Now that the H-1B cap season for fiscal year 2018 (FY18) is over, we are receiving inquiries from the employers and beneficiaries asking us if a foreign national may be a beneficiary of two or more cap-subject petitions.
United States Citizenship and Immigration Services (USCIS) has become increasingly strict on multiple H-1B petitions that are “identical” filed on behalf of the same beneficiary. In recent years, it has come to the attention of USCIS that in order to increase the foreign worker’s chance in lottery selection, different employers filed more than one H-1B cap-subject petitions for the same foreign worker with identical job title, job duties, and end-client. The law permits multiple H-1B filings for the same beneficiary, but the petitions cannot be filed by the same petitioner in the same cap year. In addition, the employers filing H-1B petitions for the same beneficiary cannot be related. If the petitioners are found to be related, such as a parent, subsidiary, or affiliated company, it is the petitioner’s burden to demonstrate that there is a “legitimate business need” for the multiple petitions and that the job positions, for which H-1Bs have been filed for, are distinct from one another. Such cases, however, receive higher scrutiny from USCIS.
We have read reports of USCIS issuing Notices of Intent to Deny (NOID) and Notices of Intent to Revoke (NOIR) for H-1B petitions that are “identical” filed for the same beneficiary. These notices list the similarities among the multiple petitions and essentially request for supporting documents, including proof that the employers are not related. If the employers are related, they must demonstrate that there is a distinct need for the position to fulfill’s the company’s business need. Please note that although federal employer identification number (FEIN) is a significant way to show that the employers are not related, USCIS can still conclude that the empoyers are working together to increase the beneficiary’s chance in the lottery. Should USCIS find that the evidence is insufficient or that the employers are not working in good faith, USCIS could deny all petitions filed on behalf of that beneficiary and/or revoke all prior H-1B approval the employers filed for the beneficiary.
It is important to note that there are situations that makes sense for the foreign worker to be the beneficiary of multiple H-1B petitions. The law permits this, but with the increasing demand for workers as the U.S. economy grows and the cap remaining the same, employers are finding ways to increase their petitions’ selection in the lottery, often through unlawful methods. Thus, USCIS has become more wary and places those petitions under greater scrutiny.
Under certain situations filing more than one cap-subject H-1B petition on behalf of the beneficiary is permissible. Feel free to contact us if you have questions about filing multiple cap-subject H-1B petitions on behalf of a beneficiary.
U.S. Customs and Border Patrol (CBP) agents have the broad legal authority to conduct searches at the border and Port of Entry (POE). Unlike police officers who need search warrants, CBP can conduct searches “without individualized suspicion” as stated in CBP’s policy. U.S. citizens, lawful permanent residents, and visitors alike are subjected to CBP searches, including searches of electronic devices and social media accounts.
In light of heightened national security interests and border protection, the Supreme Court has upheld CBP’s right to conduct warrantless searches without any suspicion as “reasonable” and an exception to the 4th Amendment. In this digital age where cell phones, laptops, and other electronic devices, contain private information, including photos, contacts, and messages, the warrantless search is rather intrusive, particuarly when it is done without much justification by the CBP agent.
A secondary issue to the warrantless searches is CBP’s access to the individual’s social media accounts. CBP started collecting identifiers (search words) to view one’s public information in 2016. However, American Immigration Lawyers Association (AILA) reported that it has seen instances where CBP agents requested login information so they can view private messages. Homeland Security Secretary John F. Kelly said officials were considering a policy that would allow CBP agents to ask refugees and immigrants for their social media login information.
Speaking to The New York Times, a CBP spokesman reported that CBP agents inspected 4,444 cellphones and 320 other electronic devices in 2015. The number rose to 23,000 in 2016. America Civil Liberties Union (ACLU) reported that it has seen an increase in the number of people who said their electronic devices have been searched.
