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| "Immigration Status", Volume 4, Number 3, Fall 2009 |
2/28/2010 |
“Immigration Status” – Volume 4, Number 3
Welcome to Alice M. Yardum-Hunter’s Immigration Status. Immigration Status is a quarterly newsletter that covers a few select, timely immigration law and procedural issues with each publication and addresses them in-depth.
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TABLE OF CONTENTS
1. Announcements
2. Broadened Definition of Successor in Interest for I-140s
3. “Widow Penalty” Ends
4. H-1 Site Visits
5. O-1 Requests for Evidence for O and P Aliens and Agency Clarification
6. Case Study Success: National Interest Waiver
7. How To
1. Announcements
1. We have moved our offices to 16055 Ventura Blvd., Suite 902, Encino, California, 91436, USA.
2. For the American Immigration Lawyers Association, Distance Learning Teleconference on Thursday, December 10, 2009 at 2:00pm (Eastern Time), Ms. Yardum-Hunter will be the discussion leader for a presentation titled Oh My, O-1, wherein she will lead a panel of attorneys in providing information on just who is extraordinary in the eye of today’s Immigration Service and the changing landscape for O-1s in the Sciences and Business.
3. For the Professionals in Human Resources Association’s 23rd annual Legal Update, Ms. Yardum-Hunter will speak on Immigration Issues: Paradigm Shift or Business as Usual? These presentations will be held on: January 12, 2010, at the Crowne Plaza Garden Grove; 12021 Harbor Blvd, Garden Grove, CA 92840; January 13, 2010, at the Hilton Ontario Airport, 700 N. Haven Ave., Ontario, CA 91764; and on January 14, 2010, at the Sheraton Universal Hotel, 333 Universal Hollywood Drive, Universal City, CA 91608.
For more information and to register, go here: http://www.pihra.org.
4. Copies of articles associated with recent speeches made by Ms. Yardum-Hunter are available at the following links: For the American Bar Association (October 16, 2009, Los Angeles) the article is: A Primer on U.S. Immigration Law, Issue Spotting, Hypotheticals, and Deciding to Become an Immigration Lawyer. For the Armenian Bar Association (October 4, 2009, Toronto, Canada) the articles are: Consular Processing at the U.S. Embassy, Yerevan, Armenia (adapted from the ilw.com Chapter that Ms. Yardum-Hunter wrote for The Consular Posts Book) and Information on TN Status for Canadians.
2. Broadened Definition of Successor in Interest for I-140s
On August 6, 2009, Acting Associate Director for USCIS, Donald Neufeld, issued a memorandum amending the Adjudicators Field Manual (AFM) on factors that expand successor in interest determinations in adjudicating I-140 Immigrant Petitions for Alien Workers. This is a welcome interpretation of the long standing principal that the validity of an initial I-140 petition and labor certification would survive only if the successor petitioner had assumed all of the rights, duties, obligations, and assets of the original employer in the same type of business as the original employer, and with the ability to pay the proffered wage specified on the labor certification.
The new interpretation, now memorialized in the AFM Chapter 22.2(b)(5) (AD09-37), requires far less of successors in interest in recognition that legitimate successors in interest don’t always accept all rights and obligations of their predecessor. Instead, these factors determine whether a successor in interest relationship exists with a predecessor:
1. The job opportunity offered by the successor must be the same as the job opportunity originally offered on the labor certification;
2. The successor bears the burden of proof to establish eligibility in all respects, including evidence from the predecessor entity, such as evidence of the predecessor's ability to pay the proffered wage, as of the date of filing of the labor certification with DOL; and
3. For a valid successor in interest relationship to exist, the successor and predecessor must fully describe and document the transfer and assumption of the ownership by the successor.
This interpretation of successor in interest increases the likelihood of I-140 approval by permitting them to “fully describe and document the transfer and assumption of the ownership” without requiring it to assume all rights and obligations. Any legitimate ownership transfer wherein the job opportunity remains the same and the employer is eligible to petition for the alien, including establishing ability to pay the wage offered since filing the labor certification, should suffice as long as the transaction is described and documented.
