USCIS is now implementing Internation Entrepreneur Rule (IER) following December 1, 2017, ruling from the U.S. District Court for the District of Columbia in the National Venture Capital Association v. Dukecase. International entrepreneurs can now use American investments and enter through parole, special permission, to set up and grow start-up businesses.
IER was scheduled to take effect on July 17, 2017, but its implementation was delayed by a final rule until March 2018 by the Department of Homeland Security. On December 1, 2017, the Court’s decision vacated the delay rule. This results in the International Entrepreneur Rule being implemented immediately, and DHS is taking steps to follow the Court order.
Entrepreneurs can now apply for Parole as an immigration benefit. Ususal parole rules apply, i.e., IER parole would be granted case-by-case basis for urgent humanitarian considerations or if the U.S. derives significant public benefit.
Employment-related Immigration cases
L-1 Specialized knowledge
Administrative Appeals Office overturns California Service Center decision. Held: Specialized knowledge was a requirement for the position. Beneficiary has that qualification for the position is fulfilled by showing that he holds a “unique combination of experience and knowledge” in petitioner’s proprietary technology not available in the United States.
The controlling regulation 8 C.F.R. 214.2(l)(1)(ii)(D) does not require that the beneficiary must be the one to have developed this product or technology. The L1 worker only must establish that he possesses “special knowledge in the company’s product and its application in the international market” or has an “advanced level of knowledge or expertise” in the company’s “process and procedures.” WAC1014051163.
PERM: BALCA says University/ college professors do not just teach.
University professors perform teaching functions even if the work does not involve teaching, advising the students, and evaluating their work in a classroom. In the absence of defined requirements for teaching, BALCA considered that in addition to offering instructions to students, most professors perform research and community service as part of their teaching job.
Instructional coordinator in Library Science would be eligible for permanent employment certification as a college or university teacher.
H1B Worker Can’t Be Removed
Badrawi v. U.S, 07-cv-01074-JCH, filed 4/12/11
The Federal Dist. Ct. Connecticut held that when an H1B worker filed a timely extension petition, he was not removable upon expiry of his lawful stay.
The Court held that under the Federal Regulations, such worker is employment authorized for 240 days from the expiry date of his status. Fairness and due process required that the foreign nationals stay within the U.S. be considered authorized by the regulations.
PERM filing Delay
Matter of Il Cortile Restaurant decided on October 12, 2010
Business days are redefined by the Board of Alien Labor Certification (BALCA), including the weekends and holidays if employees work on those days. For this reason, a delay in filing Labor Certification should not result in denial.
Employers must bear the costs of filing an H1B petition
Reimbursement of these fees and costs from an employee is an impermissible deduction. DeDios v. Medical Diagnostic Systems, Inc.
H-1B Employment Conditions Violation – Settlement Agreement
The employer violated Code Federal Regulation provisions by failing to pay H1B workers the required prevailing wage and demanding that the H1B employee pay the penalty for employment termination.
The employer settled at the Wage and Hour Division of U.S.DOL. Award: Civil Penalty and back wages.
Benching: Employer to pay Backwages to the H-1B Worker
Wage and Hour division vs. Itek Consulting, Inc., 2008-LCA-00046, decided May 6, 2009.
In an impermissible benching claim, the Administrative Law Judge holds that the employer is liable to pay back wages where the employee was not offered work on the day he reported for not having the social security number and did not report to the office thereafter. An employer is required to pay the LCA wages from the date the H-1b enters into employment and is liable to pay back wages if the failure to offer employment was due to an employment-related reason and not due to the inability of the H-1B worker.
Instances where the nonproductive employment is due to reasons not related to employment: the employee’s inability to work is because the employee is visiting places or pregnant or incapacitated due to an accident.
Employers must cooperate with the investigator, who may assess penalties for failure to cooperate. Read more
Delay in bringing an impermissible Benching claim
Gupta v. Jain Software Consulting, Inc., ARB No. 05-008, ALJ No. 2004-LCA-39 (ARB March 30, 2007)
Benching is a continuing violation, says the Administrative Review Board, and held that the limitation period for benching starts on the latest date on which the employer fails to perform an action or fulfill a condition.
