New myE-Verify Features Announced by USCIS

Posted in myE-Verify, USCIS

myE-Verify is an all-encompassing program that allows employers and potential employees to utilize the same identity protection and employment eligibility verification features as E-Verify.  E-Verify is used by 600,000 employers to confirm employment eligibility of potential candidates and is web-based, created by the Department of Homeland Security.  myE-Verify allows all parties visibility into the E-Verify process.

U.S. Citizenship and Immigration Services (USCIS) announced on August 31, 2015 the launch of a Spanish-language myE-Verify website for its Spanish customers.  myE-Verify is free and secure, and allows U.S. employees and potential candidates to participate in the E-Verify process, including Self Lock, Self Check, Case History, Case Tracker, and the Employee Rights Toolkit.  In addition, the Spanish language myE-Verify will also have the following services that the English myE-Verify has had since 2014:

myE-Verify accounts:  These accounts allow employees and potential candidates in the U.S. to manage personal information that will be used in E-Verify and Self Check.  A person need only create a free and secure account.

Self-Lock:  This feature is available for myE-Verify account holders to lock their Social Security numbers in E-Verify to prevent their numbers from being used in E-Verify.

Self Check:  This tool allows individuals to confirm their employment eligibility by checking the same databases as E-Verify.

Resource Center:  This resource allows individuals to access information regarding their rights and the employer’s responsibilities during the eligibility verification process.

In addition to the above four resources, there will be two new services for both the English and Spanish language myE-Verify:

Case History:  myE-Verify account holders will be able to generate a report to access information regarding when their data was used in E-Verify.

Case Tracker:  Individuals will be able to track their E-Verify cases with a unique case number.  No account is necessary to utilize this feature.

Employers are reminded that myE-Verify cannot be used to verify an employee’s work authorization for employment purposes. Furthermore, employers cannot require employees to use this voluntary service.

Focus on the O-1 Visa for Immigrants in the Emerging Tech Space

Posted in Visas

Foreign-born entrepreneurs are critical to the advancement of the U.S. emerging technology industry.  There are a number of visa options, both immigrant and non-immigrant visas, available to entrepreneurs and investors in the emerging tech space (see my previous blog post “Visa Options for Immigrants in the Emerging Tech Space” outlining these).  This post will offer an overview of the O-1 visa, a non-immigrant visa.

There are two types of O-1 visas with the O-1A visa being reserved for those who can demonstrate extraordinary ability in the sciences, education, business, or athletics (the O-1B visa is reserved for individuals with extraordinary ability in the arts or extraordinary achievement in film or television).  Some of the most significant tech innovation is attributed to foreign nationals in the United States.  A foreign national who develops or invents new technology may be eligible for the O-1 visa based on their extraordinary abilities in science or business.

It is important to note the O-1A visa does not permit self-petitioning, rather an employer/US agent has to sponsor the foreign national.  In certain cases, if the foreign national entrepreneur owns and founded the company, the company may be able to serve as the O-1 visa sponsor without the restrictions commonly associated with the H-1B visa category.  This requires a very detailed and fact specific analysis.

Specific requirements exist in order to qualify for the O-1 visa.  The individual must demonstrate extraordinary ability by sustained national or international acclaim, and the individual must be coming to the United States to continue work in the same field.  The first question to enter a foreign national’s mind is: what is extraordinary ability?  The government defines extraordinary ability to  constitute those immigrants who are part of a small percentage of those who have risen to the very top in the field.  This is evidenced by satisfying the government criteria as set forth below:

A. Evidence of receipt of a major internationally recognized award (i.e.:  Nobel Prize), OR
B. Evidence of at least three of the following:

a. Receipt of (lesser) nationally or internationally recognized prizes or awards for excellence in the field
b. Membership in associations in the field which require outstanding achievements, as judged by recognized national or international experts in the field
c. Published materials about the individual and their work in the field
d. Original scientific, scholarly, or business-related contributions of major significance in the field
e. Authorship of scholarly articles in the field
f. Receipt of a high salary or other remuneration for services as evidenced by contracts
g. Participation on a panel , or individually, as the judge of the work of others in the field
h. Employment in a critical or essential capacity for organizations or establishment of distinguished reputation

The above listed criteria readily apply to an O-1A visa application in the emerging tech space.  Many technology innovators may be able to satisfy the following three criteria:  original scientific/business-related contributions of major significance; employment in a critical or essential capacity for organizations of distinguished reputation; and published materials about the individual and work in the field.  Additionally, foreign nationals in the emerging tech space may develop new technology that receives significant national or international recognition in the form of receipt of major awards or other prizes or awards recognizing excellence in the field.

