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Important USCIS Memo Clarifies Periods of Admission for H and L Nonimmigrants

Via AILA
12/21/2006

A December 5, 2006 memo from Michael Aytes, USCIS Associate Director, Domestic Operations, provides guidance on the period of admission for H-4s and L-2s, applicants for H-1B status beyond the six-year maximum, and for H-1Bs who have been out of the U.S. for more than 1 year, but were not in H-1B status for a full 6 years. The memo clarifies that time spent in H-4 or L-2 status does not count against the maximum allowable period of stay available to principals in H-1B and L-1 status, and that qualifying H-1B aliens need not be in H-1B status when requesting an extension beyond the six-year maximum. Revisions to Chapters 31.2(d), 31.3(g) and 32.6 of the Adjudicator’s Field Manual (AFM Update 06-29) are included in the memo.

Temporary Skilled Workers Enrich America’ s Competitive Edge

Via AILA
09/27/2006

The
recent debate over immigration policy commonly depicts immigrants as
undocumented, uneducated people who flood our borders without
inspection. Although many immigrants who enter this country are
unskilled laborers who provide essential services in many sectors of
our economy, of equal importance to the immigration debate are the
highly educated foreign professionals whose skills play a vital role in
the enrichment of our economy. These foreign born workers bring unique
perspectives and expertise that are essential to maintaining America’s
competitive edge as the leader of the global marketplace.

The United States economy has shifted significantly over the past
fifty years. We are no longer the blue collar nation that we once were.
The transformation of our economy from a manufacturing economy to a
knowledge-based economy has created a growing demand for highly skilled
technical workers. This demand has been accompanied by a decline in the
number of native-born students seeking degrees in the fields of
science, engineering and technology. Our prestigious graduate
institutions currently train more foreign nationals than U.S. citizens
in these important fields. These U.S trained specialists, both native
and foreign-born, cannot fill the demand for highly-skilled workers in
key occupations. U.S. businesses must be able to recruit and hire
additional foreign-born professionals to alleviate temporary labor
shortages in specific occupations.

To keep America competitive, we must increase the number of
specialized worker visas awarded. H-1B visas, or temporary skilled
worker visas, are currently capped at only 65,000 annually. Yet in
recent years, this “cap” is reached in a couple of months and U.S.
businesses are barred from hiring foreign-born professionals for the
remainder of the fiscal year. In order to increase the number of highly
skilled professionals in this country, we must reform the employment
based immigration system and provide a sufficient amount of avenues
through which U.S. businesses can legally employ specialized workers.

At the same time, we must increase recruitment and training of U.S.
students as well – in order to accelerate this process, a hefty portion
of the processing fees for the H visas are directed to the education
and training of U.S. students in science and technology.

It is important that skilled workers are not overlooked in the
current debate regarding comprehensive immigration reform. Raising the
H-1B visa cap is vital to maintaining our leadership in the world
market. We must retain the educated professionals whom we have trained
internally in order to benefit from the unique skills that they
possess. By sending the best and the brightest workers back to their
respective countries, we only create competition for ourselves, thereby
diminishing America’s economic clout. By retaining foreign nationals,
we may ensure that U.S. businesses have the most highly qualified
workers in their fields, helping America maintain its edge in an
increasingly competitive global economy. the most highly qualified
workers in their fields, guaranteeing maximum success and economic
prosperity.


 

USCIS to Expand Premium Processing Service / Premium Processing Information

Via USCIS
09/22/2006

WASHINGTON, D.C. – U.S. Citizenship and Immigration Services (USCIS) announced today the addition of three new categories to the Premium Processing Service, which allows U.S. businesses to pay a $1,000 Premium Processing fee in exchange for 15-calendar-day processing of their case.

Starting on September 25, 2006, USCIS will begin accepting Premium Processing requests for
Form I-140, Immigrant Petition for Alien Worker, involving the following immigrant visa categories:

• EB-1, outstanding professors and researchers,
• EB-2, members of professions with advanced degrees or exceptional ability not seeking a National Interest Waiver, and
• EB-3, workers other than skilled workers and professionals (i.e., unskilled labor requiring less than two years of training or experience.

Under the Premium Processing Service, USCIS guarantees petitioners that, for a $1,000 processing fee, it will issue either an approval notice, or where appropriate, a notice of intent to deny, a request for evidence or open an investigation for fraud or misrepresentation, within 15 calendar days of receipt. If the petition is not processed within 15 calendar days, USCIS will refund the $1,000 fee and continue to process the request as part of the Premium Processing Service. In addition to faster processing, petitioners who participate in the program may use a dedicated phone number and e-mail address to check on the status of their petition or ask any other questions they may have concerning their petition. Premium Processing Service continues to be available for previously designated classifications within Form I-140 and Form I-129, Petition for Nonimmigrant Worker.

Since 2001, Premium Processing Service has been available for several classifications within Form I-129, including E Treaty Traders and Investors, H-1B Specialty Occupation Workers, H-2B Temporary Workers performing non-agricultural services, H-3 Trainees, L Intracompany Transferees, O Aliens of Extraordinary Ability and those performing essential support services, P Performers and Athletes and those performing essential support services, and Q international Cultural Exchange Visitors, R Religious Workers and NAFTA Professionals from Canada and Mexico. Form I-129 petitions for those nonimmigrant worker classifications will continue to be eligible for Premium Processing Service unless the filing period has closed (for example, when the annual cap for a specific visa has been reached.)

Also, since August 28, USCIS began accepting Premium Processing Service requests for petitions involving two other immigrant visa categories, the EB-3 Professionals, (i.e. immigrant workers with bachelor degrees who are members of the professions), and EB-3 Skilled Workers, (i.e. immigrant workers capable of performing skilled labor requiring at least two years of education, training or experience). Employers file for both of these immigrant visa categories using the Immigrant Petition for Alien Worker (Form I-140) as well.

——————————-


Premium Processing Service provides faster processing of certain
employment-based petitions and applications. Specifically, USCIS
provides 15 calendar day processing to those who choose to use this
service or USCIS will refund the Premium Processing fee and the
relating case will continue to receive faster processing.

The processing period that is used to determine whether or not USCIS
meets the 15 calendar day period will begin when the current version of
Form
I-907
is received by USCIS at the correct filing address noted on the form.
Within the 15 day calendar period USCIS will issue an approval notice,
or where appropriate, a notice of intent to deny, a request for
evidence or open an investigation for fraud or misrepresentation. If
the notice requires the submission of additional evidence or of a
response to intent to deny, a new 15 calendar day period will begin
upon the delivery to USCIS of a complete response to the request for
evidence or notice of intent to deny.

