Lin Walker 2/10/24 Lin Walker 2/10/24

New USCIS Fees on April 1, 2024

On January 31st, USCIS published a new fee schedule, which will take effect on April 1, 2024, and significantly impact most employment-based petitions. Most notably, the new fee schedule will add a mandatory Asylum Program Fee to every Form I-129, Petition for Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker, filed by for-profit employers.

What is the Asylum Program Fee?

It is an additional fee that USCIS is charging to U.S. employers in order to “fund part of the cost of administering the entire asylum process” which are estimated by the Agency to cost over $400 million per year. (89 FR 6208).

USCIS “determined that the Asylum Program Fee is an effective way to shift some costs to…petitioners who have more ability to pay”--in other words, U.S. employers who wish to sponsor foreign nationals for temporary (I-129) or permanent (I-140) employment in the United States. (89 FR 6208).

In other words, because Congress cannot figure out how to effectively fund the asylum process so that USCIS can properly administer and manage it, which has resulted in a backlog of more than 3 million cases, USCIS has in turn decided to tax U.S. employers in order to fund the asylum program.

What does this mean for U.S. employers?

Below is a chart of the new USCIS filing fees, by process, that must be paid beginning April 1, 2024.

If Employers have H, L, O, E, TN or I-140 petitions that can be filed before April 1, 2024, then they should do so in order to save hundreds, if not thousands of dollars.

Any cases that will be filed with USCIS on or after April 1, 2024, must include the new filing fees. Failure to file with the proper filing fees will result in the case being rejected.

Employers should take particular care in ensuring the proper filing fees with this year’s H-1B cap petitions, which must be filed after April 1, 2024. USCIS is often delayed in issuing receipt notices for cap cases, and it can take 6 weeks or longer to receive confirmation that a petition has been accepted or rejected. If the wrong filing fees are used and the H-1B cap petition is rejected, the Employer may not find out until after the filing period has expired, which means that the prospective employee will lose their opportunity for an H-1B in Fiscal Year 2025 and will need to be entered into the lottery for Fiscal Year 2026.

Lin Walker 12/16/23 Lin Walker 12/16/23

EB-1A Pro Tip: Membership in Associations Requiring Outstanding Achievement

In order to be eligible for classification as an EB-1A, a foreign national must establish that they possess a level of expertise in the sciences, arts, education, business or athletics, indicating that they are one of that small percentage who has risen to the very top of the field of endeavor.

This requires submission of evidence that they have sustained national or international acclaim and that their achievements have been recognized in the field of expertise. Such evidence includes a major, internationally recognized award, or at least three out of ten criteria.

For this post, we’re going to focus on documentation of the foreign national's membership in associations in the field, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields [8 CFR 204.5(h)(3)(ii)].

I recently consulted with a foreign national and assessed his credentials for EB-1A classification. He firmly believed that he qualified for EB-1A classification based, in part, on his membership in two organizations in the engineering field. Unfortunately, after completing my assessment and reviewing these two organizations, I had to advise the foreign national that he did not meet this criterion. This was very unfortunate, because he paid thousands of dollars to join them based on the advice he received from an EB-1A coach (who is not an immigration attorney). Even before our consultation, he had already paid thousands of dollars to this EB-1A Coach and then followed her erroneous advice, which resulted in him losing significant money.

To be clear, in order to satisfy the memberships criterion: (1) the organization must require outstanding achievement as a prerequisite for a person to become a member; and (2) the person’s achievements must qualify as “outstanding” as judged by recognized national or international experts in the field of endeavor.

What does this mean? Professional organizations that simply require a person to pay a fee to join, without an assessment of the significance and quality of their contributions to the field, do not qualify as memberships in organizations that require outstanding achievement for EB-1A purposes. The USCIS Policy Manual is clear about this:

“Relevant factors that may lead to a conclusion that the person's membership in the association(s) was not based on outstanding achievements in the field include, but are not limited to, instances where the person's membership was based solely on the following factors (by themselves or in the aggregate):

A level of education or years of experience in a particular field;
The payment of a fee or by subscribing to an association's publications; and
A requirement, compulsory or otherwise, for employment in certain occupations, as commonly seen with union membership or guild affiliation for actors.”

(Emphasis added)

Based on my assessment of the foreign national’s accomplishments, I was able to recommend two organizations for him to join that met the EB-1A criterion for memberships. After he joined, we were able to file a successful EB-1A petition on his behalf.

If you are thinking about petitioning for EB-1A classification, it is essential to work with a licensed business immigration attorney who possesses the immigration law knowledge and EB-1A experience.

