TABLE OF CONTENTS BUSINESS IMMIGRATION: LAW & PRACTICE VOLUME 2

Transcription

1 TABLE OF CONTENTS BUSINESS IMMIGRATION: LAW & PRACTICE VOLUME 2 ABOUT THE AUTHORS... xix PREFACE... xxii ACKNOWLEDGMENTS... xxiv TABLE OF DECISIONS TABLES OF STATUTES AND CITATIONS SUBJECT-MATTER INDEX CHAPTER ONE: BASIC IMMIGRANT VISA CONCEPTS... 1 I. Numerical Limitations of Immigrant Visa Numbers... 2 A. Per-Country Limitations and Chargeability... 3 B. Preference System... 5 C. Cross-Chargeability... 7 II. Priority Dates... 9 A. Visa Bulletin B. Priority Date Retention C. Priority Dates for Derivative Beneficiaries III. Immigrant Visa Retrogression IV. How IVs Are Allocated A. Allocation of IVs for Applications to Adjust Status Filed with USCIS B. Recapture of Unused IVs V. Derivative Beneficiaries VI. Child Status Protection Act A. Sought to Acquire B. Age Calculation Example C. Availability of CSPA Protection Based on Effective Date CHAPTER TWO: THE LABOR CERTIFICATION APPLICATION I. Executive Summary A. Checklist of Requirements B. Documents Necessary to Prepare the Petition C. Checklist of Questions to Ask the Client II. Introduction III. Requirements and Interpretations A. Full-Time Employment B. Permanent Employment C. U.S. Employer D. Employer Attestations Other Potential Obligations E. Professional and Nonprofessional Occupations F. Applicants vii

2 viii BUSINESS IMMIGRATION: LAW & PRACTICE, 2ND ED. G. Job Requirements Identifying the Position for Which to Request Labor Certification a. Job Title b. Multiple Openings Actual Minimum Requirements a. Employer s Previous Hiring Practices b. Foreign National s Background Normal Requirements a. Determining the SVP and Job Zone b. Qualifications Possessed by the Foreign National Beneficiary at the Time of Hire c. Infeasibility to Train a U.S. Worker d. Not Substantially Comparable Position (1) Substantive Differences Between Positions (2) Previous Standard (3) Related Entities Historically Imposed Requirements and a Change in Condition to Justify New Job Requirements Articulating Minimum Job Requirements a. Types of Specificity in Experience and Education Requirements b. No Grocery List or Tailoring of Requirements c. Requirements That Are Already Included d. Knowledge or Familiarity Requirements e. Subjective Requirements f. English Fluency g. Experience Gained with Related Entities h. Tension with Traditional Hiring Practices Alternative Job Requirements and Kellogg Language H. Bona Fide Job Opportunity I. Prevailing Wage Determination All Other SOC Categories Combination of Occupations Area of Intended Employment Sources for Prevailing Wage Determinations PWD for Employees of Academic, Nonprofit, or Tax-Exempt Organizations Appeal of PWDs Payment of PW When the Foreign National Obtains Permanent Residence J. Mandatory Recruitment Efforts The 30-Day Job Order Print Advertisements a. Where to Advertise b. Content of Advertisement c. Evidence of Advertisements Notice of Filing a Labor Certification Application a. Stating the Address of the Certifying Officer in the Notice b. In-House Media Three Supplemental Forms of Recruitment a. Timing Considerations b. Employer Website c. Job Search Website d. Employee Referral Program

