What is L1B Visa?

What is an L1B Visa?

The L1 visa category is a nonimmigrant work visa category for intracompany transferees.  It allows a U.S. employer to petition for certain foreign workers who work for a related foreign employer. There are two types of workers eligible for L1 classification.  L1A visas are for persons who will work in a managerial or executive capacity.  The L1B visa category is for those who will work in a “specialized knowledge” capacity.

L1 Classification in General

In order to petition for an L1B specialized knowledge intracompany transferee, the petitioner must be a parent, branch, affiliate, or subsidiary of the foreign employer.  Furthermore, the petitioner must be “doing business” in the United States and at least one other country through a parent, branch, affiliate, or subsidiary business.  Under certain cases, a petitioner may be opening what is called a “new office” in the United States.

The beneficiary of the L1B petition must have been employed continuously at the foreign employer continuously for one year within the three years immediately preceding the filing of the petition.

L1B Specialized Knowledge Capacity

Under section 214(c) of the INA, an employee who is serving in a “specialized knowledge capacity” either “has a special knowledge of the company product and its application in international markets or has an advanced level of knowledges and processes and procedures of the company.”

Regulations in 8 C.F.R. 214.2(l)(1)(ii)(D) explain that the L1B beneficiary may have specialized knowledge of the petitioner’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.”

On August 17, 2015, the United States Citizenship and Immigration Services (USCIS) released a comprehensive memorandum titled “L1B Adjudications Policy (PM-602-0111)” that set forth rules for determining whether a person is working in a specialized knowledge capacity for L1B visa purposes.  The memo explained that “special knowledge” must be “distinct or uncommon” compared to the knowledge that would generally be found in the worker’s industry.  However, in a key point, the memo explained that the knowledge need not necessarily be uncommon in the petitioner’s organization.  However, if the worker is seeking status based on “advanced knowledge of processes and procedures of the company” rather than general specialized knowledge, the advanced knowledge must be uncommon in the petitioning organization as well.

The memo instructs USCIS adjudicators to consider whether (paraphrased):

• The beneficiary’s knowledge can normally be gained through experience with the petitioning organization;
• The beneficiary possesses knowledge of a product or process that is not easily transferrable;
• The beneficiary’s knowledge of a product or process is sophisticated, complex, or of a highly technical nature; and
• The beneficiary possesses knowledge that is particularly helpful to the competitiveness of the petitioning organization.

In supporting the eligibility of an L1B specialized knowledge worker, the petitioner must submit evidence regarding the effect the beneficiary would have on the petitioner, the qualifications of the beneficiary, and that the beneficiary’s knowledge can only be gained through experience or training with the petitioning organization.

A determination of eligibility will be made based on the weight of the evidence.  Thus, the evidence will be considered in the aggregate.

It is worth noting that a petition under an approved L1 blanket petition may only be filed for an L1B specialized knowledge “professional.”  For individual L1B petitions that are not filed under an L1 blanket petition, the specialized knowledge worker need not necessarily be a specialized knowledge “professional.”

Being on L1B Status

A person may be admitted in L1B status for an initial period of up to three years.  However, if the L1B specialized knowledge intracompany transferee is admitted to work in a “new office,” the initial period of admission may not exceed one year.  An L1B intracompany transferee may be approved for extensions in two-year increments for up to five years in the aggregate.  Under certain circumstances, time spent outside of the United States while on L1B status may be “recaptured” and added to the maximum five-year period of stay.  If an L1B employee’s duties change significantly while on L1B status, the petitioner will be required to file an amended L1B petition.  However, if an L1B specialized knowledge professional who gained status under a blanket petition is being transferred from one employer listed on the blanket petition to another, an amended petition will not be required so long as the L1B employee’s duties remain “essentially the same.”

An L1B employee is only authorized to engage in employment for the petitioner.  If he or she works “off-site,” the L1B employee must still be under the “control and supervision” of the petitioning organization and not of the unaffiliated organization.  It will be important for the petitioner to compile evidence showing that the arrangement meets this requirement.

