USCIS Announces Grace Period for New Versions of Forms

December 30th, 2016

On 12/29/2016, USCIS announced that until 02/21/2017 it will accept prior versions of immigration forms that were revised on 12/23/2016. The only exception is the Form N-400 naturalization application.

Precedential National Interest Waiver Decision: Matter of Dhanasar

December 29th, 2016

In Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), the Administrative Appeals Office (AAO) created a precedential new test for a national interest waiver in sustaining the appeal and approving a national interest waiver petition under INA §203(b)(2)(B)(i).

USCIS may grant a national interest waiver of the labor certification, which allows for self-petitioning by the foreign national, if the petitioner demonstrates that the alien is a member of the profession holding an advanced degree or equivalent (or who because of exceptional ability in the arts, sciences or business) and will substantially contribute to the US’s economy, culture, educational interests or welfare. The foreign national’s services must be in the sciences, arts, professions or business.

In the landmark case of Matter of New York State Dep’t of Transp. (“NYSDOT”), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), USCIS’s predecessor Immigration and Naturalization Service established a framework for evaluating national interest waiver petitions. This case required that (1) the employment is of substantial intrinsic merit; (2) any proposed benefit be national in scope; and (3) the national interest would be adversely affected if a labor certification were required for the foreign national. Id. at 27.

In Matter of Dhanasar, the AAO held that this analysis caused much confusion and had a tendency to lead to unnecessary subject evaluation. Id at 887. It held that it was vacating NYSDOT and adopting a new and clearer framework for adjudicating national interest waiver petitions, which is stated as follows:

“Under the new framework, and after eligibility for EB-2 classification has been established, USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence:8 (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.” Id at 889.

Regarding the first prong of showing substantial merit and national importance, the AAO noted that the endeavor’s merit may be shown in the fields of business, entrepreneurialism, science, technology, health, culture or education. Id. It held that the petitioner is not required to show that the endeavor has the potential to create a substantial impact, since it acknowledged that pure science and research may not translate into economic benefits for the US. Id.

Regarding whether the proposed endeavor has national significance the AAO focused on potential prospective impact. Id. It clearly stated that this impact is not to be evaluated solely geographically but on a broader scale. Id.

Regarding the second prong, in determining whether the foreign national is well positioned to advance the proposed endeavor, the following factors may include, but are not limited to: the individual’s education, skills, knowledge, record of success in similar areas, a plan for the future, progress made in achieving the proposed endeavor and the interest of other related parties, such as users, customers or investors. Id at 890. The AAO noted that the petitioners are not required to demonstrate that they are more likely than not to succeed in their fields. Id.

Regarding the third prong, the AAO listed the following factors that may be considered in showing that on balance it benefits the US to waive the requirements of a job offer and labor certification: in light of the foreign national’s background, whether it would be impractical for the foreign national to obtain a job offer or labor certification on the foreign national’s behalf; whether it would still benefit the US even if other qualified US workers are available; and whether the US’s interest in the foreign national’s contributions is sufficiently urgent to forgo the labor certification. Id at 890-891.

It should also be emphasized that the AAO eliminated the requirement of comparing the foreign national to other US workers in the same field and stressed that the new test was more flexible so that more foreign nationals may satisfy it. It held:

“We note that this new prong, unlike the third prong of NYSDOT, does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field. As stated previously, NYSDOT’s third prong was especially problematic for certain petitioners, such as entrepreneurs and self-employed individuals. This more flexible test, which can be met in a range of ways as described above, is meant to apply to a greater variety of individuals.” Id. at 891.

In the underlying case of Matter of Dhanasar, the AAO noted that the petitioner holds two master’s degrees and a Ph.D. in fields related to his area of developing air and space propulsion systems and is serving as a postdoctoral research associate; developed novel models; and provided evidence of his publications and other published materials citing to his work, evidence of his membership in professional associations, documentation regarding his teaching activities and letters of recommendation from experts in his field. In finding that the foreign national petition satisfied all prongs of the new test, it noted his funding from national science agencies.

The precedential national interest waiver case of Matter of Dhanasar provides a more flexible analysis that will benefit petitioners, especially doing away with the comparison requirement and focusing instead on the petitioner’s particular background. However, the factors to be evaluated regarding the last prong requiring that on balance it benefits the US to waive the requirements of a job offer and labor certification still leaves much room for subjectivity, especially in determining when it is considered “impractical” for the foreign national to obtain a job offer or labor certification and whether the US’s interest in the foreign national’s contributions is sufficiently urgent to forgo the labor certification. That is where excellent advocacy skills will continue to play a critical role in obtaining an approved national interest waiver petition.

