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AILA – DC Chapter 2012 Fall Conference Nonimmigrant Visas & Consular Processing Sheela Murthy, Esq. - Panel Moderator/ Speaker Evangeline Howard, Esq.

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Presentation on theme: "AILA – DC Chapter 2012 Fall Conference Nonimmigrant Visas & Consular Processing Sheela Murthy, Esq. - Panel Moderator/ Speaker Evangeline Howard, Esq."— Presentation transcript:

1 AILA – DC Chapter 2012 Fall Conference Nonimmigrant Visas & Consular Processing Sheela Murthy, Esq. - Panel Moderator/ Speaker Evangeline Howard, Esq. (Department of State) Jan Pederson, Esq. – Speaker Leslie Dellon, Esq. - Speaker

2 H1B Criteria Nonimmigrant intent is NOT required Individual must be employed in a “specialty occupation,” which is a position that requires: –The theoretical and practical application of a body of specialized knowledge, and –A four-year college/university degree or foreign equivalent or equivalent experience in the specialty field (“3 for 1” rule). H1B Petition also requires a certified Labor Condition Application (LCA) obtained from the DOL.

3 H1B CAP Quota (“H1B Cap”) –Fiscal year quota of 65,000: Applies to all “new” H1B petitions. –Exemptions for institutions of higher education, not-for-profit organizations affiliated with institutions of higher education, and government research organizations as well as certain recipients of §212(e) waivers. –6,500 set aside for Chilean/Singaporean H1B1. –20,000 additional for graduates of U.S. master’s (or higher) degree programs. –USCIS accepts applications each year beginning April 1 st. –Employment may not commence before October 1st of that fiscal year.

4 H1B Professionals—Admission and Stay Six-year limit, in up to three-year increments, with some exceptions.

5 H1B extensions under AC21: –PERM/ I-140 filed at least 365 days Earlier –I-140 approved and the Priority Date is not Current Recapture Time Switch to a dependent status (H-4 or L-2) Possibly rely on spouse’s GC case as a basis to extend H1B status but risk that it may not work. Reset: Leave the U.S. for 1 year and reenter subject to the cap again for another 6 years Extension Strategies Beyond 6 th Year

6 H1B Issues: Establishing Control & the Employment Relationship Jan. 2010 Neufeld Memo establishing factors to weigh. H1B and H-4 221(g) visa refusals based on Neufeld Memo factors. Impact on EVC Business Model in the IT Industry.

7 Benching H1B Employees Employer is generally required to pay H1B employees for nonproductive time at the full-time rate of the DOL's prevailing wage. Even if employer terminates H1B employee, employer may be liable for wages if proper procedures are not followed. –Note that if employee is terminated, employer is generally obligated to pay for the reasonable costs of return transportation of the FN abroad.

8 Changing Employers While on H1B Person in valid H1B status is generally permitted to change employers upon the filing of new H1B petition, so long as certain requirements have been met. If H1B employee travels abroad after change of employer, he/she typically may reenter in H1B status with existing visa (assuming it is unexpired.)

9 Additional H1B Issues Risk of travel when an H1B extension petition is filed with the same employer Risk of travel when H1B change of employer is filed Memo on using H1B receipt notice has its limitations/ risks Risk of visa denial when applying abroad (discussed below)

10 Additional H1B Issues Complex H1B issues with consulting companies Change of work location –Requirement to file an LCA Amendment –Safer to File an amended petition DOL Prevailing Wage Issues Employer/ Employee Relationship and Right of Control

11 B-1 in lieu of H1B Individuals may apply for a B1 or B1/B2 visa to perform H-1B work in the United States as long as they fulfill the following criteria: –Hold the equivalent of a U.S. bachelor's degree –Plan to perform H-1B-caliber work or training –Will be paid only by their foreign employer, except reimbursement of incidental travel costs such as housing and per diem. The employee must not receive any salary from a U.S. source. See 9 FAM 41.31 N11 –The task can be accomplished in a short period of time. Still need to show strong ties to foreign country under INA § 214(b)