Who is eligible?

The chart below sets forth the forms, designated classifications
within each form type, and current availability and termination dates
for premium processing service.

Form I-129, Petition for Nonimmigrant Worker

Designated Classification Within Form I-129

Corresponding Nonimmigrant Visa Classification

* Availability Date

** Termination Date

Treaty Trader

E-1

June 1, 2001

 

Treaty Investor

E-2

June 1, 2001

 

Alien in Specialty Occupation

H-1B CAP

July 30, 2001

May 26, 2006 (FY 07)

August 10, 2005 (FY 06)

Alien in Specialty Occupation, Advanced Degree Exception (Masters or Higher)

H-1B CAP

July 30, 2001

July 26, 2006 (FY 07)

January 17, 2006 (FY 06)

Alien in Specialty Occupation

H-1B NON-CAP

July 30, 2001

 

Temporary Worker performing nonagricultural services

H-2B CAP

June 1, 2001

December 15 2005 (1 st half)

April 4, 2006 (2 nd half)

April 4, 2006 (annual FY 06)

Temporary Worker performing nonagricultural services

H-2B NON CAP

June 1, 2001

 

Trainee

H-3

June 1, 2001

 

Intracompany Transferee, Executive or Manager Capacity

L-1A

June 1, 2001

 

Intracompany Transferee, Specialized Knowledge Professional

L-1B

June 1, 2001

 

Petitioners
that meet requirements may file a blanket petition seeking continuing
approval of itself and some or all of its parent, branches,
subsidiaries, and affiliates as qualifying organizations
L-BLANKET
June 1, 2001
 
Aliens of extraordinary ability or achievements in the sciences, arts, education, business, or athletics
O-1
June 1, 2001
 
Aliens providing essential support services for a principal O-1 alien
O-2
June 1, 2001
 
Internationally recognized athlete or member of an internationally recognized entertainment group
P-1
June 1, 2001
 
Essential
Support Alien, highly skilled, that performs support services which are
essential to the successful performance of the principal P-1 alien
P-1S
June 1, 2001
 
Artist or Entertainer under a Reciprocal Exchange Program
P-2
June 1, 2001
 
Essential
Support Alien, highly skilled, that performs support services which are
essential to the successful performance of the principal P-2 alien
P-2S
June 1, 2001
 
Artist or Entertainer in a Culturally Unique Program
P-3
June 1, 2001
 
Essential
Support Alien, highly skilled, that performs support services which are
essential to the successful performance of the principal P-3 alien
P-3S
June 1, 2001
 
International cultural exchange aliens
Q-1
June 1, 2001
 
Alien in a Religious occupation
R-1
July 30, 2001
 
NAFTA professional, Canada
TN1-CANADA
July 30, 2001
 
NAFTA professional, Mexico
TN2-MEXICO
July 30, 2001
 

 
* The availability date is the date that the classification was initially deemed eligible for Premium Processing Service.

** The termination date reflects
the last day that USCIS accepted filings requesting that specific
classification. If a date is entered in this column, that
classification is currently ineligible for filing because of cap
restrictions or other processing restrictions.

For additional information relating to the current cap count for Non-Immigrant Worker Visas, refer to: http://www.uscis.gov/graphics/services/tempbenefits/cap.htm

Form I-140, Immigrant Petition for Alien Worker

Designated Classification Within Form I-140

Corresponding Employment-Based Visa Classification

 

Availability Date

Termination Date

Aliens of extraordinary ability

 

EB-1

Not Yet Available

 

Outstanding professors and researchers

 

EB-1

September 25, 2006

 

Multinational executives and managers

 

EB-1

Not Yet Available

 

Members of professions with advanced degrees or exceptional ability not seeking a National Interest Waiver

 

EB-2

September 25, 2006

 

Skilled workers***

 

EB-3

August 28, 2006

 

Professionals***

 

EB-3

August 28, 2006

 

Workers other than skilled workers and professionals

 

EB-3

September 25, 2006

 

  *** (if designated as available, please also see section on additional conditions placed on Premium Processing Availability)


May the beneficiary of a visa petition seek Premium Processing Service?

No, except
in cases where the petition is eligible to be filed as a self-petition
(i.e., the petitioner and the beneficiary are the same). Otherwise,
only the visa petitioner, or the attorney or representative who has
filed a notice of appearance (Form G-28)
on behalf of the visa petitioner, may request Premium Processing
Service for designated visa petition adjudications. The petitioner,
attorney or representative, or beneficiary may pay the $1,000 Premium
Processing fee, but the beneficiary cannot sign or file the Form I-907.

How do I verify that I am using the current version of the form?

Check the
USCIS website at the Forms and Fees webpage for the most up-to-date
information as well as the most current version of Form I-907 which is
available for download at http://www.uscis.gov/graphics/formsfee/forms/i-907.htm.

If you are already in possession of a Form I-907, please use this
webpage, Forms and Fees, to verify that your version of Form I-907 is
still current. This can be done by comparing the Forms and Fees webpage
which includes the “edition” date that USCIS is currently accepting and
the edition date on your Form I-907. The edition date, which is
referenced as (Rev. xx/xx/xx) is located in the lower right corner on
every page of the form and instructions. If the edition date on your
Form I-907 matches the date or dates, if applicable, on the Forms and
Fees webpage, your version of Form I-907 is current and will be
accepted by USCIS. If there is a designation “N” shown after the
edition date on the Forms and Fees webpage, please note that USCIS will
not accept any other editions of the form.

How do I file a request for Premium Processing Service?

You must
complete and sign Form I-907, Request for Premium Processing Service,
in accordance with the instructions on the current version of the form.
You must file the concurrently filed Form I-907 with Form I-129 or Form
I-140 at the Service Center designated as the appropriate filing
location on the instructions to the Form I-907. If you filed Form I-129
or the Form I-140 and you now wish to request Premium Processing
Service, file Form I-907 with the Service Center where the Form I-129
or Form I-140 is currently pending. Submit a copy of the Form I-129 or
Form I-140 filing receipt. If you received a transfer notice, it is very important
that you include a copy of it and that you submit your filing to the
transfer location. If a petitioner or applicant erroneously filed a
concurrent or standalone Form I-907 at the wrong service center, USCIS
will not reject the filing, but instead will forward the filing to the
correct service center having jurisdiction over the petition or
application. For an incorrectly filed Form I-907, the 15 calendar day
period will start on the date the file is received at the correct
service center as indicated in the Form I-907 filing instructions.

Are there any additional conditions of availability being placed on the Premium Processing Service at this time?

