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[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF HOMELAND SECURITY
U.S. Citizenship and Immigration Services
8 CFR Parts 214 and 248
[CIS No. 2429-07; DHS Docket No. USCIS-2007-0056]
Period of Admission and Extension of Stay for Canadian and Mexican Citizens Engaged in Professional Business Activities–TN Nonimmigrants
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Final rule.
SUMMARY: The Department of Homeland Security (DHS) is amending its regulations to allow an increased period of admission and extension of stay for Canadian and Mexican citizens who seek temporary entry to the United States as professionals pursuant to the TN classification, as established by the North American Free Trade Agreement (NAFTA or Agreement). This final rule increases the maximum allowable period of admission for TN nonimmigrants from one year to three years, and allows otherwise eligible TN nonimmigrants to be granted an extension of stay in increments of up to three years instead of the current maximum of one year. In addition, this rule grants the same periods of admission or extension to TD nonimmigrants, the spouses and unmarried minor children of TN nonimmigrants to run concurrent. The rule also removes the mention of specific petition filing locations from the TN regulations and replaces the outdated term “TC” (the previous term given to Canadian workers under the 1989 Canada-United States Free Trade Agreement) with “TN.” This rule will reduce the administrative burden of the TN classification on USCIS, and will ease the entry of eligible professionals to the United States.
DATES: This final rule is effective October 16, 2008.
FOR FURTHER INFORMATION CONTACT: Paola Rodriguez Hale, Adjudications Officer, Business and Trade Services, Office of Service Center Operations, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., 2nd Floor, Washington, DC 20529, telephone (202) 272-8410.
A. NAFTA and the TN Classification
NAFTA and the NAFTA Implementation Act, Public Law 103-182, redesignated section 214(e) of the Immigration and Nationality Act (INA) to create the “trade NAFTA” (TN) nonimmigrant classification and provide for the temporary entry of qualified business persons from each of the countries that signed the Agreement. The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry as business persons to engage in professional business activities at a professional level in the United States. 8 CFR 214.6(a). DHS regulations currently require that TN nonimmigrants may be admitted to the United States for a period not to exceed one year. 8 CFR 214.6(e). The regulations further provide that TN professionals may apply for extensions of stay for a maximum period of one year. 8 CFR 214.6(h)(1).
B. Proposed Rule
On May 9, 2008, DHS published a notice of proposed rulemaking in the Federal Register at 73 FR 26340 proposing a change in the period of admission and extension of stay granted to TN nonimmigrants from Canada and Mexico engaged in professional business activities. The notice also proposed granting the same period of admission or extension of stay to TN dependents (TD nonimmigrants), removing outdated references to specific filing locations and prior requirements, and replacing the outdated term TC with the current TN term. Written comments to the proposed rule were due on or before June 9, 2008.
In this final rule, DHS is adopting the proposed rule with no changes. The proposed rule was, and this final rule is, intended to improve the administration of the TN program and make it more flexible and attractive to Canadian and Mexican professionals and to employers in the United States. Currently, DHS regulations require TN nonimmigrants, to either seek readmission in TN status or apply for extensions of stay annually if they wish to remain in the United States beyond the period of their initial admission. 8 CFR 214.6(h). This requirement involves the annual submission of documentation and payment of filing fees. By removing these types of administrative requirements on TN employees and their U.S. employers, DHS will further the intent of NAFTA to facilitate the entry of eligible professionals into the United States.
II. Comments Received in Response to the Proposed Rule
DHS received 80 comments in response to the proposed rule. The majority of commenters (76) supported this rulemaking. Many of these 76 commenters suggested additional changes or enhancements to the TN classification regulations which were not part of the proposed rule. Two commenters opposed the proposed rule. One of these two commenters asked questions about lawful permanent residence and educational opportunities for aliens in the TN classification, but did not express an opinion on the proposed rule. The second of these two commenters simply complained about a perceived slight to U.S. workers contained in another public comment. Many of the received comments raised issues that are beyond the scope of this rulemaking but will be mentioned briefly as part of this disposition of the comments.
A. Increase to Three Years for Admissions and Extensions of Stay
Comments on period of admission: The overwhelming majority of the commenters supported increasing the period of admission and extensions of stay granted to TN nonimmigrants from one to three years. Only two commenters opposed this proposal because they thought that jobs should be offered to U.S. workers rather than to foreign nationals. One commenter stated that the U.S. economy is suffering and jobs should thus be reserved for U.S. workers. The other commenter stated that the United States is presently flooded with immigrants and the TN program should be shut down while the country sorts out the problems with illegal immigrants present in the United States, and also made additional comments about aliens, politicians and the U.S. government in general.
Response to comments on period of admission: DHS has not adopted these comments in opposition. This rule does not make it easier to hire TN nonimmigrants by altering eligibility requirements, changing existing filing fee requirements, or expanding the principle of “dual intent.” Rather, this rule simply increases the amount of time granted to a TN nonimmigrant once all eligibility requirements have been established. This rule has nothing to do with permanent immigration or illegal immigrants presently within the United States.
B. Other Comments
Comments on dual intent: Thirteen commenters requested that TN nonimmigrants be granted “dual intent” and thereby be allowed to pursue permanent resident status while present in the United States in nonimmigrant status similar to the H-1B and L-1 nonimmigrant programs.