12 L-1Classification Qualifying relationship between foreign entity and U.S. petitioner. –Parent/subsidiary: At least 51% ownership (direct or indirect) or 50% with control or 50/50 JV with equal control or less than 50% and control. –Affiliates: Owned/controlled by same parent or person or by same group of people in approximately same proportion. –Branch: operating division or office of same entity, different location. –Special provision for accounting partnerships operating internationally. Are/will be “doing business” (regular, systematic, and continuous provision of goods and/or services) U.S. and at least 1 country abroad. Foreign national employed F/T abroad by qualifying foreign entity for 1 continuous year out of preceding 3 years as managerial, executive or specialized knowledge. Proposed job in U.S. must be managerial, executive or specialized knowledge. Can be transferred in a different category than worked abroad. See 8 C.F.R. § 214.2(l)(1)

13 A “manager” primarily: –Manages the organization or a smaller unit or a function; –Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function; –Has authority to hire/fire and other personnel actions or to recommend such actions; or if no employees directly supervised, functions at a senior level; and –Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be a manager. See 8 C.F.R. § 214.2(l)(1)(ii)(B). L-1A Manager

14 Tips for “People Manager” –Organizational chart for the foreign entity showing manager’s seniority and chart listing manager and names/titles of people directly and indirectly supervised. Similar chart for the U.S. entity with the foreign national in the proposed job. –Establish that the people supervised/to be supervised are professionals. Describe each person’s job duties. Include explanation of the “chain of command” (to whom they report and who reports to them) and a resume with education and experience. (Can include copy of degree, when relevant.) –USCIS does not consider “hands-on” activities to be managerial. Description of manager’s duties with percentages of time spent is usually persuasive. L-1A Manager (con’t)

15 Is the “Functional Manager” a viable option? Low probability of success in small business. Best chance for success: Establish that the function is “essential” by documenting the dollar value of the function to the company. Provide organizational charts for the foreign and U.S. entities showing the foreign national’s seniority. Include job titles and job duties of “junior” personnel to establish the foreign national’s seniority and to demonstrate that others will carry out the work while he or she manages the function. L-1A Manager (con’t)

16 An “executive” primarily: –Directs the management of the organization or smaller unit or a function; –Establishes goals and policies; –Exercises wide latitude in discretionary decision-making; and –Receives only general supervision or direction from higher level executives, the board of directors, or stockholders. See 8 C.F.R. § 214.2(l)(1)(ii)(C). For other than the “top” position (such as CEO), these duties can be difficult to document to USCIS’ satisfaction. If possible, present job as managerial rather than executive. L-1A Executive

17 L-1B: 5 years maximum. L-1A: 7 years maximum. “Specialized knowledge:” –Special knowledge 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. See 8 C.F.R. § 214.2(l)(1)(ii)(D). If placed at non-L organization site, L organization must control work and the work must require specialized knowledge of the L organization’s products or services. L-1B Specialized Knowledge

18 USCIS Policy in Adjudicator’s Field Manual –Knowledge not generally found in the particular industry. Not required to be proprietary or unique. –Knowledge of company product must be “noteworthy or uncommon.” –Knowledge of company processes/procedures must be “advanced.” Does not need to be narrowly held within the company. AFM ch. 32.6(e): Source is Puleo Memo (March 9, 1994) (available at AILA InfoNet Doc. No. 01052171 (May 21, 2001). L-1 Specialized Knowledge USCIS Policy v. Practice

19 USCIS Misinterpretations Resulting in Denials –Knowledge must be narrowly held. –Knowledge must be held by “key” (more senior/more experienced) employees. –Knowledge takes several years to acquire. Query: Should you be pragmatic and address the incorrect standards or “stick” with the AFM, which USCIS is required to follow as USCIS policy? USCIS Policy v. Practice (con’t)

