Lin Walker 6/1/24 Lin Walker 6/1/24

Alternatives to the H-1B: O-1A Visa - Alternative Criterion 8 (High Remuneration)

For those of you considering viable options to the H-1B cap (because you were not selected in this year’s lottery), I will be doing a deep-dive into the O-1A criteria over the next couple of weeks.

When determining whether someone is qualified for O-1A classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.

What does this mean? Read the regulations and the requirements in their totality. This means literally reading each and every single word – do not summarize or abbreviate the criterion because this is where you get into trouble.

If you do not possess evidence of receipt of a major, internationally recognized award (on the level of a Nobel Prize), in your field of endeavor, you can still qualify for O-1A classification by providing documentary evidence in at least three (3) out of eight (8) alternative criterion, which we will address in the coming weeks.

It is important to note that the vast majority of O-1A recipients that I have worked with (more than 99%) do not have a major, internationally recognized award. These incredibly talented individuals qualify for O-1A classification because they are able to meet at least three of the alternative criterion.

O-1A Deep Dive - Alternative Criterion 8

The regulations state that the beneficiary of an O-1A petition may provide evidence they “[have] either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.” 8 CFR §214.2(o)(3)(iii)(B)(8).

Problem

What’s so difficult about this criterion? Why do so many people get it wrong? To satisfy this criterion, you must make a two part showing:

The beneficiary has commanded (in the past) a high salary or other substantial remuneration for services in relation to others, OR
The beneficiary will command (in the future) a high salary or other substantial remuneration for service in relation to others.

Pro Tips

First, when evaluating high remuneration or salary, it is essential to determine whether the beneficiary is paid hourly or annually. If you are assessing paystubs, it is really important to determine whether the beneficiary is paid every week, bi-weekly (every other week, 26 paychecks per year) or semi-monthly (twice a month, 24 paychecks per year).

Second, whether a beneficiary is earning a high salary or other remuneration requires a comparison by geography and their peers. I have found that a very useful tool is the wage data provided by the DOL’s Foreign Labor Certification Data Center. In order to satisfy the high salary or other remuneration, the hourly or annual salary must exceed the Level 4 wage for the occupational classification most closely related to the beneficiary’s field of endeavor in the geographic location where all services have been performed or will be performed.

Third, read the Regulations and USCIS Policy Manual, in particular, “Appendix: Satisfying the O-1A Evidentiary Requirements” carefully and ensure that you are providing documentary evidence that satisfies the entirety of the criterion, not just a summary of what you think it means (or worse, only what you have evidence to show).

Fourth, work with a qualified business immigration attorney who is experienced in representing, preparing and filing O-1A petitions. It is essential to understand the changing definitions, regulatory interpretations and adjudicative priorities of USCIS in order to present the strongest possible petition.

Lin Walker 5/25/24 Lin Walker 5/25/24

Alternatives to the H-1B: O-1A Visa - Alternative Criterion 7 (Employment in a Critical or Essential Role)

For those of you considering viable options to the H-1B cap (because you were not selected in this year’s lottery), I will be doing a deep-dive into the O-1A criteria over the next couple of weeks.

When determining whether someone is qualified for O-1A classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.

O-1A Deep Dive - Alternative Criterion 7

The regulations state that the beneficiary of an O-1A petition may provide evidence they have been “employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation”. 8 CFR §214.2(o)(3)(iii)(B)(7).

Problem

What’s so difficult about this criterion? Why do so many people get it wrong? To satisfy this criterion, you must make a two part showing:

The beneficiary has been (in the past, but can also include the present) employed in a critical or essential capacity; and
For organizations or establishments that have a distinguished reputation.

Pro Tips

First, many petitions use the terms “critical” or “essential” interchangeably, when these mean different things. For USCIS, a critical role means that the beneficiary has contributed in significant ways to the organization or establishment’s goals or activities. An essential role is one where the beneficiary is or was integral to the organization.

I know, this is very confusing but you can think of it this way: a critical role is one that impacts goals or activities (e.g., an engineer who contributes to the design and development of a highly successful product for a company), where an essential role is one that impacts the organization as a whole (e.g., a high-level executive or manager who creates policies or priorities that determine the company’s growth/trajectory).

Second, many petitions do not establish that the organizations and establishments have a distinguished reputation. To establish that an organization or establishment has a distinguished reputation, look at media reports about the company, including positive reputation, receipt of awards/accolades, significant press, and recognition as a leader in the field.

What evidence can be used to satisfy this criterion? Evidence may include but is not limited to: testimonial letters from people employed by the company with first-hand knowledge of the beneficiary’s critical or essential role; receipt of grants/funding for research and development; and media reports.