USCIS Announces New Versions of Immigration Forms Effective as of December 23, 2016

December 26th, 2016

Without any prior notice, USCIS announced on December 23, 2016, that new versions of most immigration forms would be required as of December 23, 2016, except for the Form I-129. The affected forms include the following: I-90, I-102, I-129, I-129CW, I-129F, I-130, I-131, I-131A, I-140, I-191, I-192, I-212, I-290B, I-360, I-485, I-485 Supplement A, I-525, I-539, I-600, I-600A, I-601, I-601A, I-612, I-690, I-694, I-698, I-751, I-765, I-800, I-800A, I-817, I-824, I-910, I-924, I-924A, I-929, I-942, I-942P, N-300, N-336, N-400, N-470, N-600, and N-600K. AILA immediately contacted USCIS to inform it that the public should have been given notice and to demand that a grace period should be provided. USCIS responded that it will be flexible and exercise discretion in deciding whether to accept the older version of the forms.

Department of Homeland Security Rescinding NSEER Program

December 26th, 2016

The US Department of Homeland Security (DHS) is rescinding its (National Security Entry-Exit Registration) NSEER program that was used in the past to screen men between the ages of 16 and 45 from countries with large Arab and Muslim populations. This obsolete program was harmful to individuals and US businesses, a waste of billions of dollars of taxpayers’ money and counterproductive in preventing terrorism. The exigency of repealing it now was a result of the concern of civil rights groups and politicians that the Trump administration could use it to create a registry for Muslims. According to the Guardian newspaper, approximately 80,000 men from 25 countries were forced to provide fingerprints and a photograph and periodically report to the DHS in in-person interviews. This discriminatory program resulted in 14,000 men being placed in removal proceedings with none having been found to have any links to terrorist or violent activities.

New DHS Rule on High Skilled Workers I-140 Petitions and I-485 Portability

December 23rd, 2016

US DHS Final Rule on High Skilled Workers Provides Protections and Benefits for Beneficiaries of Form I-140 Immigrant Visa Petitions

On November 18, 2016, the Department of Homeland Security (DHS) published a final rule providing benefits to many highly skilled nonimmigrant workers and those workers with immigrant employment-based cases (Forms I-140) in the EB-1, EB-2 and EB-3 categories. This final rule will become effective on January 17, 2017. Among the benefits provided by this rule are that of retention of the priority date of the approved I-140 immigrant visa petition and the maintenance of the validity of the petition itself for H-1B extensions, employment authorization upon a showing of compelling circumstances and I-485 adjustment of status portability.

Retention of the Priority Date

The priority date of an approved I-140 employment-based immigrant visa petition is the beneficiary’s place in line for an immigrant visa. There are a limited number of immigrant visa numbers available each year with the same number being allotted to each country. Backlogs develop as a result of more applicants than numbers being available and this pertains in particular to certain applicants from India and China. If one is able to retain the priority date, then a subsequent I-140 petition on behalf of that same beneficiary will have that earlier priority date. Therefore, for foreign applicants from oversubscribed countries, retaining one’s priority date, or place in line, is a very important in obtaining legal permanent residency sooner than later.
In the final rule, the DHS provides that the beneficiary will retain the priority date of the Form I-140 immigrant visa petition, regardless of whether it is revoked, except when the I-140 is revoked for fraud, misrepresentation or material error. No longer will there be any risk that the beneficiary will lose his or her priority date upon a revocation of the I-140 based on the termination of business or its sponsorship of the beneficiary.

Validity of the Petition

The final rule also provides the criteria under which the I-140 immigrant visa petition will remain valid, even if revoked or withdrawn, for H-1B extensions, compelling-circumstances employment authorization and I-485 portability purposes. The following requirements must be met for the I-140’s validity to be retained:

• The withdrawal is filed at least 180 days after approval of the I-140;
• The I-140 petitioner’s business terminates at least 180 days after approval of the I-140; or
• The approved I-140 is associated with an I-485 that has been pending for at least 180 days.

The great advantage of maintaining an approved I-140 petition is that the beneficiary can obtain H-1B extensions beyond the maximum six-years, port to a new employer based on a pending I-485 application to adjust status, and obtain employment authorization based on compelling circumstances (as discussed in an earlier blog of mine).
H-1B Extensions beyond Six Years

The H-1B visa is the primary nonimmigrant visa that allows foreign nationals with at least a bachelor’s degree or equivalent to work in a specialty professional occupation in the US. H-1B status is normally granted for six years, although there are some exceptions to this statutory cap, including two that are based on associated applications for legal permanent residency filed on behalf of the beneficiary. The first exception allows for one-year indefinite extensions based on a labor certification or I-140 being filed at least 365 days before the end of the fifth year of the H-1B worker’s status in the US. The second exception allows for three-year indefinite extensions based on an I-140 being approved by the end of the foreign national’s sixth year in H-1B status and on the unavailability of an immigrant visa number under the per country limitation.

