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.

Lin Walker 8/14/23 Lin Walker 8/14/23

The Art and Science of Architecture

This past weekend we had the privilege of attending a fundraising Soiree at Frank Lloyd Wright’s Fallingwater, the iconic vacation home built on a waterfall.

In the early 1930s the department store magnate Philip Kaufmann asked the very famous modern architect, Frank Lloyd Wright, to build his family a permanent vacation residence in the woods just outside of Pittsburgh, Pennsylvania.

Wright, who was already famous for turning his back on the compartmentalized architectural style of the Victorian era, was one of the first innovators of what would become the open plan Mid-Century Modern home that we are familiar with today. Recognized as an innovator and rule-breaker, Wright built the Kaufmann’s vacation home on top of a waterfall to coexist with the flow of the water, rather than build at the base of the waterfall where the natural feature would be visible to the inhabitants of the structure.

The house, with its daring cantilevered balconies jutting out over the rushing water (technologically innovative for the time) is sculpturally stunning. Once inside Fallingwater, you cannot see the waterfall, but you can hear it. Wright wanted the inhabitants of this modern structure to live with the waterfall rather than treat it as a pretty postcard view.

But it is the intimate nooks and crannies everywhere throughout the structure that reveal the genius of Wright. There are so many spaces, inside and out, cozy or expansive, that invite rest and contemplation. No matter whether you are inside Fallingwater, or enjoying one of its many balconies, there is a unique feeling of harmony between the structure and the environment.

Architecture in general is something that is close to our hearts and is a great topic for a deeper dive into O-1s, something equally near and dear to us. And architecture is one of those rare professions that is both art and science and therefore gives us the flexibility to decide what kind of O-1 Visa best suits the petitioner.

More than any other structure we’ve seen, Fallingwater embodies the practical blended with the fanciful, the functional joined with the spiritual in a way that really brings home the notion that architecture is a unique discipline that can cross over the lines of categorization when petitioning for an O-1 Visa.

Because architecture embodies both art and science, that gives us the flexibility to decide whether the architect has a better chance of getting an O-1A or an O-1B petition approved. In other words, applying as a kind of engineer or scientist, in the case of the O-1A. Or would it be better to petition as an O-1B, wherein the architect is presented as an artist? For this profession, we have a choice.

Architecture as Art

To make the argument that architecture is art one can begin by emphasizing the beautiful, graceful, aesthetic and sculptural aspects of the structure. We can also talk about the “feel” or the “soul” of a place, which some would define as the “spiritual” component of a structure.

Generally speaking architecture, as opposed to engineering, is rooted more firmly in the world of artistic expression, requiring a variety of artistic expertise in addition to considerable technical building skill.

The visual, sculptural aspects of the design of buildings are easy to appreciate. The spiritual might not be as easy to define, but often when speaking of the “feeling” of a space people use words like serenity, energy, peacefulness, atmosphere and mood.

An architect who is able to evoke these emotions with their buildings is certainly operating in the world of art.

Very often an architect will push the artistic aspect of a structure even further and prioritize the aesthetic over the functional, creating seemingly impractical design details meant to evoke awe, wonder or contemplation, much like the flying cantilever balconies of Fallingwater or the more contemporary metallic curvilinear surfaces of the Walt Disney Concert Hall by Frank Gehry.

Some of the best examples of architects emphasizing the artistic over the functional to evoke a contemplative or reverent mood can be seen in designs of places of worship. With these structures the artistic and sculptural elements of designed spaces for humans to inhabit are raised to the highest level.

So, taking this into account, how do we show that an architect qualifies as an artist for O-1B classification?

In order to qualify as a person of “extraordinary ability” in the arts, a beneficiary must have “sustained national or international acclaim or distinction, which USCIS defines as possessing “a high level of achievement in the field of arts, as evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.”

In our experience, some of the criteria that an architect could satisfy for O-1B classification includes, but is not limited to:

Evidence that the architect has achieved national or international recognition for their achievements;
Evidence that the architect has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation;
Evidence that the architect has received significant recognition for their achievements from organizations, critics, government agencies, or other recognized experts in the field; or
Evidence that the architect has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field.

Architecture as Science

Viewed from the purely technical side, architecture is the science of designing buildings and other structures to meet functional, technical and aesthetic requirements. It is a discipline that bridges the theory of design with the practice of construction, taking into account landscape and environmental considerations as well as naturally occurring (wood and stone) and human-made (steel and concrete) materials.

In order to qualify as an architect of “extraordinary ability” in the sciences, an individual must have “sustained national or international acclaim or distinction”, which USCIS defines as possessing a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.

In our experience, some of the criteria that O-1A architects typically meet include:

Evidence of that they received a nationally or internationally recognized prize or award for excellence in architecture, such as the Pritzker Architecture Prize, AIA Gold Medal, or American National Design Award, to name a few;
Evidence of their membership in architectural associations that require outstanding achievements of their members as judged by recognized national or international experts in the field, such as AIA Fellow membership;
Published materials in professional or major trade publications or major media about them and their architectural work;
Evidence of their original architectural contributions of major significance in the field;
Evidence that they have written scholarly articles about architecture, that have been published in professional journals, or other major media;
Evidence that they have been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation; or
Evidence that they have either commanded a high salary or will command a high salary or other remuneration for their architectural services.

Architecture is one of those incredible fields, where accomplishments can be stunning, both artistically and technically, qualifying an individual to be extraordinary in the arts and sciences. If you ever have an opportunity to visit Fallingwater, or any other structure created by Wright, we highly recommend doing so.