Lin Walker 5/18/24 Lin Walker 5/18/24

Alternatives to the H-1B: O-1A Visa - Alternative Criterion 6 (Authorship of Scholarly Articles)

For those of you considering viable options to the H-1B cap (because you were not selected in this year’s lottery), I will be doing a deep-dive into the O-1A criteria over the next couple of weeks.

When determining whether someone is qualified for O-1A classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.

O-1A Deep Dive - Alternative Criterion 6

The regulations state that the beneficiary of an O-1A petition may provide evidence of their “authorship of scholarly articles in the field, in professional journals, or other major media”. 8 CFR §214.2(o)(3)(iii)(B)(6).

Problem

What’s so difficult about this criterion? Why do so many people get it wrong? To satisfy this criterion, you must make a two part showing:

The beneficiary written scholarly articles; and
Those articles have been published in professional journals or other major media.

Pro Tips

First, it is critical to note that this criterion DOES NOT require the beneficiary to be the sole or first/principal author of the article. So long as the beneficiary is listed as an author or one of the authors, the first prong is satisfied.

Second, the article must be published in a relevant professional journal (for the specific or allied field) or major media, which can include conference proceedings, major newspapers, and even well-established websites with a large viewership. In order to establish that the publication meets this criterion, it is essential to provide media kit(s) or circulation/readership/viewership data, impact factor (for scientific or academic journals), acceptance rates (for scientific or academic journals, and rankings in the specific field (for scientific or academic journals).

Lin Walker 5/11/24 Lin Walker 5/11/24

Alternatives to the H-1B: O-1A Visa - Alternative Criterion 5 (Original Contributions of Major Significance)

For those of you considering viable options to the H-1B cap (because you were not selected in this year’s lottery), I will be doing a deep-dive into the O-1A criteria over the next couple of weeks.

When determining whether someone is qualified for O-1A classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.

O-1A Deep Dive - Alternative Criterion 5

The regulations state that the beneficiary of an O-1A petition may provide evidence of their “original scientific, scholarly, or business-related contributions of major significance in the field”. 8 CFR §214.2(o)(3)(iii)(B)(5).

Problem

What’s so difficult about this criterion? Why do so many people get it wrong? To satisfy this criterion, you must make a two part showing:

The beneficiary has made original contributions; and
Those contributions are of major significance to their field.

Although many O-1As can meet this criterion, it takes strategic planning and organization because many different types of documentation serve as the “ingredients” to show original contributions of major significance.

Pro Tips

First, a beneficiary must show that they have made original contributions. An original contribution, which can include but is not limited to: establishing a cause for a certain phenomenon; developing a new technology, tool, process or method to investigate a phenomenon or resolve an important issue in society; creating a new method to identify and combat fraud and/or cybersecurity issues; and developing a new model to investigate disease or illnesses.

USCIS will consider a contribution to be original if it resulted in obtaining grants/funding, publishing articles, or receiving a patent. Note, however, that evidence of the a patent, alone, is not enough.

Second, the beneficiary must establish that the original contribution is of major significance to the field. USCIS will consider an original contribution to have major significance if: it has received significant attention from others in the field; if publications based on the contribution received significant citations; and/or if it has been licensed or utilized in a specific product.

What evidence can be used to satisfy this criterion? Evidence may include but is not limited to: testimonial letters from experts in the field discussing the originality and significance of the beneficiary’s work (more evidentiary weight is given to independent expert letters); citations reports and/or citations analyses showing that the beneficiary’s work has received numerous citations from recognized organizations/experts in the field; patents that have been licensed; or evidence of the commercial application/use of the contribution.

Lin Walker 5/4/24 Lin Walker 5/4/24

Alternatives to the H-1B: O-1A Visa - Alternative Criterion 4 (Judge of the Work of Others)

For those of you considering viable options to the H-1B cap (because you were not selected in this year’s lottery), I will be doing a deep-dive into the O-1A criteria over the next couple of weeks.

When determining whether someone is qualified for O-1A classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.

O-1A Deep Dive - Alternative Criterion 4

The regulations state that the beneficiary of an O-1A petition may provide evidence of their “participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought”. 8 CFR §214.2(o)(3)(iii)(B)(4).

Problem

What’s so difficult about this criterion? Why do so many people get it wrong? To satisfy this criterion, you must make a two part showing:

The beneficiary has served, either individually or as part of a group, as a judge of the work of other individuals AND
The work being judged is in the same or related field of specialization/endeavor.

