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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.

A National Foundation for American Policy report finds Indian applicants for L-1 and H-1Bs are most likely to be denied or issued an RFE query; L-1 cases for Indian Professionals have been denied up to five times as often as someone from a different count

First page of the US Chinese Exclusion Act

First page of the US Chinese Exclusion Act (Photo credit: Wikipedia)

A National Foundation for American Policy report which analyzed official data from USCIS revealed evidence that Adjudicating Officers have dramatically increased the issuance of denials and requests for evidence in L-1 (intra-company transferees) and H-1B cases over the last four years, in spite of the fact that there were no changes in law or regulations during the same period. USCIS Officers have, over the last four years, arbitrarily & en masse, increased the difficulty of obtaining H-1B or L-1 status, most particularly for Indian applicants.

Again, this is so despite no new laws or regulations authorizing a change in adjudication protocols. It may be therefore objectively stated that this data is prima facia evidence that Indian IT professionals and their employers have been, over a sustained period, selected for profiling and targeting profiled and targeted as the primary victims of this and other related USCIS “policy changes” since 2008, along with a widely noted increase in visa denials/221(g) queries for H-1 & L-1 non-immigrants at U.S. Consulates [on a related note; see the new “H-1B Beneficiary attestation” evidently now in use at the U.S. Consulate, Hyderabad, ostensibly to be used in justifying mass visa denials for H-1B IT Consultants with end-client job sites].

By way of background, the primary basis for U.S. Immigration law today is the Immigration and Nationality Act of 1965 (“INA”). The INA is tremendously significant because it reversed America’s then (longstanding) racist Immigration policies, including the Page Act of 1875, the 1882 Chinese Exclusion Act and the “National Origins Formula” which had effectively limited immigration from Mediterranean Europe, Latin America and Asia to token levels so as not to change America’s “national character”. It is then truly ironic that adjudicators at the USCIS and U.S. Consulates appear to have been granted unchecked autonomy in systematically countermanding both the INA and its underlying legislative intent by effectively re-proportioning visas or “spots” to countries other than India.

Indians utilize a large number of available H-1B and L-1 numbers, however, they cannot be legally denied on that basis. On October 3, 1965, on the occasion of the signing of the INA, at the foot of the Statue of Liberty, President Lyndon B. Johnson declared that it was a “cruel and enduring wrong” that “…Men of needed skill and talent were denied entrance because they came from southern or eastern Europe or from one of the developing continents. [The old quota based Immigration] system violated the basic principle of American democracy–the principle that values and rewards each man on the basis of his merit as a man…”

Contrast these words with the following excerpts from the NFAP report:

“Companies believe that denials either at U.S. Citizenship and Immigration Services or at consulates, particularly involving Indian nationals, share the common attribute of new (unwritten) arbitrary standards that go beyond the statute and regulations. 

 Country specific data on new (initial) L-1B petitions indicate U.S. Citizenship and Immigration Services is more likely to deny a petition from an Indian-born  professional than nationals of other countries. The denial rate for Indian-born applicants for new L-1B petitions rose from 2.8 percent in Fiscal Year 2008 to 22.5 percent in FY 2009, a substantial increase that resulted in many employers being unable to transfer their employees into the United States to work on research projects or serve customers. In comparison, the denial rate for new L-1B petitions for Canadians rose from 2.0 percent in FY 2008 to only 2.9 percent in FY 2009. Illustrating the abrupt change, U.S. Citizenship and Immigration Services denied more L-1B petitions for new petitions for Indians in FY 2009 (1,640) than in the previous 9 fiscal years combined (1,341 denials between FY 2000 and FY 2008).

Concern that L-1B petitions for Indians have been singled out might be alleviated if the data showed other countries have experienced similar increases in the rates of denial for L-1B petitions with U.S. Citizenship and Immigration Services. However, the data show that while other foreign nationals experienced an increase in denial rates for new L-1B petitions starting in FY 2009, those denial rate increases were far lower than for Indian nationals. L-1 visa issuance declined at U.S posts in Indian in FY 2011 but rose overall for the rest of the world.” 

