Category Archives: H-1B

Work Permit Fraud May Lead to Visa Revocation, Visa Denial and INA 212(a)(6)(C)(i) Inadmissibility

On June 26, Weiyun “Kelly” Huang, owner of the fictitious companies, Findream LLC and Sinocontech LLC, was sentenced to 37 months in federal prison for conspiracy to commit visa fraud. Her companies provided false employment verification records to foreign nationals seeking F-1 or H-1B visa status.

The U.S. Immigration & Customs Enforcement (ICE) played a key role in the investigation, which created ripple effects on persons who received F-1 or H-1B work authorization by presenting a job offer letter, payroll records or other employment verification documents from Findream or Sinocontech.

F-1 and H-1B Work Authorization Requires Legitimate Employment

An F-1 visa allows an international student to study in the United States at a university or other academic institution.  F students may engage in practical training during their academic program or after it ends. Curricular Practical Training (CPT) and Optional Practical Training (OPT) are the two types of training that provide work experience related to the field of study.

Eligible students may apply for up to 12 months of OPT employment authorization before completing their academic studies (pre-completion) and/or after completing their academic studies (post-completion). All periods of pre-completion OPT, however, are deducted from the available period of post-completion OPT.

The OPT employment can be part time (at least 20 hours per week on post-completion OPT) or full time; involve multiple short-term employers, contract work, self-employment, or agency work; and be paid or unpaid (as a volunteer or intern, as long as labor laws are not violated). The student must report all employment to their Designated School Official (DSO) to maintain status.

While a job offer is not required to apply for OPT, the student may not have a cumulative total of 90 days of unemployment during the 12-month OPT period. Otherwise, they fall out of status and begin to accrue unlawful presence.

Students may apply for an additional 24 months of OPT if they have a degree and are employed in a STEM (Science, Technology, Engineering or Mathematics) field. For the 24-month STEM OPT extension, the DSO requires the student to have an existing job offer from a U.S. employer and to submit a completed Form I-983 (training plan) that is signed by the student and employer.

Section 3 to Section 6 on the Form I-983 requests information on the company, the agreed-upon practical training schedule and compensation, and the formal training plan, respectively. Unlike regular OPT employment, STEM OPT employment must be paid.

An H-1B visa allows U.S.-based employers to temporarily employ foreign nationals in specialty occupations. Foreign nationals with H-1B status may stay in the U.S. for three years, with the possibility of extending their stay for a total of six years. H-1B status may be extended beyond the six-year limit in certain situations, such as when 365 days or more have passed since the filing of an application for labor certification or immigrant petition (Form I-140) for the beneficiary.

F-1 students with a timely filed H-1B petition and change of status request, and whose F-1 employment authorization will expire before the change of status to H-1B occurs (typically October 1), may be eligible for a cap-gap extension in the United States. In many cases, the OPT employment or STEM OPT employment is what allows the F-1 student to change to H-1B status without departing for visa processing at the U.S. Consulate.

ICE Investigations of Work Permit Fraud Schemes Continue

ICE’s crackdown on F-1 and H-1B visa fraud schemes spell trouble for international students and foreign national workers who use fake job offers to obtain F-1 OPT, F-1 STEM OPT, F-1 CPT, or H-1B status.

ICE may conduct on-site visits to confirm the visa holder is actually working for the employer and performing the appropriate duties. When little-known companies like Findream and Sinocontech show a high number of F-1 OPT and STEM OPT workers, this can prompt further investigation.

In March 2019, the United States filed a criminal complaint against the owner of Findream, with an affidavit from an FBI Special Agent stating it was a company on paper only, with no actual physical presence, and was created for the purpose of providing false verifications of employment to F-1 visa holders seeking to extend their stay in the U.S. via the OPT program.

The indictment stated that Huang advertised Findream as a “startup company in technology services and consulting,” with clients in China and the U.S.  She used a China-based website, “Chinese Looking for Job,” and a China-based WeChat platform, “Job Hunters of North America,” to advertise Findream and Sinocontech to F-1 visa holders in the U.S. seeking employment and H-1B visas.

The companies did not deliver any technology or consulting services, or employ any of the individuals who responded to the ads, the indictment stated. In exchange for a fee, Huang and the companies provided job offer letters and employment verification letters as proof of employment, the charges alleged. Falsified payroll records and tax forms were also said to be provided.