Lin Walker 12/10/23 Lin Walker 12/10/23

EB-1A Pro Tip: How to Evidence the Critical or Leading Role Criterion

Today, we’re going to focus on one specific criterion: Evidence that the foreign national has performed in a leading or critical role for organizations or establishments that have a distinguished reputation [8 CFR 204.5(h)(3)(viii)]. I my humble opinion, it is essential to read USCIS’s Policy Manual on EB-1A petitions, wherein the Agency explains how to satisfy the different criterion and provides examples of the types of evidence that it wants to receive.

This is a great criterion that many EB-1A candidates can meet, but is often challenged by USCIS because of mistakes made in the presentation of evidence. These mistakes include: (1) using the “leading role” and “critical role” terminology interchangeably as if they are the same thing; and (2) failing to establish that an organization or establishment has a distinguished reputation.

In order to successfully present evidence in this criterion, you must establish that: (1) the foreign national has served in a “leading role” or a “critical role”, usually through a testimonial letter from a direct supervisor; and (2) with an organization or establishment (a current or former employer) that has a distinguished reputation, usually with media reports.

First, “leading role” and “critical role” are different.

To establish that a foreign national has served in a “leading role”, USCIS will look at their title and job duties within the organization as a whole and within their specific department. In addition to a testimonial letter that clearly describes the foreign national’s leadership role, you would need to provide an organizational chart reflecting the hierarchy of their position within their department and organization.

To establish that a foreign national has served in a “critical role”, USCIS will look how they have “contributed in a way that is of significant importance to the outcome of the organization or establishment's activities”. It is the foreign national’s contributions, not title or job duties, that are of paramount importance to establishing “critical role”.

Second, you must provide evidence that the organization or establishment (current or former employer) has a distinguished reputation.

This requires printed media such as articles and reports published about the employer and their products; product reviews showing that the employer’s products have received acclaim or are recognized as outstanding in the field; annual reports or media reports showing that the employer is recognized as leader in their field and/or that their products/services (in particular the ones that the foreign national has worked on) have generated significant revenues for the employer; and awards/honors that the employer has received, especially if those relate back to the foreign national’s work.

As the EB-1A is a complex preference category that requires significant documentation and legal argumentation, it is critical to work with a licensed business immigration attorney, who is knowledgeable about and experienced in preparing and filing EB-1A petitions.

Lin Walker 12/3/23 Lin Walker 12/3/23

EB-1A Client Success: Electronics Engineer

One of the things I enjoy about being a Business Immigration Attorney is the diverse occupations that we have the opportunity to work with. In particular, I love working with scientists and engineers, not only because their work is so critical to our nation, but also because it is challenging to translate what they do into simple terms without losing the complexity of their work. It is quite a balancing act!

I recently had the opportunity to prepare and file an EB-1A petition for an Electronics Engineer, which was approved by USCIS without an RFE.

The Client, who self-petitioned, had more than 15 years of experience in the Electronics Engineering field, with a specialization in the design and development of semiconductor chips and supercomputing technologies used in artificial intelligence and a diverse range of next-generation technologies, which are key national security and critical infrastructure areas identified by the Biden-Harris Administration.

Although the Client was clearly a leader in their field, they had no media or public footprint–all of their work was behind the scenes. We had a consultation about the EB-1 standards–I assessed their portfolio, advised them of the strengths in their case and areas of potential USCIS challenge. I also advised the Client of key steps that they could complete to strengthen their EB-1A case, which they did. We developed a strategic plan and aggressive timeline–we started preparing the EB-1A in October, filed in mid-November, and received an approval about a week later.

There were 3 keys to our success: (1) identifying the EB-1A criteria that best suited the Client’s work and achievements; (2) properly explaining, in layman's terms, the Client’s niche and showcasing the evidence that supported EB-1A classification; and (3) most importantly, actively collaborating as a team to ensure that all of the language used truly captured what made the Client extraordinary.

It is important to note that although the EB-1A requires submission of at least 3 out of 10 criteria where the beneficiary does not have evidence of a major internationally-recognized award, the more probative evidence that can be provided, the stronger the case. Through our collaborative effort, we were able to satisfy the following criteria: (1) the Client’s membership in associations in the field that require outstanding achievement of their members; (2) the Client’s original scientific and business-related contributions of major significance to the field; (3) the Client’s performance in a critical role (as opposed to leading role) for distinguished organizations; and (4) the Client’s receipt of a high salary or other significantly high remuneration in comparison to others in the field.

With the EB-1A approval, the Client is now able to transfer their old EB-2 priority date, which has retrogressed by 11 years, to the EB-1A preference and apply for lawful permanent residence.

If you are thinking about self-petitioning for EB-1A classification, it is essential to work with an experienced business immigration attorney who possesses: (1) the immigration law and know how; and (2) knowledge of your science and/or engineering industry and how it contributes to the national security and critical infrastructure goals of the United States; and (3) will work with you as a collaborative partner.