This article was co-written by Mike Pulcinella of The Pulcinella Agency (https://www.pulcinellaagency.com/). Mike is an incredibly talented artist in his own right as well as a very skilled immigration agent. To learn more about Mike, visit The Pulcinella Agency or Mike’s LinkedIn page (https://www.linkedin.com/in/mike-pulcinella-3860502/).

Lin Walker 7/30/23 Lin Walker 7/30/23

Illogical Immigration Policies

Recently, two States have made international news for their anti-immigration stance. Yes, Texas and Florida, I’m talking about you.

When you consider the very positive impact that immigrants and immigration have had on the United States and more specifically, Texas and Florida, it makes you wonder why these States would engage in actions that clearly show disdain, if not outright hatred for immigrants.

Let’s look at each State’s immigrant population and what they contribute:

Numerous studies have concluded what the data above show: beyond bringing a wealth of cultural knowledge to our country, immigrants boost the economy, promote innovation through their entrepreneurial spirit, and improve productivity by being active members of the workforce. All of this in turn, increases revenues throughout our nation.

Given the significant community, employment and societal value that immigrants (documented and undocumented) provide to the States of Florida and Texas, it is irrational for these States to engage in such anti-immigrant actions.

Lin Walker 7/16/23 Lin Walker 7/16/23

August 2023 Visa Bulletin - Retrogression Nightmare

On July 7th, the Department of State (DOS) published the August 2023 Visa Bulletin, announcing bad news in terms of immigrant visa (IV) availability, with significant visa retrogression for employment-based first preference (EB-1) IVs for India and worldwide retrogression of employment-based third preference (EB-3) IVs. Visa retrogression occurs when more people apply for a visa in a particular EB category or from a particular country than there are visas available for that month, as described in more detail below.

The Immigration and Nationality Act (INA) established the annual number of family- and employment-based (EB) IVs. Under INA §201, there are 140,000 IVs available each year for EB immigration. This number is further reduced by the per-country limitations established under INA§202, which states that no more than 7% of the IVs issued per year can go to any one country. In essence each country is allocated no more than 7% of the annual EB IVs or 25,620 per year. Once a country reaches that limit it is considered “over-subscribed” and IVs become unavailable or “retrogressed”.

Although the world has changed significantly since 1990 (more than 30 years ago) when these IVs and per country limitations were established, and the demand for IVs has far-exceeded their availability, Congress has not amended the INA to accommodate this need. This in turn, has led to our current situation where people are waiting more than 10 years to legally obtain their permanent resident status. (The wait is even longer for some family-based IV categories.)

For example, the August 2023 Visa Bulletin reflects a retrogression of 10 years for EB-1 IVs for Indian nationals. In July 2023, EB-1 IVs were available for Indian nationals with a priority date of February 1, 2022. As of August 1, 2023, EB-1 IVs will only be available for Indian nationals with a priority date of January 1, 2012. The DOS states that this has occurred because:

India is oversubscribed, and therefore subject to prorating under INA 202(e). Until now, applicants chargeable to India had been able to receive prior unused numbers within EB-1 under INA 202(a)(5). With a worldwide final action date being set for EB-1 because the demand is greater than the number of visas remaining, the Department can no longer issue EB-1 visas without regard to the per-country numerical limitations and so applicants from India are no longer able to receive EB-1 numbers under INA 202(a)(5). Having reached their limit for FY-2023 within EB-1, India will be subject to an EB-1 final action date of 01JAN12, the oldest priority date of an EB-1 applicant (many Indian EB-1 applicants have priority dates from 2012-2015 because of priority date retention based on previously-approved petitions in the EB-2 or EB-3 categories).

According to the DOS, EB-1 IVs for Indian nationals may progress in October 2023 (which is the start of the new fiscal year), however, this is dependent on: (a) the demand for EB-1 visas for Indian nationals and (b) the 2024 fiscal year annual limit on EB visas.

For many EB immigrants and their employers, families and immigration counsel, the monthly Visa Bulletin is often met with significant anxiety. Where it brings joy, it is often limited to a very short period of time — 30 to 60 days — and more often than not, it delivers bad news by extending the length of time foreign nationals have to wait to obtain their lawful permanent residence. In many instances, the time that it takes for IVs to become available greatly exceeds how long immigrants can remain in the U.S. and maintain their lawful status (because each nonimmigrant visa classification also has a maximum period of stay).

With immigration, nearly everyone has an opinion and I often hear or read statements that “I support immigration if people do it like my parents/grand parents/great grand parents did it” or “people should just wait in line like my family did” or “I only support legal immigration”.

Well, I have news for you: this immigration system isn’t your parents, grand parents or great grand parents immigration system. Many of the people who make such claims can trace their family’s immigration to the U.S. back to the 1800s (1830s to 1890s) when more than approximately 15 million people, mostly from Europe, immigrated to the U.S. There were no quotas and no wait times then. If you could afford to get on a ship, survive the the terrible trip to the U.S., and pass the physical examination, you were permitted to enter the U.S. as an immigrant.

Leaving aside some of the exclusionary laws passed by Congress (the Chinese Exclusion Act), the U.S. did not pass a quota-based immigration system until the Emergency Quota Act of 1921. Such restrictions have continued to date, causing a significant backlog and delay in the process to become a permanent resident. Today, foreign nationals may wait more than 10 years to become a permanent resident based on employment.