The new rule will make it easier for the H-1B worker to obtain three-year H-1B extensions, since the revocation of an I-140 more than 180 days after its approval will not jeopardize the ability of the foreign worker to obtain indefinite three-year extensions. Also, the new rule codifies the existing policy that the H-1B worker can obtain an extension with a new H-1B employer based on an approved I-140 filed by a different employer.

Adjustment of Status (I-485) Portability

Adjustment of status (I-485) portability allows certain applicants for adjustment of status to port or switch to a different sponsoring employer so long as the position is in the same or similar occupation as the original PERM labor certification application (or I-140 immigrant visa petition if no PERM was required). The job location and salary can be for a different region in the US. The new rule codifies the requirement that the I-485 must have been pending for at least 180 days to secure the benefits of portability.
The underlying 140 need not also have been pending for 180 days but it must be demonstrated that it was approvable when filed and up until the 180 days that the 485 has been pending. As discussed above, the I-140 will remain valid for porting purposes even if revoked or withdrawn 180 days or more after the 140 was approved or after the associated 485 was filed.
It should be emphasized that if the beneficiary has not secured the benefits of I-485 portability (e.g. has not filed the I-485 because the priority date is not yet current or has an I-485 that has not been pending at least 180 days), then a new I-140 (and possibly PERM) must be obtained on the beneficiary’s behalf in order for the beneficiary to obtain legal permanent residency in the US.

The new rule also defines a same or similar occupation. It states that it requires either an occupation that “resembles in every relevant respect the occupation” that was the basis of the approved I-140, or an occupation that “shares essential qualities or has a marked resemblance or likeness with the occupation” that was the basis of the approved I-140. The Standard Occupational Classification (SOC) of the Department of Labor is only one factor in making this determination. The rule notes that career progression may satisfy this definition.

New Form Supplement J

To apply for I-485 portability, the new rule requires the filing of Form Supplement J instead of the AC21 letter. There is no filing fee for this form and no receipt that will be issued. The rule does not address whether one who has a pending I-485 along with a filed AC 21 letter portability letter must file the Supplement J. It could be filed or the applicant could wait for USCIS to issue a request for evidence for it.

USCIS Filing Fee Increases Effective December 23, 2016

December 22nd, 2016

On October 24, 2016, USCIS announced its filing fee increases to take effect December 23, 2016. It has just confirmed with AILA that any application or petition with a postmark of December 22, 2016, will be accepted with the old fees.

USCIS Announces Adjustment of Status Filing Dates for January 2017

December 22nd, 2016

USCIS has announced on its website that applicants for employment-based adjustment of status must use the chart with the final action dates in the January 2017 Visa Bulletin. However, for family-based applicants, they may use the chart with the dates for filing visa applications in the January 2017 Visa Bulletin.

US DHS Final Rule on High Skilled Workers Provides for Employment Authorization under Compelling Circumstances

December 14th, 2016

On November 18, 2016, the Department of Homeland Security published a final rule providing benefits to many highly skilled nonimmigrant workers and those workers with immigrant employment-based cases (Forms I-140) in the EB-1, EB-2 and EB-3 categories. This final rule will become effective on January 17, 2017. Among the benefits provided by this rule is that of employment authorization for certain beneficiaries of approved I-140s where they can demonstrate compelling circumstances. However, this benefit will help an extremely narrow segment of the foreign worker population. If possible, the foreign worker should avoid using it if green card status is ultimately sought.

The provision allowing for an initial employment authorization document (EAD) based on compelling circumstances requires the following:

• The applicant is in the US in E-3, H-1B, H1B1, O-1 or L1 nonimmigrant status at the time of filing (the status need not continue until the EAD is issued);
• The applicant has an approved I-140 in the EB1, Eb-2 or EB-3 category;
• The applicant’s priority date is not current;
• The applicant can demonstrate compelling circumstances; and
• The applicant has no convictions for a felony or two or more misdemeanors.

The EAD is issued in one-year increments. Dependent spouses and children may also obtain EAD and for the same period as the principal applicant.

The rule also allows for renewals of EADs under this provision so long as the applicant satisfies the following requirements:

• Files the I-765 prior to expiration of the current EAD;
• Continues to be the beneficiary of an approved Form I-140 in the EB-1, EB-2 or EB-3 category; and
• Meets one of the two requirements:

 (1) The applicant’s priority date is backlogged and compelling circumstances continue; or
 (2) There is less than one year between the beneficiary’s priority date and the final action date (no compelling circumstances are required to be shown).

