April 1st is rapidly approaching! Last week, we published an alert discussing why it is important to file your H-1B visa petitions and what the cap, or numerical limit on petitions, means for employers. For more information, read the full alert here.
The April 1, 2014 deadline for filing H-1B visa petitions for Fiscal Year 2015 will be here before you know it. We recently published an alert with more information on when you should file and H-1B caps.
The following opinion piece by Susan Cohen appeared in the December 20, 2013 issue of VentureBeat and is reprinted here with permission.
The U.S. market is a magnet for foreign entrepreneurs. Yet the U.S. immigration system throws up roadblocks to entrepreneurs. There is no “startup” visa, and the visa options that exist are unwieldy and often impractical.
Contrast that with the Chilean government’s Start-up Chile program. Nicholas Shea, a Stanford MBA and a Chilean citizen, began this program in 2010, when he realized that there were no viable visa options for the Chilean friends he wanted to start a company with in Silicon Valley. Since 2010, the Start-up Chile program has awarded over 1,000 startup visas and millions of dollars of funding to those who win the country’s business plan competition. Continue Reading
We applaud Microsoft Corporation and the numerous parties, including the American Immigration Council and the Chamber of Commerce, who filed amicus briefs last week in a consolidated Board of Alien Labor Certification (BALCA) case involving PERM labor certifications filed by Microsoft Corporation on behalf of several of its employees. When the Department of Labor (DOL) oversteps its authority in deciding PERM cases, it is imperative to hold the agency accountable.
The single issue in this case is the requirement in the DOL’s PERM regulations that if an employer has had a layoff within the 6 month period prior to filing a PERM labor certification the employer must “notify and consider” potentially laid off workers in the same geographic area of intended employment of the PERM job opportunity. The reason for this requirement is that employers may not file a PERM labor certification application on behalf of an employee unless the employer is able to attest that it has not found any able, willing, qualified and available U.S. workers. If a laid-off worker could adequately perform the duties of the PERM position, and if the individual is able, willing and available, then the employer would not be permitted to file the PERM application.
Microsoft sought to satisfy the “notify and consider” requirement by informing its terminated employees that they could visit the company’s careers website and apply for any open positions. Since the PERM job opening is posted on the company website, if a former Microsoft employee applied for the PERM position, the individual’s application would then be “considered” by the company. Many companies use the above-described “notify and consider” method.
Apparently the analyst at the DOL who decided the Microsoft PERM applications in question did not believe that Microsoft properly notified and considered laid off workers. Yet, Microsoft had previously filed 200 similar PERM cases before filing the applications which are the subject of the litigation, and all the prior applications had been certified, even though the company used the same method of “notification and consideration” in those cases.
Not once since this broadly written “notify and consider” regulation was issued in 2005 has the DOL provided guidance to employers as to what methods of notification and consideration would be acceptable and what methods would not be acceptable. The business community has been grappling and struggling with this issue since the regulations first came out as there are so many potential methods for notifying and considering workers. Practices among employers range from notifying terminated workers in their termination letters that they can apply for future positions on the company website, and considering those who apply for the PERM position, to sending letters to potentially qualified workers who have been terminated in the last 6 months, notifying them of the specific PERM job opportunity.
The DOL routinely publishes FAQ’s on its website to provide specific guidance to employers filing PERM applications. Employers have begged the DOL to issue guidance and provide clarity to the business community on this “notify and consider” issue. This requirement has been a major concern in PERM cases especially since the recession in 2008, as RIFs and layoffs unfortunately have been a common occurrence over the last five years. In July, 2008 the American Immigration Lawyers Association and other stakeholder organizations asked the DOL to issue an FAQ on this subject. The DOL responded: “This is in line to be drafted but DOL has other priorities.” As of November, 2013, no FAQ on this subject has been published by the DOL on its website.
When a regulation implementing a statute is written in a broad fashion, yet other regulations implementing the same statute are written much more specifically, courts typically rule that the affected parties should be free to interpret the broadly written regulation in a variety of reasonable ways. To rule otherwise would unjustly punish the affected parties who used their best efforts to interpret the requirement, in the absence of any guidance by the government agency which issued the regulation.
Employers throughout the United States who file PERM cases certainly hope that the BALCA will make the right decision in the Microsoft case and overturn the PERM denials that were based on DOL’s view that Microsoft did not properly notify and consider laid off workers. It would be a manifest injustice for the DOL to hold employers to a standard that was never articulated to the public.
The government shutdown, in effect since October 1, 2013, has ended — and immigration matters can now resume being processed. Read more about this and the impact of the shutdown in an alert published today.
We recently published an alert on the 2013 US Government Shutdown and how it will affect immigration services. The alert examines the three basic categories of immigration-related services: security, fee-paying, and non-fee paying. We expect continued service for immigration services considered vital to national security, delays in fee-paying activities, and stoppage of work for non-fee paying services.
By Susan J. Cohen
Those who closely follow the world of U.S. immigration adjudication trends are painfully aware of the hostile attitude exhibited both by U.S. Citizenship and Immigration Services (USCIS) adjudicators and consular officials at U.S. consulates abroad towards L-1B “intracompany transferee” visa petitions. Much ink has been spilled about the improper standards applied by U.S. government officials to L-1B “specialized knowledge” petitions, resulting in large numbers of unjustified denials of these petitions over the last five years.
