AILA – DC Chapter 2012 Fall Conference Nonimmigrant Visas & Consular Processing

1. AILA – DC Chapter 2012 Fall ConferenceNonimmigrant Visas & Consular Processing Sheela Murthy, Esq. - Panel Moderator/ Speaker Evangeline Howard, Esq. (Department of State) Jan Pederson, Esq. – Speaker Leslie Dellon, Esq. - Speaker

2. H1B Criteria • Nonimmigrant intent is NOT required • Individual must be employed in a “specialty occupation,” which is a position that requires: • The theoretical and practical application of a body of specialized knowledge, and • A four-year college/university degree or foreign equivalent or equivalent experience in the specialty field (“3 for 1” rule). • H1B Petition also requires a certified Labor Condition Application (LCA) obtained from the DOL.

3. H1B CAP • Quota (“H1B Cap”) • Fiscal year quota of 65,000: Applies to all “new” H1B petitions. • Exemptions for institutions of higher education, not-for-profit organizations affiliated with institutions of higher education, and government research organizations as well as certain recipients of §212(e) waivers. • 6,500 set aside for Chilean/Singaporean H1B1. • 20,000 additional for graduates of U.S. master’s (or higher) degree programs. • USCIS accepts applications each year beginning April 1st. • Employment may not commence before October 1st of that fiscal year.

4. H1B Professionals—Admissionand Stay • Six-year limit, in up to three-year increments, with some exceptions.

5. H1B extensions under AC21: PERM/ I-140 filed at least 365 days Earlier I-140 approved and the Priority Date is not Current Recapture Time Switch to a dependent status (H-4 or L-2) Possibly rely on spouse’s GC case as a basis to extend H1B status but risk that it may not work. Reset: Leave the U.S. for 1 year and reenter subject to the cap again for another 6 years Extension Strategies Beyond 6th Year

6. H1B Issues: Establishing Control & the Employment Relationship • Jan. 2010 Neufeld Memo establishing factors to weigh. • H1B and H-4 221(g) visa refusals based on Neufeld Memo factors. • Impact on EVC Business Model in the IT Industry.

7. Benching H1B Employees • Employer is generally required to pay H1B employees for nonproductive time at the full-time rate of the DOL's prevailing wage. • Even if employer terminates H1B employee, employer may be liable for wages if proper procedures are not followed. • Note that if employee is terminated, employer is generally obligated to pay for the reasonable costs of return transportation of the FN abroad.

8. Changing Employers While on H1B • Person in valid H1B status is generally permitted to change employers upon the filing of new H1B petition, so long as certain requirements have been met. • If H1B employee travels abroad after change of employer, he/she typically may reenter in H1B status with existing visa (assuming it is unexpired.)

9. Additional H1B Issues • Risk of travel when an H1B extension petition is filed with the same employer • Risk of travel when H1B change of employer is filed • Memo on using H1B receipt notice has its limitations/ risks • Risk of visa denial when applying abroad (discussed below)

10. Additional H1B Issues • Complex H1B issues with consulting companies • Change of work location • Requirement to file an LCA Amendment • Safer to File an amended petition • DOL Prevailing Wage Issues • Employer/ Employee Relationship and Right of Control

11. Individuals may apply for a B1 or B1/B2 visa to perform H-1B work in the United States as long as they fulfill the following criteria: Hold the equivalent of a U.S. bachelor's degree Plan to perform H-1B-caliber work or training Will be paid only by their foreign employer, except reimbursement of incidental travel costs such as housing and per diem. The employee must not receive any salary from a U.S. source. See 9 FAM 41.31 N11 The task can be accomplished in a short period of time. Still need to show strong ties to foreign country under INA § 214(b) B-1 in lieu of H1B