Read the NFAP findings (.pdf)

 

Transcript: Press Conference on Initiatives to Promote Startup Enterprised and Spur Job Creation, Aug. 2, 2011

Press Conference
U.S. Citizenship and Immigration Services
Aug. 2, 2011
USCIS ANNOUNCES INITIATIVES TO PROMOTE STARTUP ENTERPRISES
AND SPUR JOB CREATION
Press Conference
Moderator: Edna Ruano, Chief, Office of Communications
U.S. Citizenship and Immigration Services (USCIS
August 2, 2011
3 P.M. EDT
Coordinator: Welcome and thank you for standing by. At this time, all participants are in a
listen only mode until the question and answer session. If you would like to
ask a question at that time, please press star 1 on your touchtone phone and
clearly record your name when prompted. Todays’ conference is being
recorded. If you have any objections, you may disconnect at this time.
 I’d like to go ahead and turn the call over to your host for today, (Edna
Ruano), USCIS Chief of the Office of Communications. You may begin.
(Edna Ruano): Thank you, Jose. This is (Edna Ruano), the Chief of the Office of
Communications. I am happy to welcome everybody onto the phone call. As
to the format and the time frame, we have about 30 minutes with USCIS
Director Alejandro (Ali) Mayorkas. So we will have him introduce the topic
of today’s announcement and then open it up to questions when his remarks
are finished.
 Thank you again for joining us today.

Teleconference: L-1B Specialized Knowledge

Overview

On May 12, 2011, the Office of Public Engagement, the Service Center Operations Directorate, and the Office of Policy and Strategy hosted a stakeholder engagement to discuss issues related to the L-1B nonimmigrant classification. More specifically, USCIS was seeking feedback on the interpretation of the term “specialized knowledge” within the regulatory framework and what standards and evidentiary requirements should be followed in determining eligibility for this classification.

Principal Themes

Interpreting Specialized Knowledge

An overwhelming majority of stakeholders asserted that the existing regulatory definition of “specialized knowledge” and USCIS policy memoranda which relate to this issue are fine as written, and there is no need to issue any new policy memorandum. Some stakeholders provided feedback indicating that the definition of “specialized knowledge” should be interpreted more broadly than is currently being practiced at the Service Centers. Stakeholders noted that USCIS is interpreting the definition too narrowly as evidenced by the Requests for Evidence (RFE) and denials which are being received by many petitioners for this category. One stakeholder stated that it appears that USCIS has made a change in its interpretation in recent years without any change in the law.

USCIS also sought feedback from stakeholders on whether the current interpretation being used by Service Centers meets the needs of employers. Some stakeholders stated that the current interpretation did not meet the needs of employers because it was being too strictly and narrowly interpreted. They suggested that it would better serve employers if there was an increased flexibility and a broader interpretation of the term specialized knowledge.

Requests for Evidence

One stakeholder commented that petitioners were unsure of what documentation to submit with L-1B petitions at this time because it appeared that USCIS officers were making determinations as to required evidence on a case by case basis rather than having a general requirements list for all cases. They requested that USCIS provide stakeholders with a list of recommended initial evidence as well as additional evidence that should be included with a petition for an L-1B nonimmigrant so as to help petitioners avoid receiving so many Requests for Evidence.

Some stakeholders indicated that petitioners are overwhelmed by the information being requested in RFEs and that some RFEs requested evidence associated with O-1 requirements. They commented that these RFEs are too burdensome and costly and may lead petitioners to withdraw their petitions. Stakeholders also commented that this may lead to highly qualified individuals deciding to go to other countries rather than sharing their expertise to strengthen the U.S. economy.

Several stakeholders commented that USCIS should provide additional training on the proper adjudications standards for USCIS officers working on L-1B nonimmigrant petitions in order to avoid lengthy and repetitive RFEs in the future. Stakeholders suggested that this training should include input from various industries so as to provide USCIS officers with real life examples of how companies utilize L-1B nonimmigrants. It was further suggested by stakeholders that USCIS officers are not following the “preponderance of the evidence” standard, and that this evidentiary standard should be reinforced through training. It was also suggested that the Service Centers should implement a more rigorous supervisory review on all potential RFEs and denials on L-1B adjudications.

