Monique Kornfeld, Immagration Lawyer

Extraordinary Ability Immigrant Visa Petitions (EB-1A) Approved for Nepalese Singer and Indian Sociology Professor

April 23rd, 2018

My office has obtained Form I-140 immigrant visa petition approvals pursuant to the EB-1A extraordinary ability preference category for a Nepalese singer and songwriter and an Indian professor of sociology who conducted superlative research in the comparative labor market. The key to a successful EB-1A extraordinary ability immigrant visa petition is appropriately framing and narrowing the category in which you are claiming that the foreign national is extraordinary, thereby reducing the pool of similar experts against whom the foreign national is compared.

The EB-1A extraordinary ability visa petition is the most challenging. One must show extraordinary ability in the sciences, arts, education, business or athletics that has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation.  One must have a level of expertise indicating that the individual is one of “that small percentage who have risen to the very top of the field of endeavor.”  In other words, the worker should be the cream of the crop.   Receipt of a major, internationally recognized award, on its own, can qualify a worker for extraordinary ability classification, such as the Nobel Prize.  Other lesser awards might also qualify, but would have to rise to the level of a Nobel Prize or similar awards.

The regulations provide for alternative evidence if the foreign national has not received a single high-ranking, distinguished, internationally-recognized award. To satisfy the alternative requirement, the petition must include evidence that the individual satisfies at least three of the following criteria:

  1. Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
  2. Membership in associations in the field which demand outstanding achievement of their members, as judged by recognized national or international experts in their fields;
  3. Published material about the alien in professional or major trade publications or major media relating to the alien’s work in his field;
  4. Evidence that the alien is a judge of the work of others in the same or allied field of endeavor;
  5. Evidence of the alien’s original contributions of major significance to the field;
  6. Authorship of scholarly articles in the field, in professional journals or other major media;
  7. Display of the alien’s work at artistic exhibitions or showcases;
  8. Evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation;
  9. Evidence that the alien commands high remuneration in relation to others in the field; and
  10. Evidence of commercial success in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales. In the case of the Nepalese singer, her music was both modern and culturally distinct. We emphasized that her extraordinary ability was as a contemporary singer and songwriter in modern Nepalese music. In the case of the professor of sociology, her research spanned a broad array of issues relating to labor and ethnicity, gender and race. We argued that she had a unique expertise at the interdisciplinary and comparative crossroads of the study of gender, labor, race, ethnicity, immigration and globalization. We also emphasized her expertise on female labor within South Asia as well as within South Asian immigrant communities in the United States.

In the case of the Nepalese singer, her music was both modern and culturally distinct. We emphasized that her extraordinary ability was as a contemporary singer and songwriter in modern Nepalese music.  In the case of the professor of sociology, her research spanned a broad array of issues relating to labor and ethnicity, gender and race.  We argued that she had a unique expertise at the interdisciplinary and comparative crossroads of the study of gender, labor, race, ethnicity, immigration and globalization. We also emphasized her expertise on female labor within South Asia as well as within South Asian immigrant communities in the United States.

US Department of State Issues Visa Bulletin for May 2018

April 22nd, 2018

The Department of State (DOS) posted the Visa Bulletin for May 2018, which provides the visa number availability for family-sponsored and employment-sponsored preference categories, as well as for the diversity visa lottery cut-offs. USCIS has not yet announced whether it will accept adjustment of status applications   based on the filing or final action date charts for May 2018.  This information can be found at USCIS’s website.

The following information is the for the final action dates chart. The EB1 category remains current for the worldwide category but has backlogged to January 1, 2012 for China and India. The EB2 category for India is at December 22, 2008, and for China September 1, 2014. The EB3 worldwide category remains current and the EB3 category for China is at June 1, 2015, and at May 1, 2008, for India.

H-1B Cap Reached for Fiscal Year 2019

April 7th, 2018

USCIS announced that as of April 6, 2018, the H-1B cap has been reached for fiscal year 2019 (FY 2019) with a start date of October 1, 2018. It will now conduct a computerized lottery to determine which H-1B petitions will be allocated one of the 85,000 bachelor’s degree cap visa numbers and one of the additional 20,000 US master’s degree cap visa numbers.  This process of notifying petitioners has taken an average of four to six weeks in the past several years.

