U Nonimmigrant Visa

WHAT IS A U NONIMMIGRANT VISA?
Persons who are victims of certain crimes that take place in the United States or are subject to U.S. jurisdiction, did not partake in the crimes, and have information that they are willing to offer that will help authorities investigate or prosecute the crimes, may be eligible for U-1 Visas. Congress established the U-1 Visa as an incentive for victims to cooperate with authorities in investigating and prosecuting those who commit certain very serious crimes. In addition, certain family members of U-1 visa beneficiaries may be eligible for derivative U visas.

WHAT ARE THE BENEFITS OF U STATUS?
U status lasts for duration of four years after being granted.[1] Provided that the U-1 Visa holder continues to cooperate with authorities and does not render him or herself inadmissible to the United States, he or she should remain on U-1 status for that entire period. Persons with U status are granted employment authorization.[2] U-1 Visa holders may apply for I-551 Cards (commonly known as Green Cards) three years after being granted a U-1 Visa.[3] Immediate family members of U-1 Visa holders may be eligible for derivative U-2, U-3, U-4, or U-5 visas depending on their relation to the principal U-1 Visa holder. Derivative U Visa holders are also eligible for adjustment of status after three years on derivative U status.[4]

AM I ELIGIBLE FOR A U-1 VISA?
In order to be eligible for a U-1 visa, an applicant must be the victim of a qualifying crime that must have been considered a crime in the United States. Furthermore, the crime must have either been commissioned in the United States, or abroad but subject to U.S. jurisdiction.[5]

A successful U-1 visa applicant must be a victim of a crime involving at least one of the following as defined in INA § 101(a)(15)(U)(iii):

• rape;
• torture;
• trafficking;
• incest;
• domestic violence;
• sexual assault;
• abusive sexual contact;
• prostitution;
• sexual exploitation;
• stalking;
• female genital mutilation;
• being held hostage;
• peonage (forced labor on account of debt or convict labor);
• involuntary servitude;
• slave trade;
• kidnapping;
• abduction;
• unlawful criminal restraint;
• false imprisonment;
• blackmail;
• extortion;
• manslaughter;
• murder;
• felonious assault;
• witness tampering;
• obstruction of justice;
• perjury;
• fraud in foreign labor contracting; or
• attempt, conspiracy, or solicitation to commit any crime on this list or any crime related to crimes on this list.[6]

The crime victim must also have suffered “substantial mental or physical abuse” related to the crime.[7] Furthermore, the crime victim must possess information that is helpful to U.S. authorities in investigating or prosecuting the crime, and the victim must be helpful or considered likely to be helpful in the investigation or prosecution of the crime.[8] If the victim is under the age of 16, he or she is eligible for U-1 status if a parent, guardian, or the “next friend”[9] can be helpful to the investigation or prosecution of the crime.[10]

U-1 visas are annually capped at 10,000.[11] If the cap has been reached but a U-1 applicant is otherwise approvable for U status, he or she will be given a Notice of Conditional Approval and be admitted under a grant of deferred action or parole until he or she may be granted an available U visa.[12]

Successful applicants for U visas must be admissible to the United States except for public charge.[13] Almost all grounds of inadmissibility are waivable if the Attorney General determines a waiver to be in the public interest.[14] Because of this and potential complications in establishing that a U-1 applicant will be helpful in the investigation or prosecution of the crime that he or she is a victim of, any applicants for U-1 status are well advised to consult with an experienced immigration attorney.

Please note that certain victims of human trafficking should check their eligibility for the T-1 visa.

ELIGIBILITY FOR DERIVATIVE U VISAS
In the case that the U-1 beneficiary is less than 21 years of age, the spouse, children, or unmarried siblings less than 18 years of age on the date that the U-1 beneficiary applied for a U-1 visa are eligible for derivative U Visas. Parents in this situation are also eligible for derivative U Visas.[15]

If the U-1 beneficiary is 21 years or older, his or her spouse and children are eligible for U status.[16]

Derivative U visas are not subject to the cap on U-1 visas.[17]

HOW DO I APPLY FOR A U VISA?
Due to the trying circumstances that would lead someone to apply for a U-1 visa, there is no fee for filing an application. However, U-1 visa applicants must submit:

· A completed Form I-918, Petition for U Nonimmigrant Status; and

· A Supplement B Form to the I-918 that is completed by a U.S. law enforcement agency; and

· A written statement attesting to the crime(s) for which the applicant was a victim of and how you meet the criteria for eligibility for a U-1 visa.[18]

Derivatives of a U-1 visa applicant must file a Supplement A Form to the Form I-918. This supplement should be filed concurrently with the Form I-918; however, it may be filed afterwards. Provided that the U-1 beneficiary adjusts to lawful permanent resident (LPR) status, family members who never obtained one of the four derivative U visas may seek LPR status.
-----------------------------------------

Sources: Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 1052-1055, Print. Treatises & Primers.