20 For Canadian or Mexican citizens. Eligible professional occupations specified by NAFTA. 8 C.F.R. § 214.6(c), which contains NAFTA Appendix 1603.D.1 (Annotated). Must meet minimum education requirement or alternative credentials specified for the occupation and have license, if required. U.S. employer or Canadian providing pre- arranged services to U.S. entity while employed by Canadian employer or self-employed in Canada. (The TN cannot own/control the U.S. entity.) TN Classification

21 Canadian and Mexican citizens. No numerical limit. No Labor Condition Application (LCA). Canadians can apply at Class A POEs, U.S. preclearance or U.S. airports w. int’l flights. Any citizenship. Fiscal year numerical limit unless “cap exempt.” LCA and LCA-related obligations. USCIS petition approval required for all. Comparison of TN H-1B

22 Only the occupations specified in NAFTA Appendix 1603 D.1. If degree required and equivalent experience not specified, cannot substitute experience. Any occupation for which a bachelor’s degree in a specific field is the entry level. Can establish degree equivalency through combination of education/experience or experience alone. 3 years experience = 1 year college. Comparison of TN H-1B (con’t)

23 Admitted for up to 3 years, no maximum. No dual intent; must maintain foreign residence. Filed or approved IV petition (I-140) not an automatic bar, but factor in determining IV intent. Admitted for up to 3 years, 6 year maximum (unless “AC21” eligible.) Dual intent; no foreign residence required. Can keep H-1B status while green card application (I-485) pending. Comparison of TN H-1B (con’t)

24 Identify the job by the TN occupation. Describe employer’s job title as an “internal” title. –Example: TN occupation is Computer Systems Analyst. –Employer’s internal job title is Applications Analyst. Identify NAFTA requirements. Describe how the foreign national meets them. Document with diplomas/ transcripts and/or employment verification letters. Be prepared for CBP claims that a foreign national cannot be classified as a TN if the job involves sales or supervision since those occupations are “not on the list,” such as a Software Engineer who supports the Sales Dep’t or a Sr. Chemist who can hire/fire other chemists. Tips for TN Approval

25 E - 1 and E-2 Treaty Traders and Investors Visas based on treaties or investment. Nationals of countries which lack such a treaty with the U.S. (e.g. India) are ineligible for this classification.



28 F - 1 Students A foreign national who is a bona fide student qualified to pursue a full course of study and who seeks to enter the U.S. temporarily to study at an established college, university, seminary, conservatory, academic high school, elementary school, language training program or other academic institution.

29 Maintenance of F-1 Status Full-time study Normal progress towards completion of degree No unauthorized employment

30 Applying for F-1 Visa / Changing Status to F-1 I-20 Financial ability SEVIS I-901 fee English language proficiency

31 F-1 Students may work in certain circumstances

32 F-1 Employment Curricular Practical Training (CPT) Optional Practical Training (OPT) On-campus employment

33 F-1 Special Issues Transition to H-1B (Cap Gap) Travel Failure to maintain status and reinstatement Out of Status vs. Unlawful Presence

34 Practical Training Curricular Practical Training Authorized by DSO; 1year full-time enrollment required; Employment-specific; One-year increments; Part-time or full-time; Integral part of established curriculum; 1-year full-time = no OPT. Full-time study required. Optional Practical Training Must be authorized by USCIS; 1 year full-time enrollment required; Directly related to course of study; Pre-completion OPT 20 hours when school in session while full-time study; Full-time during school breaks and after completion of requirements while working on thesis or dissertation; No offer of employment required; May work full time; is not subject to the unemployment provisions, and may receive a program extension; May not apply for the STEM extension from a period of pre-completion OPT; Would not be eligible for cap-gap extension of OPT. Post-completion OPT 90 days of unemployment limit; No offer of employment required; Allowed after completion of study while working on thesis or dissertation. May work full time. Would be eligible for the cap-gap extension. May apply for the STEM extension if otherwise eligible. Would be subject to the unemployment provisions. Would be unable to receive an extension of his or her program. STEM OPT 120 cumulative limit on unemployment; Offer of employment required from E-verify employer;

35 O-1 Extraordinary Ability and Achievement O-1 status is available to foreign nationals with extraordinary ability No numerical limit or prevailing wage requirement. Eligible for initial 3 years with infinite 1 year extensions.