Pro Tips

First, let’s cover what USCIS does not accept as satisfying this criterion. I have never seen USCIS accept service as the leader of a high school science club, mentoring of high school students, judging an elementary or high school writing or essay contest, or judging high school students as satisfying this criterion. While such work is commendable, in order to satisfy this criterion, the work being judged must be produced by individuals at a professional level.

Second, an invitation to judge by itself is not sufficient. The beneficiary must actually participate in the judging of the work of others.

Third, the work being judged must be in the O-1A beneficiary’s field of endeavor or a related field. If the beneficiary is applying for an O-1A as biomedical engineer, and participating as a judge for a food competition, such work would not satisfy this criterion.

So, what would work? Evidence may include but is not limited to: serving as a review of manuscripts, abstracts or articles submitted for presentation at scholarly conferences or publication in scholarly journals; serving as a member of a doctoral dissertation committee; serving as a reviewer for a government research program to determine the allocation of grants or funds; and/or serving as a member of the editorial board of a journal or publication.

Fourth, read the Regulations and USCIS Policy Manual, in particular, “Appendix: Satisfying the O-1A Evidentiary Requirements” carefully and ensure that you are providing documentary evidence that satisfies the entirety of the criterion, not just a summary of what you think it means (or worse, only what you have evidence to show).

Fifth, work with a qualified business immigration attorney who is experienced in representing, preparing and filing O-1A petitions. It is essential to understand the changing definitions, regulatory interpretations and adjudicative priorities of USCIS in order to present the strongest possible petition.

Lin Walker 4/27/24 Lin Walker 4/27/24

Alternatives to the H-1B: O-1A Visa - Alternative Criterion 3 (Published Materials About You & Your Work)

For those of you considering viable options to the H-1B cap (because you were not selected in this year’s lottery), I will be doing a deep-dive into the O-1A criteria over the next couple of weeks.

When determining whether someone is qualified for O-1A classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.

O-1A Deep Dive - Alternative Criterion 3

The regulations state that the beneficiary of an O-1A petition may provide evidence of the “published material in professional or major trade publications or major media about the [Beneficiary], relating to [their] work in the field for which classification is sought”. 8 CFR §214.2(o)(3)(iii)(B)(3).

Problem

What’s so difficult about this criterion? Why do so many people get it wrong? To satisfy this criterion, you must make a two part showing:

There are published materials WRITTEN ABOUT the beneficiary and their achievements AND
That material is published in major newspapers, trade journals, magazines or other publications.

Pro Tips

First, let’s cover what USCIS does not accept as satisfying this criterion. Social media posts such as those appearing on LinkedIn, X, Facebook, Threads, and Instagram do not count as major media. Photos in tabloids or links to videos appearing online do not count. Citations to a beneficiary’s published articles also do not satisfy this criterion (although such evidence can be used to satisfy another criterion which will be discussed in the coming days).

However, if the beneficiary was interviewed for a major broadcast network or related media outlet (which can include major podcasts) and transcripts are provided, such evidence is usually satisfactory. It is important to remember that the article must mention the beneficiary and discuss their recognition, achievement(s) or work in the field.

Second, in addition to providing a printed copy of the article (which must be in English or accompanied by a certified English translation) that shows the name and date of the publication, you must include media kit(s) or circulation/readership data to establish that the media qualifies as major media. Yes, there are adjudicators who will issue an RFE claiming that they cannot determine whether The Wall Street Journal or The New York Times qualifies as “major media” without media kits.

Lin Walker 4/20/24 Lin Walker 4/20/24

Alternatives to the H-1B: O-1A Visa - Alternative Criterion 2 (Memberships)

For those of you considering viable options to the H-1B cap (because you were not selected in this year’s lottery), I will be doing a deep-dive into the O-1A criteria over the next couple of weeks.

When determining whether someone is qualified for O-1A classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.

O-1A Deep Dive - Alternative Criterion 2

The regulations state that the beneficiary of an O-1A petition may provide evidence of the “membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields”. 8 CFR §214.2(o)(3)(iii)(B)(2).

Problem

What’s so difficult about this criterion? Why do so many people get it wrong? To satisfy this criterion, you must make a three part showing:

You must be a member of an organization in the field of endeavor;
Outstanding achievement is a prerequisite for membership in that organization; and
Your achievements have been judged as outstanding by nationally or internationally recognized experts in their field.

Pro Tips

First, let’s cover what USCIS does not accept as satisfying this criterion: memberships based solely on a fee or subscription to a publication/service; membership based solely on experience in the field; and membership that is required for employment (such as union memberships). In my experience, being a member of a board of directors does not satisfy this criterion.

