This category displays articles relating to immigration and labor compliance policies coming from Congress or any of the executive agencies tasked with defining and enforcing the U.S. immigration policies.
In the era of increased immigration enforcement under President Trump, our foreign national clients and readers are increasingly asking about the requirements on carrying specific immigration documents with them while they are in the U.S. – whether around town or for domestic U.S. travel. We find that this topic is not very well covered and many foreign nationals are not aware of the applicable requirements to carry specific immigration-related documents with them at all times inside the United States. This article seeks to explain the law and provide answers to this and related questions. (more…)
Both Congress and President Donald Trump’s team have been extremely active in considering ways to revamp the current immigration framework concerning both the undocumented population and skilled immigration. In this first article from our series, we will provide a summary of the current congressional immigration proposals concerning green cards and temporary work visas for highly-skilled professionals. Our next article, will concentrate on the immigration proposals coming directly from the White House in the form of Executive Actions. (more…)
There are a few people who are interested in immigration who are not aware of the upcoming announcement by President Obama on his plan for executive action on immigration. At this time, we have been receiving rumors, bits and pieces, provided off the record, by various sources in the government here in Washington, DC and we will not be analyzing the proposals until the official announcement is made: President Obama is expected to make his announcement this evening, November 20, 2014, at 8 pm eastern time and we will be staging a number of events immediately after to analyze the proposal.
Live Chat: Immediate Analysis and Reaction to Executive Action Proposal Thursday, 9 pm EST.
Immediately after President Obama’s speech this evening we will host a live chat dedicated solely on the speech, the proposals contained therein and our immediate analysis of the impact on various groups of immigrants. Please join us for this chat immediately after the announcement at 9 pm EST.
Webinar: SPECIAL EDITION on President Obama’s Executive Action Plan – Details and Analysis Friday, 1 pm EST.
Tomorrow, Friday, November 21, 2014 at 1 pm EST, after we have had a chance to go through the proposal in more detail, we will hold a webinar presentation where we will provide a more detailed analysis of the executive action proposal and how it affects various groups of immigrant populations. We should also be able to provide some kind of an overview of challenges to the proposed action and anticipated steps forward and timeline. There are limited seats for this webinar and it will sell out – please register now.
And yes, these events are FREE to anyone to register but there is limited space available. We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. In the meantime, please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with this or related immigration-related issues.
In a policy memorandum dated July 11, 2014, USCIS has provided some guidance and clarifications as to the applicable standards for adjudication of H-1B petitions for nurses. While USCIS continues to maintain the position that most nurses may not qualify for an H-1B due to the fact that a bachelor’s degree is not normally requires, the policy memorandum highlights specific situations and factors which would help a determination that a specific nursing position is specialized enough to warrant an H-1B. We welcome this (overdue) policy memorandum as it provides a clearer guidance as to which types of nursing positions may qualify for an H-1B work visa.
Background of H-1B for Nurses
Most of our readers are aware that the H-1B visa classification allows a U.S. employer to petition for a temporary worker in a specialty occupation (normally, a position requiring a bachelor’s degree or higher). The government has taken the position that most registered nurse (RN) positions do not qualify as a specialty occupation because such positions do not normally require a U.S. bachelor’s or higher degree in nursing (or its equivalent) as the minimum for entry into those particular positions. There are some situations, however, where the petitioner may be able to show that a nursing position qualifies as a specialty occupation. For example, certain advanced practice registered nurse (APRN) positions normally require a U.S. bachelor’s or higher degree in a specific specialty as the minimum for entry into these particular positions.
As a result, there has often been ambiguity as to whether a specific nursing position would qualify for an H-1B work visa or not. Our office, for example, has handled variety of nursing H-1B cases and so far the success factor has been a showing of advanced or highly-specialized nursing requirements.
The Policy Memorandum Recognized Shift Towards Employers Increasingly Requiring Nurses with Bachelor’s Degree or Higher
The policy memorandum reiterates the general position that nursing positions do not normally require a bachelor’s degree and, as a result, would not fit within the scope of the H-1B work visa. At the same time, however, the policy memorandum makes an important recognition that the private sector in the U.S. is increasingly showing a preference for “more highly educated nurses.” The policy memorandum goes on to make a specific distinction that certain nursing positions would actually meet the “specialty occupation” definition and would qualify for H-1B. This is an important step towards recognizing H-1Bs for nurses.