One can refuse to consent to a search, but that does not stop CBP from forcing him/her to unlock the device, detain him/her until s/he consents, arrest the him/her, seize the device and release the person, or for nonimmigrants, refuse their admission into the U.S. There are ways to prepare before traveling. Suggestions from ACLU include:
- traveling with as little data and as few devices as possible. The less you’re carrying, the less there is to search. Consider using a travel-only smartphone or laptop that doesn’t contain private or sensitive information. You could also ship your devices to yourself in advance. (Be aware that CBP claims the authority to search international packages so it is best to encrypt any devices that you ship.) Keep in mind that a forensic search of your device will unearth deleted items, metadata, and other files.
- encrypting devices with strong and unique passwordsand shut them down when crossing the border.
- storing sensitive data in a secure cloud-storage account. Don’t keep a copy of the data in your physical possession, and disable any apps that connect to cloud-based accounts where you store sensitive communications or files. (There’s no articulated CBP policy on whether agents may click on apps and search data stored in the cloud. While this kind of warrantless search should be well outside the government’s authority at the border, we don’t know how they view this issue.)
- uploading sensitive photos on your camera to your password-protected laptop or a cloud-storage account. Digital cameras don’t offer encrypted storage, so you should consider backing up your photos and deleting them from your camera and reformatting the camera’s memory card.
In light of the recent temporary suspension of premium processing for all H-1B petitions on April 3, 2017, U.S. Citizenship & Immigration Services (USCIS) has experienced an influx of H-1B petitions filed under premium processing service. As per the current estimates, USCIS received 50,000 premium processing applications in the last three days of March 2017. As our readers may know, H-4 & H-4 employment authorization document (EAD) applications can be submitted along with the H-1B petitions. Due to the increase of premium processing applications filed in the limited time along with the concurrently filed H-4 & H-4 EAD applications, USCIS service centers received a large influx of applications in a relatively short period of time.
The Nebraska Service Center (NSC), which adjudicates all H-1B extensions containing no changes to the beneficiary’s terms of employment, has announced that in order to meet the premium processing timelines it will prioritize the H-1B petitions. The H-4 & H-4 EAD applications that were concurrently filed with the H-1B petitions will not be adjudicated along with the H-1B petitions at this time. Instead, the H-4 & H-4 EAD applications will be sent to a different team for review and the adjudication of H-4 & H-4 EAD applications is expected to take another a week or two after a decision has been made on the H-1B petitions.
NSC expects the delay to continue until the surge is over and anticipates to eventually resume adjudicating H-4 & H-4 EAD applications submitted concurrently with H-1B petitions. If no notice has been received by the end of April, applicants are adviced to contact the National Customer Service Center to place a Service Request.
If you have any questions on H-4 or H-4 EAD applications, feel free to contact our office.
The Board of Alien Labor Certification Appeals (BALCA) recently reversed a Permanent Employment Certification (PERM) denial involving a change in the PERM application’s signatory at the time of an audit. The facts and legal issues of the case are summarized below based on public records. Please note that Sharma Law Offices, LLC did not represent the employer during any stage of the case. The purpose of this article is to inform our existing and potential clients and should not be taken in any way as legal advice.
An employer filed a Form ETA 9089, otherwise known as PERM application, listing the president of the company as the signatory. During an audit, the U.S. Department of Labor (DOL) requested an original signed copy of the Form ETA 9089. In response to the audit, the employer modified the Employer’s Declaration section to reflect a new signatory and submitted it with the audit response.
Upon reviewing the audit response, the DOL denied the PERM application concluding that the employer substantially failed to respond to the audit as the person signing the Form ETA 9089 had changed from the initial PERM application.
The employer filed a request for reconsideration of the denial with the DOL, specifying the authorized signatory had changed and that the new signatory had the case-specific knowledge to make the attestations on the PERM application. The DOL certifying officer (CO), however, interpreted the relevant regulation to require that such explanations can only be made at the time of responding to the audit and that the employer’s request for reconsideration and explanations could not be taken into consideration at the time of reconsideration. The employer refused to accept this DOL’s decision and appealed the denial to BALCA.
Upon reviewing the facts of the case, BALCA disagreed with the CO on the exclusion of the employer’s evidence and explanation at the time of request for reconsideration. BALCA held that if the circumstances of an audit do not alert the employer to the potential deficiency, and the evidence is not standard, the CO cannot block admission of evidence at reconsideration. BALCA found that the circumstances of the audit did not alert the employer to the fact that the change in signatory could be viewed as a deficiency and that it is not standard to provide an explanation for such changes. BALCA concluded that there was no reason for the employer to provide a copy of the Form ETA 9089 signed by the signatory listed in the initial PERM application. Accordingly, BALCA reversed the denial of the PERM and remanded it for certification.