Factors in determining Specialized Knowledge

USCIS also asked stakeholders to provide feedback on what relevant factors should be considered in determining if a beneficiary possesses specialized knowledge. One stakeholder commented that the specialized knowledge held by the beneficiary may be of the petitioner’s already existing product rather than of a product the beneficiary is producing or developing for the petitioner.

Another stakeholdercommented that in some cases, an individual is brought in to lead the implementation of a product and to guide the team rather than to create a new product. In other cases, the knowledge relates to the industry rather than a particular company. It is not unique to the company, but rather enhances a company’s competitiveness. Another stakeholder commented that in certain industries such as the software industry, the information is not unique to the company in that there are other individuals who have knowledge of the software as well. The goal, however, is to bring skilled individuals from the overseas market in order to be more competitive.

Stakeholders also indicated that specialized knowledge is different from proprietary knowledge and should not be confused. Some stakeholders reminded USCIS that the L-1B nonimmigrant classification did not require the individual to be extraordinary, and that specialized knowledge need not be proprietary. It was pointed out that specialized knowledge is a special knowledge of the product or processes of a company. Stakeholders also stated that specialized knowledge need not to be narrowly held by a select few individuals within a company. Furthermore, stakeholders stated that specialized knowledge should not be determined by country of origin or by the petitioner’s business model.

Next Steps

USCIS will provide additional guidance and training to USCIS officers adjudicating L-1B petitions.

‘US violated GATS by increasing H1B, L1 visa fee’ – Via The Economic Times

Via The Economic Times

An article in the Economic Times discusses the findings of a think-tank which indicated that the United States may have violated its obligations unde the General Agreement on Trade in Services (GATS) by the newly implemented H and L fee increase for certain US Petitioners,  “As a result, a WTO Member whose companies use H-1B and L-1 visas to perform services in the United States may challenge this provision at the World Trade Organization.”

USCIS Implements H-1B and L-1 Fee Increase According to Public Law 111-230

On Aug. 13, 2010, President Obama signed into law Public Law 111-230, which contains provisions to increase certain H-1B and L-1 petition fees. Effective immediately, Public Law 111-230 requires the submission of 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, and will remain in effect through Sept. 30, 2014.  

These additional fees apply to petitioners who employ 50 or more employees in the United States with more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status.  Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed:

  • Initially to grant an alien nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15), or 
  • To obtain authorization for an alien having such status to change employers. 

USCIS is in the process of revising the Petition for a Nonimmigrant Worker (Form I-129), and instructions to comply with Public Law 111-230. To facilitate implementation of Public Law 111-230, USCIS recommends that all H-1B, L-1A and L-1B petitioners, as part of the filing packet, include the new fee or a statement of other evidence outlining why this new fee does not apply.  USCIS requests that petitioners include a notation of whether the fee is required in bold capital letters at the top of the cover letter. Where USCIS does not receive such explanation and/or documentation with the initial filing, it may issue a Request for Evidence (RFE) to determine whether the petition is covered by the public law. An RFE may be required even if such evidence is submitted, if questions remain.

The additional fee, if applicable, is in addition to the base processing fee, the existing Fraud Prevention and Detection Fee, and any applicable American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee, needed to file a petition for a Nonimmigrant Worker (Form I-129), as well as any premium processing fees, if applicable.

USCIS will work with its stakeholders to effect a smooth transition given this legislation’s new requirements. For more information on USCIS and its programs, please visit www.uscis.gov.

H-1B bill unlikely to come up in Congress, says Nasscom

Via Livemint.com


“The ‘H-1B and L-1 Visa Fraud and Abuse Prevention Act’, co-sponsored by Senators Richard J. Durbin (Illinois) and Charles E. Grassley (Iowa) earlier this year aimed to “overhaul the H-1B and L-1 visa programs to give priority to American workers and crack down on unscrupulous employers who deprive qualified Americans of high-skill jobs.”