36 O-1 Extraordinary Ability and Achievement Three different standards depending on area of expertise: –Extraordinary ability in science, education, business or athletics, or –Extraordinary achievement in motion pictures and television, or –Extraordinary ability in the arts.

37 Real-world Examples of Successful O-1 Applicants: Lighting Programmer Internationally renowned for creating artistic and creative light shows for concerts and major events. Had previously been responsible for overseeing concert light shows for numerous major rock bands (e.g. Rolling Stones, Coldplay.) Served as Lighting Programmer for Olympics ceremonies viewed by more than 2 billion people; his work received widespread praise for its innovative design and spectacular artistic achievements.

38 Real-world Examples of Successful O-1 Applicants: Soccer Coach Had received sustained international recognition and acclaim as a leading expert in the field of Soccer, specifically as a player, top level manager, and a coach. –Note that petition must overcome Lee v. Ziglar, which found that extraordinary ability as a player does not necessarily mean individual also qualifies for O-1 as coach. His teams had won 4 National Championships in 4 years. Had worked closely with the developmental process of young European players who progressed to become regular members of the first team squad. Articles written about him in numerous national and international publications.

39 Real-world Examples of Successful O-1 Applicants: Pathologist Had received substantial amounts of funding for cancer research from various prominent organizations. First author of many articles in peer-reviewed journals; his work had been cited more than 800 times. Had been appointed to numerous prominent positions, including Director of a nationally and internationally renowned cancer center that is funded by the National Institutes of Health (NIH). Credited with making discoveries which are expected to lead to groundbreaking treatments for prostate cancer.


41 REPRESENTATION OF CLIENTS IN CONSULAR PROCESSING Consular processing is separate from petition processing. Make sure you are retained to represent client in process. Do your homework on best place to apply. Will usually be Canada or Mexico, if eligible

42 PREPARING CLIENT FOR CONSULAR INTERVIEW When you accept case, analyze entire case from beginning to end. Determine possible glitches in consular processing and prepare for them in advance. Know your consular post—culture, personnel and policies. Prepare an entire application package with every conceivable document.

43 PREPARING CLIENT FOR CONSULAR INTERVIEW Always have at least a Skype interview with the client to prepare them for interview. Never skip this step no matter the time zones between you and client. Review the petition and supporting documents, the visa application and all possible questions with client in advance.

44 PREPARING CLIENT FOR CONSULAR INTERVIEW Always submit a brief summary of the case and attach an immigration time line if such will assist the consular officer in understanding the case. Always document continuous lawful presence. SKILLS TESTS. Many consular officers give skills tests in employment petition cases, so make sure your client speaks to employer shortly before the interview to discuss the job duties; make sure you review the job duties in detail and make sure client knows his job duties by heart and can recite them in his sleep. –Always consider the terror factor among visa applicants when interviewed through a bullet proof window by a consular officer whose decision is crucial to the path their careers/lives will take. In this environment, even a PhD in computer science may not be able to turn on a laptop. –Skills tests are often given to computer professionals, accountants, engineers, nurses, doctors, and oriental rug repairers. Make sure to assist your client in obtaining a comfort level in answering these questions.

45 PREPARING CLIENT FOR CONSULAR INTERVIEW Make sure client dresses appropriately. –No visible tattoos. –Look the part. –Students should take books with them to read while waiting.

46 BULLET PROOF YOUR PETITION A perfect petition does little to console a client whose visa is denied. Avoid long attorney cover letters with lots of verbiage in support of a petition. –If your verbiage is contrary to the client’s testimony, then visa petition revocation proceedings may loom Verify information in petition with both employer and foreign national before filing.

