Monique Kornfeld, Immagration Lawyer

August 2017 Visa Bulletin: EB2 Worldwide Category Retrogresses

July 12th, 2017

The U.S. Department of State (DOS) released the August 2017 Visa Bulletin today showing a retrogression of the employment-based second preference EB2 worldwide category to April 1, 2015. It notes that it won’t become current again until October 1, 2017. The EB2 category for India is at July 22, 2008, and for China April 22, 2013. The EB1 category remains backlogged for India and China with a cutoff date of January 1, 2012, but the EB1 worldwide category remains current. The EB3 worldwide category remains current and the EB3 category for China is at January 1, 2012, and at July 15, 2006, for India.

Applicants for adjustment of status who have a priority date earlier than the date in the ‘Final Action Dates for Employment-based Preference Cases’ chart may file their Forms I-485. Applicants for immigrant visas may use the ‘Dates for Filing of Employment-based Visa Applications’ chart.

BALCA Affirms Denial of PERM Stating “Delivery of Products” Indicates Travel

July 12th, 2017

In Matter of Arbin Corporation (06/29/2017), BALCA affirmed a denial of a PERM labor certification application where the newspaper ads did not contain any language advising clients of travel. The job description included the phrase “delivery of products,” which to BALCA indicated travel. The PERM sponsor must always note any travel requirement in the PERM recruitment.

USCIS Reinstates H-1B Premium Processing for J-1 Conrad 30 Physicians and Interested Government Agencies

July 8th, 2017

USCIS has reinstated its H-1B premium processing for J-1 Conrad 30 physicians as well as interested government agencies (IGAs). The Form I-907 request for premium processing can now be filed for H-1B petitions based on the Conrad 30 and IGA designations. The Conrad 30 program allows for certain physicians to work in medically underserved areas (MUAs) and health professional shortage areas (HPSAs) in H-1B status after completing their J-1 program and waives their two-year foreign residence requirement of INA Section 212(e). The two-year requirement bars the J-1 worker from obtaining H-1B status or legal permanent resident until he or she has served two years in his her home country after completing the J-1 program.

USCIS also announced that it will resume premium processing for other H-1B petitions as its workloads permit.

BALCA’S Ruling on PERM Case Involving Proper Disqualification Based on the Face of the Resume

July 3rd, 2017

In Sunnyvale School District, 2014-PER-00620, June 22, 2017, BALCA overturned the denial of a PERM labor certification application, finding that the US applicant may be disqualified on the face of the resume. In Sunnyvale, the employer filed a PERM application for a special education teacher. The employer required a valid California teaching license t provide services to children from birth through pre-kindergarten with special needs. The Certifying Officer (CO) audited the application and then directed the employer to conduct supervised recruitment. It instructed the employer to further investigate any applicant whose resume raises a reasonable possibility that the applicant meets all of the position’s requirements and explore the possibility of training US workers to perform the duties within a reasonable period of time.

The case revolves around one of the applicants whose resume indicated that she has a BS degree in elementary education, special education, three years of teaching experience in special education for sixth and seventh graders and in interest in teaching all ranges of ages. It did not indicate any license.

BALCA noted that it may be clear from the face of the resume that the US applicant’s deficiencies cannot be remedied through a reasonable period of on-the-job training. It offered the example of a resume that is silent as to whether the applicant meets a “major” requirement, such as a college degree. In such a case it found noted that an employer might reasonably assume that the applicant does not have such education, and therefore, rejection without follow up may be proper. It cited to Gorchev & Gorchev Graphic Design, 1989-INA-00118 (Nov. 29, 1990)(en banc)(pre-PERM).

If, however, the applicant’s resume notes a broad range of skills, education and training that are the job’s requirements, and is silent only about a “subsidiary” requirement, this makes it more likely that the applicant may meet all of the requirements and, hence, the employer has a duty to inquire further. BALCA noted that this obligation usually occurs when the applicant has the requisite degree but not the particular skill noted in Section H.14 (special requirements) of the Form 9089.

BALCA then found that in the instant case, the applicant’s resume omitted a major requirement – a professional state license. It held that under Gorchev, the employer could properly assume that the applicant’s failure to list such a major requirement meant that she did not have the license. Furthermore, BALCA held that it is doubtful that any amount of on-the-job training could substitute for such a license. Therefore, BALCA found that the applicant’s resume did not establish a reasonable possibility that she could qualify for the position.