The people who claim that they only support immigration if foreign nationals wait like their parents/grand parents/great grand parents are simply disingenuous because their families did not have to wait 10 or more years. As a nation, we are known for our desire or need for instant gratification. Look at the number of fights that happen because people have to wait in any line (traffic, airport, groceries, etc.). Would the average person in the U.S. wait 10 years to obtain a driver’s license? How about a passport? How about permission to travel abroad.

Here’s a different way to think about it: How would you feel if you completed all of your course work for a college degree and graduated after 4 years, but were told that you had to keep paying to “maintain your student status” for the additional 6 years that it would take to get your actual diploma because Congress established a quota on how much diploma paper could be printed each year. And because of the backlog of people waiting for their diplomas before you, it may take an additional 7 years before you could receive your diploma. You need this diploma to get a decent job, paying a livable wage, but it may take you 13 years before you receive the actual diploma — not because you did anything wrong, but because the demand for diploma paper far exceeds the supply.

Your prospective employers don’t understand why you just can’t get your diploma the way their parents and grand parents did. Sounds familiar right? Except you won’t face deportation or the possibility of being separated from your family and community. Does this seem fair or equitable to you? Most likely not.

Congress really needs to do better by the thousands of foreign nationals who meaningfully contribute to our country. We need a reformed immigration system that allows our EB IVs to become lawful permanent residents faster and more efficiently.

Lin Walker 7/8/23 Lin Walker 7/8/23

CBP Announces ESTA Ineligibility for Travelers Who Have Been Present in Cuba

On July 6, 2023, U.S. Customs and Border Protection (CBP) announced that dual citizens of Cuba and a Visa Waiver Program (VWP) country, and citizens of VWP countries who have been present in Cuba are ineligible for ESTA, which is the Electronic System for Travel Authorization.

The VWP allows citizens from 40 participating countries to travel to the U.S. for tourism or business for stays of 90 days or less without obtaining a visa. In order to travel under the VWP, travelers must possess an ESTA approval prior to travel to the U.S.

However, being a dual citizen of country designated as a State Sponsor of Terrorism (SST), will make a person permanently ineligible for ESTA. Moreover, if a citizen of a VWP country has been present in an SST country on or after March 1, 2011, their ESTA will be revoked by CBP. (There are limited exceptions to the revocation rule for diplomatic or military travel in the service of a VWP country).

Countries designed by the U.S government as SST include:

Cuba
Iran
Iraq
North Korea
Sudan
Syria
Libya
Somalia
Yemen

Any VWP citizen who possesses ESTA should avoid traveling to the countries that are designated as SST. Such individuals will not be barred from traveling to the U.S., but will not be permitted to do so under the VWP and ESTA. Instead, such individuals will be required to apply for a B-1/B-2 visa at a U.S. Embassy or Consulate abroad.

Lin Walker 7/4/23 Lin Walker 7/4/23

Notes from the AILA Annual Conference

The AILA Annual Conference (AC23) took place in Orlando, Florida from June 21 to June 24 and was a great learning opportunity, where some of the field’s most knowledgeable practitioners shared their experiences and insights.

Below, I’ve included a summary of some of the most important points that I learned.

Wednesday, June 21, 2023

Obtaining The Elusive NIV Consular Appointment and What to do Once You Get it

NIV intent does not mean that the FN must prove their intent to return to their home country, only that they intend to leave the U.S. It is important to keep this in mind if country conditions are challenging the FN’s home country because of natural disasters, war, political instability, etc.
TCN - usually eligible to apply wherever they are lawfully present – for example if a person from China is legally in London for tourism or business purposes, they should be able to apply for an L-1 or H-1B in London
- Highly unlikely (and unrecommended by panel) to try to get a B-1/B-2 as a TCN
- Some countries will absolutely not adjudicate TCNs (Panama and Mexico)
- Wait times on DOS website do not reflect TCN wait times

Always prepare clients for consular interviews.
- In most cases, consular officers will make up their minds in 3 minutes or less
- Client should be able to explain all facets of their job in the U.S. and abroad and how they qualify for visa classification

Remote and Hybrid Workforce Issues and Trends

DOL most likely won’t issue FAQs for new PERM form until they start adjudicating them in about 10 months
Remote workforce
- This is highly problematic where the FN has authority or prerogative to change location at will. Employer may need to file multiple amendments
PERM
- Farmer memo is for “roving” employees or unanticipated worksites, not for “hybrid” or “remote” but it’s the best we’ve got
- The new form - where do you address the telecommuting issue? Section FC, other geographic areas where work is performed. This is where panel is listing telecommuting issues and roving employees
What to do when a company has no HQ and all employees are remote/WFH?

Does NOF at registered address, shared workspace

If there is a change in the worksite for the job because PWD has been pending so long, what to do?

Need to do a PWD unless you can preserve the original worksite wherein the employer says that the FN will return to the worksite.