Though not a panacea for the common scenario of alien going to a new employer that has no relationship to the first employer, financial consolidation is nevertheless more plausible today with businesses downsizing. Less than 100% assumption of rights and liabilities is recognized. More companies will be able to stay alive as a result and keep key beneficiaries of labor certifications on the job. Aliens in such positions will no longer be penalized for reasons having nothing to do with issues beyond their control.
3. “Widow Penalty” Ends
No longer will widow and widower aliens suffer two losses: the loss of their spouse and of their immigration eligibility. Previously, when a U.S. petitioner or primary beneficiary died, so too did the petition. The Department of Homeland Security Appropriations Bill [HR 2892] was signed into law by President Obama on October 28, 2009. Until then, only those aliens who were married for at least two years at time of death of the deceased U.S. spouse could self-petition, including for their children under 21. Additionally there was a regulation which allows humanitarian reinstatement of an I-130 petition revoked due to death. Reinstatement is discretionary and not always given. Until now, aliens whose U.S. citizen or primary beneficiary spouses died faced an uncertain future in the U.S. including removal. This widow penalty is now over.
There are two groups of beneficiaries and derivative beneficiaries who qualify with differing rules for each:
1. Widows of American citizens (and their children under 21); and
2. Immediate relative parents and children (under 21) of U.S. citizens, family preference relatives (unmarried over 21 year old sons and daughters of citizens or permanent residents, spouses of permanent residents, and married, over 21 year old children of U.S. citizens), employment preference derivative beneficiaries (spouses and children under 21), refugee or asylee relative petition beneficiaries, and nonimmigrant “T” (victims of human trafficking) and “U” (victims of crime).
For those in the first group, widows and widowers of American citizens and their children under 21, including stepchildren and adopted children of the deceased American citizens, it is no longer necessary to be married for at least two years before the time of death to self-petition. Children who turn 21 before permanent residence is issued should qualify under the Child Status Protection Act if the I-360 petition is filed before the child’s 21st birthday. The I-360 is the self-petition form under the old law and will be used under the new law as well. Surviving spouses must file their applications within two years of the law’s passage, by October 28, 2011, or two years from the date of death, whichever is sooner. Applicants qualify for adjustment of status or immigrant visa processing and no Affidavit of Support is required, though applicants must prove they will not require public support. It is not required that an I-130 be filed before the death, but if one was, it is likely that those petitions will be automatically converted under the current self-petition rules (8 CFR 204.2(i)(1)(iv)). Also, previously denied I-130 petitions will likely be reopened and also converted to I-360 petitions. If an I-130 is pending (or was denied and not reopened and approved) since the law’s passage for two years, an I-360 should also be filed within the two year window after passage to preserve the right to qualify. If the surviving spouse remarries, he or she no longer qualifies to self-petition. Finally, for those whose U.S. citizen spouses died more than two years after marriage, they continue to be qualified under the old law.
For the second group, petitions pending at the time of death of the U.S. petitioner or primary beneficiary are to be adjudicated as though the petitioner or primary beneficiary remained alive. However, unlike the first group, a petition must have been pending at the time of death. Those in this group also must have resided in the U.S. at the time of death and continue to reside in the U.S. For those whose petitions were approved before the death but before permanent residence processing was completed, humanitarian reinstatement and immigrant visa processing from abroad may still be considered (8 CFR 205.1(a)(3)(i)(C)(2)). Also, unlike the first group, remarriage is permitted for beneficiaries in the second group. These petitions can be denied if they are not in the public interest; however, such a finding is unlikely. Application of the Child Status Protection Act is more complex for this group and whether children over 21 would continue to qualify cannot be stated as readily. Certain calculations would be necessary to determine those over 21 children who might be protected.
HR 2892 is a welcome development for surviving aliens of U.S. citizen spouses, other family petitioners, employment primary beneficiaries, refugees, asylees, and victims of human trafficking and crime. The generosity of Congress in this arena will keep families already punished by the finality of death to remain in the U.S. This is a tribute to their deceased relatives.
4. H-1 Site Visits
The Office of Fraud Detection and National Security (FDNS) of the U.S. Citizenship and Immigration Services is assessing the H-1B Program. As part of the program, unannounced site visits are occurring at places of employment or residence of the H-1B employee. Immigration counsel may be requested to be present. Unless a request is made, USCIS officers will not reschedule a site visit for an attorney to be present. Counsel may have to be available by phone.