47 BULLET PROOFING AN INDIAN IT PETITION 221(g) refusals common (Chennai, New Delhi, Mumbai, Kolkata, Hyderabad), especially with consulting companies. Common issues include: –Right to control (Neufeld Memo factors) –Specialty occupation (Job requirements, etc.) Petition should include letter from end-client, signed contracts, work orders, etc. when available. –But we have been successful with cases w/o end client letters.

48 STRATEGIES FOR AVOIDING PETITION RETURNS If petition is to be returned to USCIS, short window between denial and return (i.e. usually less than two weeks.) –Attorney can communicate with Consulate to request reconsideration, etc. But once petition is returned to USCIS, Consulate is generally unable to reverse decision –This option is working less and less frequently

49 STRATEGIES FOR AVOIDING PETITION RETURNS If petition is returned to KCC, eventually case will go back to the Service Center for review. Reaffirmation can take up to a year but may be able to expedite (6-9 months) with Congressional Inquiry

50 WORLD SWEEP ON CONSULAR POSTS Dublin—Serious E-2 issues: Denials for “marginality” based on level of profitability when standard is current or future potential to make a significant contribution to U.S. economy. 9 FAM 41.51 N.11. Visa Reissuance Policies. –Worldwide trend is to reissue visas in same category in many circumstances. Check post Website. Avoids consular interview.

51 Border Processing –Mexico For Third Country National (TCN) to be eligible to apply, must have been issued a visa in same category previously. Does not have to have been issued in home country. Applicants from T-4 and List of 26 countries cannot apply. May renew visas in any category (including Es) except B visas. May need Mexican visa if outside border area.

52 Border Processing –Mexico Eligible TCN’s residing in US must make visa appointment online at –Website available 24/7. –In order to use, applicant must purchase PIN for $10US, payable by Visa/MC. PIN will expire 10 days after appt. or 90 days after purchase.

53 Border Processing –Canada Third country NIV Applicants welcome at all posts—except applicants for E visas. Beware change of status cases. Appointments required. Application should be made before current visa expires, if possible, to permit return to U.S. in the event of a visa issuance delay.

54 Border Processing Security Checks –Mantis (technology related). Most now take less than 30 days. Mantis checks are now valid for two years for H, L, and O visas; four years for F’s and J’s. Change of field, eg, law to nuclear physics, can result in new Mantis check.

55 Border Processing –Condor (security, terrorism related). Processing times on Condor clearances have increased dramatically – 90 days not uncommon. –Donkey (secondary check if there is a hit in Condor.) Can take two to three months.

56 Other Issues Iranians can now be issued F, M, and J visas for two years. J visas can only be issued until expiration of exchange program noted on DS-2019—formerly could be issued for maximum permitted by reciprocity schedule. E-2s not being renewed because consular officer decides business is marginal. Consular officers readjudicating Labor Condition Applications

57 Other Issues DOS Memo –Community colleges, language programs: all schools should be viewed equally with respect to visa issuance. –Memo’s guidance has been incorporated into Foreign Affairs Manual Notes, 9 FAM 41.61 N. 5. This incorporation indicates its importance to DOS. –This is an extremely important memo, which has clarified the most pressing issues in student visa issuance.

58 INTER-AGENCY CONFLICTS: CBP vs. DOS Inconsistent treatment of blanket Ls by CBP after DOS issuance of 5 year visas.

59 INTER-AGENCY CONFLICTS: USCIS vs. DOS 9 FAM 41.53 N2.2 Approved Petition Is Prima Facie Evidence of Entitlement to H Classification a. An approved Form I-129, Petition for a Nonimmigrant Worker …is, in itself, to be considered by you as prima facie evidence that the requirements for H classification which are examined in the petition process have been met. You do not have the authority to question the approval of H petitions without specific evidence, unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status….