Although the PERM application was certified eventually, it was delayed by a simple change of the authorized signatory. There is no “harmless” error in PERM filing. The smallest detail can be crucial in obtaining certification. It is important to have an experienced and dedicated attorney handle your PERM applications.
On August 12, 2015, the U.S. District Court for the District of Columbia issued a decision in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security vacating the Department of Homeland Security’s (DHS) 2008 rule which extends the duration of optional practical training (OPT) for eligible STEM students. However, the court stayed the effect of its ruling until February 12, 2016 – allowing DHS a 6-month window to remedy the defect the court found fatal to the 2008 rule as enacted.
By way of background, in 2008, DHS promulgated the regulation at issue which extended the period of OPT by 17 months for F-1 foreign nationals with a qualifying STEM degree. Prior to the 2008 regulation, a foreign national F-1 student could only be authorized for 12 months of OPT, which had to be completed within 14 months following the student’s completion of h/her course of study. Accordingly, the 2008 rule allowed F-1 STEM students to engage in a maximum 29 months of OPT.
Broadly stated, the Washington Alliance of Technology Workers (an association representing U.S. STEM workers) challenged the validity of the 2008 rule alleging it impermissibly circumvented H-1B caps by authorizing foreign nationals to work in STEM fields without complying with the labor certification and prevailing wage requirements of the H-1B program.
In addressing this claim, the court found DHS was within its discretionary authority delegated by Congress under the Immigration and Nationality Act (INA) to allow foreign students to engage in employment for practical training purposes. Therefore, the DHS reasonably interpreted the operative provisions of the INA in forming the 2008 OPT STEM rule.
However, in vacating the 2008 rule, the court determined DHS erred in issuing the rule without the requisite notice or public comment period(s) normally required of a federal executive branch agency (unless impracticable, unnecessary, or contrary to the public interest) before enacting such a regulation.
In so finding, the court found unpersuasive DHS’ argument that it was necessary to issue the rule without the inherent delay of notice and comment in order to forestall a national fiscal emergency occasioned by F-1 students (in expiring OPT status) being forced to leave the U.S. but for the 17 month extension.
Fortunately, the court recognized immediate annulment of the 2008 rule would cause a substantial hardship for foreign students and a major labor disruption for the tech sector. Therefore, the court stayed the effect of its order until February 12, 2016, so that DHS can submit the 2008 rule for proper notice and comment.
Do not hesitate to contact Sharma Law Offices if you have any questions regarding your status as it relates to STEM OPT and this important decision. We will continue to monitor DHS’ response to the decision in the coming months.
Interfiling – also referred to as “conversion” or “transfer” – is a process where a foreign national seeking to adjust status can change the underlying immigration petition (most often an I-140 employer sponsored petition or an I-130 family based petition) forming the original grounds for the I-485 adjustment of status application. Rephrased, interfiling permits the foreign national to substitute the first petition with another category of petition during the pendency of an I-485 application.
Some benefits of interfiling include avoidance of multiple filings and attendant fees should an applicant’s circumstances change in a manner which would otherwise require additional applications. Interfiling also provides an alternative strategic means to reach permanent residency more quickly or more advantageously in certain situations.
One example where interfiling has historically proven advantageous occurs when a foreign national obtains an approved EB-3 labor certification and I-140 petition and correspondingly submits an I-485 application to adjust status to legal permanent resident based on a visa number current and available at the time of filing. However, due to retrogression, the I-485 application cannot be approved because the visa number is no longer available at the time of adjudication.
In the above scenario, the I-485 cannot be approved because, in order to adjust status to that of legal permanent resident, an EB-3 immigrant visa number must be current and available to the applicant both at the time of filing the I-485 application and at the time of adjudication. Sometimes, a visa number current and available at the time of filing becomes unavailable at the time of adjudication due to retrogression. Visa retrogression occurs when more people apply for a visa in a particular category or country than there are visas available. If, at the time of the I-485 adjudication, an applicant’s priority date no longer meets the cut-off date published in the applicable Visa Bulletin (due to retrogression) his/her case must be held in abeyance until a visa once again becomes available.