Derivatives

The spouse or child of an L1B employee may be eligible for an L2 visa if otherwise admissible. Time spent on L2 status does not count toward the five-year limit on L1B status.  Therefore, it is possible for an L2 spouse to obtain a change of status to L1 (if otherwise eligible) and for the former L1B employee to obtain L2 status in turn.  An L2 spouse may apply for employment authorization but may not work without such authorization.  An L2 child may attend school full time incidentally to status.

Conclusion

The L1B visa category is an important work visa category for transferring foreign workers to the United States in nonimmigrant status.  Because the application process requires substantial evidence as to the petition beneficiary’s previous work and proposed duties in the United States, it is well advised that petitioners consult with an experienced immigration attorney for guidance through the application process and on questions that may arise regarding L1B workers in the United States.  L1B employees as well as L2 derivatives should consult with an experienced immigration attorney for questions regarding the maintenance of status, change of status, and adjustment of status.

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.

Resources and materials:

Alexander J Segal - "L1B Visa Overview", "Overview of Requirements for L1 and L2 Visas"

Lawyer website: http://myattorneyusa.com

Immigration Hardship

What is Extreme Hardship?

In order to procure certain waivers or other forms of immigration relief, an alien may be required to establish that a qualifying relative would incur “extreme hardship” were the applicant to be denied relief.  In limited cases, the alien may be permitted to satisfy the extreme hardship requirement by establishing that he or she would incur extreme hardship upon removal.

Forms of Immigration Relief that Require Showing of Extreme Hardship

The following is a list of forms of immigration waivers and immigration relief that require the establishment of extreme hardship or a related form of hardship:

• A waiver of the 3- or 10-year bar of inadmissibility for the accrual of unlawful presence requires that the waiver applicant establish that his or her U.S. citizen or lawful permanent resident (LPR) spouse or parent would incur extreme hardship were he or she to be denied admission.  See INA 212(a)(9)(B)(v).
• INA 212(h)(1)(B) provides for a waiver for several types of criminal grounds of inadmissibility.  In order to obtain a section 212(h) waiver, the applicant must establish that his or her U.S. citizen or LPR spouse, parent, or child would incur extreme hardship if the applicant is denied admission.  However, if the criminal offense that caused the inadmissibility was of a violent or dangerous nature, the applicant must meet a higher standard of “exceptional and extremely unusual hardship.”
• INA 212(i)(1) provides for a waiver for certain types of immigration fraud or misrepresentation.  In order to procure a section 212(i) waiver, the applicant must establish that his or her U.S. citizen or LPR spouse or parent would incur extreme hardship were the applicant to be denied admission.  If the applicant who is seeking relief is a Violence Against Women Act (VAWA) self-petitioner, the applicant may satisfy the requirement by establishing extreme hardship either to applicant or to a parent or child.
• INA 216(c)(4) allows for the Attorney General to remove conditions on permanent residency for an alien who obtained conditional permanent resident status without meeting the generally applicable requirements for the removal of conditions.  INA 216(c)(4)(A) and (C) require that the alien establish that he or she would incur extreme hardship if removed, but the circumstances causing such hardship must have occurred during the conditional permanent residency period.
• In order to be eligible for NACARA cancellation of removal or suspension of deportation, the applicant must establish that applicant’s removal would result in extreme hardship either to the applicant or to a U.S. citizen or LPR spouse, parent, or child.
• In order to be eligible for non-LPR cancellation of removal under INA 240A(b)(1), the applicant must establish that the applicant’s removal would result in “exceptional and extremely unusual hardship” to a U.S. citizen or LPR spouse, parent, or child.
• In order to be eligible for special rule cancellation of removal as a battered spouse or child (VAWA cancellation of removal), the applicant must establish that either the applicant  or his or her parent or child would incur extreme hardship.  The factors causing the hardship may be particular to the abuse.
• Under INA 212(e), a certain J1 exchange visitors may obtain a waiver of the two-year foreign residency requirement by establishing that applicant’s U.S. citizen or LPR spouse or child would incur “exceptional hardship.”
• Under INA 101(a)(15)(T)(i)(IV), an applicant for T visa status as a victim of trafficking must demonstrate that he or she would suffer extreme hardship involving unusual and severe harm upon removal.