Response to comments on dual intent: The dual intent doctrine holds that even though a nonimmigrant visa applicant has previously expressed a desire to enter the United States as an immigrant, and may still have such a desire, that does not of itself preclude USCIS from issuing a nonimmigrant visa to him or her nor preclude his or her being a bona fide nonimmigrant. Matter of H-R-, 7 I&N Dec. 651, 654 (INS Reg. Comm’r 1958). See also INA section 214(h) (limiting dual intent to certain H, L, and V nonimmigrants); 8 U.S.C. 1184(h). Dual intent cannot be provided solely through regulation; it must be authorized by statute and it is not authorized in the TN nonimmigrant context. Furthermore, temporary entry, as defined in Chapter 16 of the NAFTA, Article 1608, is “entry into the territory of a Party by a business person of another Party without the intent to establish permanent residence.” Congressional approval of this Article in the NAFTA treaty indicates that Congress did not intend TNs to have dual intent. Therefore, the commenters’ suggestion will not be adopted because it is clearly inconsistent with Article 1608 and Congressional intent.
Comment on inability of Mexican TN nonimmigrants to apply for admission at the border: One commenter requested that Mexican TN nonimmigrants be able to apply for admission at designated ports-of- entry similar to Canadian TN nonimmigrants. Currently, Mexican workers are required to obtain visas from the Department of State (DOS) before entering the United States.
Response to comment on inability of Mexican TN nonimmigrants to apply for admission at the border: DHS appreciates the suggestion made by this commenter but the suggestion is outside the scope of this regulation. This rule deals with increasing the period of time granted to a TN nonimmigrant upon admission or pursuant to a timely filed request for extension of stay from a maximum of one year to a maximum of three years. Any additional regulatory changes, including a change to the place of admission, exceed the scope of this rule The commenter’s suggestion, therefore, is not adopted.
Comment on advance approval of Canadian admission requests: One commenter requested that Canadian TN nonimmigrants be permitted to file petitions with USCIS Service Centers for admission as an alternative to requesting admission at U.S. ports-of-entry, so that applications for TN status can be approved in advance of entry dates rather than requiring intended employees to actually apply for status before knowing whether their applications will be approved.
Response to comment on advance approval of Canadian admission requests: DHS appreciates the suggestion made by this commenter. However, such reform exceeds the scope of the changes in the proposed rule and is not adopted in this final rule. The suggestion may be considered for future rulemaking involving TN nonimmigrants.
Comments on erroneous periods of admission: Several commenters suggested that some TN nonimmigrants have erroneously been admitted for three years instead of a validity period of one year. Thus, one commenter requested that this rule should have a retroactive effective date to correct this problem.
Response to comments on erroneous periods of admission: DHS understands these commenters’ concerns. However, TN nonimmigrants who were admitted for a period of more than the one-year were granted that period of admission in violation of 8 CFR 214.6(e) as it existed prior to this rulemaking. Petitions must be processed in accordance with the regulations in effect when submitted, and this rule cannot deem those who were erroneously granted more than one year in the past to meet the requirements in this rule by making its provisions retroactive. Therefore, the commenter’s suggestion was not adopted. Each TN nonimmigrant erroneously admitted for periods of three years prior to the effective date of this rulemaking is encouraged to correct his or her Form I-94 at a port-of-entry or deferred inspection station to ensure compliance with existing regulations and to ensure that he or she does not remain in the U.S. for a period longer than is authorized by law.
Miscellaneous comments: Several commenters requested a more comprehensive reform of the TN regulations to include the following: more extensive definitions for the positions of Management Consultant and Scientific Technician/Technologist; increased vigilance against TN fraud; the establishment of clear guidelines in determining a “closely related” degree; an increase in the fee for port-of-entry processing of each TN application; a 30-day period during which the TN worker could enter the U.S. before the employment start date and/or remain outside the country without having the TN status invalidated; and work authorization for the spouses of TN nonimmigrants.
Response to miscellaneous comments: DHS appreciates the suggestions made by the commenters. However, such comprehensive reform of the TN program exceeds the scope of the proposed rule, which was simply focused on allowing TN nonimmigrants and their employers a more stable and predictable period of employment. Therefore, the commenters’ suggestions are not adopted in this rule.
III. Regulatory Requirements
A. Regulatory Flexibility Act
1. Initial Regulatory Flexibility Analysis
DHS reviewed this rule in accordance with the Regulatory Flexibility Act and determined that this rule will reduce compliance costs on the regulated industries. This rule will reduce information collection costs for the public, and will reduce USCIS legal costs and the amount of fees collected, because TN and TD status holders will not have to renew their statuses each year. There are no provisions in this rule that add compliance costs. Therefore, DHS certifies that this rule would not have a significant economic impact on a substantial number of small entities.
2. Final Regulatory Flexibility Analysis (FRFA)
In accordance with 5 U.S.C. 604, DHS performed a final regulatory flexibility analysis regarding the economic effects of this rule on small entities. DHS has not identified any duplication, overlap, or conflict of this rule with other Federal rules. Since DHS does not foresee the rule having an economic impact on small entities, this rule does not put forth significant alternatives to minimize impacts. The rule benefits the United States by reducing burden in the TN nonimmigrant status program. No
cost increases due to the revised requirements are expected. USCIS invited the public to comment on the extent of any potential economic impact of this rule on small entities, the scope of these costs, a more accurate means for defining these costs, and the estimated cost to petitioning firms to comply with the new requirements. In response to those requests, USCIS received no comments. Therefore, DHS certifies that this rule will not have a significant economic impact on a substantial number of small entities. Accordingly, no further regulatory flexibility analysis is required.
B. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
C. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of U.S.-based companies to compete with foreign-based companies in domestic and export markets.
D. Executive Order 12866 (Regulatory Planning and Review)
This rule has been designated as a “significant regulatory action” by the Office of Management and Budget (OMB) under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, an analysis of the economic impact of this rule has been prepared and submitted to the Office of Management and Budget (OMB) for review.
DHS has determined that this rule decreases the costs imposed by the TN nonimmigrant program on the government as well as the public. The changes made by this rule will result in more satisfaction with the TN program among TN nonimmigrants and their U.S. employers by increasing program flexibility and reducing time and travel restrictions. The expected effect is an increase in the number of TN nonimmigrants in the United States. A small economic benefit may result from the increased availability of scarce workers for U.S. employers in particular fields and industries. This rule will result in cumulative TN application fees decreasing by approximately $2.4 million per year. In addition, the total paperwork burden costs on the public will decrease by about 12,225 hours and $340,000 as a result of fewer required filings. Eventually, DOS and U.S. Customs and Border Protection annual fee collections from TN nonimmigrants will also decrease as a result of this rule. A copy of DHS’ complete analysis is available in the rulemaking docket for this rule at www.regulations.gov, under Docket No. USCIS-2007-0056, or by calling the information contact listed above.
E. Executive Order 13132 (Federalism)
This rule will have no substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
F. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163 (1995) (PRA), all Departments are required to submit to OMB, for review and approval, any reporting or recordkeeping requirements inherent in a rule. This rulemaking does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act. However, by requiring TN and TD status renewals every three years instead of every year, this rule will reduce the volume of Form I-129, Petition for Nonimmigrant Worker, filings, Form I-907, Request for Premium Processing Service, filings, and Form I-539, Application To Extend/Change Nonimmigrant Status, filings per year, and so will reduce the aggregate paperwork burden on the public accordingly. Accordingly, USCIS has submitted the OMB Correction Worksheets (OMB-83C) to the Office of Management and Budget, reducing the burden hours and costs associated with these forms.
List of Subjects
8 CFR Part 214
Administrative practice and procedure, Aliens, Employment, Reporting and recordkeeping requirements.
8 CFR Part 248
Aliens, Reporting and recordkeeping requirements.
Accordingly, chapter I of title 8 of the Code of Federal Regulations is amended as follows:
PART 214–NONIMMIGRANT CLASSES
1. The authority citation for part 214 continues to read as follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1258, 1281, 1282, 1301-1305 and 1372; sec. 643, Public Law 104-208, 110 Stat. 3009-708; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and 1931 note, respectively; 8 CFR part 2.
Sec. 214.1 [Amended]
2. Section 214.1 is amended by:
a. Removing the designation “Cdn FTA, Professional” and “TC” from the list in paragraph (a)(2);
b. Removing the term “TC” and adding “TN” in its place in the first sentence in paragraph (c)(1).
3. Section 214.6 is amended by:
a. Revising the section heading and revising paragraphs (e), (g), and (h);
b. Redesignating paragraphs (j)(1), (j)(2) and (j)(3) as paragraphs (j)(2), (j)(3), and (j)(4), respectively;
c. Adding a new paragraph (j)(1);
d. Revising newly redesignated paragraphs (j)(2), (j)(3), and (j)(4); and by
e. Revising paragraph (k);
The addition and revisions read as follows:
Sec. 214.6 Citizens of Canada or Mexico seeking temporary entry under NAFTA to engage in business activities at a professional level.
* * * * *
(e) Procedures for admission. A citizen of Canada or Mexico who qualifies for admission under this section shall be provided confirming documentation and shall be admitted under the classification symbol TN for a period not to exceed three years. The conforming document provided shall bear the legend “multiple entry.” The fee prescribed under 8 CFR 103.7(b)(1) shall be remitted by Canadian Citizens upon admission to the United States pursuant to the terms and conditions of the NAFTA. Upon remittance of the prescribed fee, the TN applicant for admission shall be provided a DHS-issued receipt on the appropriate form.
* * * * *
(g) Readmission. (1) With a Form I-94. An alien may be readmitted to the
United States in TN classification for the remainder of the authorized period of TN admission on Form I-94, without presentation of the letter or supporting documentation described in paragraph (d)(3) of this section, and without the prescribed fee set forth in 8 CFR 103.7(b)(1), provided that the original intended professional activities and employer(s) have not changed, and the Form I-94 has not expired.
(2) Without a valid I-94. If the alien seeking readmission to the United States in TN classification is no longer in possession of a valid, unexpired Form I-94, and the period of initial admission in TN classification has not lapsed, then a new Form I-94 may be issued for the period of validity that remains on the TN nonimmigrant’s original Form I-94 with the legend “multiple entry” and the alien can then be readmitted in TN status if the alien presents alternate evidence as follows:
(i) For Canadian citizens, alternate evidence may include, but is not limited to, a fee receipt for admission as a TN or a previously issued admission stamp as TN in a passport, and a confirming letter from the United States employer(s).
(ii) For Mexican citizens seeking readmission as TN nonimmigrants, alternate evidence shall consist of presentation of a valid unexpired TN visa and evidence of a previous admission.