Travel Ban Close Family Member Includes Fiance

June 30th, 2017

The government has just expanded the list of qualifying “close family members” for an exception to the travel ban to include a fiancé. The DOS released a cable yesterday implementing Trump’s executive order travel ban, which included spouses but not fiancés. The state of Hawaii may be litigating the government’s position, since a close family member does not include a grandparent, grandchild, cousin or niece or nephew.

DOS Issues Cable Implementing Trump’s Travel Ban

June 29th, 2017

The US Department of State just issued its cable implementing Trump’s travel ban for foreign nationals from six Muslim-majority countries, which can be found at http://live.reuters.com/Event/Live_US_Politics/989297085.

The executive order (E.O.) ban will take effect at 8 pm tonight and will suspend the entry of, or visa issuance to, certain aliens of Iran, Libya, Somalia, Sudan, Syria and Yemen. The cable outlines the exceptions for those who have a bona fide relationship with a person or entity in the US and for another discretionary waiver based on a case-by-case basis.

The suspension of entry into the US will not apply to individuals who are inside the United States on June 29, 2017, who have a valid visa on June 29, 2017, or who had a valid visa at 8:00 p.m. EDT January 29, 2017, even after their visas expire or they leave the United States. The suspension of entry also does not apply to other categories of individuals, as detailed in the cable. No visas will be revoked based on travel ban. New applicants will be reviewed on a case-by-case basis, with consular officers taking into account the scope and
exemption provisions and the applicant’s qualification for a discretionary waiver.

Regarding the exemption of the ban for those with a bona fide relationship to a person or entity in the US, the cable states the following in item #10:

a.) Any applicant who has a credible claim of a bona fide relationship with a
person or entity in the United States. Any such relationship with a
“person” must be a close familial relationship, as defined below. Any
relationship with an entity must be formal, documented, and formed in the ordinary
course, rather than for the purpose of evading the E.O. Note: If
you determine an applicant has established eligibility for a nonimmigrant visa
in a classification other than a B, C-1, D, I, or K visa, then the applicant is
exempt from the E.O., as their bona fide relationship to a person or entity is
inherent in the visa classification. Eligible derivatives of these
classifications are also exempt. Likewise, if you determine an applicant
has established eligibility for an immigrant visa in the following classifications
— immediate relatives, family-based, and employment-based (other than certain
self-petitioning employment-based first preference applicants with no job offer
in the United States and SIV applicants under INA 101a(27)) — then the
applicant and any eligible derivatives are exempt from the E.O.

b.) Any applicant who was in the United States on June 26, 2017;

c.) Any applicant who had a valid visa at 5:00 p.m. EST on January 27, 2017, the day
E.O. 13769 was signed;

d.) Any applicant who had a valid visa on June 29, 2017;

e.) Any lawful permanent resident of the United States;

f.) Any applicant who is admitted to or paroled into the United States on or
after June 26, 2017;

g.) Any applicant who has a document other than a visa, valid on June 29, 2017, or issued
on any date thereafter, that permits him or her to travel to the United States
and seek entry or admission, such as advance parole;

h.) Any dual national of a country designated under the order when traveling on
a passport issued by a non-designated country;

i.) Any applicant travelling on an A-1, A-2, NATO-1 through NATO-6 visa, C-2
for travel to the United Nations, C-3, G-1, G-2, G-3, or G-4 visa, or a
diplomatic-type visa of any classification;

j.) Any applicant who has been granted asylum; any refugee who has already been
admitted to the United States; or any individual who has been granted
withholding of removal, advance parole, or protection under the Convention
Against Torture; and

k.) Any V92 or V93 applicant.

The cable defines “Close family” in item #11:

11. (SBU) “Close family” is defined as a parent (including
parent-in-law), spouse, child, adult son or daughter, son-in-law,
daughter-in-law, sibling, whether whole or half. This includes step
relationships. “Close family” does not include grandparents,
grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-laws and
sisters-in-law, fiancés, and any other “extended” family members.

Under item #14, the cable also lays out case-by-case basis when the applicant
demonstrates to the officer’s satisfaction that the following three criteria
are all met:

a.) Denying entry during the 90-day suspension would cause undue hardship;

b.) His or her entry would not pose a threat to national security; and

c.) His or her entry would be in the national interest.

