DHS to Revise Controversial Social Security No-Match Regulation in Response to Lawsuit

The U.S. government has told a California court it intends to revise the controversial new DHS regulation that requires employers to resolve mismatches between employee Social Security numbers and existing records in government databases or risk criminal and civil penalties for knowingly employing illegal workers.

The government’s decision was prompted by a lawsuit over the regulation which had been put on hold pending the court’s decision in the case.

The motion filed by the Department of Justice last week requests a stay in the proceedings until the rule-making process is finished, which is estimated to be at the end of March 2008.

The motion states that as part of the rule-making process, the government will address concerns raised by the court, including conducting an analysis of the economic impact of the rule and its effect on small businesses.

The rule, titled Safe-Harbor Procedures for Employers Who Receive a No-Match Letter, was published in August and would have given employers three months to correct or verify Social Security numbers that do not match employee names after receiving a “no-match” letter from the Social Security Administration. If the names and numbers cannot not be reconciled, employers would be forced to fire the workers or be held liable for illegal hires.

The American Civil Liberties Union, the U.S. Chamber of Commerce, labor unions and immigrant rights groups sued the agency in September in California, alleging that government databases are so error prone that the rule would harm U.S. citizen employees and discriminate against foreign-born or simply foreign-looking or foreign-sounding workers.

In response, the U.S. District Court for the Northern District of California issued a preliminary injunction blocking the government from mailing the letters while the court considers the case.

For more background on this issue, please see our previous article “Calif. Court Blocks New Social Security “No Match” Rule Pending Trial Judgment.”

Procédé Consulaire Pour l’Immigration Via Le Mariage

Le processus d’obtention de la résidence permanente basé sur une relation familiale comprends deux étapes : (1) la pétition I-130 pour le visa; Et (2) la demande de visa d’immigrant ainsi que l’entrevue consulaire.

La Demande I-130

La première étape consiste à soumettre une demande I-130 pour le parent étranger auprès des Services de Citoyenneté et de l’Immigration des Etats-Unis (USCIS). Le but de la demande est de prouver au Service de l’immigration que le mariage du citoyen américain au conjoint étranger souhaitant immigrer aux Etats-Unis est de bonne foi. Le processus de résidence permanente est presque entièrement axé sur le répondant. Voulant dire que la personne faisant la demande pour le conjoint étranger a le contrôle sur la demande. Le conjoint étranger ne peut obliger un parent à faire une demande en son nom. Une fois que la requête est déposée, le répondant citoyen américain peut retirer ou annuler la demande à tout moment avant que le conjoint étranger n’obtienne le statut de résident permanent.

Afin de pouvoir soumettre la demande de I-130, le couple en question devra présenter les documents requis a cet effet pour démontrer qu’ils se sont mariés en bonne et due forme et non pas simplement dans le but d’éluder les lois d’immigration des Etats-Unis. Par conséquent, le couple marié aura besoin de divers documents pour démontrer que le mariage est authentique, y compris le certificat de mariage et toutes autre preuve soutenant l’authenticité de la relation tel que des photos, lettres, appels téléphonique, voyages ensemble, etc.

Demande de Visa d’Immigration/Entrevue

Si la demande I-130 est acceptée, la seconde étape consistera à faire la demande de visa d’immigration au niveau de l’ambassade/ou consulat du lieu de résidence du conjoint étranger. Dès l’approbation de l’I-130, le Centre National de Visa enverra un guide d’instruction expliquant l’étape suivante du processus de visa d’immigration ainsi que les documents requis pour l’entrevue du conjoint étranger à l’ambassade/ou consulat. Ces documents devront comprendre une déclaration sous serment de prise en charge financière de la part du conjoint citoyen américain, certificats de vaccination, extraits du casier judicaire, et les preuves d’un mariage en bonne et due forme (certificat de mariage, photos, lettres, etc.). Le conjoint immigrant sera également prié de passer un examen médical auprès d’un médecin sélectionné par l’Ambassade.