At the same time, the policy memorandum also specifies that advance practice registered nurse (APRN) positions use skills, experience and knowledge which are consistent with the “specialty occupation” standard and for APRN nursing positions, an H-1B should be approved. Specific (but not complete) examples of APRN occupations cited in the policy memorandum which should qualify for H-1B are Certified Nurse-Midwife, Certified Clinical Nurse Specialist, Certified Nurse Practitioner and Certified Registered Nurse Anesthetist.
The policy memorandum also includes some suggestions on the type of factors to be presented and considered when adjudicating an H-1B application for a nurse-type position. In addition to normal employer and industry practices, the adjudicator may consider advanced certification requirements, ANCC Magnet recognition status, clinical experience requirements, training requirements and wages relative to others in the position. This kind of list with suggested factors/evidence is very helpful in preparing a strong H-1B work visa application for a nursing position.
We welcome this policy memorandum as it provides an overdue clarification of the H-1B standards as they apply to nursing positions. The policy memorandum recognizes shifts in the private industry marketplace where more and more nurses perform more complex skills and more and more employers seek nurses with advanced level of skills and education. The arguments and factors outlined in the policy memorandum should provide more clarity and, hopefully, certainty in the H-1B application process for employers who are seeking to sponsor an H-1B work visa for a nurse.
We are happy to consult employers who are considering filing for H-1B petitions for nurses. Our office focuses its practice on employment-based immigration matters and we have handled a variety of immigration cases for hospitals, medical facilities and similar health-care related employers. Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.
USCIS has announced a change in their policy regarding the validity period of a Form I-693, Report of Medical Examination and Vaccination Record, when filed in support of a Form I-485 Adjustment of Status Application. Effective June 1, 2014, the I-693 medical report will be valid for one year from the date of submission to USCIS. This is in addition to the requirement that the I-485 applicant must submit the I-693 medical exam within one year of the actual medical exam date.
Background and Reasons for the Change of Policy
Before 2002, USCIS considered a Form I-693 medical exam valid as long as it was filed within one year of the civil surgeon’s signature. Since 2002, USCIS has kept this practice and has continuously extended the validity of the civil surgeon’s endorsement on the I-693 medical exam. As a result, timely-filed Form I-693 medical exam documents were automatically considered extended and “current” by USCIS.
After consultations with the Centers for Disease Control (“CDC”), USCIS has decided to change the policy regarding the validity of I-693 medical exams and to effectively discontinue the automatic validity extension policy. While we do not know the specific reasons for the policy change and any concerns raised by CDC, a possible reason may be the fact that under the prior automatic extension policy, there may have been applicants who have been waiting for I-485 adjudication for 3, 5, 7 or even more years and for those applicants the I-693 medical exam report on file simply does not provide an accurate picture of their health (and any health risks they may pose).
Policy Change Related to Increased Number of I-485 Requests for Evidence
This policy change is directly related to the increased number of recent requests for evidence (RFEs) on pending I-485 applications, especially for cases where the priority date is expected to be current over the next months. As we reported in our recent article, our office sees an increased number of RFEs which specifically request renewed I-693 medical exam report to be submitted back to USCIS. It seems that USCIS is using the need of a new I-693 medical exam report to also request additional items in their RFEs, such as employment verification documents.
It is helpful to see that USCIS has formulated a policy and a formal explanation to the medical exam validity period. This policy change helps explain the wave of recent (and upcoming) RFEs. We recommend that I-485 applicants who have had their I-485 pending for more than year to be prepared to respond to an RFE for medical exams, among other related items. This includes updating their mailing address with USCIS and ensuring that their attorney of record information on the I-485 is current.
Our foreign national clients and readers often ask us about the requirements on carrying specific immigration documents with them while they are in the U.S. – whether around town or for domestic U.S. travel. We find that this topic is not very well covered and many foreign nationals are not aware of the applicable requirements to carry specific immigration-related documents with them at all times inside the United States. This article seeks to explain the law and provide answers to this and related questions.
The Law: Registration and Carrying of Registration Documents
Section 262 of the Immigration and Nationality Act (INA) dictates that almost all foreign nationals in the U.S. must be “registered” with the proper government agency. For example, registration happens when someone is admitted into the U.S. at the border or if someone’s status in the U.S. is extended or changed. The registration is a mechanical process, set in the law and in existence for many years, and has been well established and are fairly transparent – many foreign nationals do not even realize (nor do they often need to) that their status in the U.S. has been “registered” with the government. After the registration takes place, Section 264(d) requires the U.S. government to provide a “registration certificate” to the foreign national.