Thursday, June 22nd

Workshop Deep Dive in responding to H1B RFEs

USCIS is issuing RFEs for maintenance of status, where the FN has worked with OPT and then several rounds of CPT
RFEs where there is a change in work location (prior to filing LCA and amended petition)

Amended petition should be filed before work in new location (different MSA) begins
Employers need to keep track of where FN is working and living especially if remote work/WFH is permitted

Uptick in specialty occupation RFEs

Read RFE carefully especially if case law is cited because it is often misquoted

Labor Condition Application: More than meets the eye

The new SOC codes also include some new occupations, such as Project Management Specialist
Best Practice: Employers should consider creating and implementing a policy about foreign national employees moving without notice because there is the potential to trigger LCA violations as well as a failure to maintain status for those in H-1B, H-1B1 and E-3 status
If an FN works in a location not covered by an LCA, there is a status violation
Until the regulations are changed, where an FN works from home, the LCA needs to include the home address and the LCA must be posted at the FN’s home

Keep in mind that FDNS can show up at any address listed on the LCA, including the FN’s home address

Wage and hour violations

Fines and debarment are possible penalties for LCA violations but the DOL is issuing more debarments from the H-1B program now

Friday, June 23rd

Hot topics in compliance including form I-9

The new Form I-9 is on the horizon with a final rule that permits permanent virtual solution.

The new rule will come out in August
The new permanent virtual solution may not be available to all employers – there will be a lot of requirements to use this solution

Physical inspections of I-9 documents (for employees on-boarded virtually/remotely) must be completed by August 30th
Be careful using electronic I-9 systems — employers will be held responsible for violations caused by software
Outer continental shelf (OCS) workers do not need to do I-9s because the OCS is not subject to jurisdiction of the U.S. Even if the OCS worker is paid from U.S., the employer is not required to complete and I-9 for OCS employees
E-verify

Mandatory in certain circumstances: federal government/contractors, several States, and some jurisdictions within States. Even if an Employer has 1 employee in these jurisdictions (working remotely), the EMployer must use E-verify
E-Verify must be completed within same timeframe as the I-9

If the employee requires reverification, re-verify the I-9, but do not complete another e-Verify entry

Required to employ STEM OPT employees

DOL Open Forum

Work load data

PERM submissions remain very high, with more than 79,000 cases filed in the first half of 2023
23% more PWR for PERM cases filed in first the half of 2023
Workload doubled due to increase in H2A numbers

Temporary visas have been prioritized over PERM applications and have shifted analysts away from PERM cases
Submit questions about the new 9089 on the FLAG system and these will be turned into FAQs by the DOL

The more feedback that is provided, the more quickly DOL can resolve issues
For fields that require dates, but specific dates are not available, the DOL is working to amend PERM to allow an entry of “N/A”

Audit responses

Best Practice: choose one method, either mail or electronic, but do not submit responses using both methods.
The DOL prefers electronic submissions

9141 issues

H-1B prevailing wage can be linked to new PERM 9089
A PWD that expires on June 30th for linking with PERMs in July – the DOL is aware and will issue guidance
The DOL will issue guidance on linking multiple PWDs (where there are more than 2 sets of requirements) but if you come across this, email the FLAG help desk
PWDs are issued with an annual salary. You cannot list an hourly wage on the 9089 and must use the annual wage. However, the NOF can use the hourly wage so as long as it is equivalent to annual wage

With regard to determining whether the requirements exceed the SVP, the DOL uses ONET to determine what is normal to the occupation
Physical posting of the NOF is still required
Employers no longer need to register to create a PERM account and will no longer receive post-filing emails
No expedites available for prevailing wage requests or PERM adjudications
OFLC will change wages on July 1, 2023

Risky business: permissible and impermissible activities

It is permissible to manage your own investments while in the U.S. in B-1/B-2/ESTA status
Sometimes it is a good idea to have an FN who is eligible for ESTA or visa waiver apply for a B-1/B-2 visa if they travel to U.S. frequently or stay beyond 90 days
ESTA will be canceled permanently if the FN visits Iran, Iraq, Sudan, Syria, Libya, Somalia, and Yemen
B-1 in lieu of H-3 (admission for 1 year) and in lieu of H-1B (admission for usually 6 months)
The FAM says there is no such thing as a misrepresentation by silence

USCIS says the opposite – omission can be misrepresentation

Saturday, June 24th

Prevailing wage determinations

Virtual businesses are posing a problem – what address should be used as the company’s HQ? The DOL requires an address to be listed so that:

interested applicants may submit a resume for a job, and
there is a location for site visits.

The Farmer memo deals with “roving” employees and is not really meant for “remote” employees, but the DOL says it’s still valid. If you cannot anticipate where the employee will work at the time of filing, list the HQ and list all possible locations where the FN will work
The DOL is reluctant to issue a PWD with XX-XX99, all other occupations SOCs, especially for IT occupations. BALCA says these are legitimate, so if the DOL won’t issue a PWD using an “all other occupation” classification, you can challenge the determination and ask for reconsideration
Wage transparency laws: If a person can work remotely from anywhere in the US, you need to comply with wage transparency laws
With batch recruiting be careful that the lowest wage is the one that can be listed on the 9089

Mastering the complexities of PERM

There has to be a physical office where applicants can be referred and for the NOF to be posted.

100% virtual companies are highly problematic. If there is an audit the employer will most likely not be able to get the PERM approved

For worksite location selections on the PERM form, always pick “business premises” (not “employee’s home” even if the employee is working remotely).

The DOL admitted during the open forum that the people who created the new PERM application do not understand the regulations and do not prepare or adjudicate PERM applications as part of the normal job duties
This form was not Beta tested – we are doing the Beta testing by filing our PERM applications (which may be denied 10 months from now).

Audit triggers - section G - answering yes to any of these, you will need to explain in 1,500 characters or less. If explanation is sufficient, it will not cause an audit.