The rule provides no bright line rule for what will be considered “compelling,” but it does provide some examples, such as:

• Serious illness or disability for the applicant or relative that causes relocation;
• Employer dispute and retaliation;
• Other substantial harm, such as financial hardship, termination of employer’s business or hardship to the applicant if forced to return to the applicant’s foreign country; and
• Significant disruption to the employer’s operations if the applicant loses work authorization.

The following are examples of what is not considered “compelling”:

• Loss of a job;
• An extraordinary wait to apply for legal permanent residency;
• Seeking advance education;
• Dissatisfaction with the salary;
• The deleterious impact on the spouse’s career; and
• The desire to move into a more entrepreneurial situation.

What is most important to note about this form of EAD is that it does not confer status in the US; the applicant will only obtain work authorization and will no longer be working in nonimmigrant visa status. However, during this period of working with the EAD the applicant will be considered to have authorized stay in the US so that the three or ten-year bars to admission of INA §212(a)(9)(B) would not be triggered.

It is also crucial to understand that a foreign national working pursuant to this EAD without nonimmigrant visa status will not be able to adjust status to legal permanent residency in the US. Maintaining nonimmigrant status is a requirement to apply to adjust status to legal permanent residency in the US. Therefore, if the applicant wants to pursue legal permanent residency he or she would have to reacquire nonimmigrant status (such as an H-1B or L-1B) before filing the Form I-485 to adjust. Also, in order to obtain legal permanent residency there must be an active Form I-1-40, meaning that there is an employer still sponsoring the applicant. Therefore, if the first I-140 employer no longer is providing sponsorship the applicant must seek a new I-140 sponsor and obtain a new approved I-140.

Also, EAD based on compelling circumstances does not grant advance parole travel permission. The applicant could request advance parole based on urgent humanitarian reasons or significant public benefit, but these are challenging cases. Therefore, the applicant should be prepared to not travel abroad during this period.
Additional disadvantages to working in the US pursuant to compelling circumstances EAD are the following:

• It is at USCIS’ discretion (and therefore arbitrary) whether to find a situation compelling;
• There is no guaranteed processing time; and
• There is no automatic extension of work authorization upon filing the renewal.

Therefore, the foreign national should apply for the compelling circumstances EAD in a truly emergent situation. One such dire circumstance under which a foreign national could apply for the compelling circumstances EAD is where it is viewed as a very temporary hiatus in nonimmigrant visa status. For example, an H-1B employee may need to temporarily terminate his H-1B employment because of a medical condition and then his original H-1B employer or a new employer can file a new petition for him.

Discrepancy in Extended Work Authorization between H-1B Extension and H-1B Change of Employer Petitions

December 9th, 2016

In the Department of Homeland Security’s final rule on high-skilled workers published on November 18, 2016, it confirmed a long-standing policy rule that those foreign national beneficiaries of H-1B change of employer petitions may begin working for the new employer upon receipt of its H-1B petition at USCIS (H-1B portability rule) and that such employment authorization may continue until the petition is adjudicated. However, it did not grant such extended employment authorization to those beneficiaries of H-1B extension petitions. Pursuant to a different section of the law (§274.a12(a)(20)), these beneficiaries are relegated to 240 days of extended work authorization so long as the H-1B extension petition was timely filed (filed before their current petition expired). The 240-day accrual begins on the day of the expiration of the current H-1B petition being extended.

It is critical that the petitioner keep track of an H-1B extension petition and convert it to premium processing before the 240-day deadline is reached or the beneficiary will have a gap in employment (although the beneficiary will be allowed to remain in the US until the petition is adjudicated). I recommend that the Form I-907 requesting conversion of the petition to premium processing be filed at least six weeks in advance, since USCIS has two weeks to make a decision or request additional evidence and then two weeks to make a decision after receiving the response to the request for evidence.

Denials Suspended of PERM Cases Where H.14 Requirements Not Specified

December 9th, 2016

Based on BALCA’s decision in Matter of Smartzip Analytics, the DOL’s (Department of Labor’s) Office of Labor Certification (OFLC) will suspend denials of PERM labor certifications where experience noted in Section H.14 of the Form ETA 9089 was not quantified. In Matter of Smartzip Analytics, BALCA reversed the certifying officer’s denial where the required experience was not quantified for each skill listed in Section H.14 of the Form ETA 9089, explaining that the Form ETA 9089 nor its instructions mandate a duration requirement.