The O-1 visa application requires a skilled immigration lawyer with an in-depth knowledge of both the visa requirements and how USCIS adjudicates the petition.  The O-1 is a non-immigrant visa, meaning it is intended for temporary stays in the United States.  If approved, the initial visa may authorize a period of stay up to three years.  An extension of stay may be issued by USCIS depending on the time necessary to accomplish the initial event or activity in increments of up to one year.  The O-1 visa holder may only engage in authorized employment pursuant to the terms proffered in the petition.

OCAHO Clarifies Meaning of “Independent Contractor,” Rejects ICE Interpretation of “Employee” for Form I-9 Compliance

Posted in Compliance

On August 14, 2015, the U.S. Department of Justice’s Executive Office for Immigration Review, Office of the Chief Administrative Hearing Officer (OCAHO) issued a decision clarifying the standard for “independent contractor” and rejecting ICE’s interpretation of “employee.” The case involved a U.S. Immigration and Customs Enforcement (ICE) complaint against a respondent who failed to present Forms I-9 for six individuals in response to a Notice of Inspection issued under the employer sanctions provision of the Immigration and Nationality Act (INA), as amended by the Immigration  Reform and Control Act of 1986 (IRCA), 8 U.S.C. § 1324(a)(2012). Specifically, in U.S.A. v. Saidabror Siddikov, Administrative Law Judge Ellen K. Thomas, pointedly noting that “we do not live in a binary world,” applied a variety of precedential and regulatory standards to conclude that the affected individuals could not be properly classified as “employees” of Saidabror Siddikov d/b/a Beyond Cleaning Services (BCS) because their work was not performed on BCS’ premises, took place independent of BCS and Mr. Siddikov’s control, and was not steady in nature, with all of the individuals treated as autonomous by the Respondent. Moreover, BCS and Mr. Siddikov did not provide the individuals’ supplies or equipment, did not determine their payment terms, and did not control the means and methods of their work. Furthermore, the individuals were not part of Mr. Siddikov or BCS’ normal business operations and were not economically dependent on his organization, as they either operated their own companies or otherwise provided their services to the general market. Thus, OCAHO concluded that Mr. Siddikov was not required to complete or produce Forms I-9 for the affected individuals, as they were properly considered “independent contractors” rather than “employees” of BCS.

Importantly, in explaining its decision, OCAHO applied a “totality of the circumstances” standard, noting that, under OCAHO case law, the determination of whether an individual qualifies as an “independent contractor” or as an employee requires a three-pronged analysis: 1) the regulatory criteria set forth in 8 C.F.R. § 274a.1(j); 2) OCAHO precedent; and 3) principles of agency law discussed in federal cases. To this end, among the factors contemplated under the applicable regulations for defining “independent contractors” are whether the individual supplies the tools and materials necessary to perform the work, makes services available to public, concurrently provides services to different clients, directs the order or sequence in which the work must be done, and determines work hours. C.F.R. § 274a.1(j) Similarly, OCAHO case law has held that, when an individual provides labor or services to a third party only and the putative employer lacks the authority to terminate or supervise the individual, or to determine the individual’s work schedule or working conditions, including work assignments, an employment relationship is not established. Finally, pursuant to the relevant common law standard, the key factor for determining who constitutes an “employee” is the hiring party’s right to control the manner and means by which the product is accomplished, subject to elements such as: the skills required to perform the work; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; the right of the hiring party, if any, to assign additional projects to the hired individual; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and compensating assistants; whether the work to be performed is part of the hiring party’s regular business; whether the hiring party is in business, and, finally, the provision of tax benefits and the tax treatment of the hired party. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-324.

