Monique Kornfeld, Immagration Lawyer

My Mother Is a Chain Immigrant

February 10th, 2018

My mother is a chain immigrant. She is not a terrorist, criminal, drug trafficker, rapist or murderer.  She would give you the clothes off her back.

My mother is an Egyptian Jew who was born in Cairo in 1942 as Manya Shoueka. Her mother was born in Egypt but my grandmother’s family was ultimately from Poland (they were Ashkenazik Jews).  My mother’s father was a Syrian Jew born in Aleppo who moved to Egypt as a young man (he was a Sephardic Jew).  They lived a comfortable middle-class life in Egypt with my grandfather (I called him Baba) working as an accountant.  My mother attended a private school run by nuns and was taught mostly in English.  My mother and her older sister and brother would play at the beach and walk along the promenade eating sweets.  However, it became more dangerous for the Jews in Egypt in the later 1940s, especially after the creation of the modern state of Israel.  Luckily, my grandfather’s brother, who had become a US citizen, sponsored my grandfather and his family.  When my mother was seven-years-old, they embarked on a ship from Egypt with very few resources and landed in New York City.  More chain immigrants had arrived!

My mother grew up in a house in the Bensonhurst neighborhood of Brooklyn. This was a close knit community of mostly Italians, Americans and Jews and they knew each other well and helped each other.  My mother’s family was one of the first to arrive from Egypt and they stood out because of their different culture, language and food.  My mother’s family spoke three languages at home – French, Arabic and English and my mother mostly spoke French and English.  Not only were there languages exotic but their food was considered strange, such as pita bread and grape leaves.  People in my mother’s life thought that Egypt was a desert filled with camels whilst Cairo was really a dynamic, bustling city.

One of the hardest aspects of my mother’s “difference” was her unusual name and peoples’ inability to pronounce it. Manya is pronounced “Mon-yuh” and Shoueka, a Sephardic Jewish name, is pronounced “Shway-kuh.”  She remembers being embarrassed about it and wanting to change it.  Luckily for her, she would eventually have half of her wish realized when she married and her surname became Harrison.  I don’t think that I have to help you with that pronunciation.

Her parents were able to find work relatively quickly because they both spoke English. My grandfather continued to work as an accountant and be able to support his family.  My grandmother (I called her Nona) also was able to work and raise her growing feisty teenage children.  My mother remembers how hospitable and welcoming her parents were to relatives and those who simply needed a helping hand.  Immigrant families would stay with them until they found a home in America and once they even took in a teenage boy who had no home.
My mother overcame the assimilation challenge and became a typical American, wearing the skirts of the 50s and dating young men. She graduated from high school and then from Brooklyn College.  She became a first grade teacher in a public school in New York City.  Her sister married an American, raised three children with him and then became a salesperson.  Her brother married an Egyptian Jewish woman living in America and they had three daughters.  He worked as a New York City police officer until retirement age and then continued to work in private security roles.  Her brother and sister are both still married and their families are close knit and supportive.

My dashing Brooklyn-born father convinced my mother to marry him. The bound wedding album shows a traditional American wedding with bridesmaids and others walking down the aisle in tuxedos, top hats and elegant gowns.  My parents look terribly young, stern and nervous but otherwise Hollywood-attractive.  I was born in Brooklyn Jewish Hospital not long thereafter.

My mother became a housewife after my birth and we moved to Newington, CT, a shock wave to my mother’s urban psyche.  She was now living in slower suburbia with far fewer immigrants and Jewish people and separated from her family who had migrated from Brooklyn to Long Island.  My parents joined a 10-pin couples bowling league and she played mahjong and canasta.  She brought me to the library where I learned to love to read.