USCIS has been making these site visits without a warrant based on instructions to the I-129 form regarding Compliance Review and Monitoring Methods, which includes site visits and requests in writing by fax, internet, or telephone. The instructions discuss the ability to address adverse or derogatory information resulting from compliance review, verification, or site visit, after initiation of adverse action or formal decision on a case resulting in revocation or termination of an H-1 petition. Information is also available through Freedom of Information Act (FOIA) Request.
The FDNS Officer during an employer site visit will verify the information in the I-129 petition and discuss the matter with the employer’s representative who signed the I-129 or another representative if that person is not available. In addition to verifying the information, the officer may request tax returns, quarterly wage reports, the H-1’s W-2 and pay stubs, and other evidence of the business. The officer might also request confirmation of the signature on the forms, request a tour of the premises, and take photographs. The H-1B beneficiary will also be interviewed concerning the job title, duties, responsibilities, dates of employment, location of work, requirements for his or her position, academic background, previous employment history, address, and dependents. The officer will then seek to verify the H-1 alien’s information by speaking with a supervisor or colleague.
The Vermont Service Center has transferred 20,000 cases to FDNS for program assessment. According to the American Immigration Lawyers Association, as many have likely been forwarded by the California Service Center.
Employers of H-1 aliens may contact Attorney Yardum-Hunter to learn more about site visits and how to prepare for them.
5. O-1 Requests for Evidence for O and P Aliens and Agency Clarification
On October 7, 2009, USCIS issued a clarification for performing arts associations on the requirements for agents filing as petitioners for O and P visa classification. The O classification is for aliens of extraordinary ability in the arts, sciences, business, athletics, and education. The P classification is for internationally recognized alien athletes (individuals or teams), entertainment groups, entertainers coming to perform under reciprocal exchange program, and aliens coming to perform, teach or coach under a program that is culturally unique. The clarification does not apply to O and P classification other than performing arts.
There have been many issues in recent months in Requests for Evidence from the government in O and P cases. A chief reason for these requests concerns the itinerary of work to be performed when an “agent” acts as petitioner and the contractual relationships between the various parties. “Established agents” are permitted to file petitions for O and P aliens according to 8 CFR 214.2(o)(2)(i) and 8 CFR 214.2 (p)(2)(i).
The benefit of an agent filing for an alien rather than multiple employers during the same validity period of the O or P (up to three years for the O and one year for the P, plus extensions), is consolidation of all work to be performed under one petition rather than for multiple employers, thereby saving tremendous amount of work for all parties involved and saving multiple filing fees. The filing fee for each O or P petition is $320. When these cases are premium processed wherein decision is received in 15 days, an additional $1,000 must be paid to the government per petition. As you can see, multiple petitions could become very costly just for government fees alone.
The issue of contracts in these cases could be concerning:
1. Contract between the agent and each employer
2. Contract between agent and employee
3. Contract between each employer and employee
Where an agent acts on behalf of multiple employers, an itinerary must be submitted and must include: the events, names, and addresses of establishments, venues or locations where services will be performed, and specify the dates of each service or engagement. The agent must show that the employers are its clients, such as with a contract between the agent and employer per the clarification. A contract between agents and employers is not explicit in the regulations, nor should it be as a result of the clarification.
The clarification states that where the agent acts as employer, a contract must exist between the agent and employee. This is consistent with the regulations.
In the case of O-1 aliens with agent as petitioner on behalf of one or more employers, a contract between the employee and each employer is also required by the regulation and the clarification. But for P aliens, a contract between the employee and employer is only needed in “questionable cases” under the regulation. The clarification broadens this requirement to apply to all P employers and employees.
The clarification will result in fewer approvable O and P cases, but to the extent it is inconsistent with the regulations, the agency may be acting in violation of its own requirements. Whether litigation results remains to be seen.