[1] S. Kurzban, Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 1053, citing; 8 C.F.R. § 214.14(g)
[2] Kurzban 1053
[3] Kurzban 1055, citing; INA § 245(m); 8 C.F.R. § 245.24
[4] Kurzban 1055, citing; Policy Memo, Extention of U Nonimmigrant Status for Derivative Family Members, PM-602-0001 (Jun 22, 2010), published on AILA InfoNet at Doc. No. 10062830; AFM 39.1(g)(2)(B); Policy Memo USCIS, PM-602-0004 (July 21, 2010), published on AILA InfoNet at Doc. No. 10072930. [Derivative U visa holders may obtain extensions of status if necessary to accrue the requisite 3 years required to adjust status]
[5] INA § 101(a)(15)(U)(i)(IV)
[6] Note that persons involved in the commission of any of the above crimes are ineligible for U status even if they meet every other requirement.
[7] INA § 101(a)(15)(U)(i)(I)
[8] INA § 101(a)(15)(U)(i)(III)
[9] Citing 8 C.F.R. 214.4(a)(7) [defining “next friend” as a person who appears in a lawsuit to act for the benefit of an applicant less than 16 years of age who has suffered substantial physical or mental abuse as a result of being a victim of a crime. The next friend cannot be a party to the legal proceeding and cannot be the guardian of the U-1 visa applicant].
[10] INA § 101(a)(15)(U)(i)(II)
[11] Kurzban 1053
[12] Kurzban 1052-53, citing; 8 C.F.R. § 214.14(d)(2); USCIS, Questions and Answers, USCIS Reaches Milestone: 10,000 U Visas Approved in Fiscal Year 2010 (July 15, 2010), published on AILA InfoNet at Doc. No. 10071530.; INA § 212(a)(9)(B) [will not accrue unlawful presence while waiting for U visa under grant of parole or deferred action]
[13] Kurzban 1054, citing; INA § 212(a)(4)(E) for statute regarding public charge.
[14] Kurzban 1054, citing; INA § 212(d)(14); 8 C.F.R. § 212.17(b)(1); INA § 212(a)(3)(E) [list of non-waivable crimes that involve Nazis, genocide, torture, or extrajudicial killings]
[15] INA § 101(a)(15)(U)(ii)(I)
[16] INA § 101(a)(15)(U)(ii)(II)
[17] Kurzban 1053, citing; AFM at 39(d)
[18] Kurzban 1052, citing; 8 C.F.R. § 212.7, 8 C.F.R. § 214.14(c)(2) for the list

T Nonimmigrant Visa

WHAT IS A T NONIMMIGRANT VISA?
A T-1 Visa is a nonimmigrant visa, which allows people who have been victims of certain forms of human trafficking the ability to gain immigration status in the United States. The T Visa category is designed both as a form of much-needed relief for victims of trafficking and also as a benefit that allows and encourages the victim to cooperate with authorities in the investigation and prosecution of traffickers. Eligible family members of principal T Visa holders may apply for derivative T Visas (T-2, T-3, T-4, and T-5).

WHY WAS THE T NONIMMIGRANT VISA ESTABLISHED?
The United States Government believes that 50,000 victims of human trafficking enter the United States every year.[1] Recognizing that human trafficking is a scourge both for trafficking victims and the United States as a whole, Congress acted by passing the Victims of Trafficking and Violence Prevention Act[2] (VTPA), which was signed into law by President Bill Clinton on October 28, 2000. Among other things, the VTPA amended the Immigration and Nationality Act (INA) to add the provisions pertaining to the T nonimmigrant Visa category. By creating the T Visa category, Congress hoped not only to help victims of trafficking, but also to incentivize trafficking victims to help law enforcement authorities investigate and prosecute traffickers.

Victims of many non-trafficking crimes committed subject to U.S. jurisdiction who have information that may help authorities prosecute the perpetrators may be eligible for the similar U-1 Visa, which was also established in the VTPA.