Extreme Hardship Factors

The most important administrative precedent for immigration extreme hardship is the Board of Immigration Appeals’ (BIA) decision in the Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999).  The decision addressed extreme hardship factors in the section 212(i) context, but its principles are generally applicable to all extreme hardship determinations.  The Board listed the following factors that should generally be considered in making an extreme hardship determination (paraphrased):

• Presence of qualifying relative’s family ties to the United States;
• Qualifying relative’s ties outside of the United States;
• Conditions of country where qualifying relative would relocate if the applicant is removed;
• Financial impact of the departure of the qualifying relative; and
• Significant health conditions of the qualifying relative.

Furthermore, the dissenting opinion in the Cervantes offered further factors that are also considered in extreme hardship cases (paraphrased):

• Qualifying relative’s family ties within and without the United States and the impact of separation;
• The economic and general conditions of the country to which the waiver applicant would be returned, and the effects of following on the qualifying relative;
• The financial, emotional, cultural, and political conditions of the country of return;
• The ability to raise children and other quality of life factors in the country of return;
• The qualifying relative’s length of residence in the United States;
• The qualifying relative’s age, health, skills, and employability as well as any other relevant factors.

It is important to remember that each case is unique.  The factors that may or may not be relevant in a given case will depend on its facts.  Accordingly, a determination will be made based on the totality of the circumstances.  Furthermore, merely demonstrating that the applicant (note that Cervantes addressed INA 212(i), which does not consider hardship to the applicant or to his or her child, whereas certain other forms of waivers and relief do allow such hardship to be considered) or his or her qualifying relative would incur extreme hardship is necessary, but not sufficient, for establishing eligibility for relief.  For example, in the INA 212(i) context, an applicant may meet the extreme hardship requirement, but the negative effects of his or her fraud or misrepresentation or other negative factors may nevertheless result in discretion being exercised against granting the waiver.

Victims of Violence

Certain persons seeking waivers as victims of violence or serious crimes may upon factors particular to their abuse in seeking an extreme hardship waiver.

For example, an applicant for T visa status must demonstrate that he or she would suffer “extreme hardship involving unusual and severe harm upon removal.”  While this standard is higher than regular “extreme hardship,” the applicant may appeal to factors particular to being a victim of a severe form of human trafficking in satisfying the burden of proof.

VAWA-self petitioners may also appeal to factors relating to harm incurred from their abuse in establishing the requisite extreme hardship.  For example, in the special rule cancellation of removal context, special factors that may be considered are the physical and psychological consequences of the abuse to the applicant and the effect on the applicant of the loss of access to U.S courts and the criminal justice system were the applicant to be removed.

Higher Hardship Standards

Cancellation of removal for non-LPRs requires that the applicant meet a higher bar of proof of “exceptional and extremely unusual hardship” in order to be granted relief.  Certain convictions for violent or dangerous criminal activities trigger this standard in the INA 212(h) context as well.  In the Matter of Recinas, 23 I&N Dec. 467, 470 (BIA 2002), the Board granted cancellation of removal to an applicant based on extreme hardship to her U.S. citizen children.  The Board held that the applicant met her burden for a variety of reasons including that her children would be unable to adjust to life in the country of return, they were reliant on the applicant for support, the applicant’s mother (a U.S. citizen) who helped her support the children would not relocate, and the applicant would likely be unable to obtain status in the United States subsequent to her removal.

Conclusion

If an alien is seeking a waiver or other form of immigration relief, it is important to consult with an experienced immigration attorney.  When the establishment of some form of extreme hardship is required, an experienced immigration attorney will be able to assess the situation and determine whether it will be possible to compile evidence to make a compelling case toward satisfying the requirement.

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.

Resources and materials:

Alexander J Segal - "Extreme Hardship", "Matter of Cervantes and its Effect on Evaluating Extreme Hardship"

Lawyer website: http://myattorneyusa.com

H1B Process

What is an H1B Visa?

The H1B visa is for nonimmigrant workers in specialty occupations who have a bachelor’s degree or its equivalent.  In order to be eligible for an H1B visa, the alien must have a bachelor’s degree or higher in the specialty for which a visa is sought or experience in the specialty deemed equivalent to such degree. The H1B visa is also available for fashion models of distinguished merit and ability under distinct rules, which do not include the degree requirement.  In this article, we will examine the H1B process.