Second, to meet this criterion, you must show that your achievements or contributions to the field have been judged or otherwise recognized as outstanding. This requires documentation about the organization, the different levels of membership (if applicable), the criteria for membership, and evidence that your specific level of membership is one that requires outstanding achievement.

In my experience, most organizations do not meet this criterion, however, there are more organizations in the science and engineering fields that may qualify than there are in the business and education fields. According to USCIS’ Policy Manual, some memberships that may qualify include being a Fellow of IEEE or Fellow of AAAI. I’ve also had clients experience success with other organization memberships as well, and the key to success is providing the documentation showing that outstanding achievement is required.

Lin Walker 4/13/24 Lin Walker 4/13/24

Alternatives to the H-1B: O-1A Visa - Alternative Criterion 1 (Lesser Known Awards)

For those of you considering viable options to the H-1B cap (because you were not selected in this year’s lottery), I will be doing a deep-dive into the O-1A criteria over the next couple of weeks.

When determining whether someone is qualified for O-1A classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.

O-1A Deep Dive - Alternative Criterion 1

The regulations state that the beneficiary of an O-1A petition may provide evidence of the “receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor”. 8 CFR §214.2(o)(3)(iii)(B)(1).

Problem

What’s so difficult about this criterion? Why do so many people get it wrong?

You must have received awards or prizes for excellence in your field of endeavor. A nomination for an award is not enough.
The award or prize must be recognized either nationally (in one specific country) or internationally (at least two countries).

Pro Tips

First, let’s cover what USCIS DOES NOT accept as satisfying this criterion: academic scholarships, poster awards, travel awards, and employment based awards (e.g. employee of the month/year). Keep in mind that patents and trademarks are not considered awards. In addition, awards/prizes granted solely for payment of an entry fee, obviously do not count.

Second, USCIS will consider certain grants/funding awards, doctoral dissertation awards, and awards and prizes received in recognition for excellence in the field of endeavor that are based on a competitive selection process. That is, if you are seeking to satisfy this criterion, you must show:

The reputation of the organization granting the award/prize;
Evidence regarding the significance of the award/prize such as media materials;
The eligibility and selection criteria for the award/prize; and
The number of recipients for the award/prize.

One such dissertation award that was previously recognized for a client of mine was the SPEC Kaivalya Dixit Distinguished Dissertation Award. According to the SPEC Research Group’s website, the award “aims to recognize outstanding doctoral dissertations in the field of computer benchmarking, performance evaluation, and experimental system analysis in general.” (https://research.spec.org/awards)

Keep in mind if eligibility for the award/prize is limited to the employees of a specific company or students of a specific school, such award/prize will most likely not meet this criterion. For example, if a dissertation award is only open to students of a particular university, such award will not meet this criterion.

Lin Walker 4/6/24 Lin Walker 4/6/24

Alternatives to the H-1B: O-1A Visa

For those of you considering viable options to the H-1B cap (because you were not selected in this year’s lottery), I will be doing a deep-dive into the O-1A criteria over the next couple of weeks.

When determining whether someone is qualified for O-1A classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.

What does this mean? First, read the regulations and the requirements in their totality. This means literally reading each and every single word – do not summarize or abbreviate the criterion because this is where you get into trouble.

Second, remove your ego from the assessment. This means you must look at your evidence objectively and see things with an outsider’s perspective. This is particularly true with the first criterion: Major Awards.

A lot of prospective O-1A beneficiaries waste substantial resources (time, money and labor) trying to convince immigration attorneys that they qualify for O-1A classification with evidence that clearly does not meet the criterion, sometimes based on truly bad advice they have read online or received from individuals who are not immigration attorneys.

O-1A Deep Dive - Criterion 1

The regulations state that the beneficiary of an O-1A petition may provide evidence of the “receipt of a major, internationally recognized award, such as the Nobel Prize”. 8 CFR §214.2(o)(3)(iii)(A).

Problem

Satisfying this one criterion is sufficient to establish eligibility for O-1A classification. But let’s be honest–the vast majority of O-1A beneficiaries (and people in general) cannot satisfy this criterion.

What’s so difficult about this criterion? Why do so many people get it wrong?

First, for major, internationally recognized awards, it is not enough to be nominated or make it to the final round of panelists. You must receive the award.

Second, the award must be a major, internationally recognized award in the field, meaning it must satisfy three elements.

It must be an award or prize.
It must be internationally recognized. This means that the award is recognized the world over, not just in one country.
It must be in your field of endeavor.

Pro Tips

First, read the Regulations and USCIS Policy Manual, in particular, “Appendix: Satisfying the O-1A Evidentiary Requirements” carefully and ensure that you are providing documentary evidence that satisfies the entirety of the criterion, not just a summary of what you think it means (or worse, only what you have evidence to show).

