Monthly Archives: March 2015

Same-Sex Married Couples: Unique Challenges in Marriage-Based Immigration

When it comes to U.S. immigration matters, same-sex married couples are to be treated exactly the same as opposite-sex married couples. This was not the case prior to June 2013, when the U.S. Supreme Court struck down section 3 of the Defense of Marriage Act (DOMA) as unconstitutional.

Following the Court’s ruling in United States v. Windsor, USCIS and U.S. Consulates made it clear that lesbian, gay, bisexual and transgender (LGBT) immigrants may obtain green cards and immigrant visas based on same-sex marriages to U.S. citizens or permanent residents. Nevertheless, same-sex married couples still face unique challenges in the immigration process.

1. The marriage must occur in a U.S. state or in a foreign country where same-sex marriage is legal

In Windsor, the Supreme Court overturned section 3 of DOMA, which defined the word “marriage” as “a legal union between one man and one woman as husband and wife,” and the word “spouse” as “a person of the opposite sex who is a husband or a wife.”

To date, since the Windsor ruling, 37 states plus Washington D.C. have fully legalized same-sex marriages. In January 2015, the Supreme  Court granted review of cases from four states – Kentucky, Michigan, Ohio and Tennessee – on the question of whether the U.S. Constitution gives same-sex couples the right to marry no matter where they live or whether states may limit marriage to a union only between a man and a woman. The Court is set to hear oral argument on this issue in late April. [UPDATE: On June 26, 2015, in a 5-4 decision, the Court ruled that same-sex marriage is a Constitutional right.]

Challenges arise when LGBT couples live in a state or country that does not recognize same-sex marriages, but are unable to travel to a place where such marriages are legal. The reasons include financial constraints, disability or illness, and difficulties obtaining the proper visa to travel to a country where same-sex marriage is legal.

Furthermore, some non-citizens are detained in immigration detention centers while they are in removal proceedings or are awaiting to be removed from the United States. If the LGBT non-citizen is detained in a state that bans same-sex marriage, (s)he might not be allowed to travel to a nearby state, in which same-sex marriage is legal, to get married to a U.S. citizen or permanent resident.

USCIS follows the “place of celebration” instead of the “place of residence” rule. This means the same-sex marriage counts for U.S. immigration purposes as long as it is valid in the state or country where it occurred (except in certain situations, such as polygamous marriages).

In general, you may still apply for immigration benefits if you married in a place that recognizes same-sex marriage, even if you live in a place that does not. If you are in a state or country that does not recognize same-sex marriages, it is essential that you exhaust all means to travel to and get married in a place that does.

2. Prior marriage to opposite-sex spouse could raise red flags

Like opposite-sex couples, same-sex couples must prove their marriage is bona fide, i.e. entered into with the intent of establishing a life together as spouses, and not solely to or primarily to obtain immigration benefits.

Prior marriages to persons of the opposite sex could cause USCIS or a U.S. Consulate to question whether a same-sex marriage is bona fide.

Prior marriages must be disclosed in green card and immigrant visa applications. Additional scrutiny is expected when the U.S. citizen or permanent resident filed an immigrant petition for a prior spouse. If the previous immigrant petition was denied or if marriage fraud was found in the prior case, it is especially important to consult an attorney before you file a new immigrant petition.

The USCIS or consular officer might also have concerns of marriage fraud if the same-sex marriage occurred shortly after termination of the opposite-sex marriage.  It helps to collect evidence showing that the prior marriage was bona fide, in the event the officer has concerns about it.

If the prior opposite-sex marriage involved no immigrant petitions (because both parties are U.S. citizens, for example), the officer might still question the true nature of the same-sex marriage. It helps to provide legitimate reasons for the prior opposite-sex marriage, such as being bisexual, not identifying as LGBT at the time of the prior marriage, giving in to societal pressure to “change” one’s sexual orientation, or satisfying parents’ expectations.

3. Individual USCIS and consular officers might hold hidden biases against LGBT couples

USCIS officers receive sensitivity training on LGBT and post-DOMA issues. They are directed to treat immigrant petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse. USCIS approved the first immigrant petition filed by a U.S. citizen for his same-sex spouse on June 28, 2013, just two days after the Supreme Court’s ruling.

