Monique Kornfeld, Immagration Lawyer

USCIS Adopts Decision of Matter of G- Defining Function Manager for EB-1C Multinational Executive/Manager Petition

November 16th, 2017

On November 8, 2017, USCIS issued a policy memo on multinational function managers designating Matter of G-, Inc. as an adopted decision (Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017) . Matter of G- states that to satisfy the requirement that the beneficiary will be employed in a managerial role as a function manager (as opposed to a manager of people), the following must be demonstrated:

1. The function is a clearly defined activity;
2. The function is “essential,” i.e., core to the organization;
3. The beneficiary will primarily manage, as opposed to perform, the function;
4. The beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and
5. The beneficiary will exercise discretion over the function’s day-to-day operations.

In order to be classified as an EB-1C multinational executive/manager for immigrant visa purposes, the following requirements must be met:

1. The foreign national was employed in a full-time executive or managerial position for one year in the three years preceding his or her transfer into the U.S;
2. The foreign national was employed in such capacity by the overseas affiliate, parent, subsidiary or branch of the US petitioner employer;
3. The foreign national will work in a managerial or executive capacity for the affiliated entity in the US; and
4. The US petitioner has been operating for at least one year as of the date of filing the petition.

December 2017 Visa Bulletin

November 14th, 2017

The Department of State (DOS) posted the Visa Bulletin for December 2017, which provides the visa number availability for family-sponsored and employment-sponsored preference categories, as well as for the diversity visa lottery cut-offs. As of November 14, 2017, USCIS has not announced whether in December 2017 it will accept adjustment of status applications based on the filing dates or the final action dates chart. USCIS anticipates that this information will be released within one week of the monthly Visa Bulletin.

The EB2 category for India is at November 1, 2008, and for China July 1, 2013. The EB1 category across the board remains current. The EB3 worldwide category remains current and the EB3 category for China is at March 8, 2014, and at October 15, 2006, for India.

Ninth Circuit Allows for Implementation of Travel Ban with Exceptions for Individuals with Credible Relationships

November 13th, 2017

The Appeals Court of the Ninth Circuit issued an order staying the district court’s October 20, 2017, preliminary injunction against the ban on entry (“travel ban”) of nationals from Chad, Iran, Libya, Somalia, Syria and Yemen, except as to foreign nationals who have a credible claim of a qualifying family or institutional connection to the U.S. People with a qualifying family relationship include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins. Formal documented relationships to a U.S.-based entity, such as a university or employer in the U.S. may also qualify to exempt individuals from the travel ban.

The Ninth Circuit is scheduled to hear oral arguments on the case to block the ban on December 6th. The Fourth Circuit U.S. District Court of Appeals in Richmond, VA will hear an appeal to a similar injunction on implementation of the travel ban on December 8, 2017.

Everyone Is Fair Game for Deportation

November 9th, 2017

The Independent reports that everyone is fair game for deportation (removal) under the Trump administration. Arrests of undocumented immigrants have jumped compared to last year and there has also been a shift in who is being picked up for deportation.

US Immigration and Customs Enforcement (ICE) has arrested up 30,000 aliens more between January and September of this year compared to in 2016. ICE states that it is prioritizing aliens who pose a threat to national security or public safety. However, many of the aliens arrested had committed only immigrant-related offenses like illegally reentering the US or falsifying documents.
Of the 97,482 immigrants ICE arrested between January and September of 2017, 28,011 of them (around 28%) were non-criminals. For the same period last year, this was 16%.

One of Trump’s first executive orders overhauled how ICE agents perform their jobs and it discarded Obama-era rules prioritizing some immigrants over others. The Obama administration focused on criminal aliens and Trump’s directive sets its sights on anyone here illegally and they are all at equal risk of being deported.

Trump Calls for an End to the Diversity Immigrant Visa Lottery Program

November 2nd, 2017

In the wake of the terrorist attack in New York City this week by a foreign national who entered using the Diversity Immigrant Visa Program, President Trump has called for ending it. Eliminating the program is not the answer to terrorist attacks, since it is an important part of the US immigration system and the Diversity Visa entrants undergo extreme vetting.

