INSZoom Immigration Conference 2016 - Advance U.S. Immigration

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Session: Advance U.S. Immigration

Lead Speaker: Anindita Chowdhury

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Terms of UseUsilaw has provided this presentation as a service to INSZoom Conference and its attendees for information, education, and communication. This presentation should not be used as or in place of legal advice. Unless specifically noted otherwise, all content of this presentation (not including the Greats Seals of the United States and some photos and illustrations) is the property of Usilaw and is protected under copyright laws. You may view, and use content from this presentation solely for your personal, noncommercial use and provided that you keep intact all copyright and other proprietary notices. However, you may not use, modify, transmit, republish, upload, or distribute in any way the content of this presentation for public or commercial purposes, including the text, images, and graphics, without the written permission of Usilaw. While Usilaw uses reasonable efforts to include accurate and up-to-date information in this Presentation, it makes no warranties or representations as to the accuracy or completeness of the information in this presentation. Usilaw shall not be liable for any damages or injury (including, but not limited to, any special, indirect, incidental, or consequential damages) resulting from your reliance on any information provided in this presentation.

Legal Information

The information presented in this presentation “Advance U.S. Immigration" is for information purposes only. This information does NOT constitute legal advice, and should NOT serve as the basis for any legal decision by you. Please consult with an attorney should you have questions regarding information contained in the presentation.

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Topics – Advance U.S. Immigration

• Trends in Requests for Evidence• Matter of Simeio Solutions LLC• Labor Condition Application (“LCA”) for H-1B Roving Employees• Complexity in Perm Process• Challenges in L-1 filing: L-1 (A and B) • Onsite Inspections • H1B and Perm Audits• Parole to Entrepreneurs

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Anindita Chowdhury – An Introduction• Founder and Managing Attorney of Usilaw, Inc. • 23 yrs. of experience in Immigration Law• J.D. (Washington College of Law, American University, Washington, D.C.); M.A.

Government (Lehigh University, Pennsylvania); B.A. (Loreto College, Kolkata, India)• Speaker at various Immigration Conferences around the world• Strong connections on Capitol Hill and with the Administration– Attended and contributed to various policy and regulatory meetings

• Corporate Clients: Global 1000 companies, mid-tier companies, and start-ups (IT, Consulting, Manufacturing, Green Technologies, Oil and Gas, Mining, Government Contracting, Professional Services and Education.

• Significant experience with EB-5 investor visas to the United States.

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The USILAW Difference• The Key USILAW Differentiators:

– SOLUTIONS: Highly customizable, scalable and integrated system with proven Processes and Methodologies.

– SERVICE: Always Responsive and Accountable. “Pitbull” for our customers.

– SUCCESS: Almost 100% success rate across all visa categories in 2016. For example, for one of the largest Indian IT clients who uses 3 law firms, Usilaw was only firm with 100% success of EB-1 (C) petitions and less than 2% RFEs. 100% Approval of 2017 H-1B Cases.

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The Effects of U.S. Election

• The United States is always open for Business Immigration• Rules are being more strictly applied and enforced• New drive for Immigration Reform• Expectation is that Immigration Reform will be Business

Immigration friendly• If the US wants to continue to maintain its status of a super

power – the H-1B visa principally is its stealth weapon.

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New Fees Effective December 23, 2016Immigration Benefit Requested Old Fee New Fee Percentage

ChangeI-129 Petition for a Nonimmigrant Worker $ 325 $ 460 42%I-130 Petition for Alien Relative $ 420 $ 535 27%I-131 Application for Travel Document $ 360 $ 575 60%

I-140 Immigrant Petition for Alien Worker $ 580 $ 700 21%I-290B Notice of Appeal or Motion $ 630 $ 675 7%

I-485 Application to Register Permanent Resident or Adjust Status $ 985 $ 1,140 16%

I-485 Application to Register Permanent Resident or Adjust Status (certain applicants under the age of 14 years) $ 635 $ 750 18%