6. Case Study Success: National Interest Waiver
National Interest Waivers for second preference employment based aliens who are master degreed or of exceptional ability are few and far between for engineers, yet we accomplished this for Roberto Czerwiak, a Master Degreed process industry Functional Safety Engineer (FSE). Process industries are those that process natural resources into sources of energy or products, like oil to gasoline or lumber to paper. Mr. Czerwiak’s work focuses on the design, implementation, and maintenance of computerized, instrumented safety systems, in this case for some of the largest oil refiners and power plants. Functional safety in natural resources deals with avoidance of explosions, toxic emissions, fires, injury and death, and damage to process industries’ infrastructure. The software and technical manuals Roberto Czerwiak developed provided tools and practices for major oil and gas companies to comply with OSHA and ISA standards. The expertise was not readily available, as this is a relatively new discipline that grew fantastically beginning in the 1990s and the first decade of 2000 on concerns about health, safety, and the environment.
After the initial prototype for one major oil company, many others began following suit utilizing the template developed by Mr. Czerwiak. As you might imagine, implementing systems of this magnitude can take as long as 10 years and cost tens of millions of dollars to employers loathe in making expenditures on the speculative nature of disaster avoidance.
The New York State Department of Transportation (NYDOT) case (22 I&N Dec. 215 (Acting Assoc. Comm. 1998)) created a difficult factor which must be found for national interest waivers: a showing that the national interest would be adversely affected if a traditional labor certification was required. Labor certifications involve a test of the job market to locate a qualified, willing, able, and minimally qualified U.S. worker. To qualify for a national interest waiver, the foreign national must serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. In these cases, protection of U.S. workers takes a back seat to the national interest of the alien’s work.
In addition to meeting this difficult factor, two easier factors set out in NYDOT must be met as well. They are that the work must be of substantial intrinsic merit and that the benefit of the foreign national’s services be national in scope. In Mr. Czerwiak’s case, these factors were easily met due to the many interests served across the country: benefits to the environment, best use of natural resources, health and safety of workers at petrochemical and power plants, and of inhabitants surrounding plant and refinery sites of national companies. Not only were Mr. Czerwiak’s designs implemented in various locales in the U.S., but also internationally.
But to meet the third most difficult factor, the foreign national is required to show him or herself to be substantially better than others in the field. The foreign national must be more influential than U.S. workers minimally qualified for the position. Otherwise, protection of U.S. workers through the labor certification process is a greater national interest to be protected rather than the contribution to the U.S. national interest intrinsic in the foreign national’s work. Providing evidence of this factor was especially difficult in this case. The evidence required by the Citizenship and Immigration Services is akin to that of extraordinary ability aliens, such as awards, published articles, citation of the alien by other authors, alien’s judging others in the field, etc. These criteria, however, are not required for national interest waivers in the Immigration and Nationality Act. Nevertheless, given the stance of the government in readily denying these cases, and the woeful dearth of traditionally published articles by Mr. Czerwiak, it was difficult to provide traditional means of showing elevated stature and influence in the field in this case. Large companies make such publications very difficult since they have proprietary interest in their most talented workers’ intellectual endeavors. However, Mr. Czerwiak had internally published some 400 various manuals and technical papers for instruction of all key staff, from technicians to executives, in the safety chain of command and we submitted approximately half these papers to the government. We also relied on documentation by other experts, some of whom worked with Mr. Czerwiak and others who knew of his work but not him personally, as well as those unfamiliar even with his work since it is so specialized and ground breaking. Experts included the dean of an engineering school, the writer of a chemistry text and other books, principal of a certification organization in the field of functional safety, academic department heads including an Ivy League university, and Subject Matter Experts, all of whom verified the significant contributions of our client to the narrow field of functional safety engineering in process industries.
Our client’s past record of pioneering and influential achievements in the field as a whole showed that the labor certification would be futile in locating an individual like Roberto Czerwiak. CIS agreed Mr. Czerwiak would benefit the national interest to a greater extent than would an individual with the same qualifications that would result if a labor certification were required.
7. How to:
Check processing times or the status of a particular immigration case
Report your change of address to CIS
File your change of address electronically
Schedule a consultation with Ms. Yardum-Hunter
Until Winter, Happy Immigrating!
Sincerely,
Alice M. Yardum-Hunter
Certified Specialist, Immigration & Nationality Law
State Bar of California, Bd. of Legal Specialization
16055 Ventura Blvd., Suite 902
Encino, CA 91436
Telephone: (818) 609-1953
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