This is where the requirement to carry registration evidence comes in. Section 264(e) of INA requires every individual over the age of 18 to carry their “registration” documents with them at all times. Specifically, section 264(e) reads:
e) Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) [where the government issues a “registration certificate” after each foreign national’s registration]. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.
Many of our clients and readers are surprised to learn about this requirement – and the reason is simply that the Department of Homeland Security (DHS) has generally not enforced the “at all times” language. Often the requirement has been satisfied by an expectation (and ability) that the foreign national would be able to produce the registration document within certain period of time — perhaps by getting them from home or from a safe deposit box.
What Exactly Should I Carry: What is the Registration Certificate?
As explained above, the law requires every foreign national to carry their “registration certificate” so the natural question is – what is this document? The list is described in the federal regulations under 8 CFR. § 264.1(b). Notable registration documents are the Form I-94 card, I-551 (green card), I-766 (EAD card).
For many people in the U.S., their registration certificate would be the Form I-94 card which is issued either at the port of entry (see below) or upon approval of someone’s extension or change of status (usually attached to the bottom of the Form I-797 approval notice).
It is important to note that effective May 2013, Customs and Border Protection (CBP) stopped issuing paper Form I-94 cards at the port of entry for most foreign nationals (exceptions are certain land entry points where paper is still used). Under the new and current procedure (more details), most foreign nationals who are admitted into the U.S. have their passport stamped with a notation of the status type and the status expiration date. To obtain their Form I-94 card (the “registration certificate”), a foreign national must take an extra step by going to the CBP I-94 website, completing the requested information and printing their electronic Form I-94 on paper.
In addition to the Form I-94 card (the registration certificate), we recommend foreign nationals carry with them a photo ID and, if applicable, their visa document (such as Form I-20, Form DS-2019, or I-797 approval notice).
Enforcement and Applicability of the Requirement to Carry Registration Documents
As mentioned above, this requirement is very old and has been on the books for many years. And yet, many people do not know about it and have never encountered a situation where they had to present their immigration registration document to an officer. In certain parts of the U.S., it is more common for officials to ask for these documents. For example, it is significantly more likely for an official to ask for the immigration registration documents in southern California or the southern border states (Arizona, Texas) compared to the Midwest or Northeast states.
Although domestic transportation lines and law enforcement officers do not often ask for these documents, in many cases they have the right to do so. And if asked, a foreign national is supposed to have those documents with them. We recommend foreign nationals to consider the possibility of requests for their registration documents at transportation terminals or elsewhere even if they will never leave the territory of the United States. Again, for foreign nationals the most common item of identification is the passport and the most common forms of evidence of lawful status in the U.S. are the I-94 card accompanied by the appropriate visa document (I-20, DS-2019, I-797, etc.).
We hope that this article alert would be helpful to many of our clients and readers to understand the requirements to carry immigration documents even while they are within the U.S. and even when they do not travel out of town. We would love to hear stories or reports on officials requesting registration documents from our clients and readers. We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this article. Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.
The Department of Homeland Security (“DHS”) Office of Inspector General (“OIG”) has released a report on the L-1 visa program after a thorough analysis of the program, its weaknesses and opportunities for improvement. The report makes a number of recommendations to DHS on how to strengthen the L-1 visa program by making more robust review of a number of aspects, but also, importantly, calls for a better definition and training to officers with respect to “specialized knowledge” standard, which has been one of the main issues in the L-1 program recently.
Brief Background of the L-1 Program
The L-1 visa program was institute in the 1970s and is a work-based visa which allows companies with international operations to place employees in the U.S. for a limited (5 or 7 years) term.
The L -1 visa is one of many visa types that require an approved petition. Before a foreign traveler can apply for such a visa, a multinational company (the petitioner) must submit a petition (Form I 129) to USCIS requesting that USCIS make a determination that the intending traveler (the beneficiary) fits within the L-1 visa category.
An L-1 employee sent to work temporarily in the United States by the petitioning employer must qualify in one of two subcategories: L-1A (an alien performing services in a managerial or executive capacity) or L-1B (an alien performing services as a specialized knowledge worker). Most L-1 petitions are adjudicated by Immigration Services Officers (ISOs) at the California and Vermont Service Centers. After USCIS approves a petition for a beneficiary who is overseas, a Department of State (DOS) consular officer interviews the individual at a U.S. consulate or embassy.