12. L-1Classification • Qualifying relationship between foreign entity and U.S. petitioner. • Parent/subsidiary: At least 51% ownership (direct or indirect) or 50% with control or 50/50 JV with equal control or less than 50% and control. • Affiliates: Owned/controlled by same parent or person or by same group of people in approximately same proportion. • Branch: operating division or office of same entity, different location. • Special provision for accounting partnerships operating internationally. • Are/will be “doing business” (regular, systematic, and continuous provision of goods and/or services) U.S. and at least 1 country abroad. • Foreign national employed F/T abroad by qualifying foreign entity for 1 continuous year out of preceding 3 years as managerial, executive or specialized knowledge. • Proposed job in U.S. must be managerial, executive or specialized knowledge. Can be transferred in a different category than worked abroad. See 8 C.F.R. § 214.2(l)(1)

13. L-1A Manager • A “manager” primarily: • Manages the organization or a smaller unit or a function; • Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function; • Has authority to hire/fire and other personnel actions or to recommend such actions; or if no employees directly supervised, functions at a senior level; and • Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be a manager. See 8 C.F.R. § 214.2(l)(1)(ii)(B).

14. L-1A Manager (con’t) • Tips for “People Manager” • Organizational chart for the foreign entity showing manager’s seniority and chart listing manager and names/titles of people directly and indirectly supervised. Similar chart for the U.S. entity with the foreign national in the proposed job. • Establish that the people supervised/to be supervised are professionals. Describe each person’s job duties. Include explanation of the “chain of command” (to whom they report and who reports to them) and a resume with education and experience. (Can include copy of degree, when relevant.) • USCIS does not consider “hands-on” activities to be managerial. Description of manager’s duties with percentages of time spent is usually persuasive.

15. L-1A Manager (con’t) • Is the “Functional Manager” a viable option? • Low probability of success in small business. • Best chance for success: Establish that the function is “essential” by documenting the dollar value of the function to the company. • Provide organizational charts for the foreign and U.S. entities showing the foreign national’s seniority. Include job titles and job duties of “junior” personnel to establish the foreign national’s seniority and to demonstrate that others will carry out the work while he or she manages the function.

16. L-1A Executive • An “executive” primarily: • Directs the management of the organization or smaller unit or a function; • Establishes goals and policies; • Exercises wide latitude in discretionary decision-making; and • Receives only general supervision or direction from higher level executives, the board of directors, or stockholders. See 8 C.F.R. § 214.2(l)(1)(ii)(C). • For other than the “top” position (such as CEO), these duties can be difficult to document to USCIS’ satisfaction. If possible, present job as managerial rather than executive.

17. L-1B Specialized Knowledge • L-1B: 5 years maximum. L-1A: 7 years maximum. • “Specialized knowledge:” • Special knowledge of the petitioning organization’s product, service, research, equipment, techniques, management or other interests and its application in international markets, or • An advanced level of knowledge or expertise in the organization’s processes and procedures.See8 C.F.R. § 214.2(l)(1)(ii)(D). • If placed at non-L organization site, L organization must control work and the work must require specialized knowledge of the L organization’s products or services.

18. L-1 Specialized KnowledgeUSCIS Policy v. Practice • USCIS Policy in Adjudicator’s Field Manual • Knowledge not generally found in the particular industry. Not required to be proprietary or unique. • Knowledge of company product must be “noteworthy or uncommon.” • Knowledge of company processes/procedures must be “advanced.” Does not need to be narrowly held within the company. AFM ch. 32.6(e): Source is Puleo Memo (March 9, 1994) (available at AILA InfoNet Doc. No. 01052171 (May 21, 2001).

19. USCIS Policy v. Practice (con’t) • USCIS Misinterpretations Resulting in Denials • Knowledge must be narrowly held. • Knowledge must be held by “key” (more senior/more experienced) employees. • Knowledge takes several years to acquire. • Query: Should you be pragmatic and address the incorrect standards or “stick” with the AFM, which USCIS is required to follow as USCIS policy?

20. TN Classification • For Canadian or Mexican citizens. • Eligible professional occupations specified by NAFTA. 8 C.F.R. § 214.6(c), which contains NAFTA Appendix 1603.D.1 (Annotated). • Must meet minimum education requirement or alternative credentials specified for the occupation and have license, if required. • U.S. employer or Canadian providing pre-arranged services to U.S. entity while employed by Canadian employer or self-employed in Canada. (The TN cannot own/control the U.S. entity.)