(h) Extension of stay. (1) Filing. A United States employer of a citizen of Canada or Mexico who is currently maintaining valid TN nonimmigrant status, or a United States entity (in the case of a citizen of Canada or Mexico who is currently maintaining valid TN nonimmigrant status and is employed by a foreign employer), may request an extension of stay, subject to the following conditions:
(i) An extension of stay must be requested by filing the appropriate form with the fee provided at 8 CFR 103.7(b)(1), in accordance with the form instructions with USCIS.
(ii) The beneficiary must be physically present in the United States at the time of the filing of the appropriate form requesting an extension of stay as a TN nonimmigrant. If the alien is required to leave the United States for any reason while the petition is pending, the petitioner may request that USCIS notify the consular office where the beneficiary is required to apply for a visa or, if visa exempt, a DHS-designated port-of-entry where the beneficiary will apply for admission to the United States, of the approval.
(iii) An extension of stay in TN status may be approved by USCIS for a maximum period of three years.
(iv) There is no specific limit on the total period of time an alien may be in TN status provided the alien continues to be engaged in TN business activities for a U.S. employer or entity at a professional level, and otherwise continues to properly maintain TN nonimmigrant status.
(2) Readmission at the border. Nothing in paragraph (h)(1) of this section shall preclude a citizen of Canada or Mexico who has previously been admitted to the United States in TN status, and who has not violated such status while in the United States, from applying at a DHS-designated port-of-entry, prior to the expiration date of the previous period of admission, for a new three-year period of admission. The application for a new period of admission must be supported by a new letter from the United States employer or the foreign employer, in the case of a citizen of Canada who is providing prearranged services to a United States entity, which meets the requirements of paragraph (d) of this section, together with the appropriate filing fee as noted in 8 CFR 103.7(b)(1). Citizens of Mexico must present a valid passport and a valid, unexpired TN nonimmigrant visa when applying for readmission, as outlined in paragraph (d)(1) of this section.
* * * * *
(j) * * * (1) The spouse or unmarried minor children of a citizen of Canada or Mexico admitted in TN nonimmigrant status, if otherwise admissible, may be admitted initially, readmitted, or granted a change of nonimmigrant status or an extension of his or her period of stay for the same period of time granted to the TN nonimmigrant. Such spouse or unmarried minor children shall, upon approval of an application for admission, readmission, change of status or extension of stay be classified as TD nonimmigrants. A request for a change of status to TD or an extension of stay of a TD nonimmigrant may be made on the appropriate form together with appropriate filing fees and evidence of the principal alien’s current TN status.
(2) The spouse or unmarried minor children of a citizen of Canada or Mexico admitted in TN nonimmigrant status shall be required to present a valid, unexpired TD nonimmigrant visa unless otherwise exempt under 8 CFR 212.1.
(3) The spouse and unmarried minor children of a citizen of Canada or Mexico admitted in TN nonimmigrant status shall be issued confirming documentation bearing the legend “multiple entry.” There shall be no fee required for admission of the spouse and unmarried minor children.
(4) The spouse and unmarried minor children of a citizen of Canada or Mexico admitted in TN nonimmigrant status shall not accept employment in the United States unless otherwise authorized under the Act.
(k) Effect of a strike. (1) If the Secretary of Labor certifies or otherwise informs the Director of USCIS that a strike or other labor dispute involving a work stoppage of workers is in progress, and the temporary entry of a citizen of Mexico or Canada in TN nonimmigrant status may adversely affect the settlement of any labor dispute or the employment of any person who is involved in such dispute, the United States may refuse to issue an immigration document authorizing the entry or employment of such an alien.
(2) If the alien has already commenced employment in the United States and is participating in a strike or other labor dispute involving a work stoppage of workers, whether or not such strike or other labor dispute has been certified by the Department of Labor, or whether USCIS has been otherwise informed that such a strike or labor dispute is in progress, the alien shall not be deemed to be failing to maintain his or her status solely on account of past, present, or future participation in a strike or other labor dispute involving a work stoppage of workers, but is subject to the following terms and conditions:
(i) The alien shall remain subject to all applicable provisions of the Immigration and Nationality Act and regulations promulgated in the same manner as all other TN nonimmigrants;
(ii) The status and authorized period of stay of such an alien is not modified or extended in any way by virtue of his or her participation in a strike or other labor dispute involving a work stoppage of workers; and
(iii) Although participation by a TN nonimmigrant alien in a strike or other labor dispute involving a work stoppage of workers will not constitute a ground for removal, any alien who violates his or her status or who remains in the United States after his or her authorized period of stay has expired will be subject to removal.
(3) If there is a strike or other labor dispute involving a work stoppage of workers in progress but such strike or other labor dispute is not certified under paragraph (k)(1) of this section, or USCIS has not otherwise been informed by the Secretary that such a strike or
labor dispute is in progress, Director of USCIS shall not deny a petition or deny entry to an applicant for TN status based upon such strike or other labor dispute.
PART 248–CHANGE OF NONIMMIGRANT CLASSIFICATION
4. The authority citation for part 248 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1184, 1258; 8 CFR part 2.
Sec. 248.3 [Amended]
5. Section 248.3 is amended by removing the term “TC” and adding the term “TN” in its place in the first sentence of paragraph (a).
Dated: September 15.
[FR Doc. E8-24600 Filed 10-15-08; 8:45 am]
BILLING CODE 9111-97-P
KANSAS CITY, Mo. – The latest fights over immigration have focused on
who should get a place in line for a legal life in the United States.
But the real agony, says Tien Bui, comes when you finally get in line.
