USCIS Interim Policy Memorandum Addressing L-1B Adjudications to Become Effective August 31, 2015

L-1 Visa Background Information

L-1 visas are non-immigrant visas specific to the employees of multinational corporations. These visas provide a means to transfer employees currently working for the company abroad to an affiliated U.S. operation. L-1A visas allow higher-level employees such as executives and managers to transfer to a U.S. company. The L-1B category encompasses other current employees who hold “specialized knowledge” in the field or of the company.

The L-1 visa program began in 1970 to further U.S. business interests by expanding the limited options available to bring workers from the international business community stateside. The requisite “specialized knowledge” was not explicitly defined, however, until the Immigration Act of 1990. Since 1990, USCIS has issued several policy memoranda to clarify the specific criteria required to demonstrate specialized knowledge. Each of these memos sought both to clarify the evidence that a petitioner needs to present, and to reflect more clearly the congressional intent of the L-1 visa program. In creating the L-1 program, Congress sought to “promote the United States as a global business destination” by facilitating international business through the expansion of opportunities for foreign nationals to work for their international company within the United States.

Contrary to the intent of Congress to increase international business, and efforts by USCIS to clarify the L-1B adjudication process, petition denial rates skyrocketed from six percent in FY2006 to thirty-five percent in FY2014. While a confluence of factors likely contributed to this pattern, in November of 2014, President Obama’s vowed that a final memorandum that would clarify L-1B decision-making and help rectify the issue as part of his executive actions on immigration. It has been the hope of stakeholders that new guidance would finally provide predictability to the adjudication process.

USCIS’s Latest L-1B Policy Memo

USCIS posted their Interim Policy Memorandum on L-1B Adjudications Policy on March 24, 2015 (Memo). A period of feedback on the proposed changes was open to stakeholders until May 8, 2015. USCIS is currently taking feedback under advisement, and the Memo, as published or possibly incorporating suggested changes, will go into effect August 31, 2015.

The Memo seeks to clarify the following in respect to L-1B claims: the applicable standard of proof; the elements necessary for approval; the definition of and evidence determining specialized knowledge; factors to be considered in corroborating proof of specialized knowledge; and how qualifying employment (both regular and offsite) can be demonstrated.

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Update on DAPA and Expanded DACA

In November of last year, President Obama announced a series of immigration policy changes.  Many of the changes, relating primarily to employment-based immigration, were uncontroversial and are going forward as planned.  For example, the administrative process for granting permanent residency (“green cards”) for certain workers is being streamlined to avoid backlogs in processing these applications.  In addition, the President directed USCIS (United States Citizenship and Immigration Services) to issue a memorandum clarifying what types of “specialized knowledge” applicants for L-1B nonimmigrant petitioners need to demonstrate.

Two of the provisions announced in November have met significant opposition.  The first is the expansion of DACA, or Deferred Action for Childhood Arrivals.  DACA currently allows non-citizens who were brought to the United States as children, and who meet all other program requirements, to be granted lawful presence in the U.S. for a renewable period of two years.  Being granted DACA allows the recipient to live without fear of removal, and makes work authorization available for the two-year period.  The expansion of DACA would increase the renewable time period of lawful presence to three years.  It also seeks to eliminate the requirement that the candidate be born before June 15, 1981, thereby enlarging the pool of eligible applicants.  It is important to note that under neither form is DACA a grant of lawful permanent residence or “asylum” of any kind.

The Executive Action also created a new program, entitled Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA (initially called Deferred Action for Parental Accountability).  DAPA would also grant lawful presence and eligibility for work authorization for up to three years, but to parents of U.S. Citizen or Lawful Permanent Resident children.  The qualifying son or daughter must have been born on or before November 20, 2014, when the announcement was made, and the parent must have been continuously present in the United States since before January 1, 2010.  As with DACA, other qualifications apply, including successful completion of a background check.  It is estimated that over four million people qualify to receive DAPA benefits.

The States Respond

Within hours of President Obama’s announcement last November, Maricopa County, Arizona Sheriff Joe Arpaio challenged the President’s plan to defer deportations in a Washington, D.C., federal court, in a case named Arpaio v. Obama. The Washington, D.C. federal court promptly dismissed Sheriff Arpaio’s lawsuit. That decision is currently on appeal.