Diversity Visa lottery winners undergo screening just like every other immigrant visa applicant, including employment and family-based immigrants. The process is extremely thorough and can take many months. Security screening includes biometrics capture; name and fingerprints checks against many government agency databases to identify potential criminal or national security issues; and checks against terrorist, organized crime, gang and other watch-lists. Also, in some instances a “Security Advisory Opinion” may be required from the Department of State headquarters before a visa is issued.

The Diversity Immigrant Visa Program, also known as the Diversity Visa lottery, since the visas are issued based on a lottery of applicants, provides for immigrant visas (legal permanent residency) for immigrants from countries with historically low rates of immigration to the US. Each year 50,000 visas are available and they Diversity Immigrant Visas are distributed among six geographic regions. There is no fee for applying for the Diversity Visa lottery. The deadline for the next Diversity Visa lottery program (DV-2019) is November 22, 2017. The following is the list of countries whose foreign nationals are not eligible for the Diversity Visa lottery program for 2019: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El
Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

Applicants who are selected must meet the following requirements:
1. Earned at least a high school education or its equivalent, defined as completing a 12-year course of formal elementary and secondary education; or
2. Two years of work experience within the past five years in an occupation that requires at least two years of training or experience.

Applicants must submit the ‘Electronic Diversity Visa Entry Form (E-DV Entry Form or DS-5501) online at dvlottery.state.gov. Starting on May 15, 2018, applicants can check their status online to see if they have been selected for DV-2019. The spouse and children under 21 of the applicant may also immigrate with the applicant.

If selected as one of the DV-2019 lottery winners, then the US Department of State will schedule an interview at a US consulate or at a local USCIS office in the US (to adjust status) and provide detailed instructions beforehand. DV selectee must be admissible to the US and complete the online Form DS-260. All selectees, including their family members, must be issued their visas by September 30, 2019. If the above comprehensive screening process is not completed by this date then the selectee will be denied a visa and lose his or her opportunity to immigrate through this program for this year.

AILA’s Report on Trends for Visa Number Availability in the Visa Bulletin

October 31st, 2017

On October 16, 2017, Charlie Oppenheim, Chief of the Visa Control and Reporting Division of the US Department of State, provided American Immigration Lawyers Association (AILA) with the following analysis of the current trends and projections for visa number availability for the various immigrant preference categories. These numbers are published in the Visa Bulletin each month.

Employment-Based Preference Categories

EB-1 China, EB-1 India, and EB-2 and EB-3 Worldwide. As previously reported, all of these categories are expected to remain current for the foreseeable future.

EB-2 India. Consistent with Charlie’s predictions, EB-2 India will advance by less than one month for November to October 8, 2008.

EB-3 India. The final action date for EB-3 India will hold steady at October 15, 2006, for November, and Charlie is confident that this date will continue to hold in December.

EB-2 China and EB-3 China. Demand in these two categories is creeping along as expected. Charlie is interested in watching how the new USCIS interview requirement will impact demand in these categories and the downgrade phenomenon that has occurred for the past few years. In November, EB-2 China advances by less than one month to June 15, 2013, and EB-3 China advances by one month to February 1, 2014.

EB-3 Philippines. The final action date for EB-3 Philippines advances one and a half months to April 1, 2016, in November, consistent with Charlie’s predictions.

EB-5 China. The final action date for EB-5 China advances approximately one week to July 1, 2014, in November, consistent with Charlie’s projections.

EB-4. All EB-4 subcategories will remain the same in November with the exception of EB-4 Mexico, which will advance one month to April 1, 2016. Compared to the beginning of the last fiscal year, where Mexico, El Salvador, Guatemala, and Honduras were almost at their annual limits, the demand is starting out more slowly in these categories this year. Charlie expects to continue to advance EB-4 Mexico slowly, but he cautions members to not be surprised if the final action date for EB-4 Mexico rejoins that of EB-4 El Salvador, Guatemala, and Honduras later this fiscal year.
Charlie noted that in FY2017, Special Immigrant Juvenile (SIJ) applicants used over 50% of the annual limit for the EB-4 category, or more than 5,100 visa numbers. Of this number, El Salvador, Guatemala, and Honduras used over 1,100 visa numbers each.