USCIS and consular officers are generally fair and reasonable. Nonetheless, individual officers can hold preconceived opinions about same-sex marriages that might affect their decisions. While the immigrant petition must be approved if the parties prove their marriage is bona fide, the issuance of a green card or immigrant visa is discretionary.

Same-sex marriages have led to routine grants of green cards and immigrant visas since 2013, but are still relatively new territory for USCIS and consular officers. There is no guarantee that the examiners will review the evidence presented by same-sex couples with the same standard they apply to opposite-sex couples.

A good solution is to have an attorney appear with you at the USCIS interview  or prepare a legal brief to the U.S. Consulate outlining the applicable policies and laws.

4. Same-sex couples often lack objective evidence of a bona fide marriage

While support for legalization of same-sex marriages is on the rise, some families, communities, cultures and countries still object to them. To date, several U.S. states continue to ban same-sex marriages. The lack of equal protection can create complications in immigrant petitions for same-sex spouses.

Affidavits from third parties, including relatives, friends and religious leaders, having personal knowledge of the bona fide nature of the marriage are key evidence in immigrant petitions. USCIS and consular officers can also inquire on whether family members or friends know about the marriage or attended  the marital ceremony. A same-sex couple who is not supported by family, friends or religious leaders might not be able to present such favorable evidence.

USCIS or U.S. Consulate investigators can also visit the couple’s claimed residence to verify whether they live together. During the site visit, the investigators may talk to neighbors, apartment building managers and landlords to determine whether they are aware of the marriage.

Some same-sex couples might not openly disclose their sexual orientation or reveal themselves as married, especially if they live in a place where same-sex relationship is banned or stigmatized. Worries about housing discrimination can also lead to the lack of a joint residential lease. These factors often make it harder to prove they live together and share a real marriage.

In certain states that ban same-sex marriage, the couple’s tax filing status for state income tax purposes must be listed as “single.”  There are also situations where the couple chooses not to file joint federal tax returns with the IRS, even though they may.

Some jurisdictions might not allow same-sex spouses to receive life insurance or health care benefits. Concerns about employment discrimination might also cause the same-sex couples to refrain from applying for certain benefits even when they are eligible. This include signing up for employer-sponsored spousal healthcare and listing the spouse as a beneficiary of an employer-provided retirement plan or life insurance policy.

Residential, financial, employment and other records that show status as “single” or fail to include the spouse do not support the claim of a genuine same-sex relationship.

When same-sex couples hide their relationship or do not openly hold themselves out as married, for whatever reasons, they often lack objective evidence of a bona fide union.

To  make up for the shortage of traditional, objective documents, same-sex couples (like opposite-sex couples) may provide a detailed, written affidavit describing their relationship history, joint residence, and marital life. They can also submit more readily available evidence such as:

  • correspondences addressed to each spouse at the same address
  • statements from each other’s bank accounts showing withdrawals to pay rent or other shared expenses
  • affidavits from friends and relatives who support their marriage;
  • cards, letters and emails they have exchanged with each other
  • photographs of the two of them together on vacations and at events celebrating holidays and special occasions
  • hotel receipts, car rental invoices and travel itineraries showing trips they have taken together
  • evidence of shared membership at clubs that allow same-sex couple benefits

Ultimately, same-sex couples must prove their marriage is valid and bona fide just like opposite-sex couples. They should do five things to get their marriage-based green card or immigrant visa application approved: enter into a real marriage, establish a life together, present documentation of a bona fide marriage, prepare for the green card or immigrant visa interview, and consult an attorney.

Until same-sex marriage becomes universally accepted and legal within all of the United States and around the world, many LGBT immigrants will continue to face unique challenges in the immigration process.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Luddite Lawyers Beware: Court Amends Minnesota Rules of Professional Conduct

Technology competence should definitely be a concern for Minnesota lawyers, now that the Court has amended the Minnesota Rules of Professional Conduct, effective April 1.

Comment 8 to Rule 1.1, in particular,  urges lawyers to be competent not only in law and its practice, but also in technology. It reads:

 

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. (Emphasis added.)

On February 24, the Minnesota Supreme Court approved amendments to the Minnesota Rules of Professional Conduct, some of which reflect technological advancements in law practice.  The proposed changes to the rules and comments to those rules were set forth in a joint petition filed by the Minnesota State Bar Association and Lawyers Professional Responsibility Board.