My mother was uprooted again when I was 10-years-old and we moved to Newton, MA, a wealthy suburb of Boston. It was difficult for her to acclimate to the newer and relatively affluent crowd, but she managed to make good friends.  It could not have been made any easier by her driving my father’s old Ford that sounded like a bomb exploded whenever she turned it on or idled too long.  She started working again as an administrator for the Newton school system and would work until her retirement a few years ago.  For many years and until her retirement, she served as a teacher’s aide in several of the public elementary schools in Newton and was always loved and respected by the teachers, parents and students.

Although not a tiger mother, my mother always instilled in me the importance of going to college and being independent and a professional and preferably a doctor. She took assertiveness training classes when I was a teenager.  I remember her lecturing me in the car one day that it was important to understand the difference between being aggressive and assertive and how important it was to be the latter. Her lecture may have led to unconscious stirrings of my pursuing a career as an attorney, the profession that most epitomizes “assertion.”

For the last few years my mother has been volunteering as a teacher of English to immigrants. She has befriended many of her students from all over the world and speaks affectionately of all of them.  My mother is truly color-nationality-ethnicity-religion blind, forging close relationships with her neighbors from Iran and her Palestinian general contractor.

My mother is a loving grandmother to my 16-year-old son and my twin seven-year-old nephews. She lives with her my sister and her twins and helps my busy working sister take care of them, which is no easy feat although she loves them dearly.   She even retired early so that she would be available if there were ever any emergencies regarding my nephews.

When my father’s dementia set in, my mother fought the idea of sending him to a nursing home. However, it became too difficult for her to single-handedly care for him and we placed my father in a nursing home close to my mother.  She would visit him almost every day at the beginning, and then during the last year she would visit him every day, providing him with the attention he needed and ensuring that the nurses fed, bathed and cared for him properly.  She learned about the nursing home industry and my father’s medical conditions and was always an unwavering advocate for the best care possible for him.  She was by my father’s side the last week of his life when he was only given morphine and had to watch her husband of over 45 years fade away.

My mother has a heart of gold and is infinitely generous. She is also remarkably non-judgmental.  She is always warm and kind to everyone.  Our country should be proud of having such a chain immigrant. I know I am.

I hope that my story inspires you to write an encomium of your favorite chain immigrant relative, friend or acquaintance.

President’s Creation of a National Vetting Center for Immigrants

February 9th, 2018

President Trump issued a memo to streamline and optimize the use of federal government information in the national vetting process.  It directs the Department of Homeland Security (DHS) to establish the center and streamline the vetting and flow of information within six months.  The presidential directive does not provide for any funding or new powers.  It remains unclear what will actually change in the immigration process.

The Center will focus mostly on applicants for visas outside the US, with a secondary focus on vetting foreign nationals already in the US and subject to deportation.  The potential for making decisions about immigrants in the US subject to removal is particularly controversial.  Anticipating this and other privacy concerns, the memo also calls for the establishment of a civil liberties panel, which will have some oversight over the National Vetting Center’s activities.

Trump has often mischaracterized and disparaged US vetting procedures, especially during the campaign when he stated that some individuals had entered the US without proper vetting.  In decrying the diversity visa lottery program, he wrongfully claimed that the randomly selected applicants do not undergo background screening procedures.

The Brennan Center for Justice has warned that extreme vetting involving the use of computer software that would allegedly predict the likelihood of immigrants committing terrorism runs the risk of denying entry to innocent immigrants and refugees. The Center noted that we already rigorously vet people traveling to the US and that this could be a pretext for excluding certain groups from the US, such as Muslims.

Key Ways to Make the H-1B Petition Stronger in This More Challenging Climate

February 8th, 2018

During last year’s H-1B cap, USCIS applied a rigorous level of scrutiny to H-1B petitions that led to a record number of requests for evidence (RFE) and most likely denials, as the numbers are almost sure to evince.  Many of the challenges that USCIS posed bordered on the ridiculous, such as stating that a position with a level 1, entry-level, prevailing wage on the Labor Condition Application (LCA) did not rise to the level of an H-1B specialty occupation requiring at least a bachelor’s degree.