Yes. This
will accord USCIS the flexibility to adapt to contingencies affecting
its ability to provide Premium Processing Service. Premium Processing
Service is available for the Form I-140 classifications indicated on
the chart above provided that the case does not involve:

  1. A second filing of a Form I-140 petition while an initial Form I-140 remains pending;
  2. Labor Certification substitution requests, unless the original
    labor certification is submitted with the Form I-140 requesting the
    substitution; and
  3. Duplicate Labor Certification requests (i.e., cases filed without an original labor certification from the Department of labor).

USCIS is
prescribing these additional conditions of availability on Premium
Processing for Form I-140 because of their special processing
requirements, including locating and transferring other files or
documents internally and requesting initial evidence from an outside
agency, that make it difficult for USCIS to guarantee that it will
process the case within a 15 calendar day period.

What is the fee for this service?

The fee for this service is $1,000. The Premium Processing Service fee
may not be waived. In addition to the Premium Processing Service fee,
all other filing fees relating to the specific form(s) for which you
are requesting Premium Processing Service must also be submitted. The
Premium Processing Service fee must be submitted in a separate
check or money order. The petitioner, attorney or representative, or
beneficiary may pay the $1,000 Premium Processing Service fee, but the
beneficiary cannot sign or file the Form I-907. If e-filed, USCIS
accepts credit card, debit card, or electronic transfer of funds from a
checking or savings account from a U.S. bank.

Are there any additional benefits to the program?

Yes. USCIS has provided not only a unique mailing address for its
Premium Processing Service customers, but it has also established a
special phone number and e-mail address for each of the Service
Centers. These special communication channels will be available only to
Premium Processing Service customers.

USCIS is also collecting, on the Form I-907, your phone number, fax
number and e-mail address so that we can send you (the petitioner or
attorney) an automatic e-mail notifying you of the receipt of your Form
I-907, Request For Premium Processing Service. If the underlying form
for which you requested Premium Processing Service is approved, we will
send an automatic e-mail notifying you of the approval. It is important that you provide this information so that USCIS may correspond with you in the most appropriate manner.

In addition and at no additional cost, USCIS will strive to provide
faster processing of Form I-539 applications filed by or on behalf of
dependents of the principal beneficiary of a petition for which Premium
Processing Service has been requested if the Form I-539 is filed at the same time. USCIS provides this service as a courtesy. Consequently, it cannot guarantee faster processing of the Form I-539.

Does this program have any effect on the USCIS’ previous expedite practices?

Yes. The discretionary expedite requests will no longer be available
for those classifications designated as eligible for Premium Processing
Service; however, petitioners designated as not-for-profit entities by
the Internal Revenue Service may continue requesting discretionary
expedited service as they have in the past or they may choose to pay
the Premium Processing fee and utilize that service. If the criteria
for a discretionary expedite are not met, the not-for-profit petitioner
still has the option of requesting of Premium Processing upgrade by
filing Form I-907 with fee.

How will the USCIS manage those categories that have an annual limit in relation to this faster processing?

USCIS
does not believe that individuals who pay for Premium Processing
Service on petitions filed for nonimmigrant classifications that are
subject to annual limitations will have an unfair access to these
limited immigration programs.

For cap-subject H-1B and H-2B petitions, USCIS will apply a random
selection process to all petitions (whether or not Premium Processing
Service is requested) received on the date when a sufficient number of
petitions have been received to reach the applicable numerical limit
(“final receipt date”). Petitions that are accepted through this random
selection process are adjudicated to completion. For H-1B cases, USCIS
will return the fees to the petitioner and hold the cases that were filed ON the cut-off day
but were not selected in the random process. This way, if USCIS does
not use all of the projected H-1B1 Singapore/Chile cap cases (which
count towards the H-1B cap), additional H-1B cap cases will be taken in
order from the list of cases that were held. Those petitioners will
then be notified to re-submit the fees. All H-1B cap cases filed AFTER the cut-off day are rejected along with the fees.

Cases subject to the H-2B cap that were not selected in the random process, and H-2B cases that were filed AFTER the cut-off day
are rejected along with the fees. Unlike the H-1B cap cases, there is
no need to hold the H-2B cap cases that were not selected because there
are no special provisions that apply to the H-2B cap cases like there
are with the H-1B cap cases, i.e. H-1B1 Singapore/Chile cap cases.

In order to ensure equitable access to other cap-subject nonimmigrant
classifications to which USCIS does not currently apply a random
selection process, USCIS will temporarily terminate the availability of
Premium Processing when it becomes clear that the demand will exceed
the annual numerical limitation (e.g., when the USCIS has a pending
volume of petitions sufficient to reach the limitation). This
termination of procedure will ensure that all petitioners have
equitable access to these limited immigration programs.

Can
I contact a USCIS Service Center if I have not filed a request for
Premium Processing Service yet but have questions about the program?

No, you
cannot contact the Service Centers directly unless you have already
filed Form I-907, Request for Premium Processing Service, for the
underlying Form I-129 or Form I-140. The Premium Processing toll-free
phone number and e-mail addresses listed on Form I-907 are dedicated
only to customers who have already submitted a request for Premium
Processing Service. If you have not requested Premium Processing
Service, you can call the Customer Service toll free phone number at
(800) 375-5283 for general information about the program.

How do I contact the Service Center concerning the Premium Processing request that I filed?

The
unique mailing address for each of the Service Centers is listed on the
instructions to the Form I-907. Additional contact information for each
Service Center will be provided to you on your receipt notice and will
also be provided on this Website.

If you have already filed a Request for Premium Processing Service
and you need to contact the Service Center, call the Premium Processing
Toll Free phone number at 1-866-315-5718. You will need to have your
receipt number when you call, because this phone number is only for
inquiries relating to Premium Processing Service.

Jobs that get you US visas (NEWS.COM.AU)

Via News.com.au
07/17/2006

By Tara Weiss


WHAT is the easiest way to legally enter the US? Love. Fall in love with an American citizen, get married and you’re in. Unfortunately, not everyone can rely on romance. Only select few like Australians can breeze into the country.

Most people have to work their way into the US. But to do that, you need to find a job, a company willing to sponsor you and then apply for one of the country’s precious H1B visas.


With up to 100,000 applications filed each year (that’s where the US Government cuts it off), getting one of the 65,000 H1Bs given out annually is a bit like winning the lottery.


The same is true for other highly coveted visas like the L1 work visa, which enable multinational firms to transfer employees and executives to the US. For would-be immigrants, such visas can often lead to the ultimate golden ticket: a US green card, 140,000 of which are available each year.