 

Greenberg Traurig Attorney Kate Kalmykov Featured in Law360 Article on Tough AAO Odds Potentially Pushing More Immigration Fights To Court

Posted in Administrative Appeals Office

This article examines how Administrative Appeals Office handles a range of petition denial appeals, from applications to sponsor a foreign fiance to bids to bring over a temporary worker on an H-1B visa. However, according to statistics from U.S. Citizenship and Immigration Services, approval rates at the office are strikingly low, particularly when it comes to certain employment-related visa categories. According to Law360, the AAO is often reluctant to reverse denials for business immigration petitions. Shareholder Kate Kalmykov, along with several other expert attorneys, comments that refiling a case or heading to federal court is often a smarter choice, as judges may be more objective in weighing a case than AAO examiners. Kate states that taking the fight to court also frequently makes the government “much more willing to talk to you” and reach a settlement, even if the court doesn’t issue a ruling.

To read the full article, click here.

Department of State Update to the FAM with New I-20 and DS-2019 Forms

Posted in The Student and Exchange Visitor Information System (SEVIS), Uncategorized

On August 20, 2015, the U.S. Department of State (DOS) issued a cable regarding an update to the Foreign Affairs Manual (FAM) in connection with the recent release of the new Forms I-20 and DS-2019 for the Student and Exchange Visitor Program (SEVP).

Form I-20, the Certificate of Eligibility for Nonimmigrant Student Status, is required for F-1 and M-1 visa holders to study in the United States. Designated School Officials (DSOs) provide foreign national students with the Form I-20 after their acceptance into an SEVP-certified school; the form is required for the student to be able to pay his or her I-901 Student and Exchange Visitor Information System (SEVIS) fee, to apply for the F or M nonimmigrant visa at the U.S. Embassy or Consulate abroad, to enter the United States as an F or M nonimmigrant, and more.

The new Form I-20 released on June 26, 2015 has been modified primarily in the labeling of mandatory name fields and display, including making the visa class, SEVIS ID number, and school and program of study more visible, and more clearly reflecting information related to dependents and employment authorization. U.S. Immigration and Customs Enforcement offers a Fact Sheet (with sample) on the Redesigned Form I-20.

Form DS-2019, the Certificate of Eligibility for Exchange Visitor (J-1) Status, is required for J-1 visa holders (their dependents receive Forms DS-2019 for J-2 Status) to participate in the exchange visitor program in the United States. Designated sponsors issue the Form DS-2019 to J-1 candidates after they have been selected for participation in the program. Like the Form I-20 for students, the Form DS-2019 is required for J visa holders to pay the SEVIS fee, to apply for the J nonimmigrant visa at the U.S. Embassy or Consulate abroad, to enter the United States, and more (for example, spouses of J-1 visa holders with J-2 visas should submit copies of their and the J-1 holder’s Forms DS-2019 when applying for an Employment Authorization Document).

The new DS-2019 released on June 26, 2015 contains minor changes compared to its previous version. Modifications were made regarding the way the J program participant’s names are labeled (e.g. now “Surname/Primary Names” is requested rather than “Family Name”) and signature instructions for J-2 beneficiaries.

According to the DOS cable, 9 FAM was updated on June 24, 2015 to include a sample new Form I-20 as Exhibit I in 9 FAM 41.61 and a sample new Form DS-2019 as Exhibit I in 9 FAM 41.62. Consular officers adjudicating F, M, and J visa applications can still accept the previous versions of the forms if issued on or before June 26, 2015. However, beginning July 1, 2016, only the new forms will be valid for such visa applications.

Students and exchange visitor program participants should remain in close contact with their DSOs and sponsors respectively to ensure they have the correct versions of the forms they need.

 

 

BALCA Reverses PERM Denial, says Employer Complied with Supervised Recruitment Instructions

Posted in BALCA, Compliance

In Matter of SDG Post Oak, the employer was issued a notice of supervised recruitment by the Atlanta National Processing Center (ANPC). After the draft recruitment was approved by the ANPC, the employer placed an online advertisement on online job listing forums. The duty requirement field of the advertisement properly listed the minimum experience as six months, but the experience field which also served as the header of the advertisement mistakenly listed \ 1-2 years of experience required, per the website’s sole publisher selection. The Certifying Officer (“CO”) denied certification stating that the minimum requirements exceeded the requirements entered on the application form by the Employer.