But it is also true that USCIS has overstepped its authority and applied an unduly restrictive standard in adjudicating L-1A manager cases. The government decision-makers in many of these “manager” cases evidence a complete lack of understanding of global business operations and almost always question whether someone will truly function as a manager in the U.S. if they don’t have a large number of U.S. direct reports. To be clear, the Immigration and Nationality Act (INA) and the regulations allow for both traditional managers of people as well as for “functional” managers – those who are responsible for an essential function of a business, even if they don’t directly manage subordinates. See INA Section 101(a)(44)(A)(ii) and 8 C.F.R. § 214.2(l)(3)(ii).
Too many decisions coming out of both the California and the Vermont Service Centers evidence an incorrect presumption on the part of USCIS adjudicators. This incorrect presumption is the following: that when a U.S. office is small, with only a few total employees, anyone claiming that the L-1A transferee will work as a “manager” is effectively mischaracterizing the nature of the position. This presumption is unfair and is insulting to the global and U.S. business community. Practitioners report that while both USCIS Service Centers are issuing a significant percentage of incorrect L-1 decisions, the CSC appears to be issuing a larger percentage of unjustified RFE’s (Requests for Evidence), NOIDS’s (Notices of Intent to Deny) and denials.
In their decisions, USCIS adjudicators frequently cite an incorrect legal standard. The agency often claims that managers cannot function at a managerial level without a clear chain of U.S.-based professional workers reporting up to the manager. The law is clear that functional managers are permitted. Furthermore, even if a manager spends some portion of his or her time on some non-managerial duties, that fact does not mean that the individual is not functioning as a manager.
In this inhospitable environment for L-1 intracompany transferee petitions, it is therefore gratifying when a company fights back and calls USCIS on its improper adjudication standards. Recently, an L-1A petitioner did just that, after the CSC denied the company’s L-1A extension for their manager. The company justifiably did not stand for the denial and it fought back. The company filed a lawsuit in federal court against USCIS seeking injunctive action to compel the approval of the L-1A petition. Rather than risk an adverse federal court decision, USCIS certified the case to the AAO. Matter of Z, File WAC 13 103 50466. Happily, on September 13, 2013 the Administrative Appeals Office (AAO) overturned USCIS on its incorrect decision. The AAO took the CSC to task for “incorrectly inferring” that the manager would be directly involved in sales, despite the fact that he was going to supervise a sales manager and a sales team located at the parent company’s overseas location.
The AAO’s final statements in this excellent, well-reasoned decision summarize the proper standard:
“While the beneficiary is required to apply his business expertise in carrying out his job duties and perform some operational or administrative tasks, the petitioner has established by a preponderance of the evidence that the majority of the day-to-day non-managerial tasks associated with the function he manages are performed by his staff of ten direct and indirect subordinates and by external service providers. Matter of Chatwathe, 25 I&N Dec. 369, 376 (AAO 2010). As the statutory definition discusses managerial capacity as a function of the duties that the beneficiary “primarily” performs, the petitioner need only establish that the beneficiary devoted more than half of his time to managerial duties. The petitioner has met that burden.”
I congratulate this company and their counsel Roy Watson in standing up to USCIS and fighting for justice for their beleaguered L-1A manager.
While the September 13th AAO decision has not yet been designated as a precedent decision, it absolutely should be. It is time for the AAO to designate precedent decisions that confirm the proper legal standards to be applied by USCIS and get the adjudications back on the right track. To do otherwise would be counter-productive and contrary to the interests of the global business community.
On October 1, 2013, the U.S. Department of State will begin accepting requests to register for the 2015 Diversity Immigrant Visa Program (DV-2015), also known as the Green Card Lottery. The Diversity Lottery Program provides a path for foreign nationals to become permanent residents of the United States regardless of whether they have a family member or an employer willing to sponsor them. This program is a success, facilitating the immigration of people from across the globe. If you meet the eligibility requirements and wish to secure permanent residence status in the United States, you should consider registration in the lottery. Continue Reading
There is some interesting but overlooked news on the EB-5 front.
In a letter to a broker-dealer dated August 26, 2013, FINRA (Financial Industry Regulatory Authority) confirmed that the suitability rule (Rule 2111) applies to FINRA members making investment recommendations to foreign nationals in connection with the EB-5 Investor Visa Program. This guidance has sweeping implications for broker-dealers that market securities in connection with EB-5 projects. Broker-dealers interested in marketing securities for EB-5 projects now have interpretive guidance on their obligations regarding the applicability of the suitability rule when advising foreign investors. This is the first substantive guidance that FINRA has issued in connection with the EB-5 program. If you are a broker-dealer and interested in marketing EB-5 securities to foreign investors, you need to understand this guidance and how it applies to your obligations in an EB-5 private offering. Continue Reading
USCIS has reported that there has been an increase in occurrences of petitioners and applicants for immigration benefits being called by scammers who claim to be the U.S. government. Susan Cohen, Chair of Mintz Levin’s Immigration Practice, describes this issue in her short article at:
One very disturbing aspect of this scam is that the perpetrators have secured names and phone numbers of petitioners and applicants who are being contacted. Was there a breach of privacy or security with immigration data at USCIS? How did the scammers secure this information about applicants?
USCIS has not explained how the scammers secured names and phone numbers of actual applicants for immigration benefits.
Stay tuned for updates on this issue as we learn more.