Family-Based Categories

Movement in the family-based categories for November is consistent with Charlie’s predictions, with the final action dates of most categories either remaining the same or advancing modestly by about one month. FB-1 and FB-2B Philippines demand is starting to materialize. In particular, members should expect a correction to FB-1 in the December Visa Bulletin. Demand in FB-4 India is lower than expected, which might allow Charlie to advance the final action date in this category more quickly than previously anticipated.

MEMBER QUESTION #1: When does USCIS request and allocate a visa number to an individual case?

ANSWER #1: Per the agreed upon policy, USCIS will only request an immigrant visa number once all required processing is 100% complete, including conducting any required interview, receipt of a complete medical exam, all required clearances, etc.

MEMBER QUESTION #2: Could you please confirm that a visa number that gets allocated to each applicant who has successfully passed the interview should be preserved for that applicant unless the applicant becomes ineligible for permanent residence?

ANSWER #2: With regard to USCIS, though this is relatively rare, there are occasions in which USCIS requests a number, but before the adjustment of status application is fully processed, subsequent derogatory information comes to the officer’s attention which impacts eligibility.
As another example, USCIS recently sent RFEs out on numerous EB-3 India cases which had been pre-adjudicated in anticipation that the final action date for this category would advance during August and September. Visa numbers were provided for those cases with the expectation that the applicants would respond to the RFEs in time to be approved before the end of the fiscal year. Unfortunately, hundreds of individuals did not respond in a timely manner, and USCIS determined that it would be unable to complete adjudication of those cases prior to September 30, 2017. Those cases were returned to “pending demand” status, and the visa numbers for those cases became available to other cases within FY 2017. USCIS was provided with a new number for each case once the requested evidence was received and successfully processed. As a result of new visa number requests for several hundred of these cases, the final action date for EB-3 India is not currently advancing.

For consular processing cases, a visa number is allocated to a consular post for use during the month in which the visa applicant is originally scheduled for a visa interview. If the visa is not used during that month (i.e. the case is placed in administrative processing), the number is returned to the Visa Office at the end of the month.

MEMBER QUESTION #3: In last month’s column, Charlie talked about avoiding a “drastic” retrogression of EB-3 China. Does this mean there is no hope of forward movement?

ANSWER #3: The reason that the final action date for EB-3 China was not advanced as much as might be suggested by the current rate of demand is because EB-3 China is likely to be hit with significant downgrade demand in the coming months. This is a pattern that has repeated itself over the past few years. Charlie intentionally did not advance the EB-3 China final action date too quickly in order to avoid a drastic retrogression later in the fiscal year. However, later this year, members can expect some additional forward movement in the EB-3 China category.

How to Serve as a Financial Sponsor on the Form I-864 Affidavit of Support for a Green Card Case

October 29th, 2017

A sponsor on any family-based immigrant visa petition for legal permanent residency (also known as the “green card”) must file a contract with the government known as the Form I-864 ‘Affidavit of Support’. This affidavit demonstrates that the beneficiary foreign national has adequate means of financial support and is not likely to become a public charge. The sponsor must meet tax filing and income or asset requirements and agree to potentially significant financial obligations under the contract.

The sponsor must have filed his or her Federal tax returns for the last three years, if required to do so. The total income noted on the last three filed tax returns must be noted on the Form I-864, but only the most recent Federal tax return (or IRS transcript), including all schedules and Forms W-2 and 1099s, must be filed.