I-526 Immigrant Petition by Alien Entrepreneur $ 1,500 $ 3,675 145%I-539 Application to Extend/Change Nonimmigrant Status $ 290 $ 370 28%I-694 Notice of Appeal of Decision $ 755 $ 890 18%I-751 Petition to Remove Conditions on Residence $ 505 $ 595 18%I-765 Application for Employment Authorization $ 380 $ 410 8%I-829 Petition by Entrepreneur to Remove Conditions $ 3,750 $ 3,750 0%N-400 Application for Naturalization $ 595 $ 640 8%N-470 Application to Preserve Residence for Naturalization Purposes $ 330 $ 355 8%

N-565 Application for Replacement Naturalization/Citizenship Document $ 345 $ 555 61%

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Trends in Requests for Evidence• 2017 H Cap Season – More RFEs• 2017 H Cap RFE Trends - Issues– In-House Employment• Proof of Availability of Specialty Occupation Work for Duration of Requested

Validity• Office Space – especially for start-ups or smaller companies• Proof of Valid Contracts

– Placements at Client Site• Right to Control• Specialty Occupation• Educational Credentials

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H-1B RFEs: In-House Employment

• Issue: Does the company have Specialty Occupation Work?• Resolution– Provide End Client Contracts– Provide Collateral of In-House Products– Provide Studies of In-House Product – Gartner studies etc.– Provide Newspaper Articles about company or its products– Itinerary of Service

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H-1B RFEs: Client Placements• Issue: Right to ControlResolution– Demonstrate the ways and means in which the company proves Right to Control over

its employees– Understand the underlying regulations governing Right to Control

• Issue: Specialty Occupation and how the position meets regulatory requirementsResolution– Provide a thorough explanation of the position and the requirements– Provide a clear understanding of how the beneficiary’s educational and work

experience relate to the position and the nature of the work• Issue: Educational Credentials of the BeneficiaryResolution– Ensure that the educational evaluation is being conducted by the correct entity and

include beneficiary’s transcripts

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Matter of Simeio Solutions LLC• A change in the place of employment of a beneficiary to a geographical

area requiring a corresponding Labor Condition Application for Nonimmigrant Workers (“LCA”) be certified to the U.S. Department of Homeland Security with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).

• When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H−1B petition with the corresponding LCA.

• If a new Labor Condition Application (“LCA”) needs to be filed, it will trigger the need for the filing of an amended petition.

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Roving Labor Condition Application (“LCA”)

• H1B Roving Employee: Dealing with Multiple Changes of Job Locations• Section 20 CFR § 655.17 provides for a new type of H-1B employee

whose work is “peripatetic” in nature and does not require new LCA if:– workers travel constantly but may not spend more than five days in

one place– workers who travel occasionally on a casual, short-term basis (not

exceeding ten days)• Employers are required to pay their employees’ travel expenses for each day

they travel, including weekends

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Complexity in Perm Process

• Placing a Job Order Employers required to place job order with State Workforce Agency for 30 days• Ads in Newspaper/Professional JournalsRequirement to place job ad in 2 consecutive Sunday editions of a local newspaper with wide circulation OR a relevant professional journal • Internal (in-house) Job Posting / Notice of Filing for 10 consecutive business days • 3 additional recruitment methods outlined below:

a. Job Fairs b. Employer’s Website c. Job Search Website (Non employer) d. On Campus Recruiting

e. Trade or Professional organization f. Private Employment Firms g. Employee Referral Program

h. Campus Placement Offices i. Local and Ethnic Newspapers i. Radio and Television

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Areas of PERM Review and Modernization• More dynamic way to Identify labor force shortages and surpluses. Improved

methods to align recruitment requirements with shortages & surpluses;• Methods and practices designed to modernize U.S. worker recruitment

requirements, including adding occupations to Schedule A;• Processes to clarify employer obligations to insure PERM positions are fully open

to U.S. workers;• Ranges of case processing timeframes; and• Application submission and review process and feasibility for efficiently

addressing nonmaterial errors

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L-1A Petitions for Multinational Managers

• Intra-company transferees (multinational managers) can qualify for this classification as a functional manager or personnel manager.– Non-functional, Regular Manager