WHAT ARE THE BENEFITS OF A T NONIMMIGRANT VISA?
T Visas admit the beneficiary for 4 years of T status in the United States. Furthermore, T Visa holders may be eligible for lawful permanent resident (LPR) status after maintaining T status for 3 years. As an additional benefit, employment authorization is immediately granted to T-1 Visa holders upon being granted T status.

WHO IS ELIGIBLE FOR A T NONIMMIGRANT VISA?
Victims of human trafficking may be eligible for T-1 Visas provided that they are physically present in the United States on account of the trafficking and that the trafficking involved:

• the use of force, fraud, or coercion for 
• sex trafficking (applicants less than 18 years of age do not need to prove force, fraud, or coercion in sex trafficking cases)[3] and/or involuntary servitude, peonage, debt bondage, or slavery.[4]

Furthermore, a T-1 Visa application must demonstrate that the applicant would “suffer extreme hardship involving unusual and severe harm upon removal.”[5]

In most cases, in order to be approved for a T-1 Visa, the applicant must be found to have complied with any reasonable request for assistance in the investigation or prosecution of the crime (“reasonableness” is determined on a case-by-case basis in order to take into account the nature of the crime and the circumstances of the victim).[6] In the case that the victim is under the age of 18[7] or is found to be unable to cooperate in the investigation due to physical or psychological trauma,[8] the applicant does not have to comply with even reasonable requests for assistance.

If a person is allowed to enter the United States in order to participate in an investigation or prosecution of human trafficking, he or she will be considered “physically present” on account of trafficking for purpose of T-1 Visa eligibility.[9]

If the T-1 Visa applicant is under 21 years of age, his or her spouse, children, parents, and unmarried siblings less than 18 years of age may be eligible for derivative T Visas. If the applicant is over 21 years of age, his or her spouse or children may be eligible for derivative T Visas.[10] Children of derivative T Visa beneficiaries may also eligible for derivative T Visa status.[11]

HOW DO I APPLY FOR A T NONIMMIGRANT VISA?
In order to apply for a T Visa, you must submit:

• Completed Form I-914, Application for T Nonimmigrant Status; and
• Three passport-size photographs; and
• A personal statement explaining how you were a trafficking victim; and
• Evidence that shows you meet all of the applicable eligibility requirements; and
• (Recommended) Form I-914, Supplement B, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons (this supplement, filled out by the law enforcement agency investigating or prosecuting your crime, will show both law enforcement support for your claims and that you have been cooperating with law enforcement in the investigation or prosecution of the trafficking crime you are a victim of); and
• Form I-914, Supplement A, Application for Immediate Family Member of T-1 Recipient (if applying for an eligible family member to receive a derivative T Visa).[12]

Although the above instructions for filing are found on the United States Citizenship and Immigration Services USCIS website, given the complexity of the application and consequences of improper filing, it is always highly recommended to hire an experienced immigration attorney to assess your eligibility for a T Visa and guide you through the entire T Visa application process.

--------------------------------
Sources:

• Clawson, Heather Nicole Dutch, Amy Solomon, and Lisa Goldblatt Grace. “Human Trafficking Into and Within the United States: A Review of the Literature.” DHS, August 2009, (Accessed August 3, 2015), http://aspe.hhs.gov/hsp/07/HumanTrafficking/LitRev/
• 
  
• Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C. ALIA Publications, 2014. 1044-45, Print. Treatises & Primers.
• 
  
• “Victims of Human Trafficking: T Nonimmigrant Status,” USCIS, October 3, 2011, (retrieved on August 3, 2015), available at http://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-human-trafficking-t-nonimmigrant-status

