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USCIS Clarifies Definition of “Functional Manager” in EB-1 / L-1A Cases by Designating Matter of G-., Inc as an Adopted Decision

Matter of G-. involved a multinational technology-based product development corporation that had filed an an EB-1 I-140 (Multinational Manager) petition for an employee who would be engaged as a “Functional Manager”, in other words, one who would be primarily managing an essential function as opposed to managing personnel.  The employer’s I-140 was denied by the Director of the Nebraska Service Center on the basis that the employer had not established that it would employ the Beneficiary in a managerial capacity.

The employer appealed the decision, indicating that the Director had erroneously misstated facts and abused his discretion in denying the petition.  The appeal was sustained by the Administrative Appeals Office (AAO), which held that the employer had indeed sufficiently established that its employee would be engaged a qualifying “managerial capacity” and that he would be primarily managing an “essential function” within the organization.

The AAO’s decision was adopted in a USCIS policy memorandum and will be used to clarify the somewhat imprecise definition of a “Functional Manager” in EB-1 cases (and likely L-1A as well).  In summary, the decision indicates that:

(1) To support a claim that a beneficiary will manage an essential function, the petitioner must establish that the function is a clearly defined activity and is core to the organization.
(2) Once the petitioner demonstrates the essential function, it must establish that the beneficiary’s position meets all criteria for “managerial capacity” as defined in 101(a)(44)(A) of the Act. Specifically, it must show that the beneficiary will: primarily manage, as opposed to perform, the function; act at a senior level within the organizational hierarchy or with respect to the function managed; and exercise discretion over the function’s day-to-day operations.

The decision’s clarification ought to be somewhat helpful to employers and beneficiaries, but it is too early to say, given that every change/update to “Merit Based” immigration this year has been substantially negative.

Matter of G- Inc (PDF)

The White House Now Apparently Focusing on the Dream Act, H-1B, L-1 and other Skilled/Professional Work Visas

Newley Purnell of the The Wall Street Journal blogged today about the White House’s Plans for H-1B and other Skilled/Professional Work Visas.  The changes are likely to include “Tighter restrictions on skilled worker visas” which could be issued via “both executive action by President Donald Trump and via Congressional moves“.  The article notes that “President Trump could use an executive directive to take steps like ending a provision announced in 2014 that allows spouses of H-1B visa holders [H-4 Spouses] to work in the U.S.” As well, any such changes would be included in a more comprehensive immigration reform effort.

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USCIS Publishes Final Rule For Certain Employment-Based Immigrant and Nonimmigrant Visa Programs

Via USCIS.gov

USCIS has published a final rule to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. USCIS has also amended regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. This rule goes into effect on Jan. 17, 2017.

Among other things, DHS is amending its regulations to:

  • Clarify and improve longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
  • Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.
  • Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or the termination of the employer’s business.
  • Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence.
  • Allow certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if:
  1. They are the principal beneficiaries of an approved Form I-140 petition,
  2. An immigrant visa is not authorized for issuance for their priority date, and
  3. They can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion.

Such employment authorization may only be renewed in limited circumstances and only in one year increments.

  • Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap, H-1B portability, licensure requirements and protections for whistleblowers.
  • Establish two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide a reasonable amount of time for these individuals to prepare to begin employment in the country and to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.
  • Establish a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status.
  • Automatically extend the employment authorization and validity of Employment Authorization Documents (EADs or Form I-766s) for certain individuals who apply on time to renew their EADs.
  • Eliminate the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.

Great News for Affected Firms: Public Law 111-230 H-1B, L-1 Additional Fees Expired October 1, 2015

According to USCIS, H-1B and L-1 petitions filed on or after Oct. 1, 2015, should not include the additional fee that was previously required by Section 402 of Public Law 111-230, as amended by Public Law 111-347, for certain H-1B and L-1 petitions. The additional fee required by Public Law 111-230, as amended, expired on Sept. 30, 2015.

All other H-1B and L-1 fees, including the Base fee, Fraud Prevention and Detection Fee, and American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) Fee when applicable, are still required. Petitions with incorrect fees may be rejected. Petitioners are reminded that USCIS prefers separate checks for each filing fee.

Public Law 111-230, enacted on Aug. 13, 2010, required an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after Aug. 14, 2010. Public Law 111-347, enacted on Jan. 2, 2011, extended the fees through Sept. 30, 2015.