Second, include relevant evidence to this specific criterion. Do not include evidence such as academic scholarships, research grants/funding, poster/presentation awards, travel awards, academic awards (regardless of age or institution), employment based awards (e.g. employee of the month/year), memberships in associations (this is its own criterion) and age-related awards (e.g., 30 under 30).

There are very few awards that will meet this criterion, some of which may include, in addition to a Nobel Prize: the Fields Medal (mathematics); Turing Award (computer science); and IEEE Medal of Honor (electrical engineering)

Third, work with a qualified business immigration attorney who is experienced in representing, preparing and filing O-1A petitions. It is essential to understand the changing definitions, regulatory interpretations and adjudicative priorities of USCIS in order to present the strongest possible petition.

Lin Walker 12/21/23 Lin Walker 12/21/23

Form I-94, Arrival/Departure Record, and Holiday Travel

As 2023 comes to an end, many global travel restrictions have been lifted and we are entering the peak holiday travel season, it is important to revisit the Form I-94, Arrival/Departure Record, andits significance to foreign nationals who enter the United States as nonimmigrants.

What is the Form I-94, Arrival/Departure Record?

As a nonimmigrant who has been admitted to the United States, in addition to your passport, there is no document more essential to your lawful admission than your Form I-94, Arrival/Departure Record (“Form I-94”).

For nonimmigrants, legal authorization or permission to remain in the United States is controlled by the Form I-94. Nonimmigrants are issued a new Form I-94 upon each entry to the United States and may secure their Form I-94 through the U.S. Customs and Border Protection (“USCBP”) at https://i94.cbp.dhs.gov/I94/#/home.

One of your priorities upon each entry to the United States should be to print and review your Form I-94 and provide a copy to your attorney or HR representative upon each entry to the United States. Given the hectic nature of admissions at U.S. ports of entry and airports, there are numerous opportunities for the Form I-94 to contain errors in the class of admission and the “admit until date”, which is the expiration of the Form I-94 or the authorized period of admission.

What is the Relationship Between My Passport, Nonimmigrant Visa, Form I-797 and Form I-94 work together?

It is very unfortunate that many foreign nationals believe that their nonimmigrant visas control their period of stay in the United States. This mistake can lead to serious financial and legal consequences, as discussed below. The U.S. immigration system is unnecessarily complex and often confusing and there are unique interactions between your passport, visa, Form I-797 and Form I-94. Although a combination of these documents is required for entry into the United States, the most important documents that determine your period of authorized stay are your passport, Form I-94 and Form I-797.

Passports

To enter the United States, you must have a valid passport. Most nonimmigrants entering the United States are required to possess a passport that is valid for at least six months beyond their period of intended stay in the United States. [There is an exception to this rule, known as the “Six Month Club”. Citizens of countries included in the Six Month Club are only required to present a passport that is valid for their intended period of stay. See https://www.cbp.gov/sites/default/files/assets/documents/2017-Dec/Six-Month%20Club%20Update122017.pdf.]

Possessing a passport that is valid for at least six months beyond your period of intended stay in the United States is essential if you are entering the United States in an employment-based nonimmigrant status.

Visas

Generally, nonimmigrants who wish to enter the United States must first obtain a valid visa. The validity period of a nonimmigrant visa is often dictated by the reciprocity agreements between the United States and a foreign country, and often do not coincide with the validity period of the I-797.

The type of visa that a person obtains determines what they are permitted to do in the United States. For example, individuals who receive B-1 or B-2 visas are permitted to enter the United States for temporary business or tourism activities, but are prohibited from working. A person who wishes to attend a U.S. college or university as a full-time student typically receives an F-1 or J-1 visa.

The nonimmigrant visa usually does not impact a person’s period of authorized stay. There are some exceptions to this rule. For example, certain countries have entered into Free Trade Agreements with the United States that enable their citizens to work in the United States based on applications that are filed through the U.S. Embassy in their home country. These include, for example, H-1B1 visas for nationals of Chile and Singapore, and E-3 visas for nationals of Australia. The employment authorization and lawful period of admission for nonimmigrants entering the United States in H-1B1 and E-3 status are directly limited to the validity period of their H-1B1 and E-3 visas.

The nonimmigrant visa determines when you may enter the United States and what activities you are permitted to engage in while in the United States, but usually does not determine how long you may lawfully remain in the United States.