3 VOL. 2: TABLE OF CONTENTS ix e. Trade or Professional Organization f. Private Recruiting Firm g. Local or Ethnic Newspaper h. Radio or Television Advertisements i. Job Fairs j. On-Campus Recruiting k. Campus Job Placement Office K. Consideration of U.S. Worker-Applicants Day Quiet Period Good Faith Efforts Résumé Review and Contact with Potentially Qualified Applicants Timely Contact Documenting Contact with Applicants and Use of Certified Mail, Return Receipt Requested Interviewing Applicants a. Technical or Performance Tests and Questionnaires Lawful Rejection of U.S. Applicants a. Unqualified Applicants (1) Subjective Reasons (2) Overqualification b. Unable Applicants c. Unwilling and Unavailable Applicants Recruitment Report Layoff Provisions L. Audits Notification of Audit Consequences of Failing to Respond to an Audit Responding to the Audit a. Documents for the Audit Response b. Independent Evidence M. Document Retention Requirements N. Role of Attorneys, Agents, and Authorized Representatives in the Labor Certification Process O. Prohibitions on Purchase, Barter, or Sale of Labor Certification Applications and on Fee Payments by Beneficiaries P. Enforcement Actions Supervised Recruitment a. Recruitment Steps b. Recruitment Report c. New Attorney or Agent After Supervised Recruitment Is Required Investigation Suspension Debarment IV. Managing Client Expectations: Common Issues, Increased Scrutiny, and Special Processing A. Timing Considerations for Preparing and Filing a Labor Certification Application B. Restrictive Requirements and the Business Necessity Justification Exceeding the SVP or Job Zone a. Responding to the Audit Foreign Language Requirement

4 x BUSINESS IMMIGRATION: LAW & PRACTICE, 2ND ED. 3. Combination of Occupations Professional Certifications Home Office, Telecommuting, and Roving Employees C. Immigrant Visa Classifications Based on Labor Certification Applications: EB-2 vs. EB D. Documenting That the Foreign National Meets the Minimum Requirements Educational Degrees and Credentials Evaluation Experience Letters Licensure and Certification E. Certain Clerical Errors on Labor Certification Applications F. Influence and Control by the Foreign National Beneficiary and Related Business Entities G. The Beneficiary Lacks Valid Immigration Status H. Domestic Employees Common Issues a. Motive for Mischaracterization of the Job s Minimum Requirements b. Business Necessity Justification for a Live-In Requirement Documents to Respond to an Audit a. Business Necessity Justification for a Cooking Specialization V. Special Procedures A. College and University Teachers Alternative Recruitment Requirements The U.S. Worker Must Be Equally Qualified as the Foreign National Beneficiary Managing Client Expectations B. Professional Athletes VI. Process A. Prevailing Wage Determination Parts A Through C Part D Part E a. Job Description b. Minimum Job Requirements c. Place of Employment B. Labor Certification Application ETA Form Filing and Processing of the Labor Certification Application a. Signatures on Filed Applications b. Filing by Mail Registering with the Online System Completing ETA Form a. Section A Refiling Information b. Section C Employer Information (Headquarters or Main Office) c. Section D Employer Point of Contact Information d. Section E Attorney or Agent Information e. Section F Prevailing Wage Information f. Section G Wage Offer Information g. Section H Job Opportunity Information (1) Primary Requirements (2) Alternative Requirements (3) Job Duties (4) Special Skills or Other Requirements

5 VOL. 2: TABLE OF CONTENTS xi (5) Other Requirements and Business Necessity h. Section I Recruitment Information (1) Occupation Type (2) Professional/Nonprofessional Information (3) Additional Recruitment Steps for Professional Occupations (4) Subsection g: General Information i. Section J Foreign Worker Information j. Section K: Beneficiary Work Experience k. Section L: Declaration of Foreign Worker l. Section M: Declaration of Preparer m. Section N: Declaration of Employer DOL Verification of Sponsorship Processing of the Labor Certification Application a. No Expediting of Filed Applications b. No Modifications to Filed Applications Final Determination of the Labor Certification Application a. Validity of Approved Labor Certification Applications b. Adverse Effect on Wages and Working Conditions of Similarly Employed U.S. Workers Denial, Revocation, and Invalidation of Labor Certification Applications Appeal of Denied or Revoked Labor Certification Applications a. Request for Reconsideration by CO vs. Request for Review by BALCA b. Government Error c. Request for Review by BALCA d. Filing a Subsequent Application While an Appeal Is Pending VII. Additional Follow-Up A. Checking the Status of a Filed Application Online B. Re-Filing or Filing a New Labor Certification Application C. Withdrawing a Filed Labor Certification Application D. Obtaining a Duplicate Approved Certification CHAPTER THREE: THE IMMIGRANT VISA PETITION I. Executive Summary II. Requirements and Interpretations A. Preference Classifications for Which Labor Certification Is Not Required Extraordinary Ability (EB1-1) a. Checklist of Requirements b. Documents Necessary to Prepare Petition c. Checklist of Questions to Ask the Client d. Demonstrating Extraordinary Ability (1) One-Time Achievement (2) Other Evidence of Sustained National or International Acclaim (a) Evidence of Receipt of Lesser Nationally or Internationally Recognized Prizes or Awards for Excellence in the Field of Endeavor (b) Evidence Of Membership in Associations in the Field for Which Classification Is Sought, Which Require Outstanding Achievements of Their Members, as Judged by Recognized National or International Experts in Their Disciplines or Fields (c) Published Material About the Foreign National in Professional or Major Trade Publications or Other Major Media, Relating to the Foreign National s Work in the Field for Which Classification Is Sought