According to the indictment, the fraud scheme allowed at least 2,685 customers to list Findream or Sinocontech as their employer to extend their F-1 status. Subsequently, many F-1 and H-1B visa holders, particularly from China, had their visas revoked or denied or were refused entry to the United States (following travel abroad) because they had listed Findream or Sinocontech to receive work authorization.

These types of ICE investigations are ongoing. Recent reports indicate that F-1 students, most from India, have received notifications from U.S. Consulates that their visas have been revoked because they used job offer letters from Integra Technologies LLC and AZTech Technologies LLC to obtain OPT, STEM OPT and, in some cases, CPT work permits.

Through consultations with applicants, we have learned that F-1 and H-1B visa holders, most from India and China, are being refused admission at the U.S. port of entry if they previously held work authorization by association with suspicious companies, such as Integra Technologies, AZTech Technologies, and Tellon Trading, Inc. Expedited removal orders and lifetime inadmissibility charges of fraud or misrepresentation are being made by CBP for this reason.

Data from ICE shows that Integra Technologies, AZTech Technologies, and Tellon Trading were 2nd, 6th, and 10th respectively, on the list of Top 200 Employers for OPT and STEM OPT Students, which includes well-known companies like Amazon, Intel, Google, Microsoft, Deloitte, Facebook and Apple. (NOTE: At least two other companies, Wireclass and Aandwill LLC, have been linked with Integra and AzTech.)

Fraud or Willful Misrepresentation of Material Fact to Obtain U.S. Immigration Benefits is a Permanent Inadmissibility Ground

Federal agencies including ICE and USCIS have made it a priority to deter and detect immigration fraud and have increased site visits, interviews, and investigations of petitioners who use the F-1 OPT and H-1B visa programs. One reason is to protect the “many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged,” according to the agencies.

Submitting a bogus job offer letter, employment verification letter, payroll records or other documents to maintain or obtain F-1 or H-1B status creates the risk of a visa revocation or visa refusal. It may also lead to the denial of admission and an expedited removal order at the U.S. port of entry.

Whether the F-1 or H-1B visa holder knowingly pays a company for false employment verification is sometimes unclear. The pattern involves the company initiating contact with the beneficiary and requesting payment of a “training fee” at the outset. The job offer or training program might seem real in the beginning. But at some point, it becomes obvious there is no real job.

Persons who claim to have a legitimate job offer to gain an F-1 extension or H-1B status — when there is actually no job — are subject to being found permanently inadmissible. When you present false employment verification records to show you performed job duties and got paid for such duties (in order to receive a visa or lawful status in the United States) you risk being charged with a lifetime inadmissibility ban under INA 212(a)(6)(C)(i)(fraud or willful misrepresentation of material facts to gain U.S. immigration benefits).

In unique situations, the person may challenge a section 212(a)(6)(C)(i) bar by filing a formal motion to reconsider with the appropriate agency, such as CBP or the U.S. Consulate. In most cases, the person will need a 212(d)(3) nonimmigrant waiver or Form I-601/INA 212(i) immigrant waiver.

The 212(d)(3) waiver has relatively flexible eligibility standards, which includes addressing the risk of harm to society if the person is admitted to the United States, the magnitude of the U.S. immigration violation that caused the inadmissibility, and the importance of seeking the visa. The Form I-601 waiver has stricter requirements because the person must have a qualifying relative (U.S. citizen or permanent resident spouse or parent) who will suffer extreme hardship if the person is not admitted to the United States.

If you are caught up in or benefited from an F-1 or H-1B visa fraud scheme, consult a qualified U.S. immigration attorney to discuss possible remedies. Ongoing and willful participation in the scheme might seem like a victimless offense, but it carries serious and permanent U.S. immigration consequences.

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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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COVID-19 Update: Executive Order Extends Suspension of Entry of Certain Immigrants AND Suspends Entry of H-1B, H-2B, J and L Visa Applicants and Derivative Beneficiaries, Up to December 31

On June 22, President Donald Trump signed an Executive Order titled Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak. The suspension affects both immigrant visa and nonimmigrant visa applicants in certain categories. It is set to expire on December 31, and may be continued if deemed necessary.

Who Does the Executive Order Affect?

Effective immediately, the Executive Order continues the suspension of entry of certain immigrants to the United States up to December 31, 2020. To learn more about the prior order suspending immigration and the exemptions, which now remain in effect, see COVID-19 Update: Impact of Executive Order Temporarily Suspending Some U.S. Immigration for 60 Days, As of April 23.