The petition called for changes including:

1) Rule 1.0 – Terminology. The word “e-mail” is replaced with the term “electronic communications” in the definition of “writing” or “written.” This accounts for the many ways of communicating by electronic media besides email. Comment (9) is also amended to clarify that screening procedures must screen a lawyer from electronically stored information, not just physical documents.

2) Rule 1.1 – Competence. Former comment (6) is renumbered (8) and amended to require the lawyer to keep abreast of changes in the law and its practice, including the benefits and risks of relevant technology.

3) Rule 1.4. – Communication. Comment (4) is amended to replace the last sentence, “Client telephone calls should be promptly returned or acknowledged.” with “A lawyer should promptly respond to or acknowledge client communications.” This is to reflect that lawyers not only must return or acknowledge telephone calls, but also email, instant messaging, Skype and other electronic communications from clients.

The Court order states, “The petition asked the court to approve the proposed rule amendments and acknowledge the proposed amendments to the comments.” The order notes that the petition “is granted as to the proposed rule amendments,” but adds,  “The comments to the rules are included for convenience and do not reflect court approval or adoption.”

In 13 States Have Adopted the Ethical Duty of Technology Competence, Robert Ambrogi pointed out the Minnesota order is confusing. It’s not clear whether the Court actually approved Comment 8 to Rule 1.1, which states that lawyers should keep abreast of the “benefits and risks associated with relevant technology” in law practice.

It’s also not clear how the amended comment affects the disciplinary process for lawyers. Brian Tannebaum, bar defense attorney and author of The Practice: Brutal Truths About Lawyers and Lawyering, noted:

I look forward to the first ethics prosecution under this new language. To me, it appears that lawyers simply need to know that water is wet, or something. Other than it being a hammer for legal tech folks to scare lawyers, I’m not sure what it all means.

That being said, before anyone cries, I think technology is important.

Regardless of whether Minnesota actually adopted the comments to the rules — when  you consider the prevalence of e-discovery, electronic court filings, and online research — lawyers ought to keep up with technological advancements and their impact on the practice of law.

The Court also did add a new paragraph to Rule 1.6 (Confidentiality of Information), which serves as wake-up call for luddite lawyers. Paragraph (c) states, “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access, to information relating to the representation of a client.”

Long existing comments already require lawyers to safeguard a client’s confidential information against unauthorized access and inadvertent or unauthorized disclosures. The ABA Commission on Ethics 20/20 recommended that this existing duty be added explicitly to Rule 1.6, in light of the widespread use of technology to store and send confidential client information.

Even if the duty of technology competence is not required per se, luddite lawyers face a higher risk of violating the ethics rules. Furthermore, incompetence in relevant technology often hurts a lawyer’s ability to attract, retain and represent clients.

This article provides general information only. Do not consider it as legal advice for any individual case or situation. The sharing or receipt of this information does not create an attorney-client relationship.

The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct in her articles.  Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance. 

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5 Things to Do to Get Your Marriage-Based Green Card

In this video series, immigration attorney Dyan Williams describes the one-step petition (I-130 & I-485) and the five things to do to get your marriage-based green card:

1. Enter into a bona fide marriage
2. Establish a life together and collect evidence of this
3. Provide sufficient evidence of bona fide marriage
4. Take the interview seriously and prepare for it
5. Get help from an experienced immigration attorney

Read about 5 Things to Get Your Marriage-Based Green Card here.

Contact Dyan if you need help filing an immigrant petition for a foreign national spouse, responding to a Notice of Intent to Deny I-130 petition, or appealing a denial of an I-130 petition based on failure to prove a bona fide marriage.

This video series provides general information and is for educational purposes only. Do not consider it as legal advice for any individual case or situation. Immigration laws, regulations and policies are subject to change. The sharing or receipt of this information does not create an attorney-client relationship.

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5 Things to Do To Get Your Marriage-Based Green Card

Marrying a U.S. citizen is one of the quickest — but not necessarily the easiest — way to get a green card. USCIS will deny a marriage-based green card case if it does not receive sufficient evidence of a bona fide marriage and/or if it determines that the marriage is a sham.