Legislation introduced to limit H-1B and L-1 visa programs

Via BusinessWeek

BusinessWeek reports, “Two U.S. senators are reintroducing legislation aimed at revamping the H-1B visa program for guest workers in the U.S., at a time of rising unemployment and growing evidence that the program has been marred by fraud. Senators Dick Durbin (D-Ill.) and Charles Grassley (R-Iowa) hope that the bill, “The H-1B and L-1 Visa Fraud & Prevention Act of 2009,” has a better chance of passing now than when they originally introduced it in 2007.”

USCIS Publishes Final Rule on Travel for H and L Nonimmigrants


[Federal Register: November 1, 2007 (Volume 72, Number 211)]
[Rules and Regulations]
[Page 61791-61793]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01no07-1]

—————————————


Rules and Regulations


Federal Register


—————————————


This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510.


The Code of Federal Regulations is sold by the Superintendent of Documents. Prices of new books are listed in the first FEDERAL REGISTER issue of each week.


—————————————


[[Page 61791]]


DEPARTMENT OF HOMELAND SECURITY


U.S. Citizenship and Immigration Services


8 CFR Part 245


[CIS No. 2420-07; Docket No. USCIS-2007-0047]


RIN 1615-AB62


Removal of Receipt Requirement for Certain H and L Adjustment Applicants Returning From a Trip Outside the United States


AGENCY: U.S. Citizenship and Immigration Services, DHS.


ACTION: Final rule.


—————————————


SUMMARY: This rule removes the requirement that certain H and L nonimmigrants returning to the United States following a trip abroad must present a receipt notice for their adjustment of status applications to avoid having such applications deemed abandoned. The purpose of this narrow change is to remove an unnecessary documentation requirement from the regulations that the Department of Homeland Security has determined causes an undue burden on H and L nonimmigrants.


DATES: Effective Date: This rule is effective November 1, 2007.


FOR FURTHER INFORMATION CONTACT: Carol Vernon, Regulations and Product Management Division, Domestic Operations, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, Room 2034, Washington, DC 20529, telephone (202) 272-8350.


SUPPLEMENTARY INFORMATION:


I. Background


Travel outside the United States for an alien who has filed Form I- 485, “Application to Register Permanent Residence or Adjust Status,” to obtain lawful permanent resident status under section 245 of the Immigration and Nationality Act (INA), 8 U.S.C. 1255, may adversely affect that application unless the alien takes certain steps before the trip. Most applicants must obtain permission from U.S. Citizenship and Immigration Services (USCIS) to travel prior to the trip, a process referred to as “advance parole.” See 8 CFR 212.5 (c) and (f). For these applicants, departing the United States without advance parole while their adjustment of status applications are pending results in automatic abandonment of the applications and constitutes grounds for denial. 8 CFR 245.2(a)(4)(ii)(A) & (B).


However, some applicants do not need to obtain advance parole prior to departing from the United States. 8 CFR 245.2(a)(4)(ii)(C) & (D). These are applicants who are permitted by statute to maintain a nonimmigrant status while they seek to obtain permanent resident status. See INA section 214(h), 8 U.S.C. 1184(h). This rulemaking applies to such applicants with respect to two qualifying nonimmigrant classifications: H-1 and L-1 (including dependents, H-4 and L-2). See INA section 101(a)(15)(H) and (L), 8 U.S.C. 1101(a)(15)(H) and (L) (describing H and L nonimmigrant classifications); 8 CFR 214.2(h) and (l). Both nonimmigrant classifications are employment-based. H-1 nonimmigrants include the H-1B classification for “specialty occupation” workers and the H-1C classification for certain registered nurses. See 8 CFR 214.2(h)(1)(ii)(A) and (B). L-1 nonimmigrants include the L-1A classification for certain intracompany transferees who are managers or executives, and the L-1B classification for “specialized knowledge” workers. See 8 CFR 214.2(l)(ii)(A).