Lin Walker 9/3/23 Lin Walker 9/3/23

The Relationship Between Unauthorized Practice of Law and Unauthorized Employment

There are people who confuse being entrepreneurial with being parasitic. Where an opportunity arises and there is significant demand and desperation, there are people who will, and have, taken advantage of those who wish to obtain such an opportunity.

Take for example this year’s H-1B lottery debacle, wherein more than 408,000 H-1B registrations were filed for the same 96,000 beneficiaries, leading USCIS to conclude that “several dozen small technology companies” colluded to submit multiple registrations to increase their odds of selection in the H-1B lottery. USCIS has been actively engaged in investigating these companies and beneficiaries.

We are now seeing this with the sudden increase of O-1, NIW and EB-1A consultants offering immigration coaching and mentoring services on LinkedIn, specifically focusing on how to “build a profile” to be eligible for an O-1, NIW or EB-1A. What are their qualifications? Simply one circumstance: being the beneficiary of their own O-1, NIW or EB-1A petition, which in most instances was prepared and filed by a qualified and experienced immigration attorney. These individuals are taking advantage of the concern and desperation being experienced by individuals who were not selected in the H-1B lottery, and/or otherwise subject to the extensive delays in the availability of immigrant visa numbers because of the per-country restrictions.

Why do I take issue with this? First and foremost, these individuals are not trained, licensed or experienced business immigration attorneys and are clearly engaged in the unauthorized practice of law. Second, in some instances the unauthorized practice of law can result in unauthorized employment.

What is unauthorized practice of law?

According to the American Bar Association (ABA), unauthorized practice of law (UPL) “manifests in a non-attorney who establishes a business to offer immigration and other legal services” which includes guiding people “on what actions to take to resolve their immigration matters,” instructions “on which immigration form or process they should utilize”, completion of “the form, possibly even suggesting specific answers” and advising “on what they could expect.”

Furthermore, the ABA states that the “practice of immigration law is defined by federal regulation as an "act or acts of any person appearing in any case, either in person or through the preparation or filing of any brief or other document, paper, application, or petition on behalf of another person or client before or with [the Department of Homeland Security]...Preparation, an essential element of the practice of immigration law, is ‘the study of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activities, including the incidental preparation of papers’.

USCIS recognizes the following individuals as being qualified to offer immigration advice and representation: (1) attorneys; and (2) non-attorney representatives who are accredited by the Board of Immigration Appeals. Someone whose only experience with the O-1, NIW or EB-1A is having their own petition approved is not recognized nor qualified to offer any legal advice.

These O-1, NIW and EB-1A consultants are engaged in UPL, regardless of the disclaimers they post on their LinkedIn profiles and websites. The moment an O-1, NIW, or EB-1A consultant advises a foreign national how to “build” their profile and brand, and meet USCIS criteria, they are engaged in providing legal advice. One particular non-attorney consultant wrote a book that they claim “demystifies” the EB-1A process, which they sell for approximately $150 in addition to offering their services to “coach” foreign nationals to create an EB-1A profile. Although they claim repeatedly that they are not offering legal advice, their book includes: distinctions between the different EB-1 categories with their opinion that the “bar is definitely lower in comparison” for certain categories [erroneous legal assessment]; the EB-1C requires employment as a multinational manager abroad for two years [erroneous legal interpretation]; that the EB-1A takes a shorter period of time to qualify than the other EB-1 categories; offers sample filing letters; and a claim that the final merits determination is based on establishing that a foreign national’s work benefits the U.S. economy [erroneous legal interpretation]. Contrary to their disclaimers, their book is filled with erroneous legal advice and standards.

So, assuming an O-1, NIW or EB-1A consultant offers legal advice that is more cost-effective than an immigration attorney (which is not accurate in many instances), what is the problem?

First, because such individuals are not trained, licensed and experienced immigration attorneys, they do not understand the intricacies of immigration law, which is filled with nuanced terms of art. As clear from above, this particular EB-1A consultant has misinterpreted the regulations or otherwise made-up standards that simply do not exist in the statute, regulations or case law. Their only experience with the EB-1A category is the approval of their own petition, which was prepared and filed by a qualified U.S. immigration attorney.

Second, a foreign national’s immigration record is forever–meaning mistakes made not only remain a permanent part of a foreign national’s record, but can have severe consequences. At best, a mistake made by one of these non-attorneys will result in lost fees and a rejected or denied petition. At worst, a mistake can result in the foreign national being subjected to additional scrutiny for misrepresentation or fraud, losing significant money, violating or otherwise failing to maintain the nonimmigrant status, or being subjected to removal proceedings.