 Clearly, there just aren’t enough visas or green cards to go around. “Those caps are both backed up,” says Crystal Williams, deputy director for programs at the American Immigration Lawyers Association. That means it can take years to legally enter the US workforce.

That is unless you happen to be a university professor, nurse, physical therapist or work in any one of several professions that are in such great demand you’re practically guaranteed a US visa. It also helps if your home nation has signed a free trade agreement with the US.

“(But) need is the very first step,” says Chris Bentley, a spokesperson with US Citizenship and Immigration Services.

“We’re looking for people that have some type of skill and whose job is in demand here in the US.”
In the late 1990s, software engineers and other IT specialists were in demand. Now, immigration lawyers say, they’re a dime a dozen and aren’t usually successful getting into the country.

Topping America’s most wanted list these days: academics. Bentley says that someone petitioning to teach Medieval History is more likely to get approved than an accountant because the professor position is specialised and more difficult to fill.

“With other professions, employers have to test the labour market to see if someone else is qualified and willing to do the job that’s offered,” says Elizabeth Kirberger an immigration attorney who practices in New York.

“With a college professor, the standard is different. Employers get to pick the most highly qualified, but there’s no particular standard for that. You flesh out (the argument for that) in the application.” That’s because there aren’t enough American professors to fill the available jobs.

The same goes for nurses and physical therapists. According to The American Hospital Association, the country will need 2.8 million nurses by 2020, but only 2 million will be available.

Still, foreign nurses should be mindful of a few caveats. According to Greg Siskind , founding partner of the immigration law firm Siskind Susser, nurses aren’t eligible for temporary work visas. They can only enter the country as green card applicants; a process that can take two years. While that may sound like an eternity, foreign nurses have a relatively easy time finding hospitals and companies willing to sponsor them.

“As an employer, hiring two years ahead of time is not ideal. But because of the shortage, employers are willing to do it,” says Mr Siskind.

You’re also in luck if you’re especially talented in the arts or in sports. Artists and athletes can get in with virtually no hold-up. But you can’t just brag your way into the US.

But remember, immigration is ultimately a numbers game. The limited number of H1Bs and green cards available each year is first divvied up into categories and further divided among certain nationalities. Immigration officials can reconfigure the numbers based on need and demand. For instance, the quota for nurses from India may get maxed out before the quota set for Scandinavian nurses.

Aside from professions, some nationalities have a breeze coming into this country.

“If you’re Australian you’re sitting pretty,” says Mr Siskind. “They can bypass the whole H1B process.”

Last year, Congress created a new visa class: the E-3, which is solely for Australian workers. That means there are up to 10,000 slots for our friends down under – that’s separate from the 65,000 cap. There’s also an exemption for workers from Singapore and Chile because of the free trade agreements with those countries.

While the demand will continue to exceed the supply of US visas and green cards, achieving the “American Dream” is still possible. But working toward that goal is a lot easier when you know which jobs can get you in the country to begin with.

SSA Updates Guidance Manual to Include E and L Spouses As Authorized to Work Without DHS Authorization

RM 00203.500 Employment Authorization for Nonimmigrants




A. Introduction


The Department of Homeland Security (DHS) determines whether an alien can work in either employment or self-employment in the U.S. Under certain circumstances, DHS authorizes nonimmigrants to work. Some nonimmigrant aliens have employment authorization by virtue of their alien classification. Some can work but only for specific employers. Others must apply to DHS for employment authorization. Still others are not allowed to work while in the U.S. and cannot apply to DHS for authorization to work.


It is important to distinguish whether the alien can work and what document(s) is needed to establish authorization to work.


B. Policy – Evidence of Employment Authorization


Required evidence for employment authorization is either a Form I-94, Arrival/Departure Record, showing a class of admission that indicates the person can work without specific DHS authorization (RM00203.500C.1.) or an employment authorization document (EAD) (Form I-766 or I-688.


DO NOT process an application for an SSN card for an alien for work purposes unless the alien is authorized to work and shows the appropriate immigration document authorizing work. See RM 00203.510 and RM 00203.560 for processing SS-5s to issue SSN cards for nonwork purposes.


1. General – Evidence of Employment Authorization


Employment authorization for nonimmigrants can be determined by:




  • the alien’s class of admission code as shown on the I-94 (the non-immigrant classifications shown on the I-94 with employment authorization inherent in status are listed in RM 00203.500C.1.); or



  • the stamp or annotation on the I-94 shows the alien has been admitted as a refugee (see RM 00203.460B.); or



  • the stamp or annotation on the I-94 shows the alien had been granted asylum (see RM 00203.460D.) ; or



  • the Executive Office of Immigration Review granted the alien asylum and issued an order stating this (see RM 00203.460D.); or



  • the DHS-issued Employment Authorization Document (EAD), either Form I-766 or I-688B.



  • the designated school official’s annotation on Form I-20 A-B for certain F-1s or documentation of on-campus work (see RM 00203.470 ); or



  • the category shown on the DS-2019 for J-1s or a sponsor’s letter if the J-1 category is “student” or “international visitor” (see RM 00203.480).


The documents listed above are the only documents which FOs may accept as evidence of employment authorization.


NOTE: In some situations, the alien was issued an I-94 when admitted to the U.S. Later, applied for another immigration benefit and DHS issued the alien an EAD card. The alien may apply for an SSN card after the I-94 expired. If the alien shows a currently valid EAD, this is acceptable proof of authorization to work. In this situation, do not consider the expired I-94 when making a decision about alien status/work authorization; consider only the current immigration document (the EAD card).


2. Form I-766 or I-688B, Employment Authorization Document (EAD)


a. General


DHS issues Form I-766 and I-688B EAD cards to certain aliens regardless of age who are temporarily work authorized (see RM 00203.500C.2). The I-766 and I-688B are both standardized and uniform documents that provide evidence of authorization for the alien to accept temporary employment in the U.S.


Each card contains the following:




  • A statement of any regulatory limits on the time elements involved and a definite date as to when employment begins and ends (not indefinite).



  • A statement of any regulatory limits on the type of employment authorized (e.g., “A-5” or “274A.12 (A)(5)) or the statement “Without Further Limitation, “ if no such regulatory limits exist.


NOTE: DHS does not issue EAD cards to aliens lawfully admitted for permanent residence or nonimmigrants whose work authorization is incident to their class of admission.


b. Description


The I-766 is a card produced mechanically by an integrated card processing system only at DHS service centers. Form I-688B is a manually prepared laminated card produced and issued at local USCIS offices servicing the area where the person resides.


