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.
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[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.

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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.

Silva-Trevino is Vacated

Attorney General's decision in the Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. November 7, 2008), substantially expended the ability of an immigration judge to look beyond the record of conviction and take into account other considerations — often irrelevant and/or prejudicial- in order to determine removability of the noncitizen who had committed an offense subject to CIMT inquiry. This often made people who had committed minor criminal offenses to carry the disproportional burden in removal proceedings. For years — since November of 2008 when the decision was introduced — immigration advocates have been trying to convince the AG to retract the decision. Finally, it happened today.

Significance of the Retraction of the AG's Decision in Silva Trevino:

In Silva-Trevino, which has been the law of the land for almost seven years, AG held that an immigration judge had to engage in a multi-step inquiry into whether a crime committed by the respondent was one that involved moral turpitude (CIMT). Since CIMT, no matter how minor, often carries heavy immigration consequences, the way in which a determination is made whether the conviction was such, becomes paramount for the respondent. AG directed the Board of Immigration Appeals (BIA) and through it, the immigration judges nationwide to first look whether the statute of conviction carried a “realistic probability” under the categorical inquiry under the U.S. Supreme Court analysis in Gonzales v. Duenas-Alvarez, 549 US 183, 2007 - that “the State or Federal criminal statute pursuant to which the alien was convicted would be applied to reach conduct that does not involve moral turpitude”. That first approach was long in existence in the US. Immigration law but the inquiry had been more liberal and the probability did not have to be shown to be “realistic”. If the inquiry unambiguously determined whether the crime was CIMT, that ended the inquiry. If not, the second step was to be taken in this analysis. Under the second step analysis, the judge was allowed to engage in what was called a “modified categorical inquiry” which allowed for examination of the “record of conviction” including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, and the plea transcript. Though expended from the general understanding of what the record of conviction included, the modified categorical approach was traditionally employed before as well. The third and most disturbing step added in the AG analysis was to take place when the record of conviction was still inconclusive in the opinion of the immigration judge as to whether the crime constituted CIMT. Under this step, the judge was allowed to “consider any additional evidence deemed necessary or appropriate to resolve accurately the moral turpitude question.” Under such inquiry, the judge was allowed to look at virtually anything having to do with the conviction thus making it very hard for the respondent to fight against a finding of CIMT.

Modified Categorical Analysis Is Again The Key To The Inquiry

As explained above, the first step in the AG's approach was a traditional analysis of the CIMT conviction under the well-established categorical approach to the elements of the crime. What the AG added in Silva-Trevino to this traditional approach was a requirement that the probability of a not CIMT crime covered under the statute of conviction in question was not just hypothetical, but reasonable that is the criminal statute of conviction had indeed been applied in the past in a factual situation that did not constitute a CIMT. Unambiguous solution of this question, according to the AG, would have ended the inquiry. The pre- Silva Trevino analysis would had employed the probability inquiry instead of the reasonable probability and when further analysis was warranted, would have stopped at the second prong of the analysis — the modified categorical approach, thus limiting the inquiry to the record of conviction. This state of affairs has now been restored with the Attorney General having vacated the opinion in Silva Trevino.

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.

Lawyer website: http://myattorneyusa.com