Panelist thinks you should answer yes to 9 if you have a JZ 7- 8 (e.g. software developer) and require bachelor’s and 5 years or master’s and 3 years. This is the business necessity issue.

The old question is below and you could get away with saying “yes”--that the job requirements were normal – if the requirements were the employer’s normal requirements you could say “yes”. But now, the question now is “do the requirements exceed teh SVP”?

Equal pay laws/salary transparency laws

Hawaii just signed bill - starts January 2024
Illinois - includes salary and all benefits - starts January 2024

No more PERM email confirmations for employers to respond to

Lin Walker 7/3/23 Lin Walker 7/3/23

Meet me on July 11th!

On July 11th, I will be a panelist on AILA's "Down to Details: Jazzing Up the J-1 Training/Internship Placement Plan (DS-7002)".

Please join us if you're interest in learning about J-1s, specifically:

(1) An overview of the J-1 Visa
- Exchange visitor applicant and host organization eligibility
- Role of the visa program sponsor
- The consular application process
- Program expectations

(2) Training/Internship Placement Plan, Form DS-7002
- Tips for assembling a successful and comprehensive plan
- Importance of planning and including cultural activities
- Risks associated with completing an incorrect form

(3) How sponsors measure training program success

I look forward to seeing you there (on Zoom)!

https://agora.aila.org/store/products/view/jazzing-up-the-j-1-training-internship-placement-plan

Lin Walker 7/2/23 Lin Walker 7/2/23

The Impact of Relocating on U.S. Immigration Processes

As a result of the COVID-19 pandemic companies in nearly every industry switched to a remote or hybrid workforce, providing their employees with the flexibility and autonomy to move to various locations within the United States. Regardless of the reason for these relocations, it is very important for employers and their foreign national employees to consider the immigration consequences that may arise from moving.

The goal of this post is to provide foreign nationals and their employers with important issues to consider when moving and the impact that such a move might have. It can be an unwelcome surprise to foreign nationals and their employers when they realize the impact that moving, even within the same State, can have on their immigration status. To explain the importance of moving, we will provide two hypothetical situations below and the immigration consequences of each.

Hypothetical 1: A nonimmigrant with a pending I-485, Application to Adjust Status to Permanent Resident.

Emily is a nonimmigrant who has a pending I-140, Petition for Immigrant Worker (I-140 Petition), and a pending I-485, Application to Adjust Status to Permanent Resident (I-485 Application), which were concurrently filed in January 2023 based on her employment with ABC Co. When Emily’s I-140 Petition and I-485 Application were filed she was working remotely, from her home office. As listed on her I-140 Petition and I-485 Application, Emily resided in New York, NY.

In March 2023, U.S. Citizenship and Immigration Services (USCIS) mailed Emily an ASC Appointment Notice to have her biometrics (photograph and fingerprints) recorded at a local USCIS Application Support Center on April 11, 2023. Unbeknownst to ABC Co. or their immigration counsel, Emily had moved to Hoboken, NJ and never informed her employer or immigration counsel of her new address.

Although Emily had her mail forwarded from her old address in New York, NY to her new address in Hoboken, NJ, she never informed USCIS that she moved. She never received the original ASC Appointment Notice mailed to her directly from USCIS. In addition, even though ABC Co. and their immigration counsel emailed Emily a copy of the ASC Appointment Notice, she never read the email or opened the attachment.

On May 16, 2023, Emily received mail that was forwarded to her new address, including the ASC Appointment Notice and realized that she missed the appointment to have her biometrics recorded.

It is significant to note that forwarding mail is not sufficient for USCIS. Any nonimmigrant who moves is required to file a Form AR-11, Alien’s Change of Address Card, with USCIS within ten (10) days of the change of address. The requirement to file the AR-11 applies to all foreign nationals, whether they move to a different apartment within the same building or to a different city or State. A best practice is to also send a letter to USCIS, by certified mail return receipt, with a copy of the receipt notice for each pending petition or application to advise of the change of address.

What are the consequences of Emily missing the biometrics appointment for her I-485 Application? The failure to appear for the biometrics appointment, or to timely request (prior to the appointment date) that USCIS reschedule the appointment, will result in USCIS denying the I-485 Application as being abandoned. Although there have been some instances where the local ASC office will allow a foreign national to appear late to have their biometrics recorded, more often than not, USCIS will deny the I-485 Application as abandoned. Assuming the foreign national has otherwise maintained their status, this would require the foreign national to refile a new I-485 Application and be placed at the end of the queue for a greencard after having waited months or years to file.

Hypothetical 2: An H-1B nonimmigrant whose employer permits remote working

Dana is an H-1B nonimmigrant whose employer, XYZ Ltd., has implemented a work from home or remote working policy (WFH Policy) in response to the COVID-19 pandemic. XYZ Ltd., which is located in Morris County, NJ, initially implemented the WFH Policy as a temporary measure, but in December 2022, made it one of several permanent options for its employees.

Dana, who has been employed as an IT Project Manager with XYZ Ltd. for four years, has been working remotely since March 2020. Her current H-1B status expires on September 1, 2023 and she is currently earning an annual salary of $100,000. Now that she has the option of permanently WFH, she purchased a home in Fairfax County, VA on February 1, 2023. On March 15, 2023, while XYZ Ltd.’s immigration attorneys were preparing an extension of Dana’s H-1B status, she advised XYZ Ltd. that she had purchased a home in Fairfax County, VA and was seeking to move to her new home as of April 15, 2023.