Form I-797

Individuals who seek employment-based nonimmigrant visas, such as an L-1, H-1B or O-1 visa, must first have a petition approved by the U.S. Citizenship & Immigration Services (“USCIS”), which then issues a Form I-797, approval notice. The Form I-797 is used to secure the appropriate employment-based visa, which will permit the foreign national to enter the United States and work. The Form I-797 is typically valid for periods of one (1) to three (3) years, but can have shorter periods of validity, depending on the maximum period of stay permitted by immigration regulations.

The validity period of the Form I-797 should determine the validity period of the Form I-94, and the expiration dates of the two documents should be identical, although mistakes occur. To show the relationship between a person’s passport, visa, I-797 and I-94, we provide some hypotheticals below.

Jane is a citizen of Australia who is entering the United States on December 30, 2021, with an employment-based L-1B visa, which is valid to December 26, 2025. Jane’s Form I-797 is valid until December 26, 2023. Jane’s Australian passport is valid until September 15, 2022.

Admission: When Jane is admitted to the United States, she is given a Form I-94, which is valid until September 15, 2022, which is the expiration date of her passport, not the expiration date of her Form I-797, approval notice. Although Australia is part of the Six-Month club, this rule still requires Australian citizens to present passports that are valid for their intended period of stay, or in Jane’s case, until December 26, 2023.

Issue: If Jane does not check her Form I-94 and realize that it expires on September 15, 2022, she will likely overstay and begin accruing unlawful presence beginning September 16, 2022. If she remains in the United States until December 26, 2023, Jane will accrue more than one year of unlawful presence. Moreover, if she continues to work after September 15, 2022, she will be engaging in unlawful employment.

2. Rajesh is a citizen of India who entered the United States on November 30, 2021, with an employment-based H-1B visa, which is valid through September 30, 2024. He has a Form I-797, approval notice, which is valid through September 30, 2024 and his passport is valid until April 1, 2022.

Admission: When Rajesh was admitted to the United States, he was given a Form I-94 that will expire on April 1, 2022, which is the expiration date of his passport. As India is not a member of the Six Month club, his passport is required to be valid for six months beyond his period of intended stay or until at least March 2025.

Issue: If Rajesh does not check his Form I-94 and realize that it expires on April 1, 2022, he will likely overstay and begin accruing unlawful presence beginning April 2, 2022. If he remains in the United States until September 30, 2024, Rajesh will accrue more than two years of unlawful presence. Moreover, if he continues working on and after April 2, 2022, he will be engaging in unlawful employment

It is important to note that while CBP will fix errors that occur during admission to the United States, the above scenarios where a foreign national is admitted until the expiration date of their passport is not considered an error. CBP will not revise an existing Form I-94, or issue a new Form I-94, to a foreign national who enters the United States with a passport that expires before their intended period of stay.

What are the consequences if I remain in the U.S. after my I-94 expires?

If you remain in the United States beyond the expiration date of your Form I-94, you are deemed to have failed to maintain your lawful nonimmigrant status and may be subject to dire consequences including: (a) automatic cancellation of your visa; (b) permanent ineligibility to apply for a new U.S. visa except at the U.S. Embassy/Consulate in your country of citizenship or residence; and (c) the accrual of unlawful presence. If you accrue more than 180 days but less than 365 days of unlawful presence, you will be subject to a three (3) year bar on re-entry to the United States from the date that you depart. If you accrue 365 days or more of unlawful presence, you will be subject to a ten (10) year bar on re-entry to the United States from the date that you depart.

In addition, if you have failed to maintain your nonimmigrant status, you are not eligible to change your status to another nonimmigrant classification, extend your nonimmigrant status, or adjust your status to lawful permanent resident. In very limited circumstances, USCIS will excuse a nonimmigrant’s failure to maintain status and approve a change of status or extension of status retroactively, however, this discretionary relief is only available in extenuating or extraordinary circumstances. See 8 C.F.R §214.1(c)(4), which permits retroactive or nunc pro tunc approval of an extension of status or change of status petition which is not timely filed if there are extraordinary or extenuating circumstances that caused the failure to maintain status.

Moreover, if you fail to maintain your nonimmigrant status, you are subject to removal proceedings (being deported from the United States).

Conclusion

If you are a nonimmigrant, it is advisable that upon each entry to the United States you print and carefully review your Form I-94 and provide a copy to your employer and/or immigration attorney. This will allow you to catch any potential mistakes immediately. If you discover an error in your classification or period of admission, it is much easier to request that CBP fix the error either while you are at the airport, or shortly after, compared to discovering such a mistake months later, when you may have already fallen out of lawful nonimmigrant status.

If you discover that you have remained in the United States beyond the expiration date of your Form I-94, it is imperative that you seek legal counsel immediately to determine what options may be available to you.