L-1 Adjudication Trends
According to USCIS, the rate of L-1 approvals have been trending down since fiscal year (FY) 2007 when the peak of 57,218 approvals was reached. For example, in Fy2011, the approvals were only 33,301. Out of this number, Indian nationals held the majority (26,919), followed by nationals of UK, Japan, Canada and Mexico.
The downward trend in L-1 approvals over the past several years has many causes, but from our experience, the biggest reason for the decline in the rate of L-1 approvals is the “specialized knowledge” standard which is applied to all L-1B applications.
(Not-so-Brief) Background on the “Specialized Knowledge” Issue
The L-1 visa classification was created by Congress in 1970 without providing a statutory definition of “specialized knowledge.” The first definition was published in 1983 and in 1987, the INS revised the definition of specialized knowledge to be “knowledge possessed by an individual whose advanced level of expertise and proprietary knowledge of the organization’s product, service, research, equipment, techniques, management, or other interests of the employer are not readily available in the United States labor market.” This definition required an employee to be a key person with materially different knowledge and expertise that is critical for job performance and relates exclusively to the employer’s proprietary interest.
In 1988, INS issued a policy memorandum instituting a broader interpretation of specialized knowledge, defining it as “special knowledge possessed by an employee that is different from or surpasses the ordinary or usual knowledge of an employee in the particular field.
The Immigration Act of 1990 (IMMACT) enacted the first statutory definition of specialized knowledge, clarifying that the beneficiary’s knowledge need not be proprietary to the petitioner or limited in the U.S. labor market. IMMACT states that an “alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.” Following the passage of IMMACT, Congress noted that nonimmigrant visas, such as the L-1 and H-1B, had enhanced trade and accommodated useful movement of people and products.
As a result of IMMACT, INS promulgated the existing regulatory definition of specialized knowledge at 8 CFR § 214.2(l)(1)(ii)(D). Federal immigration officials issued several policy memorandums providing guidance on what should be considered specialized knowledge. A July 1991 INS regulation gave the interpretation of specialized knowledge that the individual must possess “special knowledge” that applies in international markets or “an advanced level of knowledge or expertise in the organization’s processes and procedures.” In March 1994, INS issued the memorandum “Interpretation of Specialized Knowledge,” which noted that a petitioner’s assertion that an alien’s knowledge is different does not establish that the alien possesses specialized knowledge. In September 2004, USCIS issued the memorandum “Interpretation of Specialized Knowledge for Chefs and Specialty Cooks seeking L-1B status.” This memorandum clarified guidance in the 1994 memorandum that chefs or specialty cooks generally are not considered to have “specialized knowledge” for L 1B purposes, even though they may have knowledge of a restaurant’s special recipe or food preparation technique.
In 2008, the Administrative Appeals Office (AAO) issued a non precedent decision on an appeal submitted by GSTechnical Services (GST). In the GST decision, the AAO concluded that routine work experience and knowledge of a company’s products do not constitute specialized knowledge.
Specialized Knowledge Improvements Suggested
This background is helpful to give us perspective and to highlight how difficult it is to explain, in an objective way, what “specialized knowledge” is. The OIG, in their report, support this assertion by concluding that immigration officers do not apply the specialized knowledge definition uniformly and there is much confusion as to what the test even means.
When OIG interviewed immigration offers about this standard, among the most common terms used to described the immigration officers’ concerns were “unquantifiable”, “subjective”, very difficult to adjudicate”, “open to interpretations, unfortunately.” According to the OIG report, immigration officers refer to specialized knowledge as “you know it when you see it.” Obviously, this is alarming for a number of L-1 program stakeholders because the lack of objective guidance which can be followed leads to great deal of uncertainty and lack of faith in the system.
The OIG report concludes that the statutory definition of specialized knowledge is vague and unclear, leading to inconsistent decision-making and confusion among petitioners as to the actual denial reasons. This leads to the OIG report to recommend DHS to publish new clear guidance on the specialized knowledge standard.