What are the consequences to Dana’s H-1B status based on her planned relocation from Morris County, NJ to Fairfax County, VA? Changes in an H-1B nonimmigrant’s work location can have significant immigration consequences due to the U.S. employer’s requirement to meet the prevailing wage.

In order to file an H-1B petition, an employer must agree to pay the H-1B beneficiary at least the “required wage,” which is defined as the higher of the prevailing wage or the employer’s actual wage paid to similarly employed workers. A U.S. employer establishes its agreement to pay the required wage by filing and obtaining certification (or approval) of a Labor Condition Application (LCA).

The appropriate prevailing wage is determined by the geographical area of employment. The prevailing wage for Dana’s position of IT Project Manager in Morris County, NJ is $94,349 per year, while in Fairfax County, VA, the prevailing wage for an IT Project Manager is $121,722 per year.

By purchasing a home and planning to relocate without first consulting with XYZ Ltd. and its immigration counsel, Dana created an expensive dilemma for herself and her employer, which may jeopardize her ability to maintain her lawful nonimmigrant status. Under this scenario, XYZ Ltd. and Dana have several options.

First, assuming XYZ Ltd. agrees to file the H-1B extension for Dana to work in Fairfax County, VA, XYZ Ltd. must agree to pay her the prevailing wage, which is now $121,722 per year, more than a $21,000 increase over her current salary. While XYZ Ltd. has the option of purchasing a private wage survey as an alternative means of determining the prevailing wage, such private wage surveys can be quite expensive and there is no guarantee that the private wage survey will be accepted by either the Department of Labor or USCIS as sufficiently meeting the prevailing wage regulations.

Second, XYZ Ltd. may decide that it cannot or will not file an H-1B extension petition for Dana, which would place her lawful nonimmigrant status in jeopardy. If XYZ Ltd. determines that it cannot pay Dana $121,722 per year or that it cannot find a private wage survey as an alternative means of determining the prevailing wage, then XYZ Ltd. could decide not to file an H-1B extension on behalf of Dana and let her H-1B status expire.

Third, XYZ Ltd. could determine that it can only afford to extend Dana’s H-1B status if she continued working in Morris County, NJ, which would mean that Dana could not move to her new home in Fairfax, VA.

Fourth, Dana would have the option of transferring her H-1B employment to an employer who could pay the prevailing wage for her role as IT Project Manager in Fairfax, VA. This would require Dana to find a new employer who would be willing and able to sponsor her, pay the prevailing wage, and file the H-1B extension petition before her current status expired on September 1, 2023. While not impossible, the very short period of time with which Dana has to find a new employer, get hired and get the employer to file the petition on her behalf, makes it unlikely that this option would be successful.

As detailed from above, both Emily and Dana failed to communicate, with the employers and immigration counsel, a material change in their personal circumstances, which in turn had significant consequences, placing both in financial or immigration jeopardy. It is critical that foreign nationals always share a change in their address with their employer and immigration counsel. As the above hypotheticals show, relocating can have a significant impact on a foreign national’s immigration status.

Lin Walker 6/6/23 Lin Walker 6/6/23

Notable Client Success: Congressional Assistance on Form I-485, Application for Adjustment of Status

Has your gut ever told you there was something wrong with your case that was pending with U.S. Citizenship and Immigration Services (USCIS)?

Often, clients worry that there is something wrong with their case because it’s been pending with USCIS for a long time. In most instances, the delay is the result of USCIS’ historic backlogs and there is nothing wrong. As frustrating as it is to tell clients this, usually, we have to wait for the case to be outside of “normal” processing times, even if we consider those processing times unreasonable.

But, sometimes, your gut is right. There is something wrong with your case. This post is to celebrate a Client’s perseverance in advocating for herself and the success that we were able to help the Client achieve.

The Client filed her I-485, Application for Adjustment of Status, in March 2020 based on an approved multinational manager (“EB-1C”) petition. During this process, she and her employer were represented by a large multinational immigration law firm. While the vast majority of her colleagues who filed their EB-1C I-485 Applications around the same time got their greencards by November 2021, it was March 2022 and her case was still pending.

The Client informed her attorney that something was wrong—and not just because her case was still pending. She received a USCIS case status update in April 2022, advising her that her case was transferred to the Board of Immigration Appeals for reconsideration of her application for relief from removal! How was this even possible? She was not the subject of removal proceedings and no appeal was filed on her behalf. She maintained valid L-1A status. She reported this to her attorney, who told her to just be patient—USCIS would figure it out on its own.

Two months later, she received an EAD with her biographic information, but the photo was of a man she did not know. The employment category on the card was not for someone with a pending I-485. She also reported this to her attorney, who returned the card to USCIS, but took no further action.

Frustrated, the Client consulted with immigration attorneys from two other law firms, who advised her: (1) nothing could be done because her I-485 Application was still within published USCIS processing times; and (2) to just be patient and wait for USCIS to render a decision on her I-485 Application, which was now pending well over two years and seemed to be lost.

The Client, clearly frustrated, retained our firm in January 2023 to find out why her case was so delayed and what options were available. Like our Client, we were concerned about the odd USCIS status updates that she had received and the issuance of the EAD with someone else’s photo. After speaking with our Client and reviewing the documentation in her case, it was our position that USCIS had combined our Client’s file with someone else who was in removal proceedings. This could explain the delays in her case as well as the erroneous status updates and EAD.