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 11/12/23 Lin Walker 11/12/23

The Department of Justice Secures a $25 Million Settlement with Apple

On November 9, 2023, the US Department of Justice (DOJ), through its Civil Rights Division’s Immigrant and Employee Rights Section (IER) announced that it secured a $25 million landmark settlement agreement (Agreement) with Apple Inc. (Apple) to resolve employment discrimination allegations.

The Agreement between DOJ and Apple disclosed that from January 1, 2018 through December 31, 2019, IER found reasonable cause to believe that Apple engaged in a pattern and practice of discrimination based on citizenship status. More specifically, in the PERM recruitment process, which is required to sponsor foreign nationals for employment-based permanent residence, Apple’s recruitment practice showed a preference for Apple employees with temporary work visas instead of qualified and available U.S. workers (which include U.S. citizens, lawful permanent residences, asylees and refugees).

So, what (allegedly) did Apple do wrong? According to IER, Apple “departed from its standard recruiting process during required PERM-related recruitment” by: (1) not advertising positions on its external job website; (2) requiring applicants to mail paper applications instead of allowing them to submit electronic applications; and (3) failing to consider current employees for PERM positions if they submitted their applications electronically. By departing from its standard recruitment process, Apple used less effective, more onerous procedures that deterred U.S. workers from applying, which resulted in the receipt of zero to very few applications by mail. IER found that these procedures were designed to favor Apple employees with temporary work visas.

As part of this Agreement, Apple will pay $25 Million, which includes (1) $6.75 million in civil penalties and (2) $18.25 million in a back-pay fund for eligible discrimination victims. Moreover, for three years (from November 2, 2023 to November 1, 2026), Apple must: (3) draft a policy outlining the steps it will take in its PERM recruitment process and submit such draft to IER for approval; (4) submit an draft revisions of such PERM recruitment process to IER for approval; (5) prepare and submit to IER a semi-annual report of its recruitment procedures for PERM-related positions, detailing the PERM-position for which the application was filed, number of application received, the number of applicants interviewed, and the number of applicants deemed qualified for the position; and (6) provide IER approved training to all recruiters and personnel with any involvement in the PERM process.

While the PERM process is very problematic because: (1) it is not “real world” recruitment and (2) it is too often driven by foreign national employees who insist on including a laundry-list of skills, knowledge, experience and education that do not reflect the “minimum requirements” to perform the duties of the position, at the end of the day, the PERM process is required to include a good faith recruitment effort to demonstrate that there are no able, willing, qualified and available U.S. workers to perform the position.

According to the Department of Labor regulations, the PERM process is required to include a good faith recruitment effort to demonstrate that there are no able, willing, qualified and available U.S. workers to perform the position. Where an employer uses a recruitment process that discourages U.S. workers from applying (such as requiring applicants to mail an application instead of accepting an electronic submission), whether such behavior on part of the employer is willful and purposeful, or inadvertent error and unintentional, it is more likely than not that IER will find a lack of good faith on part of the employer.

The Agreement is a very good reminder for employers to revisit their immigration policies, in particular, their PERM recruitment policies, to determine if such policies show good faith or a lack thereof. If the recruitment policies clearly favor nonimmigrant employees over U.S. workers, the employer may find themselves garnering free publicity in the form of an IER or DOJ settlement announcement as well as steep fines and supervised recruitment.

Lin Walker 10/21/23 Lin Walker 10/21/23

DHS Proposes Changes to the H-1B Program

On October 23, 2023, the Department of Homeland Security (DHS) will publish a Notice of Proposed Rulemaking (NPRM) to “modernize and improve the efficiency of the H-1B program, add benefits and flexibilities, and improve integrity measures.” Some of the proposed amendments will also impact other nonimmigrant classifications, including F-1 visa holders, and those that are filed on Form I-129, Petition for Nonimmigrant Worker.

Written comments must be submitted on or before December 22, 2023. I would recommend that immigration practitioners and companies that employ H-1B workers seriously consider submitting comments to NPRM, as this is one of the few times that we will have an opportunity to offer our perspectives and concerns and proposed regulatory changes.

This NPRM is very ambitious in the number of changes that DHS is looking to make to the H-1B program. Some of the proposals are not surprising and are merely an effort to codify case law as a result of the numerous lawsuits that USCIS has been involved in. Other provisions seem like a stark overreach in administrative authority, where USCIS is seeking to re-adjudicate certifications made by the U.S. Department of Labor (DOL). It is not clear if these new proposals will in fact result in fewer Requests for Evidence (RFEs) or provide adjudicating officers with more authority to issue RFEs.