[1] Clawson, Heather, Nicole Dutch, Amy Solomon, and Lisa Goldblatt Grace. “Human Trafficking Into and Within the United States: A Review of the Literature.” DHS, (Accessed August 3, 2015), http://aspe.hhs.gov/hsp/07/HumanTrafficking/LitRev/
[2] For link to the Department of State page on the statute.
[3] S. Kurzban, Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 1044
[4] Kurzban 1044, citing for the list INA § 101(a)(15)(T)(i); 8 C.F.R. § 214.11(b); 22 U.S.C. § 7102 [defining “severe form of trafficking]
[5] Id.
[6] Kurzban 1045, citing 8 C.F.R. § 214.11(a)
[7] Kurzban 1045, citing Memo, Yates, Assoc. Dir. Operations, USCIS, HQOPRD 70/6.2 (Apr. 15, 2004), published on AILA InfoNet at Doc. No. 04060110. [change in rules removing the requirement that victims less than 18 years of age must comply with reasonable requests for assistance]
[8] Kurzban 1045, citing INA § 101(a)(15)(T)(iii); AFM 39.2(b)(3).
[9] Kurzban 1044, INA §101(a)(15)(T)(i)(II); Policy Memo, USCIS, PM-602-0004 (July 21, 2010), published on AILA InfoNet at Doc. No. 10072930 at p.2; AFM 39.2(b)(2)
[10] “Victims of Human Trafficking: T Nonimmigrant Status,” USCIS, October 3, 2011, (retrieved on August 3, 2015), available at http://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-human-trafficking-t-nonimmigrant-status
[11] Kurzban 1047, citing INA § 101(a)(15)(T)(ii)(III); 9 FAM 41.84; AFM 39.2(f)(1)
[12] “Victims of Human Trafficking: T Nonimmigrant Status,” USCIS, October 3, 2011, (retrieved on August 3, 2015), available at http://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-human-trafficking-t-nonimmigrant-status

Introduction to Applying for Employment-Based Immigrant Visas

INTRODUCTION TO APPLYING FOR EMPLOYMENT-BASED IMMIGRANT VISAS

Each fiscal year, the United States makes available a total of 140,000 immigrant visas covering five separate employment-based preference categories.[1] [2] Applicants who have a sponsor and meet the requirements for the employment-based category for which they are applying are eligible to obtain an employment-based immigrant visa, so long as they are admissible to the United States. Applicants may either apply for an employment-based immigrant visa to enter the United States or apply to adjust from a nonimmigrant status, most commonly H-1B nonimmigrant visa status, to an employment-based visa status.[3]

PREFERENCE CATEGORIES FOR EMPLOYMENT-BASED IMMIGRANT VISAS
There are five preference categories for employment-based immigrant visas.[4] The five categories are:

• EB-1 (Priority worker)
• EB-2 (Professional with advanced degree or person with exceptional ability)
• EB-3 (Skilled or professional worker)
• EB-4 (Special immigrants such as religious workers)
• EB-5 (Immigrant investors)

RULES FOR APPLYING FOR AN EMPLOYMENT-BASED IMMIGRANT VISA
A foreign national usually must have an employer or prospective employer to act as a sponsor and petition for his or her employment-based immigrant visa. There are limited circumstances where an applicant may self-sponsor: if he or she is classified as “an alien of extraordinary ability” under the first preference classification[5] or if his or her application is deemed to be “in the national interest” under the second preference classification[6]. [7] However, the vast majority of applicants will depend on an employer or prospective employer to act as a sponsor. The following are the steps that an employer or prospective employer must satisfy for a successful application:

1. Employer files a labor certification application

On a labor certification application, the employer or prospective employer must demonstrate that there are no qualified, willing, or able United States workers for the full time position that is being petitioned for.[8] To do this, the employer or prospective employer must demonstrate that he or she had made a good faith and fair effort to recruit a qualified United States worker for the position.[9] Provided this requirement is satisfied, the Department of Labor will grant labor certification.

Petitions for physical therapists and registered nurses[10] are exempt from the labor certification requirement. Petitions for aliens of extraordinary ability, outstanding professors and researches, and multinational managers who fall under the first preference classification are also exempt from this requirement.[11] Foreign nationals who fall under the second preference classification may be granted waivers from the labor certification requirement if a waiver is determined to be in the national interest.[12] [13]

2. Employer files an immigrant visa petition[14]

Employers must file an immigrant visa petition on a Form I-140 Immigrant Petition for an Alien Worker. In order to do this, the labor certification requirement must have been satisfied, not applicable, or waived.[15] United States Citizenship and Immigration Services (USCIS) will determine if the position on the Form I-140 is in the classification that is being applied for, that the foreign national is qualified for the position, and that the employer has and will have the ability to pay the foreign national the offered wage.[16]

ADJUSTMENT OF STATUS AND CONSULAR PROCESSING
After his or her Form I-140 Immigrant Petition for an Alien Worker has been approved, there are two processes through which a foreign national may seek permanent resident status in the United States.[17] In both processes, the foreign national must demonstrate that he or she and accompanying family are admissible to the United States as immigrants.[18] Both the adjustment of status and consular processes require medical examinations, background checks, and a determination that the resident alien has no hitherto undiscovered immigration violations or factors that would make him or her inadmissible to the United States.[19]