Sometimes, however, the foreign national (through additional job experience or an advanced degree) obtains an approved EB-2 labor certification through the employer during the pendency of the EB-3 case. Interfiling allows our hypothetical applicant to “convert” or “transfer” the pending I-485 application from the existing approved EB-3 I-140 petition to the more recently approved EB-2 I-140 petition such that the applicant does not have to file and pay for another I-485 application.
The interfiling further requests the pending I-485 application be adjudicated using the EB-3 priority date but according to the availability of EB-2 visas. Therefore, the previous EB-3 I-140 petition is replaced with the newly approved EB-2 I-140, while keeping the earlier EB-3 priority date. As a result, the I-485 application can be granted if the retained EB-3 priority date is current in the EB-2 visa category at the time of the interfiling.
As one can see – while interfiling can be a very effective strategy for an accelerated or more beneficial path to permanent residency – there are many variables to consider dependent on the nature of one’s case and circumstances. It is therefore advisable to consult an experienced immigration attorney to determine if interfiling is a viable option. The professionals at Sharma Law Offices, a highly rated immigration law firm in Atlanta, are happy to speak with you regarding interfiling and other immigration matters.
From time to time, like in our previous writing, Abandonment of LPR (Green Card) Status (Part II), we discuss unpublished/non-precedential decisions of the Board of Immigration Appeals (BIA) made public thru various means. While non-precedential decisions are only binding on the parties to the case – they are nevertheless very instructive because the BIA is the highest administrative body for interpreting and applying immigration laws.
Another such non-precedential decision is the case Muhamad Yusuf Luwaga, A097 750 414 (BIA Dec. 12, 2014), wherein the BIA addressed the issue of whether a false signature on a Form I-485 application for adjustment of status constituted a willful misrepresentation of material fact. By statute, Section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA) renders inadmissible any foreign national seeking to procure a benefit under the INA through fraud or willfully misrepresenting a material fact.
In Luwaga, the BIA considered an Immigration Judge’s (IJ) ruling that the respondent (Luwaga) willfully misrepresented a material fact on his adjustment of status Form I-485 application by testifying, under oath, that the signature on the application was his when, in reality, it was not. Ultimately, the IJ declared Luwaga inadmissible because there was no properly sworn Form I-485 before the court.
In sustaining Luwaga’s appeal, the BIA stated the general test for assessing whether a misrepresentation is material as “whether the respondent potentially would be inadmissible or ineligible for relief under the true facts, or whether the misrepresentation would tend to cut off a line of inquiry relevant to the respondent’s eligibility for admission or relief.”
The BIA applied this test and initially conceded as “obvious” the IJ would have inquired further had Luwaga truthfully admitted his signature did not appear on the application.
However, the BIA gave more weight to the fact no finding was made (by the IJ) that the substantive information in the application itself was false or misleading. Furthermore, the BIA found especially significant Luwaga had previously established prejudice due to ineffective assistance of his prior attorney which may have contributed to his false testimony.
Accordingly, in the absence of a finding of material misrepresentation as to substantive content, the BIA determined the identity of the signer on Luwaga’s original Form I-485 not relevant to his admissibility or eligibility for other relief, particularly in the context of a substantiated claim of ineffective assistance of counsel.
Happily, it appears substance prevailed over form in this BIA ruling. Sharma Law Offices, a highly rated Atlanta immigration law firm, is available for consultation with respect to adjustment of status issues.
In our previous writing – NewAlert! August 19, 2015 Deadline For Filing Amended H-1B Petitions – we advised our readers of the U.S. Citizenship and Immigration Services (USCIS) May 21, 2015, Draft Guidance on when to file an amended H-1B petition based on its interpretation of the April 9, 2015, Administrative Appeals Office (AAO) precedential decision Matter of Simeio Solutions, LLC.