H1B Petition Process

The H1B petition is filed by the employer on the Form I-129, Petition for Nonimmigrant Worker. However, in order to have a Form I-129 approved, the employer must have a labor condition application (LCA) certified by the Department of Labor (DOL).  The purpose of the LCA is for the DOL to certify that the position is for a specialized knowledge professional employee and that the beneficiary of the petition would be paid the prevailing wage.  Form I-129 may not be filed for an H1B beneficiary more than six months before the proposed employment start date.  Furthermore, the Form I-129 must actually specify an employment start date.  The USCIS recommends being aware of the current DOL LCA processing times to ensure that the position is certified before the filing of the Form I-129.There is an annual cap of 65,000 available H1B visas each fiscal year.  The vast majority of H1B petitions are cap-subject.  There are limited cap exemptions or modifications:

• The first 20,000 accepted petitions for beneficiaries with a U.S. master’s degree or higher are cap exempt, any excess petitions in this category are placed with the pool of cap-subject applicants;
• Beneficiaries of petitions by “an institution of higher education, or related nonprofit entity” or by “a nonprofit research organization or governmental research organization” to engage in certain kinds of employment are cap exempt;
• 6,500 H1B visas of the 65,000 H1B visa cap are reserved for nationals of Chile and Singapore (however, such applicants will be required to demonstrate nonimmigrant intent).

Each fiscal year, USCIS begins accepting cap-subject H1B petitions and applications for beneficiaries with a U.S. master’s degree or higher on April 1.  This allows for an employment start date of October 1 in the same year.  USCIS will continue accepting petitions until the H1B cap is reached.  If the H1B cap is exceeded within the first five business days in which USCIS is accepting applications, USCIS will pick petitions from a lottery (this applies as well for the cap of 20,000 exempt petitions for beneficiaries with a U.S. master’s degree or higher).  In recent years, the USCIS has received vastly more than 65,000 and 20,000 petitions, respectively, during the first week of accepting applications. This means that an employer petitioning for an H1B worker should be prepared to file his or her Form I-129 on April 1.  It is important to note that filing a Form I-907, Request for Premium Processing Service, does not afford any special benefit for a cap-subject petition.

Because cap-exempt petitions are not subject to the H1B cap, they may be filed at any time provided that the requirements are met.

Amended H1B petitions or a Form I-129 filed for a beneficiary seeking to exercise H1B portability are never subject to the H1B cap.

Obtaining H1B Visa Process

If the beneficiary is not in the United States in a valid nonimmigrant status, he or she must obtain an H1B visa while abroad after the Form I-129 has been approved.  If the beneficiary is in the United States maintaining lawful nonimmigrant status, he or she may apply for a change of status to H1B using the Form I-539, Application to Extend/Change Nonimmigrant Status.  It is important to note though that the beneficiary may not commence employment until the change of status has been approved and until his or her H1B employment start date.

H1B Amended Petition Process

In certain cases, an employer may need to file an amended Form I-129 petition.  In general, this is necessitated if there is a significant change in the nature of the beneficiary’s employment.  Current USCIS rules require an amended Form I-129 to be filed if an H1B employee’s worksite location is changed such that a new LCA is required.

H1B Extension of Stay Process

H1B status may be granted for an initial period of 3 years.  It may be extended, but the H1B employee may not generally stay for more than six years in the aggregate.  In order to apply for an extension of stay, the petitioner must file a Form I-539, Application to Extend/Change Nonimmigrant Status on behalf of the beneficiary before his or her status expires.  Certain applicants with long-pending immigrant visa petitions and/or labor certification applications are eligible for extensions beyond six years.

H1B Portability Process

H1B beneficiaries are allowed to exercise what is called “H1B portability.”  Under this provision, an H1B employee may switch employers upon the new Form I-129 being properly filed on his or her behalf.  However, it is important to note that the new employer must meet the requirements of an H1B employer for the portability petition to ultimately be approved.  If the Form I-129 is denied, the new employment must cease.