• More common, less USCIS scrutiny.• Must manage a team of professionals and be able to make or recommend personnel

decisions– Functional Manager

• Reluctance amongst attorneys and employers to file as many L-1A petitions for Functional Managers

• Criteria that is more vague and leaves more room for interpretation of eligibility on the part of the USCIS Officer

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Overcoming the Vague Functional Manager Criteria

Non-functional, Regular Manager Functional ManagerManages the organization, or a department, subdivision, function, or component of the organization

Manages the organization, or a department, subdivision, function, or component of the organization

Supervises and controls the work of other supervisory, professional, or managerial employees,

Manages an essential function within the organization, or a department or subdivision of the organization

has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization)

Functions at as senior level within the organizational hierarchy or with respect to the function managed;

Exercises discretion over the day-to-day operations of the activity or function for with the employee has authority.

Exercises discretion over the day-to-day operations of the activity or function for with the employee has authority.

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L-1B Petitions for Specialized Knowledge Professionals

• Necessary to understand the critical distinction between Specialized Knowledge and Advanced Knowledge, per the 2015 L-1B Adjudications Policy Memorandum.– Necessary to then be able to:

• Classify each individual case as one requiring specialized knowledge or advanced knowledge• Subsequently draw the appropriate comparisons required for each type as defined in the policy memorandum

– Specialized Knowledge• Knowledge of the Petitioning Organization’s product, service, research, equipment, techniques, management or

other interests• Is distinct or uncommon when compared to other knowledge found within the industry

– Advanced Knowledge• Knowledge of or expertise in the Petitioning Organization’s specific processes or procedures• Is not commonly found in the relevant industry• Is greatly developed or further along in progress and complexity when compared to knowledge found within the

Petitioner

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Common L-1B Misconceptions?

• Specialized Knowledge does not need to be proprietary• Specialized Knowledge does not need to be “narrowly held

within the Petitioning Organization”– Although it is helpful for the relevant Specialized Knowledge to be narrowly held

within the Petitioning Organization, the USCIS has stated that “the mere existence of other employees with similar knowledge should not, in and of itself, be a ground for denial.”

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L-1 RFE Trends• L-1A– Foreign Experience• Executive or Managerial• Organizational Chart• Demonstration of Executive or Managerial experience

• L-1B– Clear classification of Specialized Knowledge or Advanced Knowledge– Sufficient and appropriate comparisons of the relevant knowledge to

knowledge commonly found within the Industry and the Petitioning Organization

– Demonstrating that the knowledge is not easily imparted to other individuals

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On-Site Inspections• Administrative Site Visit and Verification Program– Fraud Detection and National Security (FDNS) officers make unannounced

visits to collect information– Compliance review verifies whether petitioners and beneficiaries are

following the immigration laws and regulations– If a petitioner or beneficiary expresses an unwillingness to participate, the

site inspector will terminate the visit but report on available data• Employer To-Do– Up to date files with all relevant documentation on all Immigration Cases

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H1B and Perm Audits

• H-1B Audits: Increase in ICE inspections;• Increase in Wage and Hour Inspections;• Increase in I-9 Audits;• PERM Audits: 9089 application reviews;• Current BALCA case reviews: • Audit triggers;• Downward trend in Audits

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Parole to Entrepreneurs• Proposed Rule– Grant Parole to Entrepreneurs on a Case-by-Case Basis• foreign entrepreneurs with significant ownership interest (15%+) in a start-up• active and central role in its operations

– Entity Required to be Formed Within Past 3 Years– Receives Significant Investment of Capital (at least $345,000) from

Qualified U.S. Investors OR Significant Awards or Grants (at least $100,000) from a U.S. Federal, State, or Local Government Entity

– Initial Stay of Two Year and 3 Parolees per Qualifying Entity– Additional Conditions May Apply

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Advance US Immigration

Questions

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Thanks!

INSZoom Immigration Conference 2016 - Advance U.S. Immigration

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Transcript of INSZoom Immigration Conference 2016 - Advance U.S. Immigration