It should be emphasized that even if an H-1B petition is assigned one of these numbers, USCIS must still approve the petition before the beneficiary can start as early as October 1, 2018. If the petition is not approved by October 1, 2018, then the beneficiary cannot start working in H-1B status until it is approved.  With the suspension of premium processing for H-1B cap cases this year, anticipated to be available again by September 2018, many petitions may not receive an approval by October 1, 2018.  Premium processing requires USCIS to make a decision or request evidence within 15 calendar days of receipt of the petition (or the Form I-907 to request a conversion from traditional to premium processing).  If additional evidence is requested, then USCIS has 15 calendar days to make a decision after the petitioner’s response to the request is received by USCIS.

Last year, with the enhanced scrutiny by USCIS of H-1B petitions, there was a record number of requests for evidence (RFEs). USCIS challenged core requirements of the petition in an unprecedented manner, some of these challenges unreasonable and successfully overcome by my office.  For example, USCIS started questioning whether a position with a level one prevailing wage noted on the Form EA 9035 Labor Condition Application (LCA) could be considered a specialty occupation for H-1B purposes, requiring specialized knowledge that only a bachelor’s degree would normally provide.  My office showed that the level of a position is not relevant or controlling, but the nature of the knowledge required to reasonably perform the job duties is the critical question.  The level of a position simply reflects the worker’s position in the employer’s hierarchy.  USCIS was conflating the level within a particular occupation with the overall skill involved in every level of the occupation itself.  Also, the four levels of prevailing wages relates to the requirement that employers pay the appropriate prevailing wage to its H-1B employees and is wholly divorced from the determination of whether a position is a specialty occupation for H-1B purposes.

Most importantly, the regulations at 8 CFR §214.2(h)(4)(ii) and (iii) and the statute at INA §101(a)(32) are the binding authorities on the definition of a specialty occupation for H-1B purposes.

The regulation at 8 CFR §214.2(h)(4)(ii) provides the controlling definition for a specialty occupation:

Specialty occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

The regulation at §214.2(h)(4)(iii)(A)(1)-(4) further defines a specialty occupation is one satisfying one of the four requirements listed below:

  • A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

 

  • The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;

 

  • The employer normally requires a degree or its equivalent for the position; or

 

  • The nature of the specific duties are [sic] so specialized and complex that knowledge required to perform the

Also, a position is considered professional if listed in INA Section 101(a)32).

Although my office and H-1B petitioners across the country last year successfully challenged these level 1 RFEs, it is anticipated that USCIS will continue to question the professional nature of a position with a level wage in the LCA. However, we are more prepared than ever to demonstrate the speciousness of such hurdles.

USCIS Temporarily Suspends Premium Processing for H-1B Cap Petitions

March 21st, 2018

USCIS announced that as of April 2, 2018, it will temporarily suspend premium processing only for H-1B cap petitions for fiscal year 2019 (with a start date of October 1, 2018). Such suspension will include petitions filed under the US master’s degree or higher cap.  USCIS anticipates that this suspension will last until September 10, 2018. It should be emphasized that USCIS will continue to premium process H-1B petitions not subject to the FY 2019 cap.

USCIS has warned that if the petitioner submits a Form I-907 along with one filing fee check that combines the fees for the Form I-907 and the I-129 H-1B petition that it will reject both forms. It also notes that when it resumes premium processing, petitioners may file to request it for the remaining H-1B cap subject petitions.

Although premium processing has been suspended, USCIS will still consider requests to expedite an H-1B petition so long as it satisfies the expedite criteria noted on USCIS’s website. Petitioners must fulfill at least one of the criteria and USCIS encourages petitioners to submit documentation in support of its request.  USCIS decides expedite requests on a case-by case basis.