A U.S. citizen’s filing of an I-130 petition with USCIS is the first step to helping the foreign national spouse become a permanent resident. A spouse who was lawfully admitted to the United States or who qualifies for 245(i), and is still in the U.S., may concurrently file an I-485 application to become a lawful permanent resident (green-card holder). One advantage is that the spouse does not have to depart the U.S. to apply for an immigrant visa at the U.S. Consulate.

Submitting the I-130 and I-485 together is known as the one-step petition/application. Normally, USCIS processes and adjudicates both at the same time. The foreign national cannot receive a marriage-based green card unless USCIS approves the I-130 petition.

Here are five things to do to get your marriage-based green card:

1. Enter into a bona fide marriage

USCIS will approve the I-130 petition only if it finds that the parties entered into marriage in good faith, i.e. intended to establish a life together at the time they married.  Normally, it must be proven by a “preponderance of the evidence” that the marriage is bona fide. Basically, this means the petitioner must show that it is “more likely than not” the marriage is real. [NOTE: When the marriage occurs while the foreign national is in removal proceedings, the standard of proof is higher: It must be shown by “clear and convincing evidence” that the marriage is real.]

Typically, USCIS expects a bona fide married couple to speak each other’s languages, live together, share common interests, co-mingle their finances, own joint property, and celebrate important events like holidays, birthdays and anniversaries.

A good faith marriage is one that is entered into for reasons other than for circumventing U.S. immigration laws. It could be arranged or freely chosen by the parties. It may be based on mutual love and affection, shared religious beliefs, a need for lifetime companionship, or a desire to raise children together.

A bona fide marriage is the opposite of a sham marriage, which is when the parties marry solely or primarily to obtain immigration benefits for the foreign national. USCIS’ Adjudicator’s Field Manual lists 10 factors indicating a marriage might be a sham:

  • Large disparity of age
  • Inability of petitioner and beneficiary to speak each other’s language
  • Vast difference in cultural and ethnic background
  • Family and/or friends unaware of the marriage
  • Marriage arranged by a third party
  • Marriage contracted immediately following the beneficiary’s apprehension or receipt of notification to depart the United States
  • Discrepancies in statements on questions for which a husband and wife should have common knowledge
  • No cohabitation since marriage
  • Beneficiary is a friend of the family
  • Petitioner has filed previous petitions on behalf of foreign nationals, especially prior foreign national spouses

If any of these 10 factors apply to your marriage, you can expect more scrutiny from USCIS.

2. Establish a life together and collect proof of this

Before the one-step petition is filed, the couple should take steps to establish a married life together and collect documents to prove they are committed to one another. Examples include:

  • Living together (joint residential lease or mortgage statement showing both names, driver’s licenses showing same address)
  • Buying major assets together (motor vehicle title, invoice for furniture)
  • Adding the spouse as a beneficiary to employer-sponsored benefit (life insurance policy, health insurance plan, retirement account)
  • Co-mingling assets and liabilities (joint bank account statements, joint credit card statements, joint tax returns)
  • Sharing household expenses (utility bills in both names)
  • Going on vacations together (travel itineraries, photographs)
  • Participating in shared activities (gym or club memberships)
  • Spending time with mutual friends (affidavits from third parties attesting to the bona fides of the marriage)

The Service will consider the parties’ conduct before and after the marriage to determine their true intent at the time of marriage.

Circumstances might require the couple to live apart temporarily, especially for work-related reasons. If the couple is not living together at the time they file for immigration benefits or at the time of their interview, they need to have a good explanation and gather reliable documentation showing they have a real marriage. Examples include:

  • Letters, emails and greeting cards you have exchanged with each other
  • Airline tickets, hotel bills and other receipts showing trips you made to see each other
  • Telephone records showing calls you made to each other
  • Photographs of the two of you together and with family and friends (or even with pets), taken over a considerable period at different events
  • Correspondences (e.g. bills, letters, cards) addressed to both of you at the same address
  • Receipts for gifts you bought each other
  • Birth certificates of (biological, adopted) children you have together, or evidence that you are trying to have children

3. Provide sufficient evidence of a bona fide marriage 

The Instructions for Form I-130 list the types of documents that may show the bona fides of a marriage. They include documentation showing joint ownership of property (e.g. mortgage, car title); documentation showing co-mingling of financial resources (e.g. joint bank account); birth certificates of children you have together; and affidavits from third parties confirming the bona fides of your marriage.