21. Comparison of TN H-1B • Any citizenship. • Fiscal year numerical limit unless “cap exempt.” • LCA and LCA-related obligations. • USCIS petition approval required for all. • Canadian and Mexican citizens. • No numerical limit. • No Labor Condition Application (LCA). • Canadians can apply at Class A POEs, U.S. preclearance or U.S. airports w. int’l flights.

22. Comparison of TN H-1B (con’t) • Any occupation for which a bachelor’s degree in a specific field is the entry level. • Can establish degree equivalency through combination of education/experience or experience alone. 3 years experience = 1 year college. • Only the occupations specified in NAFTA Appendix 1603 D.1. • If degree required and equivalent experience not specified, cannot substitute experience.

23. Comparison of TN H-1B (con’t) • Admitted for up to 3 years, 6 year maximum (unless “AC21” eligible.) • Dual intent; no foreign residence required. Can keep H-1B status while green card application (I-485) pending. • Admitted for up to 3 years, no maximum. • No dual intent; must maintain foreign residence. Filed or approved IV petition (I-140) not an automatic bar, but factor in determining IV intent.

24. Tips for TN Approval • Identify the job by the TN occupation. Describe employer’s job title as an “internal” title. • Example: TN occupation is Computer Systems Analyst. • Employer’s internal job title is Applications Analyst. • Identify NAFTA requirements. Describe how the foreign national meets them. Document with diplomas/ transcripts and/or employment verification letters. • Be prepared for CBP claims that a foreign national cannot be classified as a TN if the job involves sales or supervision since those occupations are “not on the list,” such as a Software Engineer who supports the Sales Dep’t or a Sr. Chemist who can hire/fire other chemists.

25. E-1 and E-2Treaty Traders and Investors • Visas based on treaties or investment. • Nationals of countries which lack such a treaty with the U.S. (e.g. India) are ineligible for this classification.

28. F-1 Students • A foreign national who is a bona fide student qualified to pursue a full course of study and who seeks to enter the U.S. temporarily to study at an established college, university, seminary, conservatory, academic high school, elementary school, language training program or other academic institution.

29. Maintenance of F-1 Status • Full-time study • Normal progress towards completion ofdegree • No unauthorized employment

30. Applying for F-1 Visa / Changing Status to F-1 • I-20 • Financial ability • SEVIS I-901 fee • English language proficiency

31. F-1 Students may work in certain circumstances

32. F-1 Employment • Curricular Practical Training (CPT) • Optional Practical Training (OPT) • On-campus employment

33. F-1 Special Issues • Transition to H-1B (Cap Gap) • Travel • Failure to maintain status and reinstatement • Out of Status vs. Unlawful Presence

35. O-1 Extraordinary Ability and Achievement • O-1 status is available to foreign nationals with extraordinary ability • No numerical limit or prevailing wage requirement. • Eligible for initial 3 years with infinite 1 year extensions.

36. O-1 Extraordinary Ability and Achievement • Three different standards depending on area of expertise: • Extraordinary ability in science, education, business or athletics, or • Extraordinary achievement in motion pictures and television, or • Extraordinary ability in the arts.

37. Real-world Examples of Successful O-1 Applicants:Lighting Programmer • Internationally renowned for creating artistic and creative light shows for concerts and major events. • Had previously been responsible for overseeing concert light shows for numerous major rock bands (e.g. Rolling Stones, Coldplay.) • Served as Lighting Programmer for Olympics ceremonies viewed by more than 2 billion people; his work received widespread praise for its innovative design and spectacular artistic achievements.

38. Real-world Examples of Successful O-1 Applicants:Soccer Coach • Had received sustained international recognition and acclaim as a leading expert in the field of Soccer, specifically as a player, top level manager, and a coach. • Note that petition must overcome Lee v. Ziglar, which found that extraordinary ability as a player does not necessarily mean individual also qualifies for O-1 as coach. • His teams had won 4 National Championships in 4 years. • Had worked closely with the developmental process of young European players who progressed to become regular members of the first team squad. • Articles written about him in numerous national and international publications.