Under current regulations, adjustment of status applicants maintaining H or L nonimmigrant status who depart the United States will not be deemed to have abandoned their applications if they did not obtain advance parole prior to departure. However, upon return to the United States, they must demonstrate to the immigration officer at the port of entry that they:


Remain eligible for H-1/H-4 or L-1/L-2 nonimmigrant status;


Will resume employment with the same employer for which they had previously been authorized to work as an H-1 or L-1 nonimmigrant (not applicable to H-4 or L-2 nonimmigrants);


Are in possession of a valid H-1/H-4 or L-1/L-2 nonimmigrant visa (if a visa is required); and


Are in possession of the original receipt notice for the application for adjustment of status, Form I-797, “Notice of Action” (issued by USCIS).


See 8 CFR 245.2(a)(4)(ii)(C). Preserving the pendency of an adjustment of status application in this manner does not apply to H-1/ H-4 or L-1/L-2 nonimmigrants who are under exclusion, deportation, or removal proceedings. In such cases, the Executive Office for Immigration Review of the Department of Justice has jurisdiction over the adjustment of status application and 8 CFR 245.2(a)(4)(ii)(A) governs the effect of travel abroad on those applications.


Because of its varying workload, USCIS recognizes that it is not always able to ensure immediate issuance and mailing of Form I-797 receipt notices upon receipt of an adjustment of status application. At times, USCIS therefore may experience delays in processing and issuing the receipt. This situation places H-1B/H-4 or L-1/L-2 nonimmigrants who are awaiting a Form I-797 receipt notice, but wish to travel outside the United States while their adjustment of status application is pending, in the difficult position of having to decide whether to cancel a planned trip or risk denial of the adjustment application as a result of the departure. Either option would result in hardship to the alien and his or her dependents that the Department of Homeland Security (DHS) finds is unduly burdensome and unnecessary. This is because it renders otherwise qualifying adjustment applications abandoned notwithstanding the fact that the information provided by presentation of the receipt (evidence of filing of an adjustment application) is already available to DHS. An alien whose adjustment of status application is deemed abandoned for failing to present a Form I- 797 receipt notice upon readmission to the United States resulting in a denial of the application would be forced to incur the time and expense involved in filing a new adjustment application.


Section 214(h) of the INA, 8 U.S.C. 1184(h), establishing the H-1/ H-4 and


[[Page 61792]]


L-1/L-2 nonimmigrant’s ability to maintain nonimmigrant status while pursuing permanent resident status, is broad and places no documentary restrictions on such ability. Further, DHS has determined, in light of advances in database technology, that the removal of the Form I-797 receipt requirement will not have any adverse impact on its responsibilities to ensure control over aliens seeking admission to the United States. Such aliens must establish eligibility for admission, in any case, before DHS permits them to reenter the United States. In addition, DHS creates a record of its inspection of the alien, including the alien’s application for admission.


II. Regulatory Changes


This rule amends 8 CFR 245.2(a)(4)(ii)(C) to remove the requirement that an H-1/H-4 or L-1/L-2 nonimmigrant present an original of the Form I-797 receipt notice for a pending adjustment of status application upon readmission to the United States following a trip abroad in order to avoid abandonment of the adjustment of status application as a result of the departure. This rule makes no other changes to 8 CFR 245.2(a)(4)(ii)(C).


III. Rulemaking Requirements


DHS finds that this rule relates to internal agency management, procedure, and practice and therefore is exempt from the public comment requirements of the Administrative Procedure Act (APA) under 5 U.S.C. 553(b)(A). This rule does not alter substantive criteria by which USCIS will approve or deny applications or determine eligibility for any immigration benefit. Instead, this rule relieves a document presentation requirement for certain applicants for immigration benefits. Specifically, this rule removes the requirement that H-1/H-4 and L-1/L-2 nonimmigrants present a Form I-797 receipt notice for their adjustment of status applications upon readmission to the United States after a trip abroad in order to avoid having their applications abandoned. This document presentation requirement is unnecessary since it concerns information that is already available to DHS. This final rule merely eliminates an unnecessary burden on these arriving aliens and streamlines agency management of its processes. As a result, DHS is not required to provide the public with an opportunity to submit comments on the subject matter of this rule.