Key Facts on President Obama’s Immigration Action – Via USCIS.gov

Via USCIS.gov

Fixing Our Broken Immigration System Through Executive Action – Key Facts

The President asked Secretary Johnson and Attorney General Eric Holder to undertake a rigorous and inclusive review to inform recommendations on reforming our broken immigration system through executive action. This review sought the advice and input from the men and women charged with implementing the policies, as well as the ideas of a broad range of stakeholders and Members of Congress from both sides of the aisle. Our assessment identified the following ten areas where we, within the confines of the law, could take action to increase border security, focus enforcement resources, and ensure accountability in our immigration system.

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Why President Obama and the Administration must Maintain Focus on Improving Business Immigration

A recent article by CNBC entitled “Investors to Obama: We need more foreign workers” explores the substantial problems faced by investors and entrepreneurs in securing sufficient numbers of foreign professional workers: the engine of innovation in the U.S.  Last year we met the H-1B cap the first week it was open, again: the only solution to the problems highlighted in the article is an increase in H-1B visas, else the demand for the same will relocate to a country like Canada, which intelligently recognizes the true value of such talent.

The CNBC article was forwarded to me by a highly capable entrepreneur/investor client of mine.  His situation warrants a short discussion, because it is supports the message in the article as well as the broader subject of our defective Business Immigration laws.  This client moved his family to the U.S., and recently invested almost $500,000 in a new U.S. based business which employs nine (9) U.S. workers.  Further, this client has purchased two Mercedes Benz vehicles and plans on buying a large house and, in the near term, investing another $1 to $5 million dollars in the U.S. – but only if USCIS approves an extension of his Business Immigration case. Unfortunately, USCIS seems a step away from denying his case, as our 1200+ page application on his behalf (which by the way weighed more than a newborn baby) was met with a ten (10) page Request for Additional Evidence (“RFE”).

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Customs and Border Protection has Designated (optional) Ports of Entry for First Time Canadian TN (NAFTA) and L Visa Applicants

via http://www.cbp.gov

Traveling on a TN or L-1 Visa From Canada?

Optimize Your Processing at these U.S. Ports of Entry

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H-1B Opponents continue onslaught against Immigration of the Educated

This week, Bill Snyder, a blogger for the anti-H-1B propaganda site Infoworld posted an article attacking Immigration of the Educated.  What is especially interesting about Mr. Snyder’s position is the fact that it signals the resumption of the 2008 attack on the Optional Practical Training program (OPT).  OPT being a temporary work authorized status granted to eligible F-1 students who may thus gain professional work experience post graduation, and perhaps a portion back of 20+ billion dollars in tuition they pay into our coffers each year.

Unjustified ire towards OPT is peaking only because the program may be utilized by eligible F-1 Science/Technology/Engineering/Math (STEM) graduates.  Apparently, for Mr. Snyder, it is only then that the program transforms into what he terms “a sleazy end run around the law”.  Mr. Snyder claims that these new STEM graduates, supported by their “tech company” employers, enter the U.S. workforce en masse to undercut IT wages.  Said wages, which he admits in the first sentence, are already “climbing to more than $87,000 a year”.

The fact that Mr. Snyder’s argument against OPT flies in the face of the concept of American Exceptionalism and two basic economic principles, or that it is entirely bereft of any unbiased and relevant data is moot.  The most significant takeaway from his article is that STEM OPT is nothing more than a scapegoat: this attack is actually and truly directed against the H-1B program itself.  Mr. Snyder and other IT protectionists seek justification to undermine the OPT program not because of any alleged misuse, but because OPT allows a post graduate STEM worker precious time to find a good employer who may agree to pay government fees of up to $5,550.00 (plus attorney fees) to file an H-1B petition on their behalf.  (There are no guarantees of approval, nor is the worker forced to even ultimately take up employment with the H-1B petitioner.  As well, in the future, the H-1B worker, for any reason, may transfer to a new H-1B employer in as little as one week.)

Our immigration policy is increasingly hobbled by protectionists who, for short term gain (or perhaps unknowingly), damage our nation’s international lead in the STEM fields.  Our insufficient H-1B cap that does the same: tens of thousands of highly qualified, valuable STEM professionals were rejected in last year’s random selection process (H-1B lottery), and sadly the scene is set be repeated again this year in April.

Our repeated rejection of STEM professionals is untenable and is certain to diminish our ability to attract the worlds best and brightest, unless we make drastic changes.  Already, other nations are eagerly recruiting STEM workers (sometimes from within our own borders).  The bottom line: the yearly H-1B cap must be increased to an amount commensurate to demand, or at the very least, to a level that isn’t exhausted in one week.