Here are some of my tips in circumventing an RFE or denial and making an H-1B case as strong as possible:

  1.  Provide a comprehensive discussion of how level 1 positions still require specialized knowledge that only a bachelor’s degree provides, including a reference to regulations, statutes, the industry standards for professionals and details of the petitioner’s particular position and how its job duties are so advanced that only those with specialized knowledge could reasonably perform them;
  2. Provide a chart that includes the job duties, specialized knowledge required to perform them and the coursework completed by the beneficiary providing such specialized knowledge.
  3. Submit copious documentation of the company’s track record of hiring other employees in similar positions who have at least a bachelor’s degree in a related field;
  4. Enclose online job ads for companies in similar industries for parallel positions and make sure that the nature of the companies is as close as possible to that of the petitioner; and
  5. Include an expert opinion that refers to the details of the position and of the nature of the company.

Unfortunately, even if the H-1B petition contains such prodigious and credible information and documentation, there is a good likelihood that the petitioner will receive an RFE from USCIS.  The petitioner should respond by emphasizing the original documentation and information and offering some new evidence.

Summary of Immigration Innovation Act of 2018, or I-Squared

January 29th, 2018

On January 25, 2018, Senators Orrin Hatch (R-UT) and Jeff Flake (R-AZ) introduced S. 2344, the Immigration Innovation Act of 2018, or I-Squared. It will increase H-1B statutory cap, provide for employment authorization for H-4 spouses and children, ease H-1B worker mobility, allow for greater immigrant visa number availability (thereby shortening the green card process for many), provide for greater mobility during the green card process, create conditional legal permanent residency for certain high-skilled workers and grant dual intent for F-1 students so that they may travel abroad while the green card process is pending.

The following is a summary of key points of S.2344.