Moreover, DHS finds that good cause exists under 5 U.S.C. 553(b)(B) to make the rule effective upon publication in the Federal Register without prior notice and public comment on the grounds that delaying implementation of this rule to allow for public comment would be impracticable and contrary to the public interest. As a result of USCIS’s July 17, 2007, announcement that it would accept employment- based Forms I-485 filed by aliens whose priority dates are current under Department of State Visa Bulletin No. 107, USCIS received an unprecedented volume of employment-based applications for adjustment of status, including those filed by H and L nonimmigrants. Because of the recent surge in such filings, it will take several weeks for USCIS to enter the necessary data and issue Form I-797 receipt notices for employment-based adjustment of status applications. Therefore, it is important for this rule to take effect as soon as possible to avoid undue hardship on applicants who may need travel outside the United States prior to receiving the receipt notice.


In addition, no substantive rights or obligations of the affected public are changed by this rule. DHS believes the public will welcome this change. The public needs no time to conform its conduct so as to avoid violation of these regulations because the rule relieves a requirement of the existing regulations. Further, this rule will have no adverse impact on DHS’ adjudicatory responsibilities or ability to track the foreign travel of affected persons since DHS already records the admission of all nonimigrants. For these reasons, this rule is effective immediately under 5 U.S.C. 553(d)(1) and (3).


This rule relates to internal agency management, and, therefore, is exempt from the provisions of Executive Order Nos. 12630, 12988, 13045, 13132, 13175, 13211, and 13272. This rule is not considered by DHS to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Therefore, it has not been reviewed by the Office of Management and Budget. Further, this action is not a proposed rule requiring an initial or final regulatory flexibility analysis under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. In addition, this rule is not subject to the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. Ch. 17A, 25, or the E-Government Act of 2002, 44 U.S.C. 3501, note.


Finally, under the Paperwork Reduction Act of 1995, Public Law 104- 13, all Departments are required to submit to the Office of Management and Budget (OMB), for review and approval, any reporting requirements inherent in a rule. This rule does not affect any information collections, reporting or recordkeeping requirements under the Paperwork Reduction Act.


List of Subjects in 8 CFR Part 245


Aliens, Immigration, Reporting and recordkeeping requirements.


Accordingly, part 245 of chapter 1 of title 8 of the Code of Federal Regulations is amended as follows:


PART 245–ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR PERMANENT RESIDENCE


1. The authority citation for part 245 continues to read as follows:


Authority: 8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L. 105-100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat. 2681; 8 CFR part 2.


2. Section 245.2 is amended by revising paragraph (a)(4)(ii)(C) as follows:


Sec. 245.2 Application.


(a) * * *


(4) * * *


(ii) * * *


(C) The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful H-1 or L-1 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien remains eligible for H or L status, is coming to resume employment with the same employer for whom he or she had previously been authorized to work as an H-1 or L-1 nonimmigrant, and, is in possession of a valid H or L visa (if required). The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful H-4 or L-2 status shall not be deemed an abandonment of the application if the spouse or parent of such alien through whom the H-4 or L-2 status was obtained is maintaining H-1 or L-1 status and the alien remains otherwise eligible for H-4 or L-2 status, and, the alien is in possession of a valid H-4 or L-2 visa (if required). The travel outside of the United States by an applicant for adjustment of status, who is not under exclusion, deportation, or removal proceeding and who is in lawful K-3 or K-4 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien is in possession of a valid K-3 or K-4 visa and remains eligible for K-3 or K-4 status.


* * * * *


[[Page 61793]]

Dated: October 15, 2007.
Michael Chertoff,
Secretary.
[FR Doc. E7-21506 Filed 10-31-07; 8:45 am]

BILLING CODE 4410-10-P

Microsoft skips the US, opens development center in Canada as a result of US immigration limitations

Microsoft is skipping the US and opening a development center in Vancouver, Canada as a result of increasingly illogical and outdated US immigration laws. 

An excerpt from the Infoweek article:

“If Microsoft, or IBM or any other tech giant for that matter, can’t bring workers onto its home turf, it will simply put them in some other more immigration-friendly country. A broadband connection is usually all that’s needed to facilitate communication. Or, in the case of Microsoft’s Vancouver center, an eight-lane highway.