Bui, who came to the U.S. as a Vietnamese refugee and is now an
engineer for Boeing Co., can’t take the career-boosting position he’s
been offered because his citizenship application is lodged somewhere
inside the Department of
With green card in hand, Bui has waited patiently since 2003 for his
fingerprints to clear background checks, a process that’s become more
involved since Sept. 11.
But if Congress approves a new guest worker program, the overall
waiting period for Bui and the millions of legal immigrants like him
could grow even longer, says a report by the
mandated that by September of this year, the immigration backlog should
be eliminated and DHS should start processing all cases in six months
or less, a deadline the agency is optimistic it can meet.
But a spider web of agencies — including the
Department of Labor,
the Department of State and the Federal Bureau of Investigation — is
also involved in evaluating and approving legal immigration
If there are more petitions to process, the overall delays could
increase, experts say. At DHS alone, some skilled foreign workers must
wait five years to apply for a green card, something American
engineering companies say is harming their competitive edge.
“I truly think if Albert Einstein were in my office in 2006, he
would be saying ‘I’m going to Canada rather than wait any longer,'”
said Judy Bourdeau, a Kansas City immigration attorney who is filing
employment petitions for several Fortune 500 companies.
Via Miami Herald.com
Accommodating U.S. State Department officials bend over backward to grant visas to elite figures in sports, science, arts, education and business.
CHARLOTTE, N.C. – International
soccer star David Beckham and wife Victoria, formerly Posh Spice of the
Spice Girls, don’t wait months or years to enter the United States
Beckham’s status, bankroll and his attorney see to that. He receives
approval for his visa within two weeks. Accommodating U.S. State
Department officials grant him after-hours appointments and have asked
him to pose for photos.
As an ”alien of extraordinary ability,” Beckham is eligible for an
O-1 work visa reserved for elite figures in sports, science, arts,
education and business.
These and companion visas for family and support personnel have no
caps on the number who can arrive. Their numbers have more than doubled
over the past decade.
Meanwhile, specialty workers with four-year degrees can’t always
bend the bureaucracy like Beckham. Demand for visas from these workers,
with professions such as computer programming, engineering and
accounting, has surged. But the cap, briefly raised a few years ago,
remains at 65,000 — what it was in 1992. The 2007 cap was filled May
26, a record four months before the fiscal year begins.
Currently, Congress is debating whether to increase these visas to
help relieve the backlog, as well as granting legal status to some of
the estimated 12 million illegal immigrants.
Immigration ”law is really geared toward helping the rich and
famous,” says David Whitlock, a partner who heads immigration practice
at Fisher & Phillips in Atlanta.
Most industrialized countries have an immigrant pecking order, notes
Alan Gordon, a Charlotte, N.C., immigration lawyer who recently helped
a Canadian racing phenom enter the country.
DEPP SKIPPED LOTTERY
”How did Johnny Depp get to live in France? Did he go through a
lottery system?” asks Gordon. “No. It’s because he’s spending money.”
Indeed, countries have always welcomed the elite.
”And maybe rightly so,” says Steve Hader, a lawyer with the
Charlotte office of Moore & Van Allen who helped set up Beckham’s
upcoming visit to the United States. “Maybe you want the best and the
The Beckhams stand to make money on their upcoming summer trip, so
they are required to secure work visas, not tourist credentials. He
launched a youth soccer academy in Los Angeles last year, with the hope
of identifying talent to compete for U.S. teams on the world stage.
Victoria has a fragrance and clothing line ”and still performs,” Hader says.
Some 11,960 esteemed scientists, doctors, musicians, professors,
athletes and captains of industry and their family and support
personnel arrived in 2005, up more than 145 percent since 1995,
according to the State Department’s Bureau of Consular Affairs.
Hader has prepared O-1 visas for A-list singers, actors, actresses,
scientists and even a celebrity chef. Client confidentiality precludes
him from revealing names. Beckham gave the OK because he wants the
press for his academy.
O-1 applicants must be international superstars in their
professions. The State Department recognizes Academy Awards, peer
adulation, press coverage in ”major newspapers,” and/or ”a high
salary . . . in relation to others in the field,” among other factors.
Beckham plays for the Spanish club Real Madrid and is captain of England’s national team in this year’s World Cup.
Beckham was memorialized in the 2002 movie Bend It Like Beckham
for his signature long kick, with the ball curving in flight. The fact
Beckham is married to one of the Spice Girls is an added bonus, or
curse, depending on which side of the paparazzi you’re standing.
Gregory W. Christian Acting Director, USCIS Nebraska Service Center, answers the American Immigration Lawyers Association’s Questions about PERM, I-129, I-130, I-131, I-140, I-485, I-765, TN and H-1B applications
March 9, 2006
The following are questions supplied prior to the March 9, 2006 AILA Northwest Regional Immigration Law Conference and the NSC’s answers.
1. If an H-1B petitioner asks for a
certain period of time (based on the “recapture” of time outside the
country) but the Service did not see the evidence or felt that the
evidence of “recapture-able” time was insufficient, should it have
issued an RFE or just issued the approval for the period of time it
felt was demonstrated by the evidence (i.e., without issuing an RFE).
Of course, this could be generalized to other issues, too.
In accordance with the HQ policy memo we do not RFE on recapture
issues. The burden is on the petitioner to provide clear evidence to
support any assertions made. If the petition is otherwise approvable,
an approval will be issued for the period of time demonstrated by the
The I-140 form has a place for CIS itself to check Schedule A, Group
II, but there is no place for the petitioner to check that box, so
which box is the petitioner to check for these cases? There is a
“members of the professions/exceptional ability” box, but that
“exceptional ability” is different from Schedule A, Group II
A: In the situation where the
applicant is applying under schedule A it is recommended that a cover
letter be submitted with the I140 indicating that a schedule A
occupation is requested.