From June 24, the Executive Order further prohibits the entry of nonimmigrants to the United States on an H-1B visa, H-2B visa, J  visa (for intern, trainee, teacher, camp counselor, au pair, summer work travel program) or L visa, and the spouses and minor children of such visa applicants or holders, who:

(a) are outside the United States on the effective date (June 24);

(b) do not have a nonimmigrant visa that is valid on the effective date; and

(c) do not have an official travel document other than a visa (such as a transportation letter, a boarding foil, or an advance parole document) that is valid on the effective date or any date thereafter that permits a request for admission at a U.S. port of entry.

If you do not have an H-1B, H-2B, J or L visa or accompanying or following-to-join visa (H-4, J-2 or L-2 visa) that is valid as of June 24, 2020, you will not be admitted into the United States during the suspension period (i.e. up to December 31, 2020). The exception is if you fall into a category that is exempted from the Order.

[UPDATE, July 23, 2020: The U.S. Department of State announced exceptions to the Presidential Proclamation may be given to the dependent spouses and children of certain visa class holders, such as H, J, and L visa holders who are already excepted from, or not subject to the suspension. The DOS will continue to issue H, L, and J  visas to otherwise qualified derivative applicants who are currently excepted or where the principal applicant is already in valid status in the United States.  If the H, L or J principal is in the U.S. in valid status, the dependent spouse or child may apply for their derivative visa at the U.S. Consulate and enter the U.S. If the H, L or J principal is outside the U.S. with a valid visa, the dependent spouse or child may apply for their derivative visas and enter the U.S. with the principal visa holder.]

Who is Exempted from the Executive Order?

Section 3(b) of proclamation states the Order does not extend to:

(1) Any lawful permanent resident of the United States.

(2) Any applicant who is the spouse or minor child of a U.S. citizen.

(3) Any applicant seeking to enter the United States to provide temporary labor or services essential to the U.S. food supply chain.

(4) Any applicant whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

The Secretary of State, the Secretary of Labor, and the Secretary of Homeland Security shall establish standards to define categories of applicants whose entry would be in the national interest, such as those who are critical to the defense, law enforcement, diplomacy, or national security of the United States; are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized; are involved with the provision of medical research at United States facilities to help the United States combat COVID-19; or are necessary to facilitate the immediate and continued economic recovery of the United States.  

What is the Stated Purpose of the Executive Order?

Trump said the Executive Order is needed to protect American workers in an economy severely affected by the COVID-19 outbreak.

The Order states overall unemployment rate in the United States nearly quadrupled between February and May 2020. It notes, “Under ordinary circumstances, properly administered temporary worker programs can provide benefits to the economy.  But under the extraordinary circumstances of the economic contraction resulting from the COVID-19 outbreak, certain nonimmigrant visa programs authorizing such employment pose an unusual threat to the employment of American workers.”

What is the Impact of the Executive Order?

Based on a plain reading, the Executive Order does not specifically prohibit the U.S. Consulate from accepting H-1B, H-2B, J or L visa applications or derivative visa applications. It also does not stop USCIS from adjudicating the underlying petition (e.g. Form I-129) that, if approved, allows the applicant to request the visa.

If a person pays the visa application fee and is scheduled for a visa interview, the U.S. Consulate is expected to process the application. If USCIS issues a receipt notice for the petition, it has a duty to process it.

But due to the newness of the Executive Order, ambiguities in the Order itself, and the lack of U.S. Department of State guidance, it’s uncertain whether the U.S. Consulate may or will issue such visas before the suspension period expires.  

In general, the Order is confusing in large part because it extends the previous order suspending the entry of certain immigrants, while creating a new suspension for certain nonimmigrants. Thus, lawful permanent residents are listed among the exempted group.

Without careful review, a reader might question why the Order mentions permanent residents when, at first glance, it seems to focus on just H-1B, H-2, J or L visa applicants and their derivative beneficiaries. The lawful permanent resident category is also not a true exemption because they do not fall into any immigrant visa category subject to the suspension. Instead, they have green cards to be lawfully admitted to the United States as permanent residents, not as intended immigrants.

Although the Order focuses on suspending entries to the United States instead of on prohibiting visa processing at U.S. Consulates, it contains a sentence stating, “The consular officer shall determine, in his or her discretion, whether a nonimmigrant has established his or her eligibility for an exception in section 3(b) of this proclamation.” This suggests the consular officer will need to determine an exception exists before it may issue the visa, before December 31, to an otherwise eligible applicant.