The front of both cards contains the alien’s photograph, fingerprint (or “W” for waived in lieu of the fingerprint), signature, biographic information (name, date of birth), the provision of law or category allowing the alien to work, any restrictions as to type or length of employment authorization, and the date and place of issue.


The issuing office’s location code is on the right side of the photo box on the I-688B. This code is four letters which indicates the District or POE code and the specific workstation at that location that issued the card.


See the ACM for exhibits of authentic I-766 and I-688B cards.


REMINDER: Any EAD card that does not conform to these criteria is not acceptable.


3. Period of Authorization to Work


The period during which the alien is authorized to work in the U.S. is shown on the face of the EAD card or on other documents such as the I-20 A-B.


Generally, when DHS extends the validity period of an EAD card a new card is not issued but rather an extension sticker is affixed to the card.


4. Automatic Extension of Validity Period


a. General


In certain extreme situations DHS may automatically extend the validity period of the EAD card for a temporary period but may not affix an extension sticker to the card.


Generally, these are situations where the extension applies to a significant number of aliens who either previously applied for or were granted Temporary Protected Status (TPS) and were previously issued EAD cards by DHS. If the designated TPS period expires but the country cannot receive the TPS aliens back, DHS may extend the TPS period for certain people from that country. In certain cases, the expiration period of the previously issued EAD card may be automatically extended for a temporary period until DHS can process replacement EAD cards for all affected aliens (see RM 00203.500B.4.c. for EAD cards issued to nationals of certain countries that are currently automatically extended).


In these cases, SAVE will not verify that the EAD card has automatically been extended or show the new expiration date of the employment period until the replacement EAD card is issued. If the alien has not received the new EAD card and submits the expired EAD card, the online SAVE query response will show “Institute Additional Verification.” Although the validity period of the document has automatically been extended, the new expiration date is not reflected in the DHS system. You must send a G-845 to the appropriate DHS office to verify that the expired document was validly issued (see RM 00203.748).


b. Processing the SS-5 When the Validity of EAD Card Has Been Automatically Extended


To process the SS-5 through the SS-5 Assistant in this situation, enter on the POC/Proof of Alien Status screen the expiration date for the EAD card as “D/S;” and the “category” or “provision of law” as “Other.”


Since the SAVE query response will show “Institute Additional Verification,” use the SS-5 Assistant to generate Form G-845. Send the completed G-845 to the appropriate DHS office (see RM 00203.748for the appropriate DHS office address). The G-845 response from DHS will generally show item 12. a. checked (“This document is not valid because it appears to be expired.”). Therefore when DHS returns the G-845 with this response, in Update Mode of the SS-5 Assistant:




  • Select Update Option #10 G-845 Received from the SS-5 Assistant Update Options screen



  • Check Block # 3, “This Document appears valid and relates to an alien authorized employment as indicated below:” on the SS-5 Assistant G845 Section B. Screen.



  • Select the “Full Time” and “Expires on” radio buttons and input the expiration date of (the date of the automatic extension).


Do not check block #12 “This document is not valid because it appears to be – expired” on the G-845 Section B. Screen in SS-5 Assistant because when you do this the case will remain in suspect status and you will not be able to clear the SS-5 application.


If DHS returns the G-845 and it shows a different response follow the appropriate instructions for the response provided (RM00203.740E.).


c. Automatic Extension of Validity Period of EADs issued to certain citizens/residents of Honduras and Nicaragua


DHS automatically extended until January 5, 2007, the EADs for certain Hondurans and Nicaraguans who applied for TPS and whose I-766 EAD cards expired on July 5, 2006.


DHS published notices in the Federal Register on March 31, 2006, about the extension of TPS for Honduras and Nicaragua and the automatic extension of employment authorization for certain nationals of these countries.


Because all aliens who qualify for this automatic extension have I-766 EAD cards and have continuously resided in the U.S. since December 30, 1998, most have been assigned SSNs but may apply for a replacement SSN card.


Many Honduran and Nicaraguan TPS re-registrants will not receive their new EAD cards until after their current I-766s expire. Therefore, DHS is automatically extending until January 5, 2007, the validity of I-766 EADs issued to certain nationals of Honduras and Nicaragua when the EAD cards expire on July 5, 2006. Re-registrants for TPS must apply to DHS for new EAD cards authorizing them to work after January 5, 2007.


Accept as valid through January 4, 2007, an I-766 EAD card for an alien who is a national of Honduras or Nicaragua when the I-766 expired on July 5, 2006 and shows the notation “A-12” or “C-19” on the face of the card under “Category.” Use the Numident record (when the person applies for a replacement SSN card), the alien’s expired I-94, or other evidence showing nationality to establish that he/she is a national of Honduras or Nicaragua.


When the G-845 shows “This document is not valid because it appears to be expired,” as the response for an EAD that expired on July 5, 2006, and the bearer is a national of Honduras or Nicaragua, presume the validity period of the EAD has automatically been extended until January 5, 2007. If the G-845 shows another response, follow RM 00203.740 E. (Procedure – Interpreting the G-845 Response).


When processing the SS-5 through the SS-5 Assistant, add the remark “HOND” or “NIC,” as appropriate in the Additional Remarks field on the Print Summary Screen.


d. Automatic Extension of Validity Period of EADs Issued to Certain Citizens/residents of El Salvador


DHS automatically extended until March 9, 2007, the EAD cards for certain El Salvadorans who applied for TPS and whose I-766 EAD cards expired on July 5, 2006 or whose cards will expire on September 9, 2006 or September 30, 2006.


DHS published a notice in the Federal Register on June 15, 2006, about the extension of TPS for El Salvadorans and the automatic extension of employment authorization for certain nationals of this country.


Because all aliens who qualify for this automatic extension of the validity period of the I-766 EAD cards have continuously resided in the U.S. since before March 9, 2001, most have been assigned SSNs but may apply for replacement SSN cards.


Many El Salvadoran TPS re-registrants will not receive their new EAD cards (with an expiration date of September 9, 2007) until after their current I-766 cards expire. Therefore, DHS is automatically extending until March 9, 2007, the validity of I-766 EAD cards issued to certain nationals of El Salvador when the EAD cards expired on July 5, 2006, or will expire on September 9, 2006, or September 30, 2006. Re-registrants for TPS must apply to DHS for new EAD cards authorizing them to work after March 9, 2007.


Accept as valid through March 8, 2007, an I-766 EAD card issued to an alien who is a national or resident of El Salvador when the I-766 card expired on July 5, 2006 or will expire on September 9, 2006, or September 30, 2006, and shows the notation “A-12” or “C-19” on the face of the card under “Category.” Use the Numident record (when the person applies for a replacement SSN card), the alien’s expired I-94, or other evidence showing nationality to establish that he/she is a national of El Salvador.