6 xii BUSINESS IMMIGRATION: LAW & PRACTICE, 2ND ED. (d) Evidence of Participation, Either Individually or on a Panel, as a Judge of the Work of Others in the Same or an Allied Field of Specialization for Which Classification Is Sought (e) Evidence of Original Scientific, Scholarly, Artistic, or Business-Related Contributions of Major Significance to the Field (f) Evidence of Authorship of Scholarly Articles in the Field, in Professional or Major Trade Publications or Other Major Media (g) Evidence of Display of the Foreign National s Work in the Field at Artistic Exhibitions or Showcases (h) Evidence That the Foreign National Has Performed a Leading or Critical Role for Organizations or Establishments That Have a Distinguished Reputation (i) Evidence That the Foreign National Has Commanded a High Salary or Other Significantly High Remuneration for Services, in Relation to Others in the Field (j) Evidence of Commercial Successes in the Performing Arts, as Shown by Box Office Receipts or Record, Cassette, Compact Disc, or Video Sales (k) Comparable Evidence Where the Regulatory Criteria Do Not Apply to the Field e. Continued Work in Area of Expertise f. Benefit to the United States g. Common Issues (1) Identification of the Beneficiary s Area of Expertise (2) Testimonials and Letters of Endorsement (3) Relationship with O-1 Nonimmigrant Status (4) The Foreign National Holds Nonimmigrant Status Other Than O Outstanding Professor and Researcher IV Petitions (EB1-2) a. Checklist of Requirements b. Documents Necessary to Prepare Petition c. Checklist of Questions to Ask the Client d. International Recognition as Outstanding in a Specific Academic Area (1) Evidence of the Foreign National s Receipt of Major Prizes or Awards for Outstanding Achievement in the Academic Field (2) Evidence of Membership in Associations in the Academic Field That Require Outstanding Achievements of Their Members (3) Published Material in Professional Publications Written by Others About the Foreign National s Work in the Academic Field (4) Evidence of Participation, Either Individually or on a Panel, as the Judge of the Work of Others in the Same or an Allied Academic Field (5) Evidence of Original Scientific or Scholarly Research Contributions to the Field (6) Evidence of Authorship of Scholarly Books or Articles in Scholarly Journals with International Circulation in the Academic Field (7) Comparable Evidence Where the Regulatory Criteria Do Not Apply e. Three Years of Experience in Teaching and/or Research in the Academic Field f. Qualifying Offer of Employment from a U.S. University, Institute of Higher Education, or Private Employer (1) Offer of Employment as a Professor or Teacher (2) Offer of Employment as a Researcher with a University or Institute of Education (3) Offer of Employment as a Researcher with a Private Employer g. Common Issues (1) Testimonials and Letters of Endorsement