The Order mentions the applicant must have an”official travel document other than a visa (such as a transportation letter, a boarding foil, or an advance parole document) that is valid on the effective date or any date thereafter that permits a request for admission at a U.S. port of entry.” The examples of an “official travel document,” as listed in the Order, are normally reserved for lawful permanent residents. For example, permanent residents may obtain a boarding foil, valid for 30 days or less, for a single entry, from the U.S. Consulate if their green card has been lost, stolen or destroyed.

What is clear from the Order is that applicants and their derivative beneficiaries will be prohibited from entering the United States (up to December 31) if they are outside the country and do not hold a visa valid as of June 24.

While it is reasonable to assume the person may either have a valid visa as of June 24 or other official travel document as of June 24 or later — for entry to the U.S. during the suspension period — the Order is ambiguously worded. It seems to indicate you need both a visa and official travel document, which makes no practical sense. A reasonable person would conclude that only one is required, i.e. you need the travel document only if you do not have the visa, and vice versa.

The U.S. Customs & Border Protection (CBP) has long held authority to deny admission at the U.S. port of entry, even when the applicant holds a valid visa or other official travel document. Each time you request entry to the United States, you are subject to inspection by CBP.

The Order adds, “Within 30 days of the effective date of this proclamation and every 60 days thereafter while this proclamation is in effect, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend any modifications as may be necessary.”

Persons who are already in the United States, in lawful status, should consider filing a request for extension or change of status, if eligible, instead of depart for consular processing. USCIS is performing mission critical duties even while Field Offices are still preparing to reopen to the public. The Order has no effect on Form I-485 applications for green card/permanent residence or Form I-129 petitions or Form I-539 applications for extension or change of status within the United States.

Avoid coming to the U.S. in another status purely to circumvent the Executive Order. For example, if you enter the U.S. on a B1/B2 visitor visa, for the purpose of changing to H-1B or L-1 status, this may be considered as fraud or willful misrepresentation of material fact to obtain a U.S. immigration benefit. This subjects you to being charged with a permanent inadmissibility ground under INA 212(a)(6)(C)(i). In that event, you may not obtain a new visa or change of status without the appropriate Form I-601 immigrant waiver or 212(d)(3) nonimmigrant waiver of inadmissibility.

The Order further states, “An alien who circumvents the application of this proclamation through fraud, willful misrepresentation of a material fact, or illegal entry shall be a priority for removal by the Department of Homeland Security.”

Consult an experienced U.S. immigration attorney to discuss how this Executive Order, prior Orders and other travel restrictions affect your case.

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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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Rescission of INA 212(a)(6)(C)(i) (Misrepresentation) Finding + Grant of H-1B Visa = A True Success Story

In September 2018, the U.S. Embassy issued an H-1B temporary worker visa to my client after previously finding he is permanently inadmissible under INA 212(a)(6)(C)(i), i.e. willful misrepresentation of material fact to gain U.S. immigration benefits. At the visa interview, he relied on my recommendations to explain why the misrepresentation bar does not apply to him.

The Embassy did not specify the factual basis for the misrepresentation finding. But years ago, my client’s H-1B visa was revoked by the U.S. Customs & Border Protection (CBP) and he was denied entry and allowed to withdraw his application for admission.

In particular, at primary inspection, the CBP officer asked him about his relationship with the H-1B petitioner (consulting firm) and the end client. Instead of naming the consulting firm as his U.S. employer, he mistakenly gave the name of the end client, where he was assigned to work. From there, confusion began.  At secondary inspection, the CBP questioned him extensively and ultimately denied his entry under INA 212(a)(7)(A)(i)(I)(intended immigrant without valid travel document) – which CBP often uses as a catch-all provision to refuse admission to the U.S.

A few years later, the Embassy did issue him a new H-1B visa based on an approved I-129 petition by another U.S. employer, without raising the misrepresentation bar. But when he later requested a visa renewal to enter the United States following a trip abroad, the Embassy requested several documents related to his previous employments in the United States. These included the I-797 (receipt and approval) notices for all H-1Bs; all I-129/H-1B petitions filed on his behalf; Labor Condition Applications in support of the H-1B petitions filed on his behalf; support letter from the end client; employment contracts; and pay statements.

Despite receiving the requested documents, the Embassy denied the H-1B visa  under INA 212(a)(6)(C)(i). When he applied again for the H-1B visa three months later – at the direction of his U.S. employer – the Embassy said nothing had changed and again refused the visa under section 212(a)(6)(C)(i).