Shortly thereafter, representatives of 17 states filed a similar case in a Brownsville, Texas, federal court, with 9 other states later joining the lawsuit, in a case named Texas v. United States. The states sought an injunction to stop the implementation of DAPA and the DACA expansion.  Texas based its standing to challenge the policy on the alleged harm the state and its citizens would suffer if DAPA were put into place.  Texas currently uses taxpayer funds to supplement the cost of issuing driver’s licenses.  The theory was that since DAPA would entitle recipients to obtain licenses, Texas would either have to spend millions of dollars subsidizing licenses for non-citizens, or completely restructure their fee system.  The court agreed this was a specific potential harm that qualified the petitioning states the power to bring the suit against the federal government.

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Same-Sex Marriage and Immigration

On Friday, June 26, 2015, the U.S. Supreme Court ruled in the case Obergefell v. Hodges that same-sex marriage is now legal nationwide.  The below article was written prior to the issuance of this decision and will be updated accordingly to reflect the current state of the law. 

Like many areas of law, immigration is dynamic.  U.S. Citizenship and Immigration Services (USCIS) monitors relevant case law and makes changes to immigration policy accordingly.  Same-sex couples have made significant legal strides in the past decade, and these victories are reflected in current USCIS policy.  It is crucial that anyone with immigration issues who is in a same-sex relationship finds an attorney who understands how LGBT (lesbian, gay, bisexual, and transgender) immigrants and their partners are affected by new regulations and procedures.

A Brief History of Immigration Law for LGBT People

LGBT foreign nationals were considered excludable from the U.S. on medical grounds until 1991. This was due to the historical classification of homosexuality as a mental illness.  The psychological and medical fields evolved and changed their stance, and public acceptance of homosexuality as a normal human variation has followed.  From the mid-1990s, individual states began allowing same-sex marriage or alternatives like domestic partnerships or civil unions.

Until recently, same-sex couples were unable to utilize their marital relationship as the basis for applying for immigration benefits, even if they were married abroad or in a state where the marriage was legal.  Under the 1996 Defense of Marriage Act (DOMA), the federal government was prohibited from recognizing same-sex marriages for federal programs like Social Security benefits or income taxes. This prevented USCIS from considering a same-sex spouse as an immediate family member for immigration purposes.  Similarly, any immigration benefit that would normally be derivatively available to the spouse or children of a nonimmigrant or an immigrant visa applicant was withheld from same-sex couples.  Immigration benefits were also denied for the step-children of same-sex partners.

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Green Card Through Marriage

Obtaining Permanent U.S. Residence Through Marriage

When a United States Citizen (USC) or Lawful Permanent Resident (LPR) marries a resident of another country, the foreign spouse can typically receive a Green Card, granting him or her permanent U.S. residence. In order for the foreign spouse to receive LPR status, the couple must follow the proper procedures, and the foreign spouse must meet certain qualifications. Obtaining a visa and LPR status through marriage has great advantages, one being the absence of statutory limitations (or caps) on the number of these visas that will be issued to immediate relatives each year. Immediate relatives are the spouses, parents and unmarried children under the age of 21 of U.S. citizens. A spouse of a LPR and any unmarried children under the age of 21 are subject to the annual visa cap and may qualify for a Green Card once a visa becomes available to them in the family-based second preference group.

Valid Marriages for Obtaining LPR Status

A couple may marry within the United States or abroad, so long as the marriage is legal and valid where it occurred, and is a type of marriage that U.S. Citizenship and Immigration Services (USCIS) will recognize.   Ultimately, the couple will need to demonstrate theirs is a bona fide marriage; not one entered into for the purpose of obtaining immigration benefits. The application process varies depending on whether the foreign spouse is already in the U.S. or needs a visa in order to travel here. In either scenario the USC or LPR must begin the process by filing an I-130 Petition for Alien Relative with USCIS.

Generally approval of the I-130 requires the petitioning USC or LPR spouse to provide by a “preponderance of the evidence” indications of a valid marriage, including (but not limited to) proof that:

  • The petitioner is a U.S. citizen or qualifying LPR;
  • Any previous marriages of petitioner and beneficiary (foreign spouse) have been legally dissolved; AND
  • Any and all evidence tending to demonstrate the marriage is bona fide and valid, including items such as: the marriage certificate, leases or bank accounts held jointly by the couple, affidavits of friends and family members attesting to the validity of the marriage, photos and evidence of a typical marital relationship, etc.

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Students & Cap-Gap Protection

Since 2008 an F-1 student who has a pending H-1B application at the United States Citizenship & Immigration Services (USCIS) to change status from a student to a professionally skilled worker will be able to automatically extend his/her lawful status until October 1 of the fiscal year for which H-1B status is being requested.  The same is true for students who have been granted optional practical training (OPT) and may continue to remain in the United States and work should their OPT expire before October 1.  Those students who have not been granted OPT will have lawful status to remain in the United States but will not be able to work until their H-1B application has been approved.