When the G-845 response shows “This document is not valid because it appears to be expired,” as the response for an EAD that expired on July 5, 2006, September 9, 2006, or September 30, 2006, and the bearer is a national of El Salvador, presume the validity period of the EAD card has automatically been extended until March 9, 2007 when the document shows “A-12” or “C-19” under Category. If the G-845 shows another response, follow RM 00203.740E. (Procedure – Interpreting the G-845 Response).


When processing the SS-5 through the SS-5 Assistant, add the remark “EL SAL” as appropriate in the Additional Remarks field on the Print Summary Screen.


C. Policy – Employment Authorization by Class of Admission


The following policy applies to employment authorization by class of admission:


1. Aliens Work Authorized Without Specific DHS Authorization


The following sections list nonimmigrants, by alien class of admission codes, who are authorized to work in the U.S. without specific authorization from DHS. The person’s I-94 will not have the DHS employment authorization stamp and the alien will generally not have an EAD.


For those with an asterisk (*), the principal alien, spouse, and child all have the same classification code. In some instances, both the husband and wife are both principal aliens when the classification is E-1, E-2. Accept their statements that both are principals.


For those with a double asterisk (**) (non-immigrant E-1, E-2, and L-2 classifications), the spouse is also authorized to work without specific DHS authorization. The E-1, E-2, and L-2 spouse is not required to apply to DHS for an EAD card as documentary evidence of work authorization but may choose to do so. When the E-1, E-2, or L-2 spouse applies for an SSN card and does not submit an EAD as evidence of employment authorization, he/she must submit, in addition to evidence of immigration status, evidence of a marital relationship to the principal E-1, E-2, or L-1 alien. The evidence of marital relationship between the applicant and the principal E-1, E-2, or L-1 alien is a marriage document (issued prior to admission to the U.S. as an E-1, E-2, or L-2 non-immigrant).


NOTE: Ask the alien whether he/she is the principal alien who is authorized to work or the spouse, child or other dependent of the principal alien and see RM 00203.500C.1,, RM 00203.500C.2., and RM 00203.500C.3. when the alien is the spouse (other than an E-1, E-2 or L-2 spouse) or child.











































































































































Class of Admission


Description


A-1*


Ambassador, public minister, career diplomat or consular officer


A-2*


Other foreign government official or employee


A-3*


Attendant, servant, or personal employee of principal A-1, or A-2


C-3*


Foreign government official in transit through the U.S.


E-1*


Treaty trader (principal)


E-1**


Spouse of principal E-1


When an EAD card is issued in these situations to an E-1 spouse, the I-766 shows “A-17” under Category and the I-688B shows “274a.12(A)(17)” under Provision of Law.


If an EAD is not submitted, applicant must submit a marriage document as evidence that he/she is spouse of the principal E-1 alien


E-2*


Treaty investor (principal)


E-2**


Spouse of principal E-2


When an EAD card is issued in these situations to an E-2 spouse, the I-766 shows “A-17” under Category and the I-688B shows “274a.12 (A)(17)” under Provision of Law.


If an EAD is not submitted, applicant must submit a marriage document as evidence that he/she is spouse of the principal E-2 alien


E-3*


Treaty trader in a specialty occupation


F-1


Academic student – for on-campus employment, and DSO authorized curricular practical training. (See RM 00203.470 for the proof required)


F-3


Canadian or Mexican national academic student who commutes to school in the U.S. – for DSO authorized curricular practical training (see RM 00203.470C.5.a.)


G-1*


Resident representative of recognized foreign member government to an international organization


G-2*


Other temporary representative of recognized foreign member government to an international organization


G-3*


Representative of unrecognized or nonmember foreign government to an international organization


G-4*


Representative of international organization (officer or employee)


G-5*


Attendant, servant, or personal employee of principal G-1, G-2, G-3, or G-4


H-1B


Worker in a specialty occupation


H-1B1


Temporary worker from Chile or Singapore under the U.S.-Chile and U.S-Singapore free trade agreements


H-1C


Registered nurse


H-2A


Agricultural worker


H-2B


Non-agrarian seasonal worker


H-2R


Returning H-2B worker (worker was previously admitted as H-2B, left the U.S. temporarily and is returning to the U.S.


H-3


Trainee


I*


Foreign information media representative


J-1


Exchange visitor (pursuant to an approved program) (See RM 00203.480) An exchange visitor whose DS-2019 shows the category as “international visitor” or “student” in item 4 of the form must provide a letter from the program sponsor as evidence of authority to work. Otherwise, presume the J-1 is authorized to work as part of the exchange program.


K-1


Fiancé(e) of U.S. citizen


L-1


Intracompany transferee


L-2**


Spouse or dependent of an intracompany transferee


When an EAD card is issued to an L-2 spouse, the I-766 shows “A-18” under Category and the I-688B shows “274a.12 (A)(18)” under Provision of Law.


If an EAD is not submitted, applicant must submit a marriage document as evidence that he/she is spouse of the L-1 alien


NATO-1 through 6*


NATO officer, representative, or personnel


NATO-7*


Attendant, servant, of personal employee of principal NATO-1 through 6


O-1


Alien with extraordinary ability in sciences, arts, education, business or athletics


O-2


Alien accompanying O-1


P-1


Internationally recognized athlete or entertainer in an internationally recognized group


P-2


Artist or entertainer in an exchange program


P-3


Artist or entertainer in a culturally unique program


Q-1


Cultural exchange visitor


Q-2


Irish Peace Process Cultural and Training Program Visitor


R-1


Religious worker with a nonprofit religious organization


TC


Professional business person, United States-Canada Free Trade Act (FTA)


TN


Professional business person from Canada or Mexico, North American Free Trade Agreement (NAFTA)


Refugee


Alien admitted pursuant to section 207 of the Immigration and Nationality Act (INA)


The I-766 shows “A-3” under Category; the I-688B shows “274a.12 (A)(3)” under Provision of Law.


Asylee


Asylee under 208 of the INA


The I-766 shows “A-5” under Category; the I-688B shows “274a.12 (A)(5)” under Provision of Law.


2. Aliens Who Require an EAD from DHS Authorizing Employment


The following lists nonimmigrants, by alien class of admission, who are authorized to work only with authorization from DHS. Employment authorization for these aliens must be shown on an EAD. For those with an asterisk (*), the principal alien, spouse, and child all have the same classification code. The visa of the dependent may show the name of principal.