After being denied the H-1B visa twice on misrepresentation grounds, he contacted me to prepare a Motion to Reconsider and Rescind Inadmissibility Determination Under INA 212(a)(6)(C)(i). The Embassy accepted my legal memorandum and some of the documentary evidence establishing the section 212(a)(6)(C)(i) bar was applied in error. It placed the case in administrative processing and then finally granted the visa two months later.

Although my client could have filed for a 212(d)(3) nonimmigrant waiver, I explained this would take a longer time to process and a waiver grant would still leave the section 212(a)(6)(C)(i) bar intact. He also had an approved I-140 immigrant petition filed on his behalf and the 212(d)(3) waiver would not overcome the inadmissibility ground to receiving an immigrant visa or green card. With no qualifying relative (U.S. citizen or permanent resident spouse or parent) to be eligible for a Form I-601/INA 212(i) immigrant waiver, he would be subject to being denied permanent residence as long as the 212(a)(6)(c) bar remained.

Furthermore, and most important, he had made no willful misrepresentation of material fact to obtain an H-1B visa or any other U.S. immigration benefit. I pointed out that if the Embassy agreed to rescind the section 212(a)(6)(C)(i) charge, he would not require a 212(d)(3) waiver for the H-1B visa to be issued.

Two months following the visa interview, the Embassy instructed my client to submit his passport. It issued the H-1B visa to him and he re-entered the United States without any problems. 

Because the Embassy vacated the section 212(a)(6)(C)(i) charge, my client will not need a 212(d)(3) nonimmigrant waiver to receive a new H-1B or other nonimmigrant visa. He also will not require a Form I-601/INA 212(i) waiver to obtain permanent residence in the United States.

Through emails, telephone calls  and video conferences, my client and I worked together to convince the Embassy to vacate the misrepresentation bar and grant the H-1B visa. This is a true success story in which he timely received the visa after being denied it twice in a row.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

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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 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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Timely Filed H-1B Cap-Subject Petition + Complete Response to RFE = A True Success Story

On October 26, 2017, U.S. Citizenship & Immigration Services, California Service Center, approved an H-1B cap-subject petition that Dyan Williams Law PLLC filed for a non-profit organization on behalf of one of its preschool teachers. First, we had to file the petition in early April 2017 for it to be randomly selected in the H-1B lottery and reviewed on the merits. Next, we had to submit a timely Response to Request for Evidence (RFE) that fully addressed USCIS’ doubts on the position being a specialty occupation, which is a key H-1B requirement.

The H-1B petition, filed on April 3, 2017, was subject to the congressionally mandated, annual cap of 65,000 H-1B visas, which is commonly known as the “regular cap”. By April 7, USCIS announced it received enough H-1B petitions to reach the cap for its computer-generated random selection (lottery) process and, as of April 11, would reject and return all unselected petitions.

On April 14, USCIS issued a Form I-797C, Receipt Notice confirming the petition was selected in the lottery and was pending for review. Being chosen in the lottery was a win, by itself, because the petitioner’s prior cap-subject petition for the same beneficiary was not selected in the previous fiscal year. Fortunately, the beneficiary qualified for F-1 extension of post completion Optional Practical Training (OPT) and H-1B cap-gap benefits, which permitted her to work between the end of her F-1 status and the start of her H-1B status.

In July, after three months of waiting for further updates, we received USCIS’ Form I-797E, Request for Evidence, instructing the petitioner to submit a response by October 2. USCIS added that failure to submit all evidence requested at one time may result in the denial of the petition.

In particular, USCIS questioned whether the preschool teacher position is a “specialty occupation” that requires the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.

The Service relied on the U.S. Department of Labor’s Occupational Outlook Handbook (OOH), which indicates a preschool teacher is an occupation that does not require a bachelor’s degree in a specific speciality as a normal, minimum for entry into the position. USCIS explained, “There is no standard for how one prepares for a career as a Preschool Teacher and no requirement for a degree in a specific specialty.”  It concluded the proffered position cannot be considered to have met this criterion.

Because normal industry standards indicates a bachelor’s or higher degree or its equivalent is not typically required for entry into a preschool teacher position, we had to show how at least one of the remaining three criteria is met:

1. the degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree

2. the employer normally requires a degree or its equivalent for the position

3. the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree in a specific speciality

By narrowing down the petitioner’s industry to a certain category of organizations that require their preschool teachers to have at least a bachelor’s degree in early childhood education, elementary education, child psychology or related field, we established the position at issue is a specialty occupation.