Upon being approved for adjustment of status or by consular process, the resident alien will be issued an I-551 permanent resident card, more commonly known as a “green card.”[20]

1. Adjustment from Lawful Status in the United States to Permanent Resident Status

In order to apply for adjustment of status from lawful status in the United States to permanent resident status, the foreign national must either be already in the United States in lawful status or in the United States and qualified for an exemption from the lawful status requirement.[21] In either case, applying for adjustment of status allows the foreign national to obtain his or her permanent resident status without leaving the United States.[22] Provided that the foreign national is admissible to the United States and that the visa he or she is seeking is immediately available, he or she will receive an I-551 permanent resident card.[23] [24]

Applicants on H-1B status who face the expiration of their durations of stay on H-1B status but have an approved I-140 Immigrant Petition for an Alien Worker may be eligible to have their H-1B status extended for either one or three years while they wait for an available I-551 permanent resident card.[25] [26] [27]

2. Obtaining Permanent Resident Status through Consular Process

Foreign nationals who are not present in the United States on lawful status must instead go through consular process.[28] The foreign national applies for an immigrant visa at a United States consulate abroad. If the foreign national is found eligible, he or she will be provided with a visa to travel to the United States to seek admission at a port of entry. Upon reaching a port of entry to the United States, a U.S. Customs and Border Protection inspector assesses the foreign national’s case for admission.[29] [30] Provided that the inspector finds that the foreign national is in fact admissible under the classification on the visa obtained from the consulate, the foreign national is admitted to the United States as a resident alien and provided with an I-551 permanent resident card.[31]

ANNUAL LIMITS ON ALLOCATING IMMIGRANT VISAS AND THE VISA BULLETIN
Because the demand for employment-based immigrant visas is far greater than the supply, the length of the application process is highly variable.[32] In addition to the annual limit on available work-based immigrant visas per preference category, there are national limits as well.[33] The United States Department of State (DOS) publishes on a monthly basis in the Visa Bulletin which foreign nationals are eligible to apply for work-based immigrant visas that month.[34] Early applicants take priority over later applicants. The priority date on a visa application is the date that his or her employment certification application was filed, or if not applicable, the date on which that which his or her immigrant petition was filed.[35] [36] A foreign national may apply for an immigrant visa or for adjustment of status once the cutoff date on the monthly Visa Bulletin is later than the first petition by his or her sponsor.[37]

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.
----------------------------------------------

[1] Page 7 (ALIA’s Focus on Immigration Practice Under AC21)
[2] INA §201
[3] 7
[4] Id.
[5] INA §203(b)(I)(A), 8 CFR §204.S(h)(S)
[6] INA §203(b)(2)(B)
[7] 7
[8] 20 CFR §656.1(a)(1), 20 CFR §656.3
[9] 20 CFR §656.17(e)
[10] 20 CFR §656.5
[11] 7-8
[12] Id.
[13] INA §203(b )(2)(B)
[14] 8
[15] 8 CFR §204.5(a)
[16] 8.
[17] Id.
[18] Id.
[19] 8-9
[20] 9
[21] Id.
[22] Id.
[23] INA §245(a).
[24] 9
[25] AC21 §§104(c), AC21 §§106(a)
[26] 11-12
[27] My next summary is about these extensions, so this might be a good place to link to that.
[28] Id.
[29] INA §235(a)(1)
[30] 9
[31] 9
[32] 10
[33] INA §235(a)(1)
[34] 9
[35] 8 CPR §204.S(d)
[36] 9-10
[37] 10

USCIS expands signature waivers for new Green Cards

Prior to February of 2015, every I-551 card (also known as a Lawful Permanent Resident (LPR) card or Green Card) was generally required to be signed by the card-holder. United States Citizenship and Immigration Services (USCIS) would generally only waive the signature requirement for Green Cards if the beneficiary was a child under the age of consent to provide a signature, or if the recipient was physically unable to provide a signature. However, this rule appears to now be changing rapidly.

USCIS announced in February of 2015 that it is now greatly expanding the number of situations in which it waives the signature requirement for Green Cards. USCIS is now will waive the Green Card signature requirement for beneficiaries entering the United States for the first time as LPRs after obtaining an immigrant visa abroad from a U.S. Embassy or consulate. When USCIS issues a Green Card where the signature requirement is waived, the card will be marked “Signature Waived” on the front and the back where the Green Card signatures would normally be signed (the external link to the USCIS announcement includes a picture of what Green Cards marked “signature waived” look like). Green Card applicants who are applying to enter the United States for the first time as LPRs should be aware that they will not be required to provide Green Card signatures so long as this new USCIS policy remains in effect.