The most eye-opening part of this NPRM is the data provided by DHS, which showed the significant amount of fraud that has taken place in the H-1B registration system by a small number of companies that collectively filed thousands of multiple registrations for the same beneficiaries.

Below is a summary of the NPRM and regulatory revisions that DHS is seeking to make.

Revising the regulatory definition of “specialty occupation”, including an explanation that (a) “normal” does not mean “always” in the context of an occupation requiring a particular educational degree; and (b) where an occupation may be filled by a range of degrees, there must be a direct relationship between the required degree field(s) and the job duties.
Clarifying when an amended or new H-1B petition must be filed because of a change in the place of employment (codifying Matter of Simeio Solutions, LLC)
Codifying the Deference Policy to state that if there has been no material change in the underlying facts (same parties, job duties and location), adjudicators should defer to a prior determination.
Revising the regulations to expressly require that a petition seeking an extension of status or amendment of stay (even without a request for an extension of the validity period) be accompanied by evidence of maintenance of status, which would impact any nonimmigrant visa petition (NIV) filed on Form I-129, Petition for Nonimmigrant Worker.
Eliminating itinerary requirement for H petitions because this information is repetitive of the information in the Labor Condition Application (LCA).
Allowing petitioners to submit requests to amend validity periods in the I-129, where the validity of the requested period expires before the petition is adjudicated, such as in cases where there is a Motion to Reopen/Reconsider.
Revising the definition of employers who are exempt from the H-1B cap by replacing “primarily engaged” and “primary mission” with “fundamental activity” to permit a nonprofit entity or governmental research organization that conducts research as a fundamental activity, but is not primarily engaged in research or where research is not a primary mission, to meet the definition of a nonprofit research entity.
Revising the requirements for beneficiaries to qualify for H-1B cap exemption when they are not directly employed by a qualifying organization, but still provide essential work, even if their duties do not necessarily directly further the organization’s essential purpose.
Extending the F-1 cap-gap for authorized period of stay and employment authorization, for F-1s who are chosen in the H-1B lottery, from October 1st of that fiscal year to April 1st of that fiscal year. For example, if an F-1 student has their H-1B registration selected and a non-frivolous H-1B petition is filed for a change of status to October 1, 2024, the F-1 student’s cap-gap would be extended to April 1, 2025.
Permitting employers to request an employment start date for H-1B cap-subject petitions that are after October 1st of the relevant fiscal year, so long as the start date is within six months of the date of filing (codifying Acquia Inc, et al., v. USCIS)
Reducing H-1B registration fraud/abuse by selecting a unique beneficiary (one beneficiary based on passport number) instead of selecting registrations.
Prohibiting related entities from submitting multiple registrations for the same beneficiary.
Enabling USCIS to deny H-1B petitions or revoke approved H-1B petitions where the underlying registration contained false attestations or was otherwise invalid.
Improving the integrity of the H-1B program by: (a) codifying USCIS’ authority to request contracts; (b) requiring that the petitioner establish that it has an actual, non-speculative position in a specialty occupation available for the beneficiary as of the requested start date; (c) ensuring that the LCA properly supports and corresponds with the petition; (d) revising the definition of “United States employer” by codifying the existing requirement that the petitioner has a bona fide job offer for the beneficiary to work within the United States as of the requested start date; and (e) requiring that the petitioner have a legal presence and be amenable to service of process in the United States.
Clarifying that beneficiary-owners may be eligible for H-1B status, while setting reasonable conditions for when the beneficiary owns a controlling interest in the petitioning entity.
Codifying USCIS’ authority to conduct site visits and deny or revoke approved H-1B petitions for the employer or third party site’s refusal to comply with site visits.
Clarifying that if an H-1B worker will be staffed to a third party, meaning they will be contracted to fill a position in the third party’s organization, as opposed to providing services at a third party location, it is the requirements of that third party, and not the petitioner, that are most relevant when determining whether the position is a specialty occupation. (Codifying Defensor v. Meissner)
Creating “use or lose” provisions to require beneficiaries of approved H-1B cap petitions to timely enter the U.S. and commence employment with the petitioner, as there is “a significant percentage of H-1B beneficiaries do not enter the United States within six months of the requested employment start date or H-1B petition approval date, whichever was later, or within 90 days of the visa validity start date. The data also show a large percentage of new or amended petitions received before the beneficiary’s arrival in the United States, suggesting that there may not have been a bona fide job opportunity available at the time of filing and the initial petition filed was simply to secure an H-1B cap number for the worker.”

We will be taking a deeper dive into some of these proposed changes to the H-1B program, so stay tuned!

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.