We concluded that the best strategy was to seek congressional intervention. We were fortunate that our Client lived in a region with a member of Congress who was very active in resolving immigration issues. We submitted a request for Congressional assistance in February 2023 and in March 2023, we received a USCIS case status update informing us that our Client’s I-485 Application was transferred to a local USCIS field office near her home for adjudication. A week later, our client received her greencard—nearly three years from the date she filed her I-485 Application!

So, the moral of this story is sometimes, a delay is just a delay, as frustrating as it is to have to wait. But, when your case is delayed and you receive updates or documents from USCIS that simply do not make sense for your circumstances, and you believe something is wrong, trust your gut. Tell your attorney. And if they do not take meaningful action, get a second, third, or even fourth opinion. Find an attorney who is as passionate as you are about getting your case resolved.

Lin Walker 5/15/23 Lin Walker 5/15/23

Client Alert: Changes to the FAM for E Visa Applicants

In May 2023, the Department of State (DOS) updated the Foreign Affairs Manual (FAM) relating to E visas. In this client alert, we highlight 2 of the most concerning changes.

1. E-3 visas & intent to depart the U.S.

The DOS modified 9 FAM 402.9-8(G), which discusses the intent to depart requirement for E-3 visa applicants. The new language states:

“An E visa applicant is presumed to be an immigrant until the applicant establishes to your satisfaction that they are entitled to E nonimmigrant status. The standards for applying INA 214(b) described in 9 FAM 302.1-2(B) apply to E visa applicants.”

With the addition of this language, consular officers may apply INA §214(b) more often to deny E-3 visa applications because they presume the applicant is an “intending immigrant.”

Our recommendation: E-3 visa applicants should provide sufficient information/documentation to demonstrate that they have strong ties to their home country that will require them to leave the U.S. at the end of their temporary stay.

2. Spouses & children of E visa applicants

The DOS modified 9 FAM 402.9-9, which now treats spouses and children (dependents) of E visa applicants from E Treaty and non-Treaty countries differently.

Consular officers are now instructed to apply the visa reciprocity applicable to the dependent’s nationality and not that of the principal applicant’s nationality, when issuing E visas.

This is a drastic change from the DOS’ visa policy, which previously stated:

"The spouse and children of an E visa applicant receive the same visa validity and number of entries and are required to pay the same reciprocity fee, if applicable, as the principal applicant."

So, what would this look like?

Where the E-2 principal and their spouse are Italian, both applicants would receive visas valid for 60 months.

Where an E-2 principal is Italian and their spouse is Bangladeshi (Bangladesh has an E-2 Treaty), the Italian principal would receive visa for 60 months while the Bangladeshi spouse would receive a visa for 3 months.

Where an E-2 principal is Italian and their spouse is Vietnamese (Vietnam does not have an E-2 Treaty), both the Italian principal and the Vietnamese spouse would receive visas valid for 60 months.

Our recommendation: Applicants for nonimmigrant visas with dependents who have different nationalities should check the DOS’ reciprocity website to determine the length of the visas that will be issued to their dependents. It is important to know, in advance, if their dependents’ visas will be issued for a shorter validity period so that travel plans can be made.

For example, if a dependent’s visa will only be valid for 3 months, it is important to schedule additional time into international travel so that the dependent can apply for a new visa when their current one expires.

Link to FAM with changes to the E visa classifications: https://fam.state.gov/fam/09FAM/09FAM040209.html
Link to E-1/E-2 Treaty:
Countries: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html
Link to DOS’ reciprocity website: https://travel.state.gov/content/travel/en/us-visas/Visa-Reciprocity-and-Civil-Documents-by-Country.html

Featured

Jun 1, 2024

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

Jun 1, 2024

May 25, 2024

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

May 25, 2024

May 18, 2024

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

May 18, 2024

Lin Walker 4/3/23 Lin Walker 4/3/23

Nonimmigrant Alternatives to the H-1B Visa

What are some alternatives that employers and foreign nationals can consider if they have not been selected in this year’s H-1B cap lottery?

E-3, Australian Specialty Occupation Worker

Pursuant to the 2005 U.S.-Australia Free Trade Agreement, the E-3 visa classification allows Australian citizens to enter and work in the U.S. in a specialty occupation for two (2) years. To qualify for an E-3 visa, the applicant must:

Be an Australian citizen;
Have a legitimate offer of employment in the U.S. in a specialty occupation; and
Possess the required academic background or other qualifying credentials for the specialty occupation.

The Immigration and Nationality Act (“INA”) defines a “specialty occupation” as a job that requires the “theoretical and practical application of a body of highly specialized knowledge to perform the occupation”; and the “attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” INA §214(i)(1).

Generally, a specialty occupation is one that cannot be performed without a bachelor's or higher degree (or its equivalent) in a specific field of study.

Examples of specialty occupations include but are limited to: architects; engineers; professors; teachers; lawyers/attorneys; database administrators and other information technology-related occupations; accountants; economists; doctors and other medical and health related occupations; writers; librarians; marketing and advertising positions; and social workers, to name few.

An added benefit of the E-3 visa classification is that the principal applicant’s spouse is permitted to work “incident to status”, meaning that the spouse who enters in E-3D status may work without applying for work authorization in the United States.

L-1A & L-1B Intracompany Transferees

The L-1 visa classifications provide U.S. employers with the opportunity to transfer key personnel to the U.S. from their foreign parent, subsidiary, branch or affiliate companies. Generally, the L-1A visa is valid for a maximum period of seven (7) years, while the L-1B visa is valid for a maximum period of five (5) years.