Conclusion:  H1B Process

Petitioners for H1B workers are well advised to consult with an experienced immigration attorney. This is because it takes careful planning to ensure that an H1B petition is completed and filed in a timely manner in order to be considered for the current fiscal year.  Additionally, H1B employees should consult with an experienced immigration attorney for guidance on issues such as applying for a change of status, exercising H1B portability, or extensions beyond the six year limit (and applying for immigrant visas in general).

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.

Resources and materials:

Alexander J Segal - "Introduction to H1B Visas", "Enhanced H1B Portability", "H1B Higher Education Cap Exemption"

Lawyer website: http://myattorneyusa.com

What is I-129 Form?

What is the Form I-129?

The Form I-129, Petition for a Nonimmigrant Worker, is a form that is used for multiple purposes regarding nonimmigrant workers:

• Petitioning for a nonimmigrant worker in certain categories; 
• Requesting an extension of stay in certain nonimmigrant categories; and
• Requesting a change of status to certain nonimmigrant categories.

It is important to note that the Form I-129 is filed by the petitioner.  In certain cases, an agent may file the Form I-129 on behalf of the petitioner.  The filing fee for the Form I-129 is $325 as of September 4, 2016.

Applicable Categories

The Form I-129 is used to petition for a nonimmigrant worker in the following nonimmigrant worker categories:

• H1B
• H1C
• H2A
• H2B
• H3
• L1 (L1A and L1B)
• O1
• O2
• P1
• P1S
• P2
• P2S
• P3
• P3S
• Q1
• R1

The Form I-129 is also used to petition for an extension of stay in nonimmigrant status in any of the above nonimmigrant categories and for a change to any of the above statuses for an alien who is in the United States and maintaining a lawful status.  In addition to the foregoing nonimmigrant categories, the Form I-129 is used to petition for a an extension of stay in or change of status to one of the following nonimmigrant categories (but not for an initial grant of status for an alien who is not in the United States maintaining a lawful status):

• E1
• E2
• E3
• H1B1
• TN

In certain cases where there is a substantial change in the beneficiary’s employment, the petitioner will be required to file an amended Form I-129 for approval for the new employment situation.  The circumstances in which an amended Form I-129 may be required will depend on the facts of the specific situation and the nonimmigrant worker category in question.

A petitioner for an L1 nonimmigrant intracompany transferee under an approved L1 blanket petition (executives, managers, and specialized knowledge professionals) must file a Form I-129S, Nonimmigrant Petition Based on Blanket L Petition, on behalf of the beneficiary.  If the petitioner is not seeking to confer status based on an approved L1 blanket petition, he or she must use the regular Form I-129.

Additional Information

As of September 4, 2016, the current edition of the Form I-129 is dated 08/13/15.  The United States Citizenship and Immigration Services USCIS) is still accepting the versions of the Form I-129 dated 03/26/15 and 10/23/14.  No other editions will be accepted.

The current edition of the Form I-129 is dated 06/02/16.  The USCIS will not accept any other edition of the Form I-129S.

The USCIS makes it a point of emphasis to remind petitioners to sign the Form I-129 or Form I-129S where indicated.  If the Form I-129 or Form I-129S is not signed, the petition will not be adjudicated.

Conclusion

The Form I-129 is an important form in the nonimmigrant worker context, as it is used to petition for nonimmigrant workers in a large number of nonimmigrant work visa categories.  Furthermore, the Form I-129 is used in these categories (and a few additional categories) for amended petitions, extension of stay petitions, and change of status petitions.  Because of this, the evidence required for a Form I-129 petition will vary widely depending on the nonimmigrant visa sought.  For example, the evidentiary and documentary requirements for a petition for the O1 category (Individuals with Extraordinary Ability or Achievement) will differ greatly from a petition in the H3 category (nonimmigrant trainee or special education exchange visitor).  An employer must carefully consult the Form I-129 instructions, which can be found on the USCIS website on the same page as the Form I-129 itself, to understand the documentary requirements for his or her petition.

Persons or entities seeking to petition for nonimmigrant workers are well advised to consult with an experienced immigration attorney for assistance in determining which nonimmigrant work visa category best suits his or her situation, and for guidance on properly completing the Form I-129 and all other requirements for an approvable application.

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.

Resources and materials:

Alexander J Segal - "The Premium Processing Service for Certain Form I-129 Petitions"

Lawyer website: http://myattorneyusa.com