Your marriage certificate and proof of termination of any prior marriages (e.g. divorce decree or death certificate of previous spouse) only show that your marriage is valid. These documents are required, but are not sufficient to show the marriage is bona fide.

Filing a one-step petition is not just about completing the forms and submitting the filing fees. You also need to carefully document the bona fides of your marriage and give USCIS a sense of who you are as a couple.  The more documents you present to show your marriage is real, the easier it will be for the officer to approve your case.

Some types of documents are also more persuasive than others.  For example, birth certificates of your children, mortgage statements for your shared home, and life insurance policies showing one of you as the other’s beneficiary are much more persuasive than photographs of the two of you together, your joint residential lease , and your joint utility bills. They are harder to fake and are practically non-existent in sham marriages.

No matter the circumstances, you must avoid submitting any fabricated, false, forged or altered documents to USCIS. This could lead USCIS to find that you committed fraud or willful misrepresentation of material facts to obtain immigration benefits. This would require you to obtain a waiver of inadmissibility to obtain the green card (even if you managed to get the I-130 approved).

4. Take the interview seriously and prepare well for it

In marriage-based green card cases,  the USCIS field office in your jurisdiction normally interviews you to verify whether your marriage is bona fide.

The officer will place you both under oath at the start of the interview. In addition to getting specific information, the officer will be observing your demeanor and your interactions with each other to determine whether you have a real marriage.

Tell the truth at the interview, even if the answers are less than ideal. Giving false testimony or misrepresenting facts at the interview is grounds for a denial. Discrepancies between your and your spouse’s testimonies and inconsistencies within your testimonies also hurt your credibility. They will cause the officer to doubt the bona fides of your marriage.

At the interview, listen carefully to the USCIS officer’s questions and respond truthfully to the questions you’re being asked. Giving too many details about your courtship and embellishing stories about your shared life can make you less believable.

There’s no need to volunteer information that was not required on the application forms and is not being asked for at the interview. While you should not give misleading information to cut off a line of inquiry from the officer, you also don’t want to open up a line of questions that could unnecessarily bring out negative information.

If you don’t understand a question, ask the officer to repeat it or rephrase it. If you don’t recall information or you’re not 100% sure of your answer, let the officer know.  If you feel you’re being asked inappropriate questions, stay calm and avoid arguing with the officer. (You may ask to speak with a supervisor.)

If your first language isn’t English or if you’re not fluent in English, be sure to bring a qualified interpreter. Otherwise, you could misunderstand the officer’s questions or the officer could misunderstand your answers.

USCIS often interviews you together, but may interview each of you separately. When separate interviews are conducted, the officer will ask you each the same questions and compare your answers. If both of you tell the truth, it’s more likely that your answers will be the same or similar. Consistent testimonies help to persuade the officer that you have nothing to hide and that your marriage is bona fide.

Even bona fide married couples do not always observe, perceive or recall things the same way. For example, would you give the same answers if you were separately asked the following questions:

  • Where did you first meet?
  • How did you meet?
  • Where did you go on your first date? When was your first date?
  • How many people attended your wedding?
  • What did you to to celebrate your marriage?
  • Why did you get married?
  • Who proposed? Where were you when marriage was proposed?
  • What are your spouse’s work hours?
  • What is the color of the wall in your bedroom?
  • Which side of the bed do you sleep on?
  • Where did you go on your last vacation together?
  • Who woke up first this morning?

These are just a few of the many potential questions the officer may ask you. It helps for you and your spouse to prepare for the interview and make sure you’re on the same page when it comes to your relationship history and shared life together.

Your testimony at the interview can be the deciding factor in whether your case gets approved. Following the interview, the adjudications officer can approve the one-step petition, issue a Request for Evidence, have a site visit conducted at your claimed residence, conduct further investigation, or issue a Notice of Intent to Deny the petition.

5.  Get help from an experienced immigration attorney

You’re better off consulting an attorney from the outset, before you file your one-step petition. Full representation is best, but if you cannot afford this, you want to get limited representation or consult an attorney at least once.

An experienced attorney can determine whether you qualify for a marriage-based green card, review your application forms for accuracy and completeness, advise you on the types of documents to submit to prove the bona fides of your marriage, prepare you for what to expect at the interview, and represent you at the interview. An attorney can also discuss red flags in your case and counsel you on how to address them.