60 INTER-AGENCY CONFLICTS: USCIS vs. DOS Regulation seems straight forward and innocuous, but how is it actually applied at the Consulate?

61 212(d)(3) Nonimmigrant Waiver 212(d)(3) waiver can be used to waive nearly all grounds of inadmissibility when applying for a nonimmigrant visa. Everyone eligible unless ground cannot be waived –No need for qualifying relative –No need for passage of time since inadmissibility ground arose.

62 WHAT GROUNDS CANNOT BE WAIVED Espionage – 212(a)(3)(A)(i) Unlawful Activity Related to Security –212(d)(3)(A)(ii) Attempts to overthrow USG – 212(d)(3)(A)(iii) Contrary to Foreign Policy Interests – 212(a)(3)(C)

63 WHAT GROUNDS CANNOT BE WAIVED Applicants who are or have been determined to be Class A for drug abuse or addiction for those substances listed in Schedules I through V of Section 202 of the Controlled Substance Act are not eligible for a waiver and must complete the time period for sustained, full remission before reapplying for a visa—generally one year of full remission.

64 WHAT GROUNDS CANNOT BE WAIVED Nazi Party Membership and Genocide –212(a)(3)(E)(i) and (ii) Individual whose presence is contrary to USG interests — 212(f) Student Visa Abusers. 5 year bar to admission.

65 212(d)(3) Nonimmigrant Waiver Process The waiver application is typically given to Consular Officer who then forwards it to the CBP Admissibility Review Office (ARO) which issues a decision and communicates it back to the Consulate. No form or specific format for waiver applications submitted at Consulate; also, no fee.

66 212(d)(3) Nonimmigrant Waiver Process Foreign nationals who do not typically require a visa to enter the U.S. (e.g., most citizens of Canada,) may be eligible to apply for waiver directly with CBP at Port of Entry in advance of travel to the U.S. by filing Form I-192 (along with $585 filing fee.) –CBP will take the application and any evidence submitted in support of the request and send to ARO for decision.

67 FACTORS CONSIDERED BY CONSULAR OFFICERS Three factors considered when adjudicating waiver (Matter of Hranka): 1)Must demonstrate no risk of harm to US society if admitted into US; 2)the seriousness of the prior immigration or criminal law violations; and 3)nature of reason to enter US (compelling reason not required.)

68 How Matter of Hranka is applied Recency and seriousness of activity or condition causing applicant’s inadmissibility Reasons for proposed travel to U.S. –Any legitimate purpose, such as family visits medical treatment (whether or not available abroad,) business conferences, tourist, etc. Crimes—5 year rule. Prism of violence. Misrepresentation

69 How Matter of Hranka is applied Unlawful Presence –Reason for and culpability in unlawful presence –Length of time outside the United States since unlawful presence –Incompetent legal representation Substance abuse –DUIs o DOS/CDC policy – One alcohol related arrest or conviction within last five years or two more alcohol related arrests or convictions with last ten years or other evidence to suggest an alcohol problem invokes mandatory referral to panel physician and often psychologist to consider abuse and associated harmful behavior—past, present or future. –Drug Use –Helpful Evidence to Submit to Prove Rehabilitation/Remission

70 WHERE TO GO WHEN THE CONSULAR OFFICER SAYS NO Attorney has right to appeal refusal of consular officer to recommend waiver to the Advisory Opinion Division of the Visa Office and request de novo review Rarely successful unless previous waiver granted and no changed circumstance to justify refusal of subsequent waiver If VO agrees waiver should have been recommended they can recommend a waiver to ARO –Note: Consular officer has opportunity to submit arguments to VO opposing the waiver

71 PROCESSING TIMES AND PROCEDURES IN PROCESSING NIV WAIVERS Consular Post Process –Electronic Process –How to Ensure Attorney Material Submitted to ARO –Processing Times at Posts Today ARO Process –Attorney Communication with ARO –Processing Times by Category –Processing Steps


73 Questions?

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