After the Employer’s request for reconsideration, the CO reviewed and reaffirmed the denial upholding that the Employer had the opportunity to review the advertisement before its publication. In addition, the CO argued that U.S. citizens who could have been qualified may not have read the entirety of the advertisement due to the header listing the experience requirements as 1-2 years, and consequently may not have applied to the position.

The Board of Alien Labor Certification Appeals (“BALCA”) found that the Employer showed by preponderance of evidence that it had no control over the information listed in the header of the advertisement, and that it did not have an opportunity to proofread the advertisement before it was published by the website. In addition, the body of the ad fully incorporated the exact minimum requirements and experience for the position. Further, BALCA stated that “the error was not sufficient to reasonably conclude that job seekers would have been discouraged from applying for the job”.

BALCA held that it would be “fundamentally unfair” to deny the certification in these circumstances. This is yet another case following a string of pro-employer BALCA decisions that were issued last week.

The New Standard – USCIS Releases its Final L-1B Policy Memo

Posted in USCIS

Not wanting to let Hollywood have all of the fun this summer, U.S. Citizenship and Immigration Services (USCIS) recently released its blockbuster in the version of a highly anticipated (at least for us) L-1B Adjudication Policy Memorandum. In late March of 2015, USCIS released a draft Policy Memorandum, which we discussed here, and accepted feedback for the L-1B Policy Memo until May 8, 2015. USCIS released the final version of the L-1B Policy Memo on August 17, 2015, which “supersedes and rescinds” various L-1B memoranda promulgated by USCIS since 1994. Below, we again provide some background on the L-1B visa, and examine how the new L-1B Policy Memo influences the current state of this “specialized” visa category.

Background

The L-1 visa, also known as the intracompany transferee visa, is a nonimmigrant visa classification that allows companies to transfer employees from a related foreign entity to a U.S. company. This visa category has two formats: the L-1A visa for transfer of Executive and Managerial personnel and the L-1B visa for transfer of specialized knowledge personnel.

To qualify for an L-1B visa an employee must possess, among other things, “specialized knowledge.” USCIS regulations define specialized knowledge as “special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.”  Many of the issues in current L-1B adjudications surround how this definition is applied in practice, and what a USCIS officer will actually consider to be “specialized.” The L-1B Memo provides some clarification on this point, which we discuss below.

The burden of proving that an individual has specialized knowledge, and further proving that the individual will use that knowledge in the U.S. role, rests solely on the petitioning company. This is a challenging process as USCIS officers often have little or no knowledge of the company’s operations and what knowledge may be specialized in their particular industry. As indicated in the L-1B Policy Memo, the legal standard for the L-1B visa remains the same as before—the petitioning company must establish by a preponderance of the evidence that the company meets each eligibility requirement of the L-1B visa category.

Notable Points in the L-1B Policy Memo

The grand purpose of the L-1B Policy Memo is to provide clearer guidance to USCIS officers when reviewing L-1B petitions. “This memorandum provides guidance to officers in adjudicating petitions filed by employers seeking to transfer ‘specialized knowledge’ personnel to the United States.” The L-1B Policy Memo also seeks to remind these officers that Congress created the L-1B visa category to enable employers to more quickly and effectively transfer key personnel within their organizations to foster the growth and competitiveness of U.S. businesses, and that effort should be made by USCIS to further rather than restrict this purpose.

Specifically, the L-1B Policy Memo provides some clarification of the definition of “specialized” or “advanced knowledge.”  The L-1B Policy Memo establishes that for knowledge to be “specialized,” the knowledge must be “distinct or uncommon” in comparison to that normally found in the employer/industry. Knowledge that is commonly held, lacking in complexity, or easily imparted to other individuals will not be considered “specialized.”   Further, the L-1B Policy Memo allows for the possibility where all of a company’s employees may possess “specialized knowledge”—particularly when these employees work on technologies or techniques that are so advanced or complex—thereby repudiating the common (mis)perception that an L-1B warrants a denial if other employees with similar knowledge exist within the company. Finally, proprietary or unique knowledge possessed by the individual of the petitioner company’s products, services, research, equipment, techniques, management, or its application in international markets, is not required to satisfy the L-1B standard, though, in practice, we often see USCIS demand this sort of evidence.