At the interview, a USCIS officer who suspects the marriage is fraudulent may give the U.S. citizen an opportunity to withdraw the petition and write a statement to that effect. Having your attorney at the interview will help protect your rights and make the process more comfortable.

A diligent attorney will take notes, ask clarifying questions, and object to inappropriate lines of questioning. The attorney will also be able to give you an assessment of how the interview went and advise you on follow-up matters.

Want to hear about 5 Things to Do to Get Your Marriage-Based Green Card? Check out the video series:

Conclusion

Entering a bona fide marriage, establishing a life together, submitting documentation of your shared life, successfully completing the interview, and seeking advice from counsel are five key steps to getting your marriage-based green card. If you have a real marriage, you really have little to worry about. It’s just a matter of convincing USCIS that your marriage is bona fide.

WARNING!

USCIS may deny a one-step petition if it receives insufficient evidence of a bona fide marriage and/or if it finds that the marriage is a sham. The immigration authorities may then file removal charges against the foreign national on several grounds, such as failing to maintain lawful non-immigrant status and committing fraud to obtain immigration benefits.

A sham marriage finding is also a permanent bar to obtaining an approval of any subsequent petitions for the foreign national. So the foreign national could never get a green card based on, for example, a second petition by the same spouse or by a new spouse (unless the marriage fraud finding was overturned on appeal or on USCIS’ own reconsideration).

Marriage fraud is a crime. A person who knowingly enters into a marriage for the purpose of evading immigration laws is subject to imprisonment (up to 5 years), a fine (up to $250,000), or both.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Watch Out for Potential Delays and Snafus in H-1B Cap Filing

Every year on April 1, USCIS begins accepting H-1B cap petitions from U.S. employers. Congress sets an annual limit on the number of new H-1B visa petitions that can be approved each year. The regular cap of 65,000 visas and master’s cap of  20,000 visas is expected to be reached in the first week of April 2015, as they were in past years.

Unless an exemption applies, employers should plan on filing their H-1B cap petitions on April 1, instead of relying on the filing window. An experienced immigration lawyer can help with identifying potential H-1B employees, resolving issues within the petitions, and preparing the forms and supporting documentation well in advance.

Although there’s still time for employers to prepare H-1B cap petitions for an April 1 filing, they need to watch out for potential delays and snafus.

1. Proving that the Foreign National Qualifies for an H-1B

To qualify for an H1B, the foreign national must normally have a bachelor’s degree in a particular field in or related to what USCIS will consider a “specialty occupation.”

A specialty occupation “requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation and which requires the attainment of the equivalent of an American bachelor’s degree or higher in a specific specialty as a minimum for entry into the United States.”

If the employee does not have the equivalent of a U.S. bachelor degree, he must show progressive work experience in or related to the H-1B position to meet the requirements for bachelor degree equivalency.

Obtaining Credentials Evaluation 

Foreign nationals who did not obtain their degree from a U.S. educational institution must show that their education is equivalent to a 4-year U.S. bachelor’s degree. This requires a “foreign degree/education evaluation” from a qualified credential evaluation service.

Obtaining the credential evaluation can take several days or weeks, especially during the months leading up to the H-1B filing season, when the demand for qualified credential evaluators is really high. The result of the evaluation often determine if the foreign national is eligible for an H-1B.

The credential evaluation service generally needs the foreign worker’s resume, transcripts, degree certificates and all other documents related to education in the specialty occupation.

Proving Progressive Work Experience

In some cases, the foreign national might need to prove that he has the equivalent of a bachelor’s or master’s degree based on the combination of the credential evaluation and proof of relevant work experience.

This includes situations where:

  • the person has a four-year degree from a foreign college or university, but the degree is not in the same field as the “specialty”
  • the person has some college education or related coursework, but did not obtain a degree
  • the person has no college education, but has many years of experience.
  • the person has a “bachelor’s” diploma, but it involved less than four years of post-secondary academic study

Standard proof of work experience includes a letter from a previous employer, academic adviser, or professor, stating the job title, hours worked per week, dates of employment, and description of duties.   The letters must show that the person’s experience has been progressively more responsible and demonstrates expertise in the field, either during the employment at a single company or at successive employers.

Although USCIS has not clearly defined  “progressive” experience, the experience letters must show that the person “progressed” in his specialty during his employment, taking on more duties and responsibilities over time.