Actions for impermissible benching could be brought against the employer within 12 months from the time the employment relationship terminates.
ID Theft: U.S. Supreme Court
Flores-Figueroa v. U.S., 08-108, decided May 4, 2009
A federal statute prohibiting “aggravated identity theft” requires “proof of knowledge” that the identification information used by the offender was not just fake but belonged to another person. 18 U.S.C. section 1028A(a)(1)
The 9th circuit vacated and dismissed on October 20, 2008, its earlier order held that a foreign national who gains entry into the U.S. by misrepresentation is ineligible for adjustment of status because the person was not admitted.
The earlier published opinion in the case reported in 521 F.3d 1068 (9th Cir. 2008) stands vacated following a joint motion.
Fraudulent Entry
Orozco vs. Mukasey.
The 9th circuit vacated and dismissed on October 20, 2008, its earlier order held that a foreign national who gains entry into the U.S. by misrepresentation is ineligible for adjustment of status because the person was not admitted.
The earlier published opinion in the case reported in 521 F.3d 1068 (9th Cir. 2008) stands vacated following a joint motion.
Removal/ Deportation
BIA on travel with
Advance Parole
The Arrabally case, 25 I&N Dec. 775 (BIA 2012)
A trip abroad upon grant of Advance parole alone does not render the foreign national inadmissible that the adjustment of status should not be denied. This case was decided on August 16, 2012.
Statements elicited at the Port of Entry can be used in the removal proceedings
Montoya and Montoya Vs. Mukasey, 2nd Cir., August 2008.
The federal court of appeal, second circuit, holds that questioning foreign nationals at the port of entry is not a seizure.
Although the foreign nationals arrived by airplane and could not have left the country without proper arrangements, nor were they allowed to cross the entry point and enter the U.S. without satisfactorily answering the officer’s questions because the officer was standing in front of them, the Circuit court held that such questioning was not a seizure under the Fourth Amendment of the U.S. Constitution.
The Fourth Amendment prevents the use of statements against the person making them if the statement was obtained during an unreasonable stop. On appeal, the petitioners argued that their statements should be suppressed because it was obtained following an egregious stop based solely on their race and nationality.
The Court said there was no use of force or threat of force, nor did the officials assert their authority, and held that since there was no seizure, the statements obtained at the port of entry were admissible in the removal proceedings.
Chasing the Visa Bulletin: Interfiling to Upgrade and Downgrade
Posted in employment-based, Green card, my view at 1:01 am by Lalita Haran.
The USCIS advises employment-based immigration applicants in the EB-2 and EB-3 employment-based preference categories to transfer (upgrade) the underlying basis of their adjustment of status application to EB-1 and EB-2 applications. This is because of the availability of an increased annual quota of immigrant visas in the categories (eb-1 and eb-2) for the current fiscal year (Oct. 1, 2021, through Sep. 30, 2022).
Employment-based first preference category (eb1) is for “priority workers” comprising employees with extraordinary ability, outstanding professors and researchers, and multinational executives. The employment-based second preference category (eb2) is for foreign nationals with exceptional ability or those with an advanced degree, meaning those with masters and doctorate qualifications, and includes those eligible for national interest waiver, including physicians. The Employment-based third preference category (eb3) is for professionals, skilled workers, and other workers.
Foreign nationals seeking to become lawful permanent residents based on their employment should register for permanent residence (adjustment of status application in form I-485) following approval of an employment-based immigrant visa petition (Form I-140) in one of the employment-based preferences categories, first through fifth. Application to register permanent residence is filed based on priority dates listed on the visa bulletin, a department of state monthly publication, which shows the priority date, i.e., the date of filing of the I-140 under each employment-based preference category that the agency is currently processing and the dates when a foreign national can file their applications. This article refers only to the first, second, and third employment-based preference category workers.
Applicants for adjustment of status in the underlying employment-based first, second or third preference category may hop between these preference categories eb1/eb2/eb3. When prolonged wait times in any of these categories, applicants in that category seek to hop aka transfer to another preference category with shorter wait times.