The Yates Memo on “ability to pay” seems to indicate that the three
scenarios listed are meant to be obviously approvable cases (i.e., so
obvious that not even an RFE should be issued), but the NSC seems to
treat these as the only tests capable of proving ability to pay. That
is, NSC appears to insist on denying the I-140 if the petitioner does
not meet one of the tests, but the wording of the memo seems to
indicate only that those scenarios are completely obvious and don’t
warrant an RFE. For example, we had a case in which the denial included
a CIS-created table showing that the company’s bank statements
reflected monthly cash balances of more than $90,000 for a position
with a proffered salary of only $45,000, and the alien was being paid
about $44,000 at the time of I-140 filing.
A: On Page
3 of the same memorandum, it was explained that if required initial
evidence has been submitted but fails to establish ability to pay,
USCIS adjudicators are not required to accept, request, or RFE for
additional financial evidence. If additional financial evidence is
submitted but does not clearly establish the petitioner’s ability to
pay, the USCIS adjudicator may deny the petition and not RFE for
additional evidence to further clarify the discretionary evidence that
4. What exactly is the third-prong test in national interest waiver cases?
A: For purposes of submitting and reviewing evidence, Service guidance regarding the final threshold in Matter of New York State Dept. of Transportation, 22 I&N 215 (Comm. 1998) is:
“…The Service here does not seek a quantified threshold of experience
or education, but rather a past history of demonstrable achievement
with some degree of influence on the field as a whole.” 22 I&N at
219, note 6.
“Because, by statute, “exceptional ability” is not by itself sufficient
cause for a national interest waiver, the benefit which the alien
presents to his or her field of endeavor must greatly exceed the
“achievements and significant contributions” contemplated in the
regulation at 8 C.F.R. § 204.5(k)(3)(ii)(F).” 22 I&N at 218.
(8 C.F.R. § 204.5(k)(3)(ii)(F) defines one of the criteria used to
demonstrate “exceptional ability”: “Evidence of recognition for
achievements and significant contributions to the industry or field by
peers, governmental entities, or professional or business
Accordingly, petitioners seeking the national interest waiver should
present documentary evidence relating to achievement, influence in the
field and, if applicable, evidence of recognition as set out in 8
C.F.R. § 204.5(k)(3)(ii)(F).
The Service Center says one thing, but the AAO always says something
else. For example, in national interest waiver cases, some CIS
examiners have denied cases stating that the beneficiary did not prove
that the national interest would be “adversely affected” if a labor
certification were required, but the AAO never uses that language in
A: The precedent decision states, “The
petitioner seeking the waiver must persuasively demonstrate that the
national interest would be adversely affected if a labor certification
were required for the alien.” 22 I&N at 217. Probably for that
reason many petitioners seeking the waiver assert the national interest
would be adversely affected if the waiver were not granted. When a
petition is approved it is because the evidence is persuasive on this
point. If a petition is denied, the adjudicator would normally be
correct in addressing the point, both because it was argued by the
petitioner and because it was used by the AAO in the precedent
Some examiners imply that if the person has H-1B status, he or she is
eligible for ongoing research anyway, and therefore the national
interest would not be “adversely affected” by requiring a labor
certification instead. This kind of analysis, however, appears nowhere
in AAO opinions. In addition, the same statements could be made about a
Nobel Prize winner in H-1B status – i.e., the national interest would
not be “adversely affected” by requiring a labor certification, because
the Nobel Prize winner could continue on in H-1B status, too.
If the evidence presents “a history of demonstrable achievement with a
degree of influence on the field as whole,” and assuming the underlying
visa requirements and prongs one and two are also satisfied, the waiver
is warranted regardless of the alien’s nonimmigrant status.
time to time, researcher petitioners assert labor certification is
inappropriate or unavailable, and from there contend the national
interest would be adversely affected if the immigrant petition is not
approved. In the precedent decision, the Service determined that
“inapplicability or unavailability of a labor certification cannot be
viewed as sufficient cause for a national interest waiver,” even for
“certain occupations wherein individuals are essentially self-employed,
and thus would have no U.S. employer to apply for a labor
certification.” 22 I&N at 218, note 3.
researchers typically have university or laboratory employers, an
adjudicator would not be in error if s/he were not to give the
assertion significant weight. Also, it would not be incorrect for an
adjudicator to address the claim by noting there is no automatic bar to
the alien’s services (whether by way of labor certification, extension
of any current H-1B status, or potential change to H-1B or J
nonimmigrant status). Contrary to the claim presented in the question,
this analysis also appears in AAO decisions.
Please ask them to explain the relationship among EB-1A, EB-1B, and
NIW. It seems that NSC does not recognize the great difference between
EB-1A and NIW.
A: Each benefit is to be adjudicated
under its own statute, regulation and case law. To illustrate, for
petitions seeking alien of extraordinary ability classification,
adjudicators should refer to Matter of Price, 20 I&N 953
(Assoc. Comm. Exams 1994)(reaffirming “Congress’ intent to reserve this
category to ‘that small percentage of individuals who have risen to the
very top of their field of endeavor’”) and Matter of Chawathe (USCIS
Adopted Decision January 11, 2006) note 6 (reaffirming that “that
specific objective evidence be submitted to demonstrate eligibility”),
whereas in petitions involving a request for the national interest
waiver, adjudicators should rely on Matter of New York State Dept. of Transportation, 22 I&N 215 (Comm. 1998).