2. Submitting Labor Condition Application

The employer must first submit a Labor Condition Application (Form ETA 9035) to the U.S. Department of Labor and get it certified before it files the H-1B petition. USCIS will reject or deny an H-1B petition that does not include a an LCA certified by the DOL and signed by the petitioning employer.

The DOL typically takes at least 7 days to process the LCA, but could take longer during the busy filing season. The DOL may reject LCAs that are not properly filled out. The rejection notice includes a list of problems that the employer must correct before it resubmits the LCA.

The LCAs are currently filed through an electronic system, iCert, which is vulnerable to breakdowns and technological glitches.

Furthermore, if the petitioning employer is relatively new or has not previously filed H-1B, it is possible that the iCert system will not recognize the FEIN. In that case, the employer might need to be pre-certified, which will add several days if not more to the timeline.

3. Filing the H-1B Petition

Avoid multiple or duplicative H-1B petitions

To ensure fair distribution of available H-1Bs, USCIS prohibits employers from filing multiple or duplicative H-1B petitions for the same employee. This means employers must not file both a master’s degree cap petition and a bachelor’s degree cap petition for the same employee.  The employer should also avoid filing multiple H-1B petitions using multiple jobs for the same employee.

USCIS will deny or revoke multiple or duplicative petitions filed by an employer for the same person and will not refund the filing fees.

Submit all required forms and supporting documents

USCIS has tips for filing H-1B petitions on its website. The critical steps are to:

  1. Complete all sections of the Form I-129 petition, including the H Classification Supplement and the H-1B Data Collection and Filing Fee Exemption Supplement.
  2. Include original signatures on all required forms, preferably in black ink.
  3. Provide all required documentation and evidence with the petition at the time of filing.
  4. Mail the petition to the correct USCIS service center.

Include required filing fees

In addition to submitting the required forms and supporting documents, the employer must also provide signed checks or money orders payable to U.S. Department of Homeland Security, signed and dated within the last six months, and include the proper amounts.

Employers should avoid submitting unnecessary excess fees and, more importantly, provide the required fees so that USCIS will accept the case and process the petition. USCIS will reject all petitions submitted with the incorrect filing fees.

The applicable filing fees are:

Base filing fee

  • $325

American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee: (see H-1B Data Collection and Filing Fee Exemption Supplement, Part B)

  • $750 for employers with 1 to 25 full-time equivalent employees, unless exempt
  • $1,500 for employers with 26 or more full-time equivalent employees, unless exempt

Fraud Prevention and Detection Fee

  • $500 to be submitted with a request for initial H-1B status or with a request for an employee already in H-1B status to change employers. (This fee does not apply to Chile/Singapore H-1B1 petitions.)

Public Law 111-230 Fee

  • $2,000 to be submitted by a petitioner that employs 50 or more employees in the United States, if more than half of those employees are in H-1B or L-1 nonimmigrant status (must be submitted with a request for initial H-1B status or a request for a beneficiary already in H-1B status to change employers).

Premium Processing Fee (optional, but generally recommended)

  • $1,225 for employers seeking Premium Processing Service

With premium processing, the employer receives a decision on the H-1B petition within fifteen days of the receipt notice , rather than wait several months for USCIS to process the H-1B petition.

Next Filing Season is in April 2016; Other Visa Alternatives are Limited

H-1B visas are for foreign workers in specialty occupations, including scientists, engineers, computer programmers, accountants and teachers.

If the H-1B filing season is missed in 2015, employers will not be able to file H-1B cap petitions until April 1, 2016 and cap-subject foreign workers will not be able to start employment in H-1B status until October 1, 2016.

Employers must prepare to file their H-1B cap petitions on April 1 to increase their chances of hiring foreign talent this year. Otherwise, they might need to look into other visa options, which are few and far between.

Get Help from an Experienced Immigration Attorney

Employers should get help from an experienced immigration attorney to avoid potential delays and snafus in their H-1B filings.

An experienced immigration attorney helps streamline the process by identifying whether a foreign national is eligible for H-1B; providing advice on the required information, forms and documents to submit; obtaining a foreign credential evaluation if needed; submitting the Labor Condition Application to the DOL; preparing the H-1B filing packet, and timely submitting a properly prepared petition to the appropriate USCIS office.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Jenni C