H-1B Visas

  • Increases H-1B visa numbers
    • Raises H-1B visa numbers (cap) from 65,000 to 85,000;
    • Creates a market-based escalator up to 195,000;
    • Provides that individuals who earn a US master’s degree or higher (regardless of the field) are exempt from the cap if the green card process is initiated within one year of beginning H-1B status (employee would obtain a one-year approval initially and then move to three-year increments);
    • Provides an additional 20,000 visa numbers for individuals who earn a US master’s degree or higher and who are not exempt based on the initiation of the green card process within one year;
    • Allows for additional H-1B numbers within any fiscal year, up to 195,000, as follows:
      • Cap met by May 15 – 30,000 added, available 10/1;
      • Cap met by September 30 – 20,000 added, available 10/2;
      • Cap met by November 29 – 10,000 added, available 12/1; and
      • Cap met by January 28 – 5,000 added, available 2/1.
  • Prioritization of H-1B cap petitions
    • If the H-1B cap is met within the first five business days of April 1st, the cap subject petitions will be selected as follows:
      • Beneficiaries with a US master’s or higher who are not counted against the 20,000 master’s pool (and not being sponsored for a green card within the first year of H-1B status);
      • Beneficiaries with a foreign doctorate that is equivalent to a US doctorate;
      • Beneficiaries with a bachelor’s degree in a STEM field; and
      • Remaining cap-subject petitions.
  • Raises H-1B filing fees
    • Raises the current ACWIA fee from $1,500 to $4,000 for companies with 25 or more employees;
    • Raises the $750 ACWIA fee to $2,000 for companies with fewer than 25 employees; and
    • Increases H-1B fees up to $8,000 depending on the size of the employer, extent to which the H-1B cap increases and when, if at all.
  • Grace period:  Creates a 60-day grace period for H-1B workers whose employment terminated so that they may change H-1B employers (already available in the regulations).
  • Deference for extensions:  Requires deference for H-1B extension petitions if there is no material change in eligibility or there was no substantial error in the prior approval.
  • Employment authorization for H-4 spouses:  Authorizes H-4 spouses of H-1B visa holders to obtain employment authorization if the H-1B spouse has a pending or approved/certified PERM labor certification application or I-140 immigrant visa petition.  The employer must pay the higher of the actual or prevailing wage.
  • Visa Revalidation in the US:  Allows certain foreign workers to revalidate their work visas in the US
  • Prohibition on replacing US workers:  Prohibits hiring an H-1B worker with the purpose and intent to replace an American worker.
  • Prohibition on training of H-1B replacements: Prohibits conditioning an employee’s pay or severance on training an H-1B replacement.
  • Raises the level one prevailing wage requirement:  The level one (entry level) wage requirement shall not be less than the mean of the lowest 50 percent of the wages surveyed.
  • Change in worksite location:  Allows for a change in job location without a new H-1B petition where:  (1) the petitioning employer is involved in a corporate restructuring (including a merger, a acquisition or consolidation); a new corporate entity succeeds to the interest and obligations of the original H-1B employer and the terms and conditions remain the same except for the identity of the petitioner; or the employer has a certified Labor Condition Application (LCA, ETA 9035) for the new work location before the nonimmigrant began working at such place of employment.
  • Exemptions for H-1B dependent employers:
    • When calculating whether an employer is H-1B dependent, and thereby subject to the additional recruitment and non-displacement requirements, the following are excluded:
      • Individuals who earn a US master’s degree or higher (regardless of the field) are exempt from the cap if the green card process is initiated within one year of beginning H-1B status (employee would obtain a one-year approval initially and then move to three-year increments);
      • 20,000 visa numbers for individuals who earn a US master’s degree or higher and who are not exempt based on the initiation of the green card process within one year;
      • H-1Bs and L-1Bs who are in the green card process are excluded from the calculation.  The employer must file Form I-140 immigrant visa petition for at least 90 percent of the workers who are the beneficiaries of certified PERM labor certification application cases; and
      • Those being offered an annual wage that is higher than either 105 percent of the mean wage or $100,000, or who have earned a PhD;
    • Eliminates H-1B dependent exemption for a company that has more than 50 employees with more than 50 percent in H-1B status.
  • Penalties for short duration of H-1B employment and withdrawals:
    • Imposes penalties on employers that obtain more than five H-1B cap-subject petition approvals where the H-1B worker does not spend at least 25 percent of his or her time in the US, unless the employer withdraws the petition because of unexpected circumstances; the employee enters the US in another visa status; or the alien worker quits or resigns.
    •  The employer must pay a fine if it obtained between 20 and 49 H-1B cap petition approvals, withdraws more than 25 percent of these petitions or withdraws more than 10 percent of such petitions because the foreign worker resigned before completing three months of employment.
    • The employer must pay a fine if it obtains more than 50 H-1B cap petition approvals, withdraws more than 20 percent of these petitions or withdraws more than five percent of such petitions because the foreign worker resigned before completing three months of employment.
    • The penalty for violating the above rules is $10,000 for each petition in the first fiscal year and $25,000 for each such petition after the first year of noncompliance.
    • If the employer violates this provision in three consecutive years then it is barred from filing H-1B petitions in the fourth year.
  • Reporting requirements: Each employer that has five or more approved H-1B cap petitions must submit an annual report to the DHS that notes the date on which each H-B worker approved during the most recent fiscal year started working for the employer in the US and the total period of employment for such worker during the first year.

Increased Portability for Applicants to Adjust Status (I-485)

  • Allows the beneficiary of a certified PERM labor certification application or approved Form I-140 immigrant to change jobs (including with a different employer) in the same or similar occupation of the original PERM or I-140 immigrant visa petition without losing his or her place in line for the green card (no 180-day wait as under current I-485 portability); and Allows the beneficiary of a certified PERM labor certification application or approved Form I-140 immigrant to change jobs (including with a different employer) in the same or similar occupation of the original PERM or I-140 immigrant visa petition without losing his or her place in line for the green card (no 180-day wait as under current I-485 portability); and
  • Allows a  foreign worker to file to adjust status to legal permanent residency (I-485) status regardless of whether an immigrant visa number is available ($500 fee).