To be “advanced,” the knowledge must be “greatly developed or further along in progress, complexity and understanding” than generally found within the employer. Finally, for both “specialized” or “advanced,” there must be a comparison of the beneficiary’s knowledge against that of other workers.

Factors USCIS will consider in determining whether a beneficiary’s knowledge is specialized include:

  • Whether the beneficiary possesses knowledge not generally found in the industry or the petitioning organization’s U.S. operations.
  • Whether the beneficiary possesses knowledge that is particularly beneficial to the employer’s competitiveness in the marketplace.
  • Whether the beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the employer’s productivity, competitiveness, image, or financial position.
  • Whether the claimed specialized knowledge normally can be gained only through prior experience with that employer.
  • Whether the beneficiary possesses knowledge of a product or process that cannot be easily transferred or taught to another individual without significant economic cost or inconvenience (because, for example, such knowledge may require substantial training, work experience, or education).
  • Whether the beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily unique to the firm.

The L-1B Policy Memo reiterates that satisfying just one of the factors listed above may be enough to establish by preponderance that an employee has specialized knowledge. While satisfying just one factor is enough to warrant a favorable decision from USCIS, we rarely see such a liberal reading of the L-1B criteria from USCIS in practice. Employers should try to satisfy as many factors as possible to have the best chance of approval by USCIS.

Finally, the L-1B Memo also addresses offsite L-1 employment, where an employee works at non-employer worksite. It re-affirms the two prong test stated in the L-1 Visa Reform Act: (1) the beneficiary is not “controlled and supervised principally by the unaffiliated employer,” and (2) the beneficiary is “placed in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.”  Employers should be sure to address these two prongs for any offsite L-1s petitions. Employers should also be aware of and avoid any co-employment challenges, such as where the non-affiliated employer provides guidance and direction to the L-1, provide an email address to the L-1, invites the L-1 to company parties, etc., particularly during a year when 30,000 unannounced H-1B and L-1 employer site visits by USCIS officers are expected.

What This Looks Like in Practice

Overall, the L-1B Policy Memo reads as a welcomed reboot of an overly-worked visa category that has been saddled with USCIS-issued memoranda that confuse more than clarify. The L-1B visa category was created to promote flexibility for U.S. companies in an increasingly globalized and dynamic marketplace. Like the L-1B visa category, the L-1B Policy Memo seeks to provide flexibility to petitioning companies as to how they can show, by a preponderance of the evidence, that an employee possesses specialized knowledge.

How this Memo will impact USCIS officers’ adjudication of L-1B petitions remain to be seen. Currently, petitioning employers are receiving Requests for Evidence on a majority of L-1B filings, even L-1B extensions, requesting an overwhelming number of items and supporting documents to show that the sponsored employee possesses specialized knowledge. For the foreseeable future, petitioning companies should expect to see similar requests from USCIS challenging L-1B visa petitions until USCIS has had the time to train their officers on key points detailed in the L-1B Policy Memo. Until USCIS officers sync their adjudication efforts with the L-1B Policy Memo, companies should file L-1B petitions under the Corporate Blanket L (which is done at a U.S. Consulate or Embassy abroad) where possible, or avoid L-1Bs altogether and pursue alternative nonimmigrant visas such as H-1B, TNs, O-1s, etc., or choose to transfer the employee to another country.

 

 

Recent and Important BALCA Decisions for Employers

Posted in Compliance

The Board of Alien Labor Certification Appeals (“BALCA”) recently issued two decisions employers should note. First, in Matter of Mphasis Corporation, BALCA reversed a denial of a PERM labor certification issued by the Certifying Officer (“CO”) on the grounds that the Employee Referral Program (“ERP”) recruitment step was properly started. The underlying challenge was the ERP start date listed on the Form 9089 reflected a date not covered by the Prevailing Wage Determination (“PWD”). In a second case, Matter of Kams Automotive, Inc., BALCA upheld the denial issued by the CO due to a typographical error on Form 9089.