To support the Response to RFE, I counseled the petitioner in gathering critical documentary evidence to meet the remaining three criteria. This included helping the petitioner prepare an affidavit (written testimony) and collect support letters from directors of similar organizations explaining why they normally require their preschool teachers to have at least a bachelor’s degree in a specific specialty.

We also presented various preschool teacher job postings at similar organizations requiring at least a bachelor’s degree in a specific specialty, as well as description pages from the organizations’ websites showing how similar they are to the petitioner’s organization.

In addition, we submitted documentary evidence demonstrating why the petitioner is held to a higher industry standard, for accreditation purposes, and its preschool teacher position is thus so specialized, complex or unique that it can be performed only by an individual with at least a bachelor’s degree in early childhood education, elementary education, child psychology or a related field.

To strengthen the Response to RFE, I prepared and submitted a legal memorandum discussing how the petitioner met its burden of proof and how the preschool teacher position at this non-profit entity meets at least one of the remaining three criteria to be classified as a specialty occupation for H-1B status.

Citing to the support letters and preschool teacher job postings from other employers, I explained the bachelor’s degree requirement is common to the industry in parallel positions among similar organizations. By describing the accreditation application and curriculum development processes used by the petitioner, I further described why it normally requires a bachelor’s degree or its equivalent for the position and why the job duties are so specialized and complex that only an individual with the degree can perform them.

I also recommended we obtain an expert opinion report confirming the preschool teacher position is unique and requires at least a bachelor’s degree in a related specialty, despite the OOH indicating no such degree is typically needed to enter the profession. By contacting a reputable evaluation service, I was able to procure such a report from a qualified professor of early childhood education.

After submitting a timely Response to RFE, we filed a Form I-907, Request for Premium Processing Service, which requires USCIS to issue a decision (approval or denial), RFE, or Notice of Intent to Deny within 15 calendar days, or refund the processing fee.

Within a week, USCIS approved the H-1B cap-subject petition and granted the beneficiary a change of status from F-1/OPT to H-1B. Getting the H-1B petition selected in the lottery, plus ultimately receiving an approval brought relief and joy to both the petitioner and beneficiary, who continue to have an employer-employee relationship.

To date, under the Trump Administration, there has been no congressional changes in law related to H-1B petitions or H-1B visas. But on April 18, 2017, President Trump signed the Buy American and Hire American Executive Order, which seeks to create higher wages and employment rates for U.S. workers and to protect their economic interests by rigorously enforcing and administering U.S. immigration laws. It also directs DHS, in coordination with other agencies, to advance policies to help ensure H-1B visas are awarded to the most-skilled or highest-paid beneficiaries.

Data provided by USCIS shows that between January and August 31, the agency issued 85,000 RFEs related to H-1B visa petitions – a 44% increase over the same period last year.  Meanwhile, the total number of H-1B petitions received by USCIS during this same period rose by less than 3 percent.

An RFE is issued after USCIS receives the petition and the reviewing officer concludes there is insufficient evidence or information to approve the case. The maximum response time for the petitioner is 84 days (12 weeks), although in some cases an additional 3 days is given to account for mailing time. An RFE delays the H-1B decision by several weeks or months and increases stress for both the petitioner and beneficiary seeking the H-1B status or visa.

It is becoming more common for USCIS to issue RFEs on the basis that the proffered position is not a specialty occupation. In The New York Times article, Is Anyone Good Enough for an H-1B visa?, an op-ed contributor wrote that he received two RFEs on this issue prior to receiving an H-1B denial. He notes:

My two requests for evidence asked me to prove my job was a “specialty occupation” – that is, work that only someone with a bachelor’s degree or higher can do. My work involves artificial intelligence and big data, and my letters of support came from an authority in my industry and veteran start-up investor, and a Nobel Peace Prize winner. But it wasn’t enough to convince the government that my job requires advanced skills. 

Not only does the job have to require a bachelor’s degree, the degree must also be in a related speciality. With tougher scrutiny and higher obstacles being placed on H-1B petitions, it is especially important for petitioners and beneficiaries to hire experienced immigration counsel to advise them in the application process, from start to finish.

Each fiscal year, H-1B petitioners strive to file cap-subject petitions in early April to be counted in the annual lottery. Whether you plan to file an H-1B petition or have received an RFE or denial on an H-1B petition already filed, contact Dyan Williams Law to obtain a consultation or inquire about representation.