7 VOL. 2: TABLE OF CONTENTS xiii (2) Engineers and Product Designers Multinational Manager and Executive IV Petitions (EB1-3) a. Checklist of Requirements b. Documents Necessary to Prepare Petition c. Checklist of Questions to Ask Client d. Qualifying Relationship e. Doing Business f. Qualifying Employment by the Transferee (1) Manager (2) Function Manager (3) Executive (4) Foreign Company Statement (5) Organizational Charts g. Common Issues (1) Function Manager (2) Small or Recently Established Petitioner (3) Similarity to, and Differences from, L-1A Nonimmigrant Status (4) The Initial L-1 Petition Did Not Detail Managerial Duties of Position Abroad (5) Timing Considerations (a) Recapture of L-1 Time (b) Change from L-1B to L-1A Status (c) Filing the Immigrant Petition for a Future Position B. National Interest Waivers National Interest Waiver (NIW) a. Checklist of Requirements b. Required Documents to Prepare the Petition c. Checklist of Questions to Ask the Client d. History e. Current Standards f. Preparing the Petition Physician National Interest Waiver (PNIW) a. Checklist of Requirements b. Documents Necessary to Prepare the Petition c. Checklist of Questions to Ask the Client d. Requirements and Interpretations e. The PNIW Process f. Preparing the Petition g. PNIW Compliance Obligations h. Common Issues C. IV Petitions Based on Approved Labor Certification Applications Checklist of Requirements Documents Necessary to Prepare Petition Checklist of Questions to Ask the Client EB-2 Classification a. Progressive Experience b. Professional Position EB-3 Classification Original Labor Certification a. New Labor Certification b. Revocation and Invalidation of the Labor Certification Application

8 xiv BUSINESS IMMIGRATION: LAW & PRACTICE, 2ND ED. 7. Educational Documents and Credentials Evaluation Experience Letters EB-2 vs. EB a. Three-Year Bachelor s Degrees b. Experience Gained Prior to Master s Degree Completion D. Exceptional Ability Exceptional Ability in the Sciences, Arts, and Business Exceptional Ability in the Sciences and Arts Professional Athletes III. Common Issues A. Ability to Pay the Wage Offered Documenting the Ability to Pay in General Historical Payment of the Wage Offered Net Current Income a. Federal Tax Returns b. Expectations of Increase in Business Net Current Assets Multiple Petitions with Multiple Beneficiaries Evidence in the Aggregate Other Financial Documents B. Impact of Filing an IV Petition C. Successor-in-Interest IV Petitions Same Position Eligibility Transfer of Rights, Obligations, and Ownership D. Amended IV Petitions IV. Preparing the IV Petition A. USCIS Lockbox Facilities B. Form G C. Form I Preference Classification Strategies If the Wrong Box Was Checked D. Supporting Documents Petitioner s Support Statement Evidence of Eligibility V. USCIS Adjudication of the IV Petition A. Approval B. Denial C. Appeals VI. Filing a Second IV Petition VII. Revocation of the IV Petition VIII. Withdrawal of the IV Petition CHAPTER FOUR: CONSULAR PROCESSING, ADJUSTMENT OF STATUS, AND PERMANENT RESIDENCE ISSUES I. Consular Processing A. Initial Processing Payment of Fees Contacting the NVC NVC Processing and Appointment Scheduling a. Form DS-260, Application for Immigrant Visa and Alien Registration

9 VOL. 2: TABLE OF CONTENTS xv b. Civil Documents (1) Birth/Adoption Certificate (2) Marriage and Divorce Certificates (3) Police Clearance Certificate (4) Prison and Military Records (5) Passport Biographical Data Page c. Affidavit of Support d. Submitting Documents to the NVC e. Documentarily Qualified f. Aging Out Children g. Notification of the Interview Appointment (1) Medical Examination (a) The Physical Examination (b) The Mental Examination (c) Vaccinations (d) Results of the Medical Examination (2) Preparing Documents for Interview (a) Required Documents (b) Photographs (3) Guidance Specific to Individual U.S. Embassies and Consulates (4) Important Visa Interview Notices Termination of Registration Changing Between Consular Processing and Adjustment of Status B. The Immigrant Visa Interview U.S. Embassy or Consulate a. Exceptions to the Country of Residence Rule b. Transfer of Files and Potential Delays in Processing Required Activities, Documents, and Information a. Passport b. Other Documents and Information c. Offer of Permanent Employment and Public Charge d. Unobtainable Documents Relationships Between Attorneys and U.S. Embassies and Consulates Security Clearances Timing and Return of the Passport with Immigrant Visa Derivative Beneficiaries a. Preliminary Interview of Dependents If the Principal Foreign National Will Precede Them to the United States b. DOS Determination of Derivative Status C. The Immigrant Visa Visa Validity Visa Denial D. Admission to the United States E. After Admission to the United States Evidence of Lawful Permanent Resident Status Social Security Number F. Revocation of Immigrant Visas and Suspension of Consular Processing Revocation by DOS Suspension and Termination of Consular Processing II. Adjustment of Status