8. Please verify again when duplicate petitions are required on I-129 petitions.
Whenever an alien will be applying at a consulate or POE and we need to
send a duplicate copy. As a courtesy, we would appreciate being sent a
duplicate of the actual petition and supplement in all cases, but
duplicate copies the supporting evidence are not needed. In the event
classification is approved but the COS or EOS request is denied, we
would need to send a copy abroad.
When there are a number of attorneys in a firm, must the G-28 be signed
by all attorneys or only the one filing the case? As long as the firm
name is mentioned, can all attorneys at the firm discuss the case? Can
the signature of the attorney be a copy or must it be original.
The attorney signing the G-28 is the attorney with whom we correspond.
The applicant or petitioner signature must be original. We will accept
a rubber stamp or mechanically produced signature for the attorney.
10. If an I-130 IR is received in your office, is it immediately transferred to California?
Why, when the primary beneficiary files the I-140/I-485 concurrently
and the spouse enters at a later date and his/her I-485 is interfiled,
does CIS transfer the case to the local district office? The local
office has no idea why it is being done and all the information NSC
needs for the determination, such as a marriage certificate and the
person’s passport and birth certificate is submitted with the
A: The NSC does not summarily
relocate EB485 cases as indicated in the above scenario. The NSC
generally relocates EB485 cases on a case-by-case basis applying the
national EB485 SOP standards. Some of the case considerations outlined
in the national SOP are:
- A need for validation of identity;
- A need for validation of legal status;
- Questionable admissibility and /or qualifications;
- Apparent fraud;
- A second filing;
- An applicant with fingerprint results rejected twice;
- An applicant medical condition class A or B;
- The A-file cannot be located at the time of adjudication
An officer may choose to modify the interview-waiver criteria based
upon articulable case aspects, in response to developing local
circumstances, or regional concerns. Cases that involve recent
marriages may be one of the areas in which NSC adjudicators may deviate
from the interview waiver criteria; however, these assessments are made
on a case-by-case basis, based upon the individual case’s facts and the
evidence of record.
Our office filed a TN application at the NSC requesting notification of
the approval be sent to the consulate (aka: loose TN). Our client was
then going to present the TN approval notice at the port of entry
instead of having the TN adjudicated at the border. In December 2005,
our office received a denial of the Nonimmigrant Worker Petition and
the NSC denial letter cited Title 8, Code of Federal Regulations,
Section 214.6(e) and have quoted the pertinent section to read as
Application for admission. A citizen of
Canada seeking admission under this section shall make application for
admission with an immigration officer at a United States Class A port
of entry, at a United States airport handling international traffic, or
at a United States pre-clearance/pre-flight station. No prior petition,
labor certification, or prior approval shall be required ……
Section 214.6(e) does not state the above referenced language, nor
could we locate any other section under 214.6 that reflects the above
cited language. It remains unclear to us whether our petition was
denied in error, or whether it reflects a change in the Service
Center’s policy with regards to adjudications of TN petitions requiring
consular notification. As this is a very significant deviation from
prior practice and therefore of significant concern to our client, we
request that NSC provide clarification as to the basis for this denial.
The regulation quoted in the
denial you received was taken from an old copy of the 8 CFR and is no
longer in that format in the current regulations. However, the
regulation is still in effect. The NSC has jurisdiction to adjudicate
extensions of TN status and changes to TN status from another valid
nonimmigrant status. We do not have jurisdiction or authority to
adjudicate a petition for initial TN status. Application for initial
admission in TN status must be made at a US Class A port-of-entry, a US
airport handling international traffic, or a US
pre-clearance/pre-flight station. Based upon the information provided,
the petition in question was for new employment for a person currently
outside the US. The NSC does not now, and has not previously, processed
any TN petitions for Canadian Citizens who are not already in the US in
a valid nonimmigrant status.
What is the criteria and procedure for requesting an expedited re-entry
permit application? In the past, NSC has accepted and approved expedite
requests but we would like to know the current criteria/procedure as
well as the timeframe for the expedite.
expedite requests are handled in one of two ways. You may request the
expedite at the time of filing. Clearly and boldly mark the case as
“expedite requested” and attach a reason for the request. Simply asking
for an expedite without giving an explanation will not result in the
case being expedited. Expedite criteria include severe financial loss,
extreme emergent situations, humanitarian situations, Service error,
compelling interest of the Service, a request originating from a U.S.
Government entity, or a request originating from a non-profit
organization in furtherance of the cultural and social interest of the
also request that an already-filed application be expedited. You may
submit such a request by mail, clearly and boldly marking the
correspondence as an expedite request and giving a reason. As an
alternative, you may FAX the request to 402-219-6170 or 402-219-6171.
Again, clearly request an expedite and give a reason for it.
I-131s that are expedited, the turn-around time is 7 to 14 days if no
additional information is needed. It is very important to submit a complete application
at filing with passport-style photos (non-digital), proof of status,
proof of identity (facial features should be clearly recognizable), and
the appropriate filing fee. If requesting delivery of the travel
document by UPS, FedEx or other service, include a prepaid,
You can request
expeditious handling for other form types in the same manner unless the
petition is eligible for premium processing.