The question Congress now needs to consider is this: Do visa limits do more harm than good to the U.S. economy?…Wouldn’t it be better for Washington state if the workers that Microsoft plans to place in Canada because of “immigration issues” were employed locally, paying state taxes and spending in local shops?


It appears that the biggest beneficiary of the Senate’s failure to pass an immigration bill may be Canada. Is that really what Congress intended?”

Direct Filing Addresses for Form I-129, Petition for Nonimmigrant Worker – Effective April 2, 2007

Direct Filing Addresses for Form I-129, Petition for Nonimmigrant Worker


Form I-129 Petition for Nonimmigrant Worker

Effective April 2, 2007

This
chart provides the direct filing addresses for Form I-129, which become
effective on April 2, 2007.  Please note the filing addresses below and
the filing exceptions for certain classifications.

If

And

Mail Form I-129 to

You are the petitioning employer

The beneficiary will work temporarily in:

 

Alaska,
Arizona, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana,
Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada,
North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin
or Wyoming.

For Regular processing

 

H-1B Cap Cases:

 

USCIS

California Service Center

ATTN: H-1B Cap

P.O. Box 10129

Laguna Niguel, CA 92607-1012

 

U.S. Masters Cap Cases:

 

USCIS

California Service Center

ATTN: H-1B U.S. Masters Cap

P.O. Box 10129

Laguna Niguel, CA  92607-1012

 

H-1B Extensions:

 

USCIS

California Service Center

ATTN: H-1B Extensions

P.O. Box 10129

Laguna Niguel, CA  92607-1012

 

All other I-129 Cases:

 

USCIS

California Service Center

ATTN: I-129

P.O. Box 10129

Laguna Niguel, CA 92607-1012

 

Courier Address for All I-129s:

 

USCIS

California Service Center

24000 Avila Road

2nd Floor, Room 2312

Laguna Niguel, CA  92677

(Please note the type of I-129 in the attention line)

 

For Premium Processing

 

Form I-907/I-129 Regular Mailing Address:

 

Premium Processing Service

USCIS

California Service Center

P.O. Box 10825

Laguna Niguel, CA 92607

(Please note the type of I-129 in the attention line)

 

 

Form I-907/I-129 Courier Mail Address:

 

Premium Processing Service

USCIS

California Service Center

24000 Avila Road

2nd Floor, Room 2312

Laguna Niguel, CA  92677

(Please note the type of I-129 in the attention line)

 

 

 

Form I-907/I-129 E-Mail Address:

CSC-Premium.Processing@dhs.gov

 

 

The beneficiary will work temporarily in:

 

Alabama, Arkansas, Connecticut, Delaware, the District of Columbia,Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts,Mississippi, New Hampshire,New Jersey, New Mexico, New York,North Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, or West Virginia.

For Regular processing

 

H-1B Cap Cases:

 

USCIS

Vermont Service Center

ATTN: H-1B Cap

1A Lemnah Drive

St. Albans. VT 05479-0001

 

H-1B U.S. Masters Cap Cases:

 

USCIS

Vermont Service Center

ATTN: H-1B U.S. Masters Cap

1A Lemnah Drive

St. Albans. VT 05479-0001

 

All other I-129 Cases:

 

USCIS

Vermont Service Center

ATTN: I-129

75 Lower Weldon Street

St. Albans, VT 05479-0001

 

For Premium Processing

Form I-907/I-129 Mailing Address and Courier Address:

 

H-1B Cap Cases:

 

Premium Processing Service

USCIS

Vermont Service Center

ATTN: H-1B Cap

30 Houghton Street

St. Albans. VT 05478-2399

 

H-1B U.S. Master Cap Cases:

 

Premium Processing Service

USCIS

Vermont Service Center

ATTN: U.S. Masters Cap

30 Houghton Street

St. Albans. VT 05478-2399

 

All other I-129 Cases:

 

Premium Processing Service

USCIS

Vermont Service Center

ATTN: I-129

30 Houghton Street

St. Albans. VT 05478-2399

 

 

 

Form I-907/I129 E-mail address:

 

VSC-Premium.Processing @dhs.gov

 

 

Exceptions

·         Form I-129 Filed for Temporary Employment or Training in More Than One Location: 
When the temporary employment or training will be in different
locations, the state where your company or organization is located will
determine to which Service Center you should send your Form I-129
package.  For example, if the beneficiary will work in Arizona and
Texas, and your company is located in New York, file Form I-129 with
the Vermont Service Center.