  1. In Matter of Mphasis Corporation, the Employer used its internal ERP as the first recruitment step for the PERM process. The CO denied certification holding recruitment did not begin during the validity period of the PWD. The matter was forwarded to BALCA after the CO reconsidered and denied the Employer’s request for reconsideration/review. In its decision, BALCA found that the determining factor in assessing when the ERP first recruitment step has begun is when the company’s employees are informed that a vacancy exists and can make a referral for the position. Should an employer have a pre-existing ERP in place, then the start of that particular recruitment step must be calculated from the date the employees learn about the vacancy. In general, this can be done through an internal posting on the employer’s website, or through the Notice of Filing.  This pro-employer decision gives companies the ability to utilize pre-existing ERPs as a viable PERM recruitment method.
  2. In Matter of Kams Automotive, Inc., the Employer erroneously provided an inaccurate expiration date of the PWD listing a date beyond the one-year maximum allowed by the regulations. BALCA held that any modification to PERM applications filed with the U.S. Department of Labor (“DOL”), even those that are minor or immaterial, is prohibited by the regulations. BALCA reiterated that this regulation includes the correction of harmless or obvious typographical errors. This decision reaffirms that employers have no margin of error when filing PERM applications and should ensure in-depth reviews of PERM applications are performed before submission to the DOL, which BALCA translated as a “letter-perfect application”. Interestingly, BALCA also stated that “were it not for the regulation 20 C.F.R. § 656.11 (b), we would not hesitate to vacate the denial,” implying that a regulatory change is required before BALCA can act in the alternative. These two cases follow a string of pro-employer BALCA decisions that were issued last week.

 

U.S. Customs and Border Protection Proposes New Biometric Identity Collection Program

Posted in U.S. Customs and Border Protection (CBP)

As published in the Federal Register today, the U.S. Customs and Border Protection (CBP) is requesting comments on the introduction of a newly developed biometric-based entry and exit program.

This program will be applied to non-exempt non-U.S. citizens entering and exiting the United States. According to the CBP, the purpose of this national security measure is to ensure non-U.S. citizens’ identity and to ascertain their admissibility in the United States. The system will capture biometrics including digital fingerprint scans, photographs, facial images and iris images, or other biometric identifiers. The notice does not refer to any of the technology details supporting the system. The existing biographic collection process used by CBP doesn’t capture facial and iris images.

The notice is open for written comments from federal agencies directly affected by the program and from the general public, which can be submitted to the CBP on or before October 19, 2015. The proposed biometric identity collection program will subsequently be submitted to the Office of Management and Budget for approval.

August 2015 Monthly AILA Check-In with Charlie Oppenheim

Posted in U.S. Department of State ("DOS"), Visa Bulletin

Charles Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State, held his monthly meeting with AILA to shed light on the data in the recently-released September Visa Bulletin.  Among the highlights of meeting are the following:

  1. China/India EB-2 Retrogression.  As GT discussed previously here, EB-2 for India and China retrogressed significantly. According to Mr. Oppenheim, fewer EB-1 numbers and increasing worldwide demand required action to limit EB-2 for China and India. However, Mr. Oppenheim expects each country to advance in October when the U.S. government’s 2016 fiscal year begins.
  2. Use of all Visa Numbers. Mr. Oppenheim stated he believed that all visa numbers in all categories will be exhausted by the end of the fiscal year, due to the large demand from Indian EB-3 applicants.
  3. Visa Modernization. Mr. Oppenheim stated the trend towards aggressive cut-off date movements for certain categories earlier in the U.S. government’s fiscal year would continue. Mr. Oppenheim noted that advancement of a category earlier in the U.S. government’s fiscal year may cause “negative consequences” during the final quarter of the U.S. government’s fiscal year when fewer numbers are available. However, Mr. Oppenheim indicated that other options are being explored, and once those options are refined, the plans will be made public.

 

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