EXCEPTION: Employment authorization may be shown on the I-94 for a refugee or asylee, on Form I-20 A-B for curricular practical training (CPT) for an F-1, or on a sponsor’s letter for a J-1 whose category as shown in item 4 of the DS-2019 is “student” or “international visitor.”
























































































































Class of Admission


Description


A-1*, A-2*


Spouse or child of principal A-1, A-2 alien


The I-766 shows “C-1” under Category; the I-688B shows “274a.12 (C)(1)” under Provision of Law.


B-1



Visitor for business who is:




  • A personal or domestic servant accompanying or following a employer admitted to the U.S. as a nonimmigrant



  • A domestic servant accompanying or following a U.S. citizen employer (the employer has a permanent home or is stationed in a foreign country and is temporarily in the U.S.)



  • An employee of a foreign airline and the employee is not a national of the country of the airline’s nationality


The I-766 shows “C-17” under Category; the I-688B shows “274a.12 (C)(17)” under Provision of Law.


NOTE: The instructions in section C.3. apply if the B-1 alien is not authorized to work under one of the above situations.


E-3*


Spouse or child of principal treaty trader in a specialty occupation


F-1


Academic student – for employment in authorized optional practical training (provision of law: optional practical training -274a.12(c)(3)(i); employment with an international organization -274a.12(c)(3)(ii); economic hardship – 274a.12(c)(3)(iii))


The I-766 shows “C-3” under Category; the I-688B shows “274a.12 (C)(3)” under Provision of Law.


See RM 00203.470 for employment authorization documentation required for F-1s employed on campus or in curricular practical training (an EAD is not required for these types of employment).


F-3


Canadian or Mexican national academic student who commutes to school in the U.S.– for employment in optional practical training


The I-766 shows “C-3” under Category; the I-688B shows “274a.12 (C)(3)(i)” under Provision of Law.


G-1*, G-3*, G-4*


Spouse or child of J-1 alien


The I-766 shows “C-4 under Category; the I-688B shows “274a.12 (C)(5)” under Provision of Law.


J-2


Spouse or minor child of J-1 alien


The I-766 shows “C-5” under Category; the I-688B shows “274a.12 (C)(5)” under Provision of Law.


K-2


Child of K-1


The I-766 shows “A-6” under Category; the I-688B shows “(A)(6)” under Provision of Law.


K-3


Spouse of U.S. Citizen


The I-766 shows “A-9” under Category; the I-688B shows “274a.12 (A)(9)” under Provision of Law.


K-4


Child of K-3


The I-766 shows “A-9” under Category; the I-688B shows “274a.12 (A)(9)” under Provision of Law.


L-2


Child of L-1 intra-company transferee


The I-766 shows “A-18” under Category; the I-688B shows “274a.12 (A)(18)” under Provision of Law.


M-1


Nonacademic student – for practical training


The I-766 shows “C-6” under Category; the I-688B shows “274a.12 (C)(6)” under Provision of Law.


M-3


Canadian or Mexican national nonacademic commuter student – for practical training


The I-766 shows “C-6” under Category; the I-688B shows “274a.12 (C)(6)” under Provision of Law.


NATO – 1* through 7*


Spouse or child of principal NATO – 1 through 7 alien


The I-766 shows “C-7” under Category; the I-688B shows “274a.12 (C)(6)” under Provision of Law.


N-8


Parent of alien granted permanent residence


The I-766 shows “A-7” under Category; the I-688B shows “274a.12 (A)(7)” under Provision of Law.


N-9


Child of alien granted permanent residence


The I-766 shows “A-7” under Category; the I-688B shows “274a.12 (A)(7)” under Provision of Law.


S-5


Alien supplying critical information relating to a criminal organization or enterprise


The I-766 shows “C-21” under Category; the I-688B shows “274a.12 (C)(21)” under Provision of Law.


S-6


Alien supplying critical information relating to a counter terrorism matter


The I-766 shows “C-21” under Category; the I-688B shows “274a.12 (C)(21)” under Provision of Law.


S-7


Spouse or child of S-5 or S-6 alien


The I-766 shows “C-21” under Category; the I-688B shows “274a.12 (C)(21)” under Provision of Law.


T-1


Victim of severe form of trafficking


The I-766 shows “A-16” under Category; the I-688B shows “274a.12 (A)(16)” under Provision of Law.


T-2


Spouse of victim of severe form of trafficking


The I-766 shows “C-25” under Category; the I-688B shows “274a.12 (C)(25)” under Provision of Law.


T-3


Child of victim of severe form of trafficking


The I-766 shows “C-25” under Category; the I-688B shows “274a.12 (C)(25)” under Provision of Law.


T-4


Parent of victim of severe form of trafficking


The I-766 shows “C-25” under Category; the I-688B shows “274a.12 (C)(25)” under Provision of Law.


T-5


Sibling of victim of a severe form of trafficking in persons


U-1


Victim of Certain Criminal Activity


The I-766 shows “C-11,” “C-14,” or “C-18” under Category; the I-688B shows “274a.12 (C)(11),” “274a.12(c)(14),” or 274a.12 (c)(18)” under Provision of Law.


U-2


Spouse of U-1


The I-766 shows “C-11,” “C-14,” or “C-18” under Category; the I-688B shows “274a.12 (C)(11),” “274a.12(c)(14),” or 274a.12 (c)(18)” under Provision of Law.


U-3


Child of U-1


The I-766 shows “C-11,” “C-14,” or “C-18” under Category; the I-688B shows “274a.12 (C)(11),” “274a.12(c)(14),” or 274a.12 (c)(18)” under Provision of Law.


U-4


Parent of U-1, if U-1 is under 21 years of age


The I-766 shows “C-11,” “C-14,” or “C-18” under Category; the I-688B shows “274a.12 (C)(11),” “274a.12(c)(14),” or 274a.12 (c)(18)” under Provision of Law.


V-1


Spouse of a permanent resident


The I-766 shows “A-15” under Category; the I-688B shows “274a.12 (A)(15)” under Provision of Law.


V-2


Child of a permanent resident


The I-766 shows “A-15” under Category; the I-688B shows “274a.12 (A)(15)” under Provision of Law.


V-3


Parent of a permanent resident


The I-766 shows “A-15” under Category; the I-688B shows “274a.12 (A)(15)” under Provision of Law.


Parolee


Alien paroled temporarily into the U.S.


The I-766 shows “A-4” or “C-11” under Category; the I-688B shows “274a.12 (A)(4)” or “274a.12 (C)(11)” under Provision of Law.