For this rule to apply the H-1B application must have been properly filed with USCIS, which means the change of status application was filed during the H-1B acceptance period, while the student’s authorized duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the “grace period”).  An application is generally considered “filed” once it is accepted by USCIS. In the context of the H-1B lottery, the petition may have been submitted on April 1, but it will not be accepted for processing until after the H-1B lottery has been conducted some weeks later. If the H-1B petition is rejected, denied, or revoked, the automatic extension of status and work authorization will immediately terminate.

 

Using the B-1 Visa in Lieu of the H-1B Visa: Pros and Cons

Normal H-1 requirements:

The H-1B visa is issued to those skilled foreign workers who have a bachelor’s degree or higher in the specialty occupation for which they are being issued the visa.[1] US employers sponsor the foreign worker and file a labor condition application (LCA) with the U.S. Department of Labor, and the employer  makes several attestations in the LCA, mainly the following: the H-1B worker is being paid the same wage as U.S. workers who have similar experience and qualifications for that specific employment;  employment of the non-immigrant does not adversely affect working conditions of other workers similarly employed;, and notice of filing the application was provided to workers employed in the occupation at the place where the H-1B worker would be employed.[2]

Problems with H-1 visa:

Practitioners and applicants for the H-1B visa find that the most salient problem with the H-1B visa filing is the annual cap. Currently, the visa cap is set at 65,000, with an exemption for 20,000 nonimmigrants who hold master’s degrees or higher.[3]  The problem is that the number of applicants greatly outstrips the number of available visas, often resulting in the visa cap being filled on the very first days when filings are accepted.[4]

Therefore, potential H-1B applicants may try to explore alternative methods to enter or stay in the US, without having to deal with the visa cap. One possibility is that worker may come to the US under a B-1 visa. However, this approach is somewhat controversial and not yet widely accepted or understood within the different the government agencies.  Consular posts may not know how to properly adjudicate these applications and even if granted, foreign nationals may encounter problems at the port of entry when the Customs and Border Patrol (CBP) officers are not willing to grant them admission.  The United States Citizenship & Immigration Services (USCIS) and its predecessor, the legacy Immigration and Nationality Services (INS), have traditionally been hostile to this visa category and viewed it with much skepticism.  Therefore, employers and foreign nationals wishing to pursue this visa option should understand the requirements and proceed with caution.

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Naturalization 101

NATURALIZATION AND REMOVAL

When a non-citizen wants to become a United States citizen, that person must undergo a process known as naturalization. There are many benefits in becoming a U.S. citizen. A U.S. citizen can travel more freely; he can vote; and he can apply for more jobs, including government positions. Citizens are more eligible to apply for public benefits such as full Social Security, Supplemental Security Income, food stamps, and have access to certain loans, mortgages and scholarships. Finally, U.S. citizens would not be subject to deportation or removal proceedings.

WHAT IS REQUIRED FOR SOMEONE TO BECOME NATURALIZED?

An immigrant must be older than 18, be a permanent resident for 5 years (or 3 years for those who have gained permanent residency through a U.S. spouse), demonstrate good moral character, prove continuous residence and physical presence in the U.S., and be able to read, write and speak basic English (this last requirement may be waived in certain cases such as if the person has a permanent impairment that prevents them from being able to learn and understand English). In addition, the permanent resident must file an N-400, undergo an interview, pass a civics and ethics test, and take the Oath of Allegiance to the United States.

WHEN IS NATURALIZATION NOT THE BEST OPTION?

Naturalization may not be the best course for every permanent resident. The naturalization application is usually the last time for the immigration officials to review the immigrant’s case and determine both whether the person is eligible to naturalize and whether he is eligible to stay in the United States. Any inconsistencies in the naturalization application, such as evidence of immigration violations, criminal conduct or abandonment of his permanent residence status, may actually subject the immigrant to removal proceedings. Someone who is interested in becoming a U.S. citizen but is not sure of his eligibility should consult with an immigration attorney.

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EB-5 Investor Visa Overview

Twenty two years ago, the United States began to allow investment-based immigration to the US. Investment-based immigration occurs through the EB-5 visa program, which grants conditional permanent residency to immigrants and their families over a two-year period. The immigrant investor must 1. invest $1,000,000 in a new commercial enterprise in the United States, 2.create or preserve at least 10 full-time jobs for qualifying US workers via that enterprise and 3. maintain that business for two years.

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