It item #15, the DOS cable lists the following examples of circumstances in which
an applicant may be considered for a waiver, subject to meeting the three
requirements above. It instructs consular officers to first determine whether individuals are exempt from the executive order under standards described above, before considering the
availability of a waiver under the standards described in item #15. It then states:

Unless the adjudicating consular officer has particular concerns about a case
that causes the officer to believe that that issuance may not be in the
national interest, a determination that a case falls under any circumstance
listed in this paragraph is a sufficient basis for concluding a waiver is in
the national interest. Determining that a case falls under some of these
circumstances may also be a sufficient basis for concluding that denying entry
during the 90-day suspension would cause undue hardship:

a.) The applicant has previously established significant contacts with the
United States but is outside the United States on the effective date of the
E.O. for work, study, or other lawful activity;

b.) The applicant seeks to enter the United States for significant business or
professional obligations and the denial of entry during the suspension period
would impair those obligations;

c.) The applicant is an infant, a young child, or adoptee, an individual
needing urgent medical care, or someone whose entry is otherwise justified by
the special circumstances of the case;

d.) The applicant is traveling for purposes related to an international
organization designated under the International Organizations Immunities Act,
traveling for purposes of conducting meetings or business with the United
States government, or traveling to conduct business on behalf of an
international organization not designated under the IOIA; or

e.) The applicant is a permanent resident of Canada who applies for a visa at a
location within Canada.

Maintaining Legal Permanent Residency

June 26th, 2017

Legal permanent residency can be abandoned if the foreign applicant is outside the US for long periods of time and/or does not treat the US as his or her primary home. If the legal permanent resident (LPR) leaves the country for more than six months there is a presumption that such status has been abandoned and the LPR must prove otherwise to US government authorities, including showing that the LPR has maintained the US as his or her primary home. Once the LPR has been outside the U.S. for more than one year, then the LPR will not be able to reenter with his or her alien registration card and the government will deem such status abandoned.

However, there are exceptions to this rule. First, if the LPR applies for a reentry permit before he or she leaves the U.S., then the LPR may reenter the U.S. with this document for up to two years from the date of his or her departure from the U.S. Second, if the LPR seeks readmission into the U.S. more than one year after his or her departure and did not apply for the reentry permit, then the LPR may be able to obtain a special immigrant visa at a U.S. consulate abroad. If the LPR will not return to the U.S. within two years, then the LPR will also need to obtain a special immigrant visa at a U.S. consulate abroad. When making an application for a special immigrant visa, the LPR must establish that he or she has not abandoned legal permanent residence and has still treated the US as his or her primary home while outside the U.S. Evidence of maintaining legal permanent residence in the U.S. includes filing resident tax returns; maintaining a valid driver’s license; holding credit cards and bank account/s and owning property.

The reentry permit does not guarantee the LPR’s readmission into the US. It merely certifies that the U.S. government has accepted the LPR’s trip as temporary, i.e., that the LPR maintained legal permanent residency despite a lengthy absence. As a result, if the LPR has a reentry permit, then the LPR cannot be denied readmission into the U.S. solely on the duration of his or her absence. However, the LPR may still be deemed inadmissible under some other ground of exclusion (e.g. commission of certain crimes). If the LPR fails to pay US residence income taxes (on his or her worldwide income, not just U.S. source income) during his or her period of absence, this demonstrates an intent contrary to the required intent of a legal permanent resident and the LPR may be considered to have abandoned legal permanent residency despite the reentry permit.

Also, if the LPR commits activity that deems him or her inadmissible to the US, then the LPR may be stopped at the border when trying to reenter the US. Grounds of inadmissibility include the commission of certain crimes. However, the LPR may be eligible for a waiver of the ground of inadmissibility. Also, after acquiring legal permanent residency, the LPR is still subject to removal (deportation) for certain activity, such as drug-related offenses, aggravated felonies, crimes of violence, etc. The LPR may be eligible for relief from removal should he or she be placed in removal proceedings. However, once the LPR becomes a U.S. citizen, then he or she will not be inadmissible at the border or removable for certain activity.