Read Bill Snyder’s Article

Data Reveals USCIS Increasing Number of Requests for Evidence on L-1B Cases, California Service Center Continues to Lead Vermont Service Center in RFEs and Case Denials

Responding to a Freedom of Information request submitted by The American Immigration Lawyers Association Liaison, USCIS revealed interesting data on L-1B nonimmigrant petitions receipted, approved, denied, and those subjected to a Request for Evidence (“RFE”) for FY2012 and FY2013.  The data, when compared with USCIS statistics and a National Foundation for American Policy report, both released in 2012, reveals that the L-1B denial rate increased from 27% in FY2011 to 30% in FY2012 and 34% in FY2013.

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TITLE IV OF THE SENATE’S S.744 IMMIGRATION REFORM BILL – RELATING TO CHANGES IN H-1B, L-1, E-2 NONIMMIGRANT VISAS

TITLE IV–REFORMS TO NONIMMIGRANT VISA PROGRAMS

 

Subtitle A–Employment-based Nonimmigrant Visas

 

SEC. 4101. MARKET-BASED H-1B VISA LIMITS.

 

(a) In General- Section 214(g) (8 U.S.C. 1184(g)) is amended–
(1) in paragraph (1)–
(A) in the matter preceding subparagraph (A), by striking `(beginning with fiscal year 1992)’; and
(B) by amending subparagraph (A) to read as follows:
`(A) under section 101(a)(15)(H)(i)(b) may not exceed the sum of–
`(i) the base allocation calculated under paragraph (9)(A); and
`(ii) the allocation adjustment calculated under paragraph (9)(B); and’;
(2) by redesignating paragraph (10) as subparagraph (D) of paragraph (9);
(3) by redesignating paragraph (9) as paragraph (10); and
(4) by inserting after paragraph (8) the following:
`(9)(A) Except as provided in subparagraph (C), the base allocation of nonimmigrant visas under section 101(a)(15)(H)(i)(b) for each fiscal year shall be equal to–
`(i) the sum of–
`(I) the base allocation for the most recently completed fiscal year; and
`(II) the allocation adjustment under subparagraph (B) for the most recently completed fiscal year;
`(ii) if the number calculated under clause (i) is less than 115,000, 115,000; or
`(iii) if the number calculated under clause (i) is more than 180,000, 180,000.

 

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U.S. Mission in India Expands Interview Waiver Program

USA B1/B2 Visa

USA B1/B2 Visa (Photo credit: Wikipedia)

New Delhi | November 19, 2012

In March of 2012, the United States Mission to India unveiled the Interview Waiver Program (IWP) which allows qualified individuals to apply for additional classes of visas without being interviewed in person by a U.S. consular officer.  Following the success of the IWP, as part of continuing efforts to streamline the visa process, and to meet increased visa demand in India,  the U.S. Mission is pleased to announce an expansion of the IWP.  We expect this expansion to benefit thousands of visa applicants in India.

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Information on Consulates’ use of 221(g) refusals

Section 221(g) of the INA allows consular officers to issue a temporary refusal of a visa petition in cases where an otherwise eligible visa applicant is missing a specific document, or in case where a consular officer concludes that additional security clearance measures are warranted. Consular officers utilize 221(g) to allow applicants the opportunity to supplement their applications to overcome a visa denial.  Once the deficiency is satisfied, or the concern resolved, 221(g) refusal is “overcome” and the visa may be issued.  
In practice, the following are some situations that often give rise to a 221(g) refusal: 
1. Additional support documents are required, such as proof of local employment; 
2. An applicant is employed in a field listed on the Technology Alert List and the consular officer requests a Visas Mantis Security Advisory 
Opinion (“SAO”). (Common in India, China and elsewhere where applicants are advised that their applications require “administrative processing.”) 
3. The consular officer requests an Advisory Opinion from the Visa Office on the applicability of one of the statutory grounds of inadmissibility. 
4. There are no empty visa pages in the applicant’s passport, or the applicant’s photograph is of bad quality.
5. Applicant’s PIMS profile has not been updated.
A consular officer, upon refusing an application under 221(g), will commonly provide the applicant with a refusal letter.  However, it is possible that an applicant may be temporarily refused under 221(g) and not know it.  
The use of 221(g) is growing extremely common; the US Department of State has suggested that such refusals are overused by consular officers.  According to the Report of the Visa Office, in FY 2008 a staggering 589,000 221(g) refusals were issued against nonimmigrant visa applications.  About 87% of these were eventually overcome and visas were issued.
221(g) impacts subsequent visa applications because a client must indicate yes to the DS form question, “Have you ever been refused a US Visa?”.  Even a 221(g) that was caused by something as insignificant as a PIMS database issue is still considered, technically, a refusal.