Adjustment applicant




  • Applicant for adjustment to permanent resident alien under section 245 of INA


The I-766 shows “C-9” under Category; the I-688B shows “274a.12 (C)(9)” under Provision of Law.




  • Applicant for creation of a record of lawful admission for permanent residence pursuant to section 249 of the INA


The I-766 shows “C-16” under Category; the I-688B shows “274a.12 (C)(16)” under Provision of Law.


Family Unity
Program Alien


Alien granted voluntary departure under the Family Unity Program


The I-766 shows “A-13” under Category; the I-688B shows “274a.12 (A)(13)” under Provision of Law.


Temporary Protected Status alien




  • Alien granted Temporary Protected Status pursuant to section 244A of the INA


    (The I-766 shows “A-12” under Category; the I-688B shows “274a.12 (A)(12)” under Provision of Law.)




  • Applicant for Temporary Protected Status pursuant to section 244A of the INA


    (The I-766 shows “C-19” under Category; the I-688B shows “274a.12 (C)(19)” under Provision of Law.)


    NOTE: Also see RM 00203.500 B.4.c.


Deportable Alien




  • Alien granted withholding of deportation pursuant to section 243(h) of INA


    (The I-766 shows “A-10” under Category; the I-688B shows “274a.12 (A)(10)” under Provision of Law.);



  • Alien granted extended voluntary departure


    (The I-766 shows “A-11” under Category; the I-688B shows “274a.12 (A)(11)” under Provision of Law.);



  • Applicant for suspension of deportation pursuant to section 244 of the INA


    (The I-766 shows “A-10” under Category; the I-688B shows “274a.12 (A)(10)” under Provision of Law.);



  • Alien granted voluntary departure


    (The I-766 shows “C-12” under Category; the I-688B shows “274a.12 (C)(12)” under Provision of Law.);



  • Alien granted deferred action


    (The I-766 shows “C-14” under Category; the I-688B shows “274a.12 (C)(14)” under Provision of Law.)



  • Alien for whom there is a final order of deportation and who is released on an order of supervision pursuant to section 242(d) of the INA


    (The I-766 shows “C-18” under Category; the I-688B shows “274a.12 (C)(18)” under Provision of Law.)


3. Aliens Who Are Not Authorized To Work In The U.S.


The following temporary nonimmigrants are not authorized to work in the U.S.:




















































































Class of Admission


Description


A-3


Spouse or child of principal A-3 alien


B-1


Visitor for business (see section C.2. above if the B-1 alien alleges employment as a personal or domestic servant or employee of a foreign airline)


B-2


Visitor for pleasure


BE


Bering Straight Agreement visa-free visitor for pleasure to certain designated areas of Alaska


C-1


Alien in transit through the U.S.


C-2


Alien in transit to UN headquarters


C-3


Attendant, servant, other personal employee, spouse or child of principal C-3 alien


D-1, D-2


Crew member


E-1


Child of principal E-1 alien who is not an employee of the Coordination Council for North American Affairs


E-2


Child of principal E-2 alien


F-2


Spouse or child of F-1 alien


G-2, G-5


Spouse or child of principal G-2 or G-5 alien


H-4


Spouse or child of H-1A, H-1B, H-2A, H-2B, or H-3 alien


I


Spouse or child of principal I alien


L-2


Child of L-1 alien


M-2


Spouse or child of M-1 alien


M-3


Canadian or Mexican national commuter vocational or non-academic student


O-3


Spouse or child of O-1 or O-2 alien


P-4


Spouse or child of P-1, P-2, or P-3 alien


Q-3


Spouse or child of Q-2


R-2


Spouse or child of R-1 alien


TD


Spouse or child of TN alien


WB


Visitor for business from a visa waiver country


WT


Tourist from a visa waiver country




<!– internal date use only

Added to this file 07/14/2006 Last Updated: 07/14/2006

–>




RM 00203.500 – Employment Authorization for Nonimmigrants – 07/14/2006

Skilled immigrants wait on Congress

Via Yahoo.com

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

Homeland Security.
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

Government Accountability Office.

President Bush
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
applications.

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.

Continue reading

Celebs bend visa lines like Beckham

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.

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 legally.

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 brightest.”

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.

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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.

A:
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
evidence submitted.

2.
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
“exceptional ability.”

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.

3.
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
was accepted.

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
organizations.”)
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).

5.
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
its opinions.

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
decision.

6.
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.

A:
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.
From
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.

Because
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.

7.
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.

A:
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.

9.
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.

A:
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?

A: Yes.

11.
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
interfiled case.

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.

12.
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
follows:

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 ……

However,
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.
Thank you.

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.

13.
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.

A: I-131
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
United States.

You may
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.
For
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,
preaddressed mailer.

You can request
expeditious handling for other form types in the same manner unless the
petition is eligible for premium processing.

14.
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.

With
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.

16.
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.

17.
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?

A:
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
us.

18.
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.

A:
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
contact.

19.
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. 

A:
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.”

20.
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?

A:
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.

21.
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.

22.
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.

Sincerely,

Gregory W. Christian Acting Director

Comment on India’s The Economic Times Article Titled — “Worried about H-1B visa? Take the L1 route”

I recently came across an article by “An Immigration Lawyer From Mumbai” in India’s The Economic Times (Online Edition).  The article is titled Worried about H-1B visa? Take the L1 route”.  The author writes passionately regarding the L-1B visa; by way of background, this is a visa that in limited instances is a good replacement for the H-1B.  The article, however, paints an incomplete portrait.

The author neglects to mention the two most basic and substantial obstacles which stand in the way of L-1B visa aspirants and their sponsors: 1) the L-1B visa holder cannot be ‘body-shopped’ and 2) the visa holder must possess ‘specialized knowledge’ which is defined as special knowledge possessed by an individual
of the petitioning organization’s product, service,
research, equipment, techniques, management, or other interests
and its application in international markets, or an advanced
level of knowledge or expertise in the organization’s
processes and procedures.” 
This is obviously a difficult burden to bear during processing, especially in heavy traffic consulates such as Chennai or New Delhi.  Requirements such as these unfortunately preclude a great majority of the software consulting companies that place workers at third-party job sites from sponsoring these visas.

Cases such as the
Matter of Colley
, Matter of Penner,
and
Matter of Sandoz Crop Protection Corporation stated that the beneficiary
of an L-1B petition must possess proprietary or unique knowledge.
In these cases, a beneficiary would qualify only where their employers were using unique or specially patented
software or equipment not used by other employers in the
same industry. For example, a beneficiary proficient in
using software developed by his or her employer would qualify
for L-1B status, but a beneficiary with expertise in highly
sophisticated software developed by another company would
not qualify.