The LPR may apply for naturalization three months prior to five years after the approval date of your legal permanent residency. If the LPR obtained legal permanent residency based on marriage and continues to live with the spouse sponsor, then the LPR may apply three months prior to the three year anniversary. Applying for a reentry permit does not negate the effect of a lengthy absence on the LPR’s ability to meet the naturalization requirements. Two of the naturalization requirements are the maintenance of legal permanent residency during the requisite three or five-year period (maintaining the US as his or her primary home) and physical presence for at least half of the three or five-year period (with certain exceptions). An absence of fewer than six months does not break an LPR’s continuity of residence; an absence of six months or more but less than one year breaks the continuity of residence unless the LPR can provide a reasonable explanation for his or her absence (an overseas assignment is most uniformly accepted); and an absence of one year or more automatically breaks the continuity of legal permanent residence (with certain exceptions for employment abroad).

Finally, the foreign national should keep track of all trips made outside the US until becoming a US citizen. The naturalization application requires that the applicant note each and every trip made since becoming a legal permanent resident with the date the applicant left and the date the applicant returned and all of the countries visited.

USCIS Announces Adjustment of Status Filing Dates for July 2017

June 23rd, 2017

US Citizenship and Immigration Services (USCIS) has announced the filing dates for applicants for adjustment of status to legal permanent residency for July 2017. Both applicants for family and employment-based cases must use the “Final Action Dates” chart in the Department of State Visa Bulletin for July 2017 (https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2017/visa-bulletin-for-july-2017.html).

USCIS Adopts Decision Clarifying Master’s Degree H-1B Cap Exemption

June 22nd, 2017

On May 31, 2017, USCIS published a memo adopting a decision from the Administrative Appeals Office (AAA) clarifying the criteria for eligibility under the H-1B cap exemption based on a master’s degree. The policy memo called the AAO’s decision of Matter of A-T-Inc. an adopted decision because it is meant to provide guidance to all agency employees.

H-1B cap exemption is extremely important, since there are only 65,000 H-1B visa numbers available each year under the cap to those with a bachelor’s degree or equivalent and an additional 20,000 to those who have a US master’s degree or higher. Once the cap has been reached, a foreign national may only obtain H-1B status if working for a cap-exemption institution (such as institutions of higher education or nonprofits affiliated with them) or if not subject to the cap (e.g. is the beneficiary of an extension of H-1B status).

The AAO, which is a branch of USCIS, held that in order to qualify under the H-1B cap exemption based on a master’s degree or higher, the institution conferring the degree must have counted as a “United States institution of higher education” when the foreign national beneficiary’s degree was awarded. It reasoned that requiring preaccreditation “helps ensure the quality of education necessary to merit a master’s cap exemption.”

The AAO also held that if the beneficiary was not eligible for the master’s cap exemption then a visa number under the regular cap would not be available if the regular cap had already been reached.

Green Card Processing: Adjustment of Status Versus Consular Processing

June 13th, 2017

Recently, a client who is a US citizen contacted me about sponsoring her elderly parents for legal permanent residency and the optimum way to proceed. US citizens may sponsor their spouse, children, parents and siblings for legal permanent residency.

Foreign nationals can obtain legal permanent residency either by adjusting (changing) their status in the US or by going to a US Consulate abroad and getting the immigrant visa. For adjustment, the I-130 and the I-485 are the primary forms. If the adjustment application is based on marriage, then the foreign national and his or her spouse will be interviewed to determine if it is a real marriage and the foreign national is eligible (for parents of US citizens this interview is usually waived). The foreign national will definitely be scheduled for biometrics around one month after filing. Also, with the adjustment application the foreign national can file for the advance parole travel permission, which allows him or her to travel abroad while the I-485 is pending. If the foreign national departs the US before obtaining the advance parole document, then he or she will abandon the I-485 and need to consular process abroad for the immigrant visa (although there are exceptions for H-1Bs and L1s).

The one very important caveat is that foreign nationals cannot enter the US as a nonimmigrant with the intent to file to adjust their status in the US (with the exception of dual intent nonimmigrants such as H-1Bs and L-1s). They can enter as nonimmigrants, such as B-2 visitors or F-1 students, and then have an I-130 filed for them to obtain their immigrant visas abroad. Also, if the petitioner files only the I-130 immigrant visa petition for consular processing abroad, then the foreign national may not be able to enter as a nonimmigrant while the case is pending (except for those with dual intent visas like the H-1B or L-1).

If the foreign national does enter as a nonimmigrant (without a dual intent visa) with the “illegal” intent to obtain legal permanent residency in the US through adjustment of status, then the US government could make a fraud finding against this individual and bar the individual from entering the US. There is a waiver available for a foreign national who can show extreme hardship to a US citizen or legal permanent resident spouse or parent, but these cases are very challenging.