How do the Service Centers handle rider I-765 petitions for spouses of
Ls. There are liaison notes suggesting it is preferred that these be
filed this way, presumably because of the relationship of the petitions
(that is, if the L renewal is denied, so is the I-539 and I-765).
However, I’ve had mixed experiences doing this. E.g. Recently I filed
with California this way and the EAD petition was first returned to me,
then accepted but forwarded to Nebraska.
A: We have
found it most efficient to have the I-765 filed with the I-129 and
I-539 so all can be adjudicated together. The example you reference
refers to an application filed with the CSC – we cannot comment on the
practices in place at that office.
15. Is the I-140 line of the NSC acknowledging the Grace Church case
(Nov. 2005 Fed. Dist. Ct., Portland, OR) as persuasive for EB(3)
equivalency cases? The case says that the USCIS must consider the
qualifications of the foreign national under both professional and
skilled worker and also that the employer and DOL have more authority
in interpreting what is equivalent in terms of degree equivalency as
stated on a labor certification application. The appeal filed by the
Service in this case has been dismissed.
A: We do
consider applicants under both the professional and skilled worker
categories. What happens most often is that the labor certification
specifies that the alien must have a bachelor’s degree or “equivalent.”
Equivalent is interpreted to mean a single foreign degree that is
equivalent to a US bachelor’s degree. If the beneficiary does not meet
the degree requirement as outlined in the labor certification form, the
petition is not approvable as either professional or skilled worker.
This is because the alien does not meet the minimum qualifications as
stated in the labor certification, i.e., a bachelor’s degree. If the
labor certification stated the requirement of a bachelor’s degree, but
also stated in block 15 that the employer would be willing to accept
certain training, experience, and/or education in lieu of the
bachelor’s degree requirement, it could potentially support a petition
for a skilled worker.
regard to the Grace Church decision, the NSC is not following the
finding by the court. In essence, in concluding that USCIS has no role
in interpreting the requirements listed on the labor certification in
the visa approval process, the court in this decision held that DOL,
not USCIS, makes the final determination of whether a beneficiary’s
qualifications meet the requirements of the labor certification. This
is contrary to 8 U.S.C. 1154(b) and to precedent 9th Circuit case law.
See K.R.K Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984); Black Const. Corp. v. I.N.S.,
746 F.2d 503 (9th Cir. (Guam)1984). In these cases, the Circuit Court
states that INS [USCIS] is the final authority on that issue. Implicit
in determining whether an alien meets the requirements, is determining
what those requirements are.
Beginning April 1, 2006, when we begin filing H-1B Petitions for a
start date of 10/01, will the numbers be reserved upon receipt of the
petition, or when it is adjudicated.
A: Guidelines and instructions for FY07 cap cases will be issued by headquarters.
If we have cases that are unadjudicated 30 days or more after you
receive our response to RFE, what can we do to obtain a decision?
Please use normal inquiry channels on cases of this nature, that is,
contact the National Customer Service Center. Be sure to tell the
customer service rep that 30 days have expired since the Center
received the RFE response. The NCSC practice is to refer the inquiry to
If all evidence presented, including the cover letter, with a petition
reveals that a box was incorrectly checked on the I-129, [e.g. all
evidence supports an extension of stay for a successive petition, but
the notify consulate box is accidentally checked] it would be
appreciated if your examiner would telephone the attorney to clarify,
rather than err in the adjudication, due to one erroneously-checked box.
The form is the guiding document guiding document. It would not be an
officer error to adjudicate an I-129 based on what the petitioner and
counsel marked on the I-129. That said, however, the NSC does encourage
officers to seek clarification if everything in the file appears to
belie what is checked on the form. The NSC encourages practitioners to
supply their e-mail addresses with their filings to facilitate this
If all evidence presented reveals an attorney is representing the
petitioner, including signature of the cover letter on letterhead
paper, on the filing fee check, signature on the petition papers, etc,
but the G-28 is inadvertently unsigned in the attorney box, could you
examiner please call the attorney rather than ignoring the presence of
the attorney and sending correspondence to the petitioner.
In the absence of a properly-executed G-28, we are required to
correspond with the applicant or petitioner. Per regulations at 8 CFR
103.2(a)(3) “where a notice of representation is submitted that is not
properly signed, the application or petition will be processed as if
the notice had not been submitted.”
How do you want us to handle appeals/motions for reconsider under 8 CFR
§ 103.3 (a) (2) (iii) and § 103.5 (a) (8)? Is a particular form
required, or may we advise you in our letter that we wish for you to
first consider the matter as a reopening/reconsideration and then, an
appeal to the AAO? Is one filing fee sufficient for both?
For appealable cases, an appeal must be submitted on an appeal form.
There is only one fee for an appeal. The appeal is treated as though it
were a motion to reopen/reconsider. Should the reviewing officer find
that the appeal overcomes the denial, he/she will reopen the case and
approve. If not, the appeal will be forwarded to the AAO.
If an appeal is filed, does the same examiner who denied the case
review it again or does someone other examiner review it before
forwarding it to AAO?
A: Yes, the original deciding
officer reviews the appeal; however it is reviewed by a supervisor
before being sent to the AAO.
My understanding is that the examiner can issue an RFE without
supervisory review, but cannot deny without supervisory review. Is that
true? Please explain. Thanks.
A: Regulation requires
supervisory review of most denials; however there is no such
requirement for RFEs. Supervisory review of RFEs would place an
unmanageable burden on the Center.
Gregory W. Christian Acting Director