Since this policy change means that we will likely begin seeing many more Green Cards without signatures, it is important for employers to know that Green Cards marked “signature waived” are acceptable documents for Form I-9, Employment Eligibility Verification purposes. Provided that the Green Card is unexpired, appears to be of the person presenting it, and appears to be genuine, employers may not reject Green Cards marked “signature waived.” In general, Green Cards marked “signature waived” also work exactly the same as Green Cards with signatures for the purpose of proving the Green Card-holder's identity.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

———————

Sources:

• “Did You Know? A Green Card Does Not Always Have a Signature,” USCIS, June 4, 2015, available at http://www.uscis.gov/news/alerts/did-you-know-green-card-does-not-always-have-signature
• “E-Verify Connection: A Newsletter for All Employers” (June 2015), published on AILA InfoNet at Doc. No. 15063008 (posted Jun. 30, 2015)
• “Green Cards Without a Signature Are Acceptable Documents” (July 20, 2015), published on AILA InfoNet at Doc. No. 15072012 (posted Jul. 20, 2015)

Lawyer website: http://myattorneyusa.com

AC21 Immigration

The American Competitiveness in the 21st Century Act (AC21) allows someone to find new employment in the event that the following three conditions are met:

• The applicant has an approved I-40 petition, or it is approvable if filed concurrently with a Form I-485 application;
• The Form I-485 has been pending for a minimum of 180 days and;
• The new employment is classified as the same or similar occupation.

Due to a number of issues and questions that have come up because of the AC21, it is important that the United States Citizenship and Immigrations Services adhere to guidelines across their field offices. This will result in less confusion among the I-140 and H-1B petitions filed by applicants.

THE I-140 AND THE I-485 UNDER 106(C) OF AC21

In the event that an applicant has an unapproved I-140 and an I-485 application pending for over 180 days, the field offices are instructed to determine if the petition would have been approved, had a decision been rendered within the 180 days. If for some reason, there is an issue which arose after 180 days of the date the petition was filed, the petition should be approved nonetheless. A decision should then be rendered on the I-485 application in order to determine if the new employment classifies as the same or similar occupation.

REQUEST FOR ADDITIONAL EVIDENCE

If a request for additional evidence is required to render a decision on the petition, an RFE (request for additional evidence) should be issued to the applicant. If the response to the RFE is sufficient, a decision should be rendered on the I-485 application and a determination of the employment classification is in order.

The USCIS field offices are instructed to deny any cases in which an RFE was issued and the response is not sufficient to reach an approval. This means that the I-140 petition will be denied and the I-485 application since there is no approved petition to port from.

SAME OR SIMILAR OCCUPATIONAL CLASSIFICATIONS

When making determination of “same” or “similar occupation classifications, USCIS takes the following into consideration:

• Salary/ Wage: If there is a large disparity between the previous wage and the new one, USCIS can classify the new employment as different or not similar for purposes of the I-140 petition. It is important to keep in mind that a difference in wage is not sufficient to deny a petition; however it can be used with other factors in classifying the new employment as not similar and thus, deny the petition.
• The description of the job and its duties as outlined in the Application for Alien Employment Certification (ETA 750A).
• The employment code as stated in the initial I-140 petition. This code can either be the DOT or the SOC. In some cases, USCIS refers to both to make the determination of the employment classification.

However USCIS field and district offices should not deny an I-140 petition because of differences in geographic location. The deciding factor in the approval of the petition is of the new employment is similar or the same as the previous employment. Geographic location does not matter.

Managers and Executives may be approved if their new employment is within an unrelated company. The basis for this approval is that the managerial or executive duties are still relatively similar. In cases where the duties are considerably different, the employment may be classified as not similar and the petition may be denied.

In an I-140 petition, it is also possible for an applicant to port to a self-employment position. In this case, all of the previous requirements still need to be met. The self-employment must be similar or the same as the previous employment as stated on the original I-140 petition. It is, however, still required that the initial I-140 petitioner’s intent to employ be legitimate and the applicant must have had the intent to undertake the petitioner’s employment offer. In order to verify the accuracy of the intent of the petitioner and applicant, USCIS may issue an RFE requesting supporting documentation.

The good news is that, aside from a few exceptions, the new employer will not have to provide a new labor certification. This is, of course, if the new employment does not deviate from §106(c).

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.