By filing the Form I-864 Affidavit of Support, the financial sponsor must support the sponsored immigrant, if he or she is unable to support him or herself, at 125 percent of the federal poverty level for the sponsor’s household size based on the federal poverty guideline. The sponsor, or his or her household, must have a household income equal to at least 125 percent of the poverty level for his or her household size. One hundred and twenty five percent of the poverty level for a family of two in the contiguous United States is $20,300 (and an additional $5,225 for each additional household member). Income is determined by the sponsor’s total income noted on the most recently filed tax returns as well as by his or her current income. Also, if the sponsor is self-employed, his or her income may not be sufficient if not properly documented. If the income does not meet this standard then the assets or an affidavit of support from a joint sponsor can be used. Also, in certain instances the income or the assets of the sponsored immigrant may be used.

Only assets that can be converted into case within one year without considerable hardship or financial loss to the owner may be included. They must amount to five times the difference between the required income and the household income of the sponsor. In the case of sponsorship of a spouse, the assets must be three times the difference.

The joint sponsor must be at least 18-years-old who is a US citizen or legal permanent resident and who earns sufficient income for his or her household size or has sufficient assets. Household size is a specific legal term and is based on the number of certain family members living with the sponsor, dependents on his or her tax returns and the number of other immigrants sponsored pursuant to an I-864 that came into effect within ten years of the approval of the current immigrant visa or application to adjust status to legal permanent residency (I-485).

The sponsor’s obligation under the I-864 Affidavit of Support continues until the sponsored immigrant becomes a US citizen, can be credited with 40 qualifying quarters of work, departs the US permanently, or dies. Divorce does not terminate my obligation. In addition, the sponsor’s estate remains liable for repayment of benefits that arose before the support obligation ended.

Also, under the contractual obligations of the Form I-864 Affidavit of Support, the sponsor must support the sponsored immigrant financially and reimburse any government agency or private entity that provides the sponsored immigrant with Federal, State, or local means-tested public benefits. Agencies that provide means-tested benefits to intending immigrants will be able to sue the sponsor if he or she does not provide reimbursement for such benefits upon request. The sponsored immigrant may sue the sponsor to enforce the Affidavit of Support.

If any of the information on the Affidavit of Support is known by the sponsor to be false, he or she may be liable for criminal prosecution. The Government may pursue verification of any information provided on the form, including employment, income or assets, with the employer, financial or other institutions, the Internal Revenue Service, or the Social Security Administration.

The sponsor is required to report every change of my address to the US Citizenship and Immigration Service (“US CIS”) and the State(s) in which the sponsored immigrant resides, by filing Form I-865, Sponsor’s Notice of Change of Address, with the USCIS within 30 days of any change of address. Failure to give notice of any change of address may result in fines.

PERM Labor Certification Statistics Issued

October 25th, 2017

The US Department of Labor’s (DOL) Employment and Training Administration (ETA)/Office of Foreign Labor Certification (OFLC) issued selected statistics for its Permanent Labor Certification Program for fiscal year (FY) 2017. The PERM labor certification application is the first stage in most employment-based applications for legal permanent residency and requires the employer to obtain a prevailing wage determination, run recruitment and certify that there are no minimally-qualified, willing, able and available US workers for the position.

According to the DOL, for FY 2017, it received 105,034 applications, up 8% from 2016. The top five occupations of certified applications were as follows: (1) computer and mathematical (58%); (2) architecture and engineering (8%); (3) management (7%); (4)business and financial operations (6%); and (5) education, training and library (3%). The top five visa countries of citizenship of the foreign beneficiary were as follows: (1) India (55%); (2) China (9%); South Korea (6%); Canada (4%) and Mexico (2%). The minimum education requirements for 46% of the PERM applications were for advanced degree positions (master’s or a bachelor’s and five years of experience), 39% for a bachelor’s degree, 11% for less than a bachelor’s and 3% for all others.

Regarding the status of active PERM applications, 76% are under analyst review, 16% are under audit review, 6% are on appeal and 1% are under sponsorship/BE.