In a consultation or through representation, we will apply our breadth of experience, unique skills and creative thinking to help you resolve your situation to the fullest extent possible.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

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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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Adjusting to Permanent Resident Status Under INA 245(a): Bars, Exceptions and Exemptions

Section 245 of the Immigration and Nationality Act (INA) allows certain foreign nationals who are physically present in the U.S. to adjust to permanent resident status and avoid filing for an immigrant visa at the U.S. Consulate abroad.

But unless an exception or exemption applies, you are barred from filing for INA 245(a) adjustment if you are in unlawful immigration status at the time of filing a Form I-485 [INA 245(c)(2) bar]; you have violated the conditions of your nonimmigrant status or visa [INA 245c)(2) and INA 245(c)(2)(8) bars]; and/or you failed to maintain lawful nonimmigrant status when you would otherwise be eligible for employment-based immigration [INA 245(c)(7) bar].

Statutory Bars to Adjusting Status Under INA 245(a)

The bars to INA 245(a) Adjustment of Status (AOS) include the following:

1. You Are In Unlawful Immigration Status at the Time of Filing a Form I-485 Application: INA 245(c)(2) Bar

Under INA 245(c)(2), an INA 245(a) Adjustment of Status application will be denied if at the time of the Form I-485 filing, you are not in lawful immigration status. For purposes of the INA 245(c)(2) bar, lawful status includes nonimmigrants (e.g. B1/B2 visitor, F-1 student, H-1B professional worker); refugees; asylees; parolees; and foreign nationals in Temporary Protected Status (TPS​).

You are in unlawful immigration status if you have never had lawful status (e.g. entered the U.S. without inspection and admission or parole) or ​your ​lawful status ​has ended​ (expired or was rescinded, revoked, or otherwise terminated due to violation of nonimmigrant status or other reason).

Having authorized stay is different from having lawful immigration status. The timely filing of a pending application to extend or change status (Form I-129 or Form I-539), or a pending application for adjustment (Form I-485), generally provides authorized stay, but does ​not​ provide lawful immigration status.

​A person who has a timely-filed pending Extension of Status (EOS) or Change of Status (COS) application may file a Form I-485 application after his or her nonimmigrant status expires. But if USCIS denies the EOS or COS application, you are generally considered to be in unlawful immigration status as of the expiration of your nonimmigrant status and on the date the adjustment application is filed. The INA 245(c)(2) bar would then apply, unless an exemption is available.

2. You Failed to Continuously Maintain Status and/or Violated the Terms of Your Nonimmigrant Visa: INA 245(c)(2) and INA 245(c)(8) Bars

You are not eligible to file a Form I-485, Application to Register Permanent Residence or Adjust Status, under ​INA 245(a)​ if, other than through no fault of your own or for technical reasons,​you have ever:

Failed to continuously maintain a lawful status since entry into the United States. [You are barred from adjustment of status under INA 245(c)(2) if you are in unlawful immigration status on the date of filing the Form I-485 application.]

OR

Violated the terms of your nonimmigrant status​, such as worked without authorization. [You are barred from adjustment of status under ​INA 245(c)(8) not only if you violated the terms of your most recent nonimmigrant status, but also if you ever violated the terms of your nonimmigrant status at any time during any prior periods of stay in the U.S. as a nonimmigrant.​]

To be eligible for AOS, you only need to maintain your nonimmigrant status until you properly file a Form I-485 adjustment application with USCIS, ​so​ long as you do not engage in unauthorized employment after filing the adjustment application.​ But to protect yourself from being placed in removal proceedings if your Form I-485 is denied, you should continue to maintain your nonimmigrant status (e.g. H-1B) when possible.

When the ​INA 245(c)(2)​ and ​INA 245(c)(8) Bars May Be Excused

For purposes of ​INA 245(c)(2)​ and ​INA 245(c)(8)​, a failure to maintain lawful immigration status or violation of nonimmigrant status may be excused only for the specific period under consideration if: ​

a. The applicant was reinstated to F, M, or J status

If USCIS reinstates F or M student nonimmigrant status or if the U.S. Department of State reinstates J exchange visitor nonimmigrant status, the reinstatement only excuses the particular period of time the nonimmigrant failed to maintain status. The reinstatement does not excuse prior or future failure to maintain status.​

b. The applicant’s failure to maintain status was through no fault of his or her own or for technical reasons

The term  “other than through no fault of his or her own or for technical reasons”​ ​is limited to the following​ ​circumstances:​ 

  • Inaction of another person or organization designated by regulation to act on behalf of an applicant or over whose actions the applicant has no control, if the inaction is acknowledged by that person or organization.
  • Technical violation resulting from inaction of USCIS (e.g. USCIS failed to adjudicate a properly and timely filed request to extend or change nonimmigrant status).
  • Technical violation caused by the physical inability of the applicant to request an extension of nonimmigrant stay from USCIS in person or by mail.
  • Technical violation resulting from Legacy ​Immigration and Naturalization Service (​INS​)​’s application of the 5-​year​ or 6-year period of stay for certain H-1 nurses, if the nurse was re-instated to H-1 status as a result of the Immigration Amendments of 1988.​

c. The applicant was granted an extension of nonimmigrant stay or a change of nonimmigrant status.