Third, by convincing a foreign national who is not qualified for the O-1, NIW or EB-1A to file a petition with USCIS, they are only adding to the significant caseload and backlogs that are plaguing our immigration system. Each case filed with USCIS must be adjudicated and in comparison, to other types of petitions, O-1, NIW and EB-1 petitions are very document-heavy, meaning that there is significant evidence that must be reviewed. When a petition is filed with the skewed standards as interpreted by an O-1, NIW or EB-1A consultant that do not meet the regulatory criteria, valuable USCIS resources are misused, adding to delays and costs.

How does UPL trigger unauthorized employment?

According to USCIS, unauthorized employment is: “any service or labor performed for an employer within the United States by a noncitizen who is not authorized by the INA or USCIS to accept employment or who exceeds the scope or period of the noncitizen’s employment authorization.”

USCIS generally approves nonimmigrant petitions for employment (such as an H-1B, O-1A or O-1B) with a specific employer, for a specific role, with specific job duties, for a specific period of time. A foreign national may engage in unauthorized employment by working for a company other than the one listed on their USCIS approval notice, by performing duties or services not approved by USCIS in the petition filed by their employer, or working beyond the date authorized by USCIS regulations.

How does UPL trigger unauthorized employment? There are a number of individuals present in the U.S. in O-1A status who have now jumped into the immigration coaching and mentoring area, by writing books offering legal advice and by providing coaching/mentoring services for immigration.

For example, two individuals who recently received approved O-1A petitions held a LinkedIn webinar offering O-1A preparation, planning and mentoring advice to other professionals in the Information Technology (IT) industry. Both individuals stated that they received their O-1As for Product Manager roles through very well-known tech companies (their profiles confirmed this information) and now they were offering immigration advice to help other Product Managers qualify for the O-1A including: whether the foreign national needed to work in the sciences or research; whether the foreign national required an advanced degree; what kind of evidence is required; and that foreign nationals can change from F-1 to O-1.

Here is the problem, it is highly likely, given their detailed job descriptions posted online, that their UPL exceeds the scope of their Product Manager employment as petitioned by the IT employers and approved by USCIS. That is, unless their respective IT employers included in their job description that they would be required to engage in providing legal advice and mentoring other Product Managers on their immigration qualifications and how to prepare and qualify for an O-1, such activities would likely constitute unauthorized employment. [Note: it is unlikely that USCIS would have approved an O-1 petition for an IT Product Manager that also included the job duty of UPL – such a duty falls outside what is normally required of an IT Product Manager.]

Engaging in unauthorized employment can result in severe consequences for foreign nationals. First, foreign nationals who engage in unauthorized employment are deemed to have violated their nonimmigrant status and failed to maintain status. Second, it makes a foreign national ineligible to extend or change their status in the United States. Third, it makes a foreign national ineligible to adjust their status to lawful permanent resident in the United States unless there is an exemption or other provision of law available. Fourth, it makes a foreign national subject to deportation or removal proceedings. Fifth, it could result in their nonimmigrant visa being revoked or a future application denied.

Keep in mind, the test for unauthorized employment is NEVER just about receipt of payment. A very common misconception held by foreign nationals is that if they don’t get paid for the work, then they are volunteering. Engaging in unpaid work is not the same as volunteering and where USCIS is concerned, if a foreign national is engaging in work that is usually performed for payment, then the foreign national must: (a) hold the proper visa classification and (b) be paid.

How would USCIS even find out about unauthorized employment? In this case, very easily – through social media. Nearly each one of these O-1A IT professionals have advertised their books and immigration mentoring services on LinkedIn, which can easily be found by searching the “#O1visa”. In addition, if these individuals are receiving payment for their immigration mentoring services, such payment must be reported on the U.S. tax returns, which must be provided if the foreign national seeks a greencard in the United States. USCIS is increasingly becoming social media savvy and many of these individuals have been very public in offering their services. It is a shame that they did not speak with their immigration attorneys before engaging in these activities, which can potentially jeopardize their immigration status in the U.S.

Conclusion

I’m not looking to denigrate anyone’s work or ability to make a living. However, providing the wrong legal advice can and does cause harm that can be permanent, place people in legal jeopardy and cause them to lose thousands of dollars.

These O-1, NIW and EB-1A consultants are providing erroneous legal advice and engaging in the unauthorized practice of law, which can have significant consequences for themselves and the foreign national consumers who use them.

If you want legal advice on immigration law, hire an immigration attorney with experience. If you have any questions about an O-1, NIW or EB-1, please schedule a consultation with us. If you are in the U.S. and seek to engage in services beyond the scope of your employment, you must speak with an immigration attorney before commencing such activities because you could be violating your nonimmigrant status.