USCIS Rescinds Deference Policy for I-129 Extensions

October 24th, 2017

USCIS issued a policy memorandum on October 23, 2017, that abandons its long-held “due deference” policy for I-129 extensions, such as for H-1Bs, L-1As and L-1Bs. The policy memorandum rescinds the memorandum of April 23, 2004 titled “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity” and section VII of the August 17, 2015, policy memo titled “L-1B Adjudications Policy.” The memorandum is immediately effective and makes it very clear that petitioner has the burden of proof where an extension of nonimmigrant status is sought, and that the same level of scrutiny to both initial and extension petitions will apply, even where the parties and the facts have not changed from the original filing.

Obtaining Legal Permanent Residency Through the EB-1B Outstanding Researcher Petition

October 22nd, 2017

A foreign national may obtain legal permanent residence in the US as an outstanding professor or researcher through the employment-based first category (EB-1B). This process bypasses the PERM labor certification application, which is the usual first stage of an employment-based application for legal permanent residency (“the green card”) and thereby circumvents the requirements of obtaining a prevailing wage determination and running recruitment to determine if there are any minimally-qualified US workers. According to INA §203(b)(1)(B), in order for the beneficiary to be eligible for an immigrant visa (Form I-140) in this classification, the beneficiary must meet all of the following criteria:

1. Be recognized internationally as outstanding in a specific academic area;
2. Have three years of experience in teaching and/or research in that field; and
3. Be offered a tenure or tenure-track position at a university or other institution of higher education in the US to teach in the academic area; or in a comparable position conducting research in the academic area at a university or institution of higher learning; or in in the department, division, or institute of a private employer, which employs at least three persons full-time in research activities and has achieved documented accomplishments in an academic field.

The regulations further define the third prong stating that a research position may be tenured, tenure track or a permanent offer, that is, an offer of indefinite or unlimited duration in which the researcher will have an expectation of continued permanent employment unless there is good cause for termination. 8 CFR §204.5(i)(2). USCIS will accept evidence of permanency as the employer’s intent to indefinitely seek funding and a reasonable expectation that funding will continue (such as demonstrated prior renewals for extended long-term research).

The regulations at 8 C.F.R. 204.5(i)(3) define an alien as “internationally recognized as outstanding in a specific academic field” if the applicant can provide evidence of at least two of the following:

1. Receipt of major prizes or awards for outstanding achievement in the academic field;
2. Membership in associations in the academic field that require outstanding achievements of their members;
3. Published material in professional publications written by others about the alien’s work in the academic field;
4. Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or allied field;
5. Evidence of the alien’s original scientific or scholarly research contributions to the academic field; or
6. Evidence of the alien’s authorship of scholarly books or articles in the academic field.

Furthermore, the Administrative Appeals Office (AAO) applies a two-step approach following Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) by first “counting” the evidence to see if it meets two or more of the necessary criteria and then considering the evidence as a whole.

Most foreign nationals filing as outstanding researchers provide the following documentation in support of their petition:

1. Recommendation letters from experts in the field;
2. Publications and presentations;
3. Citations to their work from Google Scholar;
4. Evidence as serving as a reviewer for journals or on an editorial board;
5. Competitive awards;
6. Membership in groups requiring outstanding achievement; and
7. Patents.

Since USCIS expects a scientist to have obtained much of this evidence, such as publications, presentations and citations, it is the recommendation letters that must be particularly strong and make the applicant shine. A letter from at least one objective recommender should be filed, to wit, an expert who has not taught, supervised or worked or studied with the foreign national. While the attorney cannot write the letter for the foreign national, she can certainly provide detailed and comprehensive and review the letters to enhance the foreign national’s track record.

It is also extremely important to write a clear, cogent and thorough legal memo in support of the petition, discussing each of the criteria that are applicable to the foreign national with great detail and care. Elucidating a scientist’s esoteric research and its practical significance in a way that presents the foreign national’s achievements as impressive while remaining clear to the lay person is also critical. USCIS does not have resident scientists with Ph.Ds. in different areas on staff reviewing these petitions and the petition is a form of marketing involving persuasion.