the legal arguments at stake in United States v. Texas, we also recommend this “in plain English” analysis from ScotusBlog.

How Scalia’s Death Could Affect Major Supreme Court Cases in the 2015-16 Term

Sotomayor Kagan Ginsburg Breyer Kennedy Roberts Alito Thomas Scalia In Hurst v. Florida, the court struck down an aspect of Florida’s capital punishment system, in which the state allowed nonunanimous juries to recommend death sentences and left the final sentencing to a judge, saying it did not give jurors a sufficient role in deciding whether defendants should be put to death.

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You might qualify for DACA

Are You Eligible for Deferred Action for Childhood Arrivals Immigration Program (DACA)?

You might qualify for DACA

You might qualify for DACA if… (please click on image to enlarge)

Are You Eligible for Deferred Action for Childhood Arrivals Immigration Program (DACA)?

By: Sam R. Saif

DACA is an immigration program allowing the Department of Homeland Security (DHS) to exercise prosecutorial discretion to ensure that enforcement resources are not expended on low priority cases. Individuals who came to the United States as children, and who meet specific requirements are considered to be low priority cases. Those who meet the guidelines listed below may be eligible for DACA for a period of two years, subject to renewal for a period of two years. Note there is no guarantee that this program will be available for subsequent renewal periods.

An individual who is granted DACA status may be eligible for employment authorization. This individual may also be eligible for Advance Parole, a document which allows the recipient one-time permission to travel outside of the United States for urgent or humanitarian circumstances.  A request for DACA will be granted on a case-by-case basis and is solely within the discretion of DHS.

An individual may be eligible for DACA if he/she:

  1. Was under the age of 31 as of June 15, 2012;
  2. Came to the United States before reaching his/her 16th birthday;
  3. Has continuously resided in the United States since June 15, 2007, up to the present time;
  4. Was physically present in the United States on June 15, 2012, and at the time of making his/her request for consideration of deferred action with USCIS;
  5. Had no lawful status on June 15, 2012, meaning that:
  6. He/She never had a lawful immigration status on or before June 15, 2012, or
  7. Any lawful immigration status or parole that he/she obtained prior to June 15, 2012, had expired as of June 15, 2012.
  8. Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a General Educational Development (GED) certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  9. Has not been convicted of a felony, a significant misdemeanor (including criminal convictions involving driving while intoxicated or impaired), three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.

Our firm is ready to help determine individual eligibility and to assist individuals eligible for DACA apply. We have highly experienced attorneys and staff to provide personalized, affordable and results oriented legal service. If you or someone you know may be eligible for DACA, or wish to renew their DACA status, please contact our office to schedule a consultation. Remember, individuals eligible for DACA may be eligible to apply now.

PLEASE NOTE:

The announced Expanded DACA program is on hold by court order, however, this does not affect individuals who are eligible for the original DACA program.

For more information on the status of Expanded DACA and the DAPA programs, please see the following links:

https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca

https://www.washingtonpost.com/politics/courts_law/supreme-court-to-review-obamas-power-on-deportation-policy/2016/01/19/5db355da-bb8a-11e5-b682-4bb4dd403c7d_story.html?hpid=hp_hp-top-table-main_court-940am%3Ahomepage%2Fstory&tid=a_inl

 

Disclaimer: The information provided here is not to be construed as legal advice nor presumed to be indefinitely up to date. This information is of a general nature and is not intended to apply to any specific or particular circumstance.

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