Now, on July 21, 2015, USCIS issued a Policy Memorandum implementing Final Guidance which supplements the Draft Guidance and constructs a date based framework on when to file an amended or new H-1B petition after Simeio Solutions. The July 2015 Final Guidance states it is effective immediately and shall be used to guide determinations by USCIS employees.
According to the July 2015 Final Guidance, whether and when an amended or new H-1B petition is required as a result of a geographic change in worksite location hinge upon three significant date based categories:
- Place of employment changes on or before April 9, 2015 – the date of the Simeio Solutions decision;
- Place of employment changes after April 9, 2015 but prior to August 19, 2015 – the filing deadline originally set forth in the May 2015 Draft Guidance; and
- Place of employment changes on or after August 19, 2015.
Under the Final Guidance, if an H-1B employee moved to a new place of employment on or before April 9, 2015:
- The H-1B employer may choose to file a new or amended petition by the safe harbor filing deadline of January 15, 2016;
- Even if a petition is not filed by January 15, 2016, USCIS will generally not pursue new revocations or denials based upon failure to file a new or amended petition – but actions already in process prior to July 21, 2015 (the date of the Final Guidance) such as notices of intent to revoke stand; and,
- Subject to certain requirements and exceptions, if there is a pending action in process and the applicable response period has not ended – an amended or new petition prior to the response deadline may avert adverse action.
Under the Final Guidance, if an H-1B employee moved to a new place of employment after April 9, 2015 but prior to August 19, 2015:
- The H-1B employer must file an amended or new petition by January 15, 2016;
- Subject to certain requirements and exceptions, if there is a pending action in process and the applicable response period has not ended – an amended or new petition prior to the response deadline may avert adverse action.
Under the Final Guidance, if an H-1B employee moved to a new place of employment on or after August 19, 2015:
- The H-1B employer must file an amended or new petition before an H-1B employee starts working at a new place of employment.
The above is a general synopsis of the USCIS policy and guidance flowing from the Simeio Solutions decision. Due to the recentness of the policy’s evolution and case by case fact specific inquires – it is strongly recommended those potentially affected consult an experienced immigration attorney, such as Asheesh Sharma, a highly rated immigration lawyer in Atlanta, before proceeding.
In our past news item, DOMA Ruling and Immigration Benefits for Same-Sex Partners, we discussed the implications of a June 2013 Supreme Court of the United States (SCOTUS) decision invalidating an operative provision of the Federal Defense of Marriage Act (DOMA) affecting same-sex marriages.
More specifically, in U.S. v. Windsor, the SCOTUS struck down Section 3 of the DOMA as unconstitutional. Section 3 of DOMA prohibited the federal government from recognizing same-sex married couples as married for federal purposes.
Prior to U.S. v. Windsor, DOMA, Section 3, had far reaching consequences because many federal laws addressed or hinged upon marital or spousal status.
With respect to federal immigration law, under DOMA, same-sex partners were disallowed immigration benefits conditioned upon the existence of a marriage or spousal status. For example, persons in same-sex unions were excluded from the same immigration benefits obtainable by persons in opposite-sex marriages such as those related to family-based visas, employment-based visas, refugee status, asylum, naturalization, and discretionary waivers.
After Windsor struck down DOMA’s confinement of marriage to heterosexual couples, the U.S. Citizenship and Immigration Services (USCIS) began to recognize same-sex marriages for immigration purposes. In this regard, USCIS issued a series of Frequently Asked Questions (FAQs) specifying how the Windsor decision implicated certain immigration based benefits contingent on marital or spousal status.
In one key FAQ, USCIS concluded the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes. Therefore, under this “State of Celebration” FAQ, same-sex couples living in a state that did not recognize same-sex marriage could still apply for federal immigration benefits as long as they were validly married in another state that recognized same-sex marriage.
Notably, but for the 2013 SCOTUS Windsor decision, more recent spousal immigration benefits related to the ability to study and work in the U.S. and discussed in our news items DHS Permits Part-Time F-2 and M-2 Study and Removes DSO Cap and H-4 EAD for Certain Dependent Spouses Now in Effect, would not have applied to persons in same-sex marriages under the pre-Windsor Defense of Marriage Act.