39. Real-world Examples of Successful O-1 Applicants:Pathologist • Had received substantial amounts of funding for cancer research from various prominent organizations. • First author of many articles in peer-reviewed journals; his work had been cited more than 800 times. • Had been appointed to numerous prominent positions, including Director of a nationally and internationally renowned cancer center that is funded by the National Institutes of Health (NIH). • Credited with making discoveries which are expected to lead to groundbreaking treatments for prostate cancer.

40. CONSULAR ISSUES—USCIS SAID “YES”—NOW WHAT DO I DO? HOW TO PREPARE FOR THAT ONE SHOT

41. REPRESENTATION OF CLIENTS IN CONSULAR PROCESSING • Consular processing is separate from petition processing. Make sure you are retained to represent client in process. • Do your homework on best place to apply. Will usually be Canada or Mexico, if eligible

42. PREPARING CLIENT FOR CONSULAR INTERVIEW • When you accept case, analyze entire case from beginning to end. Determine possible glitches in consular processing and prepare for them in advance. • Know your consular post—culture, personnel and policies. • Prepare an entire application package with every conceivable document.

43. PREPARING CLIENT FOR CONSULAR INTERVIEW • Always have at least a Skype interview with the client to prepare them for interview. Never skip this step no matter the time zones between you and client. • Review the petition and supporting documents, the visa application and all possible questions with client in advance.

44. PREPARING CLIENT FOR CONSULAR INTERVIEW • Always submit a brief summary of the case and attach an immigration time line if such will assist the consular officer in understanding the case. • Always document continuous lawful presence. • SKILLS TESTS. Many consular officers give skills tests in employment petition cases, so make sure your client speaks to employer shortly before the interview to discuss the job duties; make sure you review the job duties in detail and make sure client knows his job duties by heart and can recite them in his sleep. • Always consider the terror factor among visa applicants when interviewed through a bullet proof window by a consular officer whose decision is crucial to the path their careers/lives will take. In this environment, even a PhD in computer science may not be able to turn on a laptop. • Skills tests are often given to computer professionals, accountants, engineers, nurses, doctors, and oriental rug repairers. Make sure to assist your client in obtaining a comfort level in answering these questions.

45. PREPARING CLIENT FOR CONSULAR INTERVIEW • Make sure client dresses appropriately. • No visible tattoos. • Look the part. • Students should take books with them to read while waiting.

46. BULLET PROOF YOUR PETITION • A perfect petition does little to console a client whose visa is denied. • Avoid long attorney cover letters with lots of verbiage in support of a petition. • If your verbiage is contrary to the client’s testimony, then visa petition revocation proceedings may loom • Verify information in petition with both employer and foreign national before filing.

47. BULLET PROOFING AN INDIAN IT PETITION • 221(g) refusals common (Chennai, New Delhi, Mumbai, Kolkata, Hyderabad), especially with consulting companies. • Common issues include: • Right to control (Neufeld Memo factors) • Specialty occupation (Job requirements, etc.) • Petition should include letter from end-client, signed contracts, work orders, etc. when available. • But we have been successful with cases w/o end client letters.

48. STRATEGIES FOR AVOIDING PETITION RETURNS • If petition is to be returned to USCIS, short window between denial and return (i.e. usually less than two weeks.) • Attorney can communicate with Consulate to request reconsideration, etc. But once petition is returned to USCIS, Consulate is generally unable to reverse decision • This option is working less and less frequently

49. STRATEGIES FOR AVOIDING PETITION RETURNS • If petition is returned to KCC, eventually case will go back to the Service Center for review. • Reaffirmation can take up to a year but may be able to expedite (6-9 months) with Congressional Inquiry

50. WORLD SWEEP ON CONSULAR POSTS • Dublin—Serious E-2 issues: Denials for “marginality” based on level of profitability when standard is current or future potential to make a significant contribution to U.S. economy. 9 FAM 41.51 N.11. • Visa Reissuance Policies. • Worldwide trend is to reissue visas in same category in many circumstances. Check post Website. Avoids consular interview.