To qualify for an L-1 visa, the applicant must:

Have worked outside the U.S. on a full-time basis for one continuous year out of the last three years for a parent, subsidiary, or affiliate of the U.S. employer, where the foreign employer and U.S. employer are related through at least 50% common ownership;
Have worked in either an executive, managerial or specialized knowledge capacity for the foreign employer; and
Be coming to the U.S. to work in an executive, managerial or specialized knowledge capacity for the U.S. employer.

The L-1A visa classification is reserved for qualifying foreign nationals who will be transferred to the U.S. to work in either an executive or a managerial capacity. According to USCIS:

An Executive directs the management of an organization, division, or major function, including establishing goals and policies and exercising discretionary decision-making. An Executive is supervised by higher level executives, board of directors or stockholders.

A Manager manages the operational affairs of the organization as a whole, or a major function of an operating division.

Within the Manager classification, there are personnel managers, who are responsible for supervising and directing the work of other managerial, supervisory and professional personnel within the organization, and functional managers, who are responsible for managing and directing a core or essential function, component, or division of the organization.

The L-1B visa classification is reserved for qualifying foreign nationals who will be transferred to the U.S. to work in a specialized knowledge capacity. According to USCIS:

A specialized knowledge individual is one who possesses special knowledge or advanced knowledge.

Special knowledge is knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets that is distinct or uncommon in comparison to that generally found in the particular industry;
Advanced knowledge is knowledge of, or expertise in, the petitioning organization’s specific processes and procedures that is not commonly found in the relevant industry and is greatly developed or further along in progress, complexity and understanding than that generally found within the employer.

Specialized knowledge need not be proprietary, unique, or narrowly held throughout the company, but must be advanced or complex, primarily gained through prior experience with the petitioning employer, and not easily transferable or taught to another individual.

An added benefit of the L-1 visa classification is that the principal applicant’s spouse is permitted to work “incident to status”, meaning that the spouse who enters in L-2S status may work without applying for work authorization in the United States.

TN USMCA Professionals

The United States-Mexico-Canada Agreement (USMCA), enacted on July 1, 2020 to replace the 1994 North American Free Trade Agreement (NAFTA), facilitates travel to and employment in the U.S. for certain Canadian and Mexican citizens.

USMCA created the TN visa classification for eligible Canadian and Mexican professional workers to be employed in the U.S. in certain professions, up to three (3) years, including but not limited to: accountants, architects, computer systems analysts, economists, engineers, graphic designers, hotel managers, industrial designers, interior designers, landscape architects, lawyers, librarians, mathematicians, dentists, pharmacists, and a full-range of scientific occupations. For a full list of the qualifying occupations, please visit: https://ustr.gov/sites/default/files/files/agreements/FTA/USMCA/Text/16_Temporary_Entry.pdf.

To qualify for a TN visa, the applicant must:

Be an Canadian or Mexican citizen;
Have a legitimate offer of employment in the one of the qualifying occupations listed in the USMCA Appendix 2 list of professions; and
Possess the required academic background or other qualifying credentials for the specialty occupation. Each USMCA profession lists various educational and/or employment experience requirements for the position, which may include: a Baccalaureate or licenciatura degree; a State, Provincial or Federal license; three years' of relevant employment experience; a post-secondary diploma or certificate; or a licenciatura degree only.

Lin Walker 2/11/23 Lin Walker 2/11/23

Domestic Visa Revalidation Is Returning to the U.S.!

Before you get too excited, I want to point out two things: (1) the visa revalidation option will only apply, initially, to those seeking to renew H and L visas; and (2) the revalidation program will be launched later this year, but a definitive date has not been announced.

On February 9, 2023, Bloomberg Law published an article based on its interview with Julie Stufft, Deputy Assistant Secretary for Visa Services, Bureau of Consular Affairs, U.S. Department of State. Deputy Assistant Secretary Stufft confirmed that the Department of State would be launching the pilot domestic visa renewal program later this year, initially for foreign nationals seeking to extend their H and L visas, but could expand the program to include other visa classifications in the future.

This is good news of course! Immigration practitioners, U.S. employers and foreign nationals have been advocating for a domestic visa renewal process since the COVID-19 pandemic led to the shutdown of numerous U.S. embassies and consulates abroad. This in turn resulted in a significant backlog of pending visa applications, the unavailability of visa appointments, foreign national employees being stuck abroad for many months, and an interruption in work for U.S. employers.

However, the Department of State noted that one of the challenges in implementing the domestic visa renewal program is the difficulty in creating a new consular division in Washington, D.C.

Again, this is good news, but I can't help but wonder why a program that had already been in place for many years has taken so long to resurrect.

Domestic visa revalidation IS NOT new—the Department of State already operated a very popular and very successful visa revalidation program through its Consular Division in Washington, D.C. until 2004. The old visa revalidation program enabled foreign nationals in the United States in E, H, L and O nonimmigrant visa status, among others, to renew their visas through the Consular Division in Washington, D.C. This visa revalidation program ended in 2004 because the Department of State was unable to meet the biometrics data collection requirements created by new national security laws enacted after the September 11, 2001 terror attacks.

Although it may take several more months to be implemented, the new visa renewal program will be an important and welcomed benefit for many foreign nationals, their families and U.S. employers and we are happy to see it return.

I will continue to monitor the Department of State’s visa renewal program and will provide updates as soon as information becomes available.