Transferring or changing the basis of the underlying preference category to a different I-140 petition is of special interest these days because the eb3 preference category has been backlogged for years, and applicants have been waiting for more than a decade before they can be approved for lawful permanent residence and obtain a green card. Because the immigrant visa numbers for each preference category is limited based on per-country limit, the eb3 preference category for certain countries, especially for India and China, is severely, and eb2 just a little less, backlogged with many years of waiting before the foreign national from the backlogged country can be granted permanent residence.
Upgrade to the higher preference category is frequently desired to shorten wait times. If eligible, the foreign national in the eb3 preference category can change the basis of their adjustment of status application to that of eb-2. A foreign national in the eb2 preference category can change the basis of the adjustment application to eb-1. Depending upon the movement of priority dates in the visa bulletin, the adjustment applicants prefer a substitution for the more desired preference category. Some foreign nationals resort to an additional filing instead of substitution, concurrently, when permissible under the visa bulletin.
It should be remembered that in October 2020 visa bulletin in the eb-3 category made a sudden jump by a few more years than the eb2 category. So, many foreign nationals with eb-2 as the basis of their I-140 petition with a later priority date preferred to choose eb-3 as the underlying preference category to avoid years of wait to obtain the green card. However, the visa bulletin for eb3 preference category was retrogressed in a couple of months, and foreign nationals who had downgraded from eb2 to the eb3 category were disappointed. Recent visa bulletin showed movement in the eb-2 category, and hence comes the desire to reverse the previous downgrade and return to the eb-2 category as the basis of the underlying petition.
In September 2021, it became widely known that nearly 100,000 immigrant visas in the employment-based categories went unutilized, meaning wasted, because the agency was unable to process the applications fast enough before the end of the fiscal year, even as too many qualifying applicants were anxiously waiting for their turn and some of them had aging children with drastic family separation consequences. There was no legal provision to carry forward these visa numbers to the next year for issuance.
Any unused immigrant visa numbers from the family-based category in the previous fiscal year are added to the first employment-based preference category eb-1 of the next fiscal year. Similarly, any unused immigrant visas in one employment-based preference category are made available to another employment-based preference category for issuance in the next fiscal year. So, the new immigrant visa numbers in the fifth employment-based preference category (eb-5 – investors) are made available to the first (eb-1) employment-based preference category, and unused immigrant visa numbers in the eb-1 category visa are added back to the second (eb-2) employment-based preference category. Because of these reasons, the current fiscal year immigrant visa numbers available for the first and second employment-based preference categories are very high and, according to the USCIS, are twice more than the usual numbers of immigrant visas in the category.
Likewise, unused eb-2 visa numbers can be added back to the eb-3 preference category, but the agency predicts that it seems highly unlikely that eb-2 visa numbers would benefit the eb-3 category because there are significant numbers of immigrant visa applications pending in the eb-2 category. However, the agency encourages applicants to move from the eb-3 to eb-2. It must be noted that the foreign nationals must meet the eligibility criteria for the desired category to interfile and would still be subject to the visa bulletin’s priority date requirements before hoping to take the benefit of a higher number of immigrant visas available for the first and second employment-based preference categories (eb-1 and eb-2). The agency note appears to be based on its estimate of available immigrant visa numbers and not a rule change of any kind, which could provide an added advantage to the eb-2 category aspirants.
Many foreign nationals choose substitution instead of additional filing when downgrading or upgrading to the more desirable preference category. These future immigrants may have to reverse the course by following the updated visa bulletin and upgrade or downgrade to the original basis.
Foreign nationals should consult with their attorneys on the possibility of interfiling or an additional filing to make the best of their situations. In addition to the formidable cost of filing and employer cooperation, some other factors to consider are if there are children who may age out and go out of status, the availability of other independent immigrant or nonimmigrant visa options, and the cost of other lost opportunities.
Given the complexities of employment-based immigration compounded by the visa, the bulletin guesses the fact remains that the foreign nationals adjusting status in the employment-based preference categories will find themselves chasing the Visa Bulletin in the interfiling game of whether to upgrade or downgrade and then again regrade their adjustment of status application.