Employment-Based Immigrant Visa Availability

  • Eliminates from the numerical limitation on employment-based visas:
    • The spouse and children of any employment-based immigration;The spouse and children of any employment-based immigration;
    • Aliens who have earned a master’s or higher degree in a STEM (science, technology, engineering, math) field;
    • Aliens who have an approved EB-1A immigrant visa petition (Extraordinary Ability EB-1A, Outstanding Researcher and Professor (EB-1B);
  • Eliminates per country quotas; and   Eliminates per country quotas; and
  • Recaptures unused immigrant visas from the prior year.

Employment-Based Conditional Legal Permanent Residency

  • Allows for up to 35,000 visas per year;Allows for up to 35,000 visas per year;
  • The alien must have earned a university degree and received an offer of employment from a US employer that has complied with all of the requirements of the I-140 immigrant visa petition;
  • The alien must receive an annual wage of at least $100,000 (including cash bonuses), which may be adjusted per the Consumer Price Index;
  • The alien may legal permanent residency in the US and not seek an immigrant visa abroad;
  • The employer must file a petition with USCIS attesting that the alien will not be paid less than similarly situated US workers, no US worker has been or will be displaced by the alien, the employer has completed at least three types of recruitment for a position requiring at least a bachelor’s degree and the employer is enrolled in E-Verify;
  • The employer may not be an H-1B dependent employer or debarred from any immigration program;
  • Requires an annual review of conditional permanent residents that mandates from the alien evidence of: (1) ongoing employment in the occupation the alien was originally granted a conditional employment-based visa; (2) payment of taxes; (3) at the first annual review, evidence of PERM labor certification application (or I-140 immigrant visa petition filed; at the second annual review evidence of a filed I-140 immigrant visa petition, unless the PERM labor certification application prevents it; (4) at the third and subsequent annual reviews, an approval of an I-140 immigrant visa petition;
  • An alien receiving conditional permanent resident status may change employers without affecting his or her status if the new employer complies with the immigrant visa petition rules.
  • Fees: $10,000 if the new employer hires the alien during the one-year period beginning on the date on which the alien obtains conditional permanent resident status; $5,000 if the new employer hires the alien during the one-year period beginning at the end of the first year of conditional residency status; $2,500 if the new employer hires the alien during the one-year period beginning at the end of the subsequent year; and $0 if the new employer hires the alien after the end of the subsequent year.
  • Termination of conditional permanent residency: Conditional permanent residency terminates if the alien fails to submit evidence at each annual review, has been unemployed or not employment in the requisite occupation for a cumulative total of 180 days while holding conditional residency, or does not seek the removal of conditions within one year of an immigrant visa number becoming available; or the employer fails to comply with the immigrant visa requirements.
  • Removal of conditions: Conditions may be removed on or after the date on which an immigrant visa numbers would be available.

F-1 Students and Dual Intent

  • Permits “dual intent,” which allows a nonimmigrant to have immigrant intent, for F-1 foreign students in Optional Practical Training (OPT) status so that the F-1 student may travel in and out of the US while a green card process (immigrant visa process) is pending.

Please contact my office with any questions about your H-1B or green card case.

New Legislation on H-1Bs and Green Cards: Immigration Innovation Act of 2018, or I-Squared

January 28th, 2018

On January 25, 2018, Senators Orrin Hatch (R-UT) and Jeff Flake (R-AZ) introduced S. 2344, the Immigration Innovation Act of 2018, or I-Squared. It will increase H-1B statutory cap, provide for employment authorization for H-4 spouses and children, ease H-1B worker mobility, allow for greater immigrant visa number availability (thereby shortening the green card process for many), provide for greater mobility during the green card process, create conditional legal permanent residency for certain high-skilled workers and grant dual intent for F-1 students so that they may travel abroad while the green card process is pending.