The immigration officer will consider all your current and previous entries into and stays in the United States, including current and previous applications for extension of stay (EOS) or change of status (COS).

If USCIS approves a timely filed EOS or COS application, or excuses and approves an untimely filed EOS or COS application, the approval is effective as of the date of the expiration of the prior nonimmigrant status. In that event, you will be considered to have maintained lawful​ status ​despite the gap in time between the expiration of the prior nonimmigrant admission and the date of the EOS or COS approval.

3. You Are an Employment-Based Applicant Who Is Not in Lawful Nonimmigrant Status: INA 245(c)(7) Bar

If you are an employment-based adjustment applicant who is not in a lawful nonimmigrant status at the time of filing your Form I-485 application, you are barred from adjusting status under INA 245(c)(7). This bar does not apply if you were in a lawful nonimmigrant status at the time of filing for adjustment, subsequently left the United States, and returned using an approved advance parole travel document while the adjustment application remains pending. ​

For purposes of this bar to adjustment, the term “lawful nonimmigrant status” includes a foreign national in a lawful status classified under the nonimmigrant statutory provisions(e.g. B1/B2 visitor, F-1 student, H-1B professional worker) and a foreign national in Temporary Protected Status (TPS).

​Lawful nonimmigrant status does not include parolees, ​asylees​, or certain other foreign nationals who are otherwise authorized to stay in the United States. ​

Exceptions and Exemptions to the Bars to Adjusting Status Under INA 245(a)

The ​INA 245(c)(2)​, ​INA 245(c)(8), and INA 245(c)(7)​ bars to adjustment do NOT apply to: ​

  • Immediate relatives of U.S. citizens [spouses, unmarried children under 21 years of age, and parents (if the U.S. citizen is 21 years of age or older)]
  • ​Violence Against Women Act (VAWA) self-petitioners/VAWA-based applicants
  • ​Certain foreign doctors/physicians and their accompanying spouse and children​
  • ​Certain G-4 international organization employees, NATO-6 employees, and their family members
  • Special immigrant juveniles
  • ​Certain members of the U.S. ​armed forces​ and their spouse​s​ and children​
  • ​Employment-based applicants and eligible dependents in the 1st, 2nd, 3rd and certain 4th preference categories who meet the ​INA 245(k) exemption.
    • To qualify for the INA 245(k) exemption, the applicant must not have committed any of the following immigration violations for more than an aggregate of 180 days since the most recent lawful admission: ​failed to continuously maintain lawful nonimmigrant status; engaged in unauthorized employment;  or violated the terms of the nonimmigrant status.
    • With respect to the INA 245(k) exemption, the law counts only status violations and unauthorized employment since the applicant’s most recent lawful admission. Regardless of how long the immigration violations under INA 245(c)(2), INA 245(c)(7) and INA 245(c)(8) lasted, the applicant who leaves the  U.S. and is lawfully readmitted (and is an eligible employment-based adjustment applicant), may qualify for the INA 245(k) exemption as long as there were no violations totaling more than 180 days in the aggregate since the most recent lawful admission.

​Bars to Adjustment are Different from Grounds of Inadmissibility​

Bars to adjustment should not be confused with the grounds of inadmissibility listed in INA 212.

When you are inadmissible under section 212, you may not adjust status unless you qualify for a limited exception or unless a waiver of inadmissibility is available, you qualify for it, and it is granted to you. Inadmissibility grounds include health concerns (communicable disease of public health significance), criminal activity, national security, public charge, fraud and misrepresentation of material facts to gain immigration benefits, unlawful presence, and prior removals.

Consult an Experienced Immigration Attorney

Because there are various bars and inadmissibility grounds to prevent AOS, as well as exemptions and waivers available, you need to consult an immigration attorney before you file a Form I-485 application to adjust to permanent resident status.

To learn more, read our related article, Who is Eligible (and Not Eligible) for Adjustment to Permanent Resident Status? 

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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: Max Braun