On June 26, 2015, as the title to the present article suggests, the SCOTUS issued another decision in Obergefell v. Hodges which effectively broadens the scope of the Windsor decision.
Whereas Windsor invalidated a provision of a federal law (DOMA), Obergefell addresses the more global issue of whether individual states are permitted to limit the definition of marriage to the union between one man and one woman.
In Obergefell, the SCOTUS found the right to marry is a fundamental liberty protected by the Fourteenth Amendment to the U.S. Constitution that exists between two people of the same sex. In doing so, Obergefell now requires all 50 states to license same-sex marriages and to recognize same-sex marriages legally performed out of state.
Accordingly, de facto expansion of the above mentioned “State of Celebration” FAQ is one result of the Obergefell decision because pre-Obergefell variation in state law as to the validity of same-sex marriage is no longer an impediment to immigration benefits conferred under federal law.
Over the years, Sharma Law Offices, a top rated Atlanta Immigration Lawyer, has handled thousands of marriage-based and employment-based petitions and is proud to work on behalf of individuals and businesses seeking same-sex immigration benefits.
On June 15, 2015, the Supreme Court of the United States issued a decision in Kerry v. Din which reinforces the viability of the judicially created doctrine known as “consular nonreviewability.”
At its broadest, the doctrine of consular nonreviewability is typically understood to mean a consular officer’s decision to deny a visa is not subject to judicial review and scrutiny regarding the underlying bases for such denial. As a narrow exception, the government need only supply a “facially legitimate and bona fide” reason for denying a visa when the denial affects the rights of a U.S. citizen. The end result is an applicant is often bereft of meaningful recourse to test the validity of and/or overcome a consular officer’s decision to deny his or her visa.
The doctrine evolved from case law more or less beginning in the late 1800s at a time when anti-immigration sentiment ran high. The decisions in this line of cases generally found U.S. courts should not interfere with determinations whether to allow foreign nationals into the U.S. because such matters are sovereign and political in nature and rest exclusively within the province of congress. This is sometimes also referred to as “plenary power” of congress to exclude foreign nationals the privilege to enter the United States.
Under the facts of Kerry v. Din, the foreign national, Kanishka Berashk, a citizen of Afghanistan, is married to Fauzia Din, a naturalized U.S. citizen. Berashk also held a civil servant position (payroll clerk) with the Afghanistan government during a time when the Afghan government was controlled by the Taliban.
Din filed and obtained approval of an I-130 petition for her husband “as an immediate relative” so they could be together as husband and wife in the United States. However, after a prolonged waiting period, the consular officer denied Berashk a visa – vaguely citing an INA provision prohibiting admission of individuals engaged in “terrorist activities.” The denial offered no explanation specifying what terrorist activities Berashk engaged in or what Berashk had otherwise done that led to denial of his visa. One can speculate Berashk’s civil servant position under a Taliban controlled government played some part in the denial.
Din thereafter filed a lawsuit in U.S. district court seeking relief in the form of an extraordinary writ instructing the government to properly adjudicate Berashk’s visa application and provide notice as to the facts upon which the government relied to deny her husband’s visa. The U.S. district court dismissed Din’s claim under the doctrine of consular nonreviewability. Upon Din’s appeal, the U.S. circuit court disagreed with the district court and found the government’s mere citation to an INA statute in the absence of supporting factual allegations was not a facially valid reason to deny Berashk’s visa application.
The government thereafter appealed the circuit court’s decision to the U.S. Supreme Court. Unfortunately for Din and her husband, the Supreme Court vacated the circuit court decision and found Din, as a naturalized U.S. citizen, did not have a right to a more detailed explanation than the “facially legitimate and bona fide” citation to the federal INA statute related to terrorist activities, and, ultimately, Din did not have a due process right for judicial review of the consular officer’s denial.
The importance of carefully crafting visa applications at consulates abroad in the first instance is crucial, especially in light of the continued viability of the doctrine of consular nonreviewability rendering it very difficult to upset a consular officer’s decision to deny a visa. Therefore, it is recommended one contact an experienced immigration attorney to consult on such matters, particularly when there may only be one bite at the apple.