It should be emphasized that this legislation must still be passed in the Senate and then in the House of Representatives and signed by the President. Even if passed, it could look very different.

My office will be publishing a summary shortly. Please contact my office for specific questions about the legislation.

USCIS Announces Filing Dates for Adjustment of Status in February 2018

January 19th, 2018

USCIS has announced that for February 2018, adjustment of status applications based on a family-based preference must be filed using the Filing Dates chart and that for those based on employment the Final Action Dates chart must be followed.

The benefit of filing the adjustment of status application, even if not approvable at that time, is that the applicant may receive the employment authorization document (I-765) and the advance parole travel document (I-131).

H-1B Visas and the Level 1 LCA

January 16th, 2018

In an unprecedented move, in 2017 USCIS issued requests for evidence (RFEs) that challenged the professional nature of an H-1B petition’s position if it were based on a Labor Condition Application (LCA) with a level 1 prevailing wage. My office filed responses to these RFEs with copious and compelling arguments for why a level 1, entry level, position is still a specialty occupation for H-1B purposes.

Some employers may be inclined to raise the prevailing wage to a level 2 to avoid such a challenge. However, this is risky, since an employer must base its designation on the actual requirements of the position and can be penalized for failing to provide accurate information. A prevailing wage assessment includes the level of education, experience requirements and whether there are any supervisory duties and special skills.

The employer may file an H-1B petition based on an LCA with a prevailing wage assignation that is based on an actual determination from the Department of Labor. Under the Safe Harbor rule, if the case is audited, the DOL may not challenge the prevailing wage determination. Most employers do not obtain a prevailing wage determination though and instead prepare themselves to justify the level they chose if audited.

USCIS Announces the Resumption of DACA Renewal Processing

January 16th, 2018

On January 13, 2018, based on a Federal court order, USCIS announced that it will resume the processing of DACA renewals. DACA policy will operate pursuant to the same terms as those that were in place before September 15, 2017, when it was rescinded.

It should be noted that the Trump administration is considering litigation to overturn the judge’s ruling. If it prevails, then DACA will expire in March 2018 unless Congress creates a new program. DACA is currently the linchpin of negotiations to pass a budget to run the government. If the budget is not passed by this Friday we could have a shutdown. Some lawmakers are advocating a separate bill for DACA to avoid such a calamity.

USCIS Reverses Course on H-1B Extensions Beyond Six Years

January 10th, 2018

On Monday, January 8, 2018, USCIS reversed itself on its stance regarding H-1B extensions. Over New Year’s weekend, USCIS stated that it was considering terminating certain H-1B extensions for longer than six years. However, on Monday its chief of media relations announced:

“What we can say, however, is that USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States by changing our interpretation of section 104(c) of AC-21, which provides for H-1B extensions beyond the 6 year limit,” the agency told McClatchy. “Even if it were, such a change would not likely result in these H-1B visa holders having to leave the United States because employers could request extensions in one-year increments under section 106(a)-(b) of AC21 instead.” ”

This is very welcome news, since the termination of the H-1B extensions beyond six years would have wreaked havoc on the US’s economy and harmed the careers and lives of hundreds of thousands of H-1B foreign workers and their families.

200,000 Salvadorans Will Lose Temporary Protected Status

January 8th, 2018

USCIS will end Temporary Protected Status (TPS) for approximately 200,000 Salvadorans on September 9, 2019. The Salvadorans were initially granted TPS after earthquakes devastated the country in 2001. The Department of Homeland Security determined that conditions in El Salvador have improved significantly to make it safe enough for the Salvadoran TPS holders to return. The 200,000 TPS Salvadorans are the parents of an estimated 190,000 children born in the US and about one-third own homes.

Immigration advocates contend that TPS should be extended, since El Salvador is one of the most violent countries in the world and that TPS Salvadorans send money home, which stabilizes the country by bolstering its economy.