US Department of State Issues April 2018 Visa Bulletin for Green Cards

March 15th, 2018

The Department of State (DOS) posted the Visa Bulletin for April 2018, which provides the visa number availability (green cards) for family-sponsored and employment-sponsored preference categories, as well as for the diversity visa lottery cut-offs. USCIS has not announced that in April 2018 it will accept adjustment of status applications   based on the filing dates chart for family-based cases and the final action dates chart for employment-based cases.

The following information is the for the final action dates chart. The EB1 category remains current for the worldwide category but has backlogged to January 1, 2012 for China and India. The EB2 category for India is at December 22, 2008, and for China August 1, 2014. The EB3 worldwide category remains current and the EB3 category for China is at June 1, 2015, and at October 1, 2008, for India.

US Supreme Court Holds That Immigrants Do Not Have a Statutory Right to Bail

February 28th, 2018

On February 27, 2018, in Jennings v. Rodriguez, the US Supreme Court ruled that certain immigrants detained for deportation do not have a statutory right to periodic bond hearings. This is a setback for immigrants’ rights advocates, but they are positioned to attack detention on constitutional grounds instead.

The Supreme Court reversed the judgment of the Ninth Circuit Court of Appeals, holding that INA §§235(b), 236(a), and 236(c) do not give detained immigrants the right to a bond hearing after six months and periodic bond hearings after that. The Court remanded the case to the Ninth Circuit and instructed it to consider the respondents’ constitutional arguments, which the Ninth Circuit did not previously consider.

The Court’s ruling is narrow in scope, since it only found that under the INA statute detained aliens do not have the right to a bond hearing after six months and then periodic bond hearings after that. The Court did not hold that immigrants may be detained indefinitely or that protracted detention is constitutional. Detained immigrants still have the right to a review of their detention. Also, there are other appellate decisions that still hold sway, including Reid v. Donelan, Sopo v. AG, and Chavez-Alvarez v. Warden York County Prison, where detention was found to be constitutionally suspect in individual cases.

Three of the Justices dissented and one recused herself. Justice Stephen Breyer wrote an impassioned dissent Tuesday invoking the Declaration of Independence and the storied practice of English common law.

Supreme Court Rejects the Trump Administration’s Request to Bypass Court of Appeals. Dreamers May Continue to Renew Their Cases.

February 26th, 2018

On Monday, February 26, 2018, the Supreme Court declined to entertain the Trump Administration’s request to circumvent the Ninth Circuit Court of Appeals and to intervene in the DACA (Deferred Action for Childhood Arrivals) litigation.  The Trump Administration had digressed from the usual practice of seeking an appeal to the next highest court and instead requested that the US Supreme Court rule against the lower California lower federal court’s injunction of the termination of DACA.  In denying the request, the US Supreme Court stated, “It is assumed that the court of appeals will proceed expeditiously to decide this case.”

In January 2018, the federal court ordered a nationwide injunction blocking the administration’s termination of DACA outright in March 2018.  This ruling allowed DACA recipients to continue to renew their status and work authorization, although it did not allow for new Dreamer applicants to file for protection against deportation under DACA.  Currently, there are approximately 800,000 Dreamers who are protected against removal and may receive employment authorization.  However, DACA does not provide a path to legal permanent residency (green card).  President Obama created the program, alleging his authority as the head of the Executive Branch to use his discretion in enforcing immigration laws, because of the unwillingness and inability of Congress to enact legislation to protect children brought to the country illegally or who overstayed a visa.  Trump alleges that Obama exceed his executive powers.

My office will continue to provide updates on the status of the DACA legislation.

USCIS Announces Adjustment of Status Filing Dates for March 2018

February 22nd, 2018

US Citizenship and Immigration Services (USCIS) has announced the filing dates for applicants for adjustment of status to legal permanent residency for March 2018. Applicants of family-based cases (beneficiaries of the approved Form I-130 immigrant visa petition) should refer to the “Dates for Filing” chart in the Department of State Visa Bulletin for March 2018. Applicants of employment-based cases must use the “Final Action Dates” chart in this Visa Bulletin.

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.