 

·         H-1C Classification for Nurses: Mail the I-129 package to the Vermont Service Center, regardless of where the temporary H-1C nurse will be employed.

 

·         R Classification for Temporary Religious Workers:  Mail the I-129 package to the California Service Center, regardless of where the temporary religious worker will be employed.

 

·         Major League Sports: 
Mail the I-129 package to the Vermont Service Center, regardless of
place of temporary employment.  This covers major league athletes,
minor league sports and any affiliates associated with the major
leagues in baseball, hockey, soccer, basketball, and football.  Support
personnel includes coaches, trainers, broadcasters, referees, linesmen,
umpires, and interpreters.

 

·         Change of Status or Extension of Stay Under Certain Free Trade Agreements: 
Mail Form I-129 to the Vermont Service Center, regardless of the place
of temporary employment, if Form I-129 is filed to request a change of
status or extension of stay under one of the Free Trade Agreements
listed below.  

 

o        Change of Status to TN or TN Extension under Trade NAFTA for Nationals of Canada or Mexico.

 

o        Change of Status to H-1B1 or Extension of H-1B1 Stay for Nationals of Singapore and Chile.

 

o        Change of Status to E-3 or Extension of E-3 Stay for Nationals of Australia.  

 

§         Initial Classification Under Certain Free Trade Agreements: DO NOT use Form I-129 to apply for initial classification under one of the Free Trade Agreements listed below.  

 

o      Initial TN Classification for Nationals of Mexico (outside the United States): 
To obtain more information on the application process for initial TN
classification, please visit the U.S. Department of State’s TN Visa
website. [add link here]   

 

o        Initial TN Classification for Nationals of Canada (outside the United States: 8 CFR 214.6 [add link] for information on applying for initial TN admission at a U.S. port of entry. Please see

 

o        Initial H-1B1 Classification Under the Singapore/Chile Free Trade Agreement: 
To obtain more information on applying for initial H-1B1
classification, please visit the U.S. Department of State’s website.  [add link here].

 

o        Initial E-3 Classification Under the Australian Free Trade Agreement:  To obtain more information on applying for initial E-3 classification, please visit the U.S. Department of State’s website.  [add link here].

 

CA9 Upholds USCIS’s Denial of [L-1A] Multinational Manager Petition

Via AILA

Family, Inc. v. USCIS, (9th Cir. Dec. 4, 2006)

USCIS may properly, but not exclusively consider an
organization’s small size as one factor in assessing whether its
operations are substantial enough to support a manager.

Appellants, a corporation and its president, a native and citizen of
South Korea, sought review of the district court’s summary judgment
order affirming USCIS’s denial of their immigrant petition for
classification as a multinational manager under INA §203(b)(1)(C). The
corporation, Family, Inc., owned a dry cleaning operation that employed
Appellant, his wife, three pressers and a cashier. USCIS determined
that Appellant did not carry his burden of establishing that he was
acting in a managerial capacity. Specifically, USCIS determined that
“in light of all the evidence submitted, including [the company’s]
small size, Appellant was ‘likely to be involved in the performance of
routine operational activities of the business’ rather than in managing
the business.”

The court rejected Appellant’s argument that USCIS “exclusively and
improperly” relied on the company’s small size in determining that his
duties did not meet the statutory definition of “managerial capacity.”
See INA §101(a)(44)(A). The court agreed with Appellant that the size
of a company cannot alone justify USCIS’s finding that he is not
operating in a managerial capacity. However, the court concluded that
the plain language of the agency’s denial of the petition indicated
that it considered all of the evidence before it and did not err by
considering the company’s size as one factor in drawing its conclusion.
Furthermore, the court found that the facts in the record support
USCIS’s determination that Appellant was likely engaged in ordinary
operational activities as opposed to managerial activities. The court
held that USCIS’s decision was supported by substantial evidence.