Additional Recommendations on the L-1 Program
In addition to the specialized knowledge issue, discussed above, the OIG report makes a number of other recommendations to improve the L-1 program. Among these recommendations are:
- Establish a process to prevent the practice of L-1 blanket beneficiaries who are denied due to lack of specialized knowledge to petition and obtain approval/stamping under an individual L-1 petition by establishing a more uniform beneficiary tracking system;
- Provide thorough training to CBP officers who are often the first government officers to handle an L-1 petition submitted by a Canadian L-1 applicant at the port of entry;
- Establish better mechanism to track whether an L-1 petitioner is subject to the $2,250 filing fee when they employ 50 or more employees in the US and when 50 percent of their US workforce is on L-1 status;
- Strengthen the tools to review “new office” L-1 petitions to be able to adjudicate properly cases where a new office is being established in the US and to determine whether the conditions of the new office have been met for the purpose of the first (and subsequent) L-1 petition extensions – for example, OIG recommends a site visit to the new office be mandatory before the new office L-1 petitions are extended;
- Increase use of VIBE to check petitioner information and eliminate fraud and abuse and extend the use of VIBE to other agencies, including CBP;
The L-1 OIG report is helpful in providing a good review of what needs to be improved in the L-1 program. We have worked with many clients over the past several years who have expressed frustration by the L-1 program and the lack of uniformity and predictability. In its internal response to the OIG report, DHS has indicated that they are working on an memorandum to establish more clear guidance with respect to the specialized knowledge standard. This memorandum is under internal review and we hope to see public release soon.
Please do not hesitate to contact us if we can help you. Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.
Last week, the Homeland Security Department has ordered U.S. border agents, “effective immediately”, to verify that every international student who arrives in the US has a valid student visa, according to an internal memorandum obtained by the Associated Press.
This decision came after it was discovered that a friend of suspected Boston Marathon bomber Dzhokhar Tsarnaev was admitted on an F-1 student visa even though his status had been revoked in SEVIS. Last year more than 500,000 student visas were issued by the U.S. Department of State.
CBP officers must now verify the status of each F-1, M-1 and J-1 nonimmigrant in the Student and Exchange Visitor Information System (SEVIS) before admission. However, not all border officers are equipped with access to SEVIS, so after preliminary processing, most students and exchange visitors are referred to secondary inspection, where their SEVIS record is reviewed and where they may be questioned further about their U.S. activities.
As a result of these new entry procedures, F-1 students and J-1 exchange visitors entering the United States should anticipate possibility of long waits at U.S. ports of entry. As always, we recommend that they are patient and answer all questions clearly and fully.
On May 8, 2013, U.S. Citizenship and Immigration Services’ (USCIS) released a summary and assessment of efforts taken during the first year of its Entrepreneurs in Residence (EIR) initiative. Launched in February 2012 in Silicon Valley, the EIR initiative brought together startup experts and USCIS immigration experts to work collaboratively to streamline pathways for a range of existing visa categories often used by entrepreneurs. As stated by Director Alejandro Mayorkas, the goal of the EIR program is “to ensure that we capture the full potential of current immigration laws to attract and retain startup enterprises that promote innovation and create jobs in America…”. With the uncertainty that continues to surround comprehensive immigration reform, initiatives like EIR become all the more important.
Some of the highlights of the EIR initiative over the past year include:
- Nearly 30,000 visits to Entrepreneur Pathways, which was designed to help prospective entrepreneurs understand their immigration options and the related processes;
- Approximately 500 participants across the United States in USCIS’s entrepreneur-focused engagements;
- More than 400 USCIS employment-based immigration officers trained on startup businesses and the environment for early-stage innovation; and
- More than 100 USCIS officers receiving additional specialized training to handle entrepreneur and startup cases.
In efforts to expand the program, USCIS is “seeking new private sector experts, using the Department of Homeland Security’s (DHS’s) Loaned Executive Program, in the areas of performing arts, health care and information technology.” The purpose of seeking expert input into these industry sectors, which are a critical part of the country’s economy, is to provide the agency with insights into these areas, and help strengthen USCIS’s policies and practices in an informed manner. It is anticipated that the range of industries will be broadened over time.
At the initiation, the EIR initiate set three key goals: 1) production of public materials intended to assist entrepreneurs in understanding the visa categories; 2) equipping Immigration Service adjudicators to process petitions in the context of the complex business environment; and the streamlining of USCIS policies toward better reflecting issues and realities encountered by foreign entrepreneurs and startup businesses.
While the full impact on EIR remains to be seen, USCIS continues to move away from policies that discourage high-skilled immigrants’ contributions to the economy. A broad and successful EIR program would ensure that the system is a magnet for both talented human capital and money. Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.