10 xvi BUSINESS IMMIGRATION: LAW & PRACTICE, 2ND ED. A. Requirements and Interpretations Inspection and Admission or Parole Eligibility/Ineligibility for Adjustment a. INA 245(k) b. Failure to Maintain Lawful Status c. Lawful Immigration Status on the Date That the Application to Adjust Status Is Filed Available Immigrant Visa Number Admissibility a. Medical Issues (1) Communicable Diseases of Public Health Significance (a) Testing and Treatment for Communicable Diseases (b) HIV Infection Is No Longer a Ground of Inadmissibility (2) Vaccinations (3) Physical and Mental Disorders with Associated Harmful Behavior (4) Drug Abuse or Addiction b. Criminal Issues (1) Crimes Involving Moral Turpitude (2) Statutory Exceptions c. Public Charge Issues d. Membership in a Totalitarian Party B. Additional Concerns Adjustment of Status as a Discretionary Benefit Maintaining Nonimmigrant Status While the AOS Application Is Pending Derivative Applicants a. Other Marital Relationships b. Aging-Out Dependent Children c. AOS and Consular Processing by Different Family Members Concurrent Filing of the Application to Adjust Status and the Immigrant Visa Petition International Travel After the Application to Adjust Status Is Filed a. Advance Parole b. H and L Nonimmigrants Multiple AOS Applications and Transferring AOS Applications Between Bases of Eligibility Porting the Application to Adjust Status a. Notification of Porting b. Same or Similar Occupational Classification c. Unadjudicated, Withdrawn, and Revoked Immigrant Visa Petitions and Used Labor Certification Applications Adjustment under INA 245(i) a. Approvable When Filed (1) Properly Filled (2) Meritorious in Fact and Non-Frivolous b. Grandfathering Changing Between AOS and Consular Processing C. Preparing the Application to Adjust Status Forms a. Form I (1) Part 1: Information About Applicant (2) Part 2: Application Type (3) Part 3: Processing Information

11 VOL. 2: TABLE OF CONTENTS xvii (a) Part A (b) Part B (c) Part C (4) Part 4: Accommodation for Individuals with Disabilities and/or Impairments (5) Part 5: Signature (6) Signature by the Preparer b. Form G-325A, Biographic Information c. Form I-131, Application for Travel Document d. Form I-765, Application for Employment Authorization e. Form I (1) Medical Waivers (2) Criminal Waivers (3) Waiver for Membership in a Totalitarian Party f. Form I-485 Supplement A g. Form G Supporting Documents a. Civil Documents b. Medical Examination c. Photographs and Identity Documents d. Waiver Applications That Are Not Made on Form I Steps After the AOS Application Is Filed D. Adjudication of Ancillary Benefit Applications Advance Parole Applications Employment Authorization Document Applications E. Adjudication of the Application to Adjust Status Rejection of Improperly Filed Applications A-Numbers, A-Files, and the Case Resolution Unit Biometrics Security Clearances a. FBI Fingerprint Check b. FBI Name Check c. Security Clearances from Other Agencies Review of Documents Use of Immigrant Visa Number Interview USCIS Decision a. Approval b. Denial (1) Removal Proceedings (2) Appeals Mailing of the Form I III. Actions After Permanent Residence Is Granted A. Maintaining LPR Status Re-Entry Permits a. Biometrics b. USCIS Decision Criminal Convictions B. Replacement Forms I Criminal Issues C. Rescission of LPR Status

12 xviii BUSINESS IMMIGRATION: LAW & PRACTICE, 2ND ED. VOLUME 2: TABLES Table of Decisions Tables of INA Citations Tables of USC Citations Tables of CFR Citations Tables of FAM Citations Tables of USCIS Policy Manual Citations Tables of AFM Citations Tables of IFM Citations Tables of Fed. Reg. Citations Tables of Immigration-Related Acts Tables of Agency Communications Subject Matter Index