Le conjoint immigrant sera reçu au consulat sur rendez vous pour l’entrevue du visa d’immigration. L’entrevue peut durer un minimum 10 minutes ou jusqu’à une heure de temps selon le cas. Le conjoint étranger prêtera serment en vertu de la loi des Etats-Unis d’Amérique de dire toute la vérité, il est donc très important que le conjoint étranger réponde honnêtement à chaque question qui lui sera posée.

Durant l’entrevue, l’agent consulaire posera des questions à propos du mariage afin de déterminer son authenticité, tel que comment et où le couple s’est rencontré, la fréquence de leurs appels ou rencontres, et quels sont les projets d’avenir. Le conjoint étranger se verra aussi demandé si il/elle a : (1) été membre d’un parti communiste, de groupes terroristes ou toutes autre organisations similaires; (2) si il/elle a été arrêté ou reconnu coupable pour un quelconque crime; (3) si il/elle a bénéficié d’une aide sociale, ou (4) menti pour obtenir un visa, a travaillé aux États-Unis sans permis de travail, ou excédé la validité de son visa, etc. Si vous répondez oui à l’une de ces questions, parlez-en à votre avocat immédiatement.

Si la demande de visa est approuvée, le conjoint étranger recevra un visa d’immigrant d’une validité de six mois à compter de la date de l’entrevue. Le visa n’est pas le même document que la carte verte. Le conjoint étranger recevra le statut de résident permanent des États-Unis au moment de son arrivée sur le territoire américain. Le sceau I-551 sera apposé sur son passeport, ceci fera office de carte verte temporaire jusqu’à la réception de la dite carte qui lui sera envoyée par courrier ultérieurement.

Dans le cas ou votre mariage à moins de deux ans le conjoint étranger recevra à son arrivée au port d’entrée une carte verte dite conditionnelle. Cette carte a une validité de deux ans à partir de sa date d’émission. Le conjoint étranger devra faire une demande auprès des services d’immigration afin de supprimer cette condition, et cela dans un délai de 90 jours à compté de la date d’expiration. A cet effet il faudra utiliser le formulaire I-751.  Si le mariage a plus de deux années, une carte verte d’une validité de 10 ans sera délivrée.

A la question concernant la durée du processus, il n’y a malheureusement pas de réponse précise. Toute estimation peut changer du jour au lendemain car les facteurs dirigeants la durée de traitement des dossiers par le gouvernement peuvent changer rapidement. Ces facteurs comprennent les ressources consacrées à étudier les demandes de différentes catégories, changements de règlement, et changements des quotas par catégorie de visa.

En outre, même après avoir entamé ce long processus nul ne peut garantir la réussite d’un cas ou d’un autre dû aux divers facteurs sur lesquels le couple faisant sa demande et leur avocat n’ont aucun contrôle.

The H1Bees Rock!

It’s a holiday, so we will lighten up today’s posting by recommending one of our favorite success stories involving hard work, creativity, and perseverance - the H1Bees, a band formed by a group of computer programmers from India.

They came over on their own H-1B visas to work in the United States and have since attracted international attention for their songs about the immigrant experience. Their music, a blend of Indian and western sounds, is about the anxiety, the excitement, and the frequent bewilderment involved in the process of getting an H-1B and adapting to work and life in America. Enjoy!

Updated List of Regional Centers for EB-5 Immigrant Investor Pilot Program as of October 2007

PUBLISHER’S NOTE: SEE OUR UPDATED LIST AS OF MAY 2008 HERE USCIS LIST OF APPROVED REGIONAL CENTERS; 2 NEW CENTERS IN CA APPROVED.  

The Immigrant Investor (EB-5) Pilot Program is designed to encourage foreign investment by providing a vehicle for investment in the form of an economic unit called a “Regional Center.” The Regional Centers are private or public entities that have received government approval to participate in the program. They enable the amassing and pooling of capital for targeted investment in designated regions in the United States.

For the Investor, these Regional Centers are attractive because they allow for a less restrictive job creation requirement. Instead of having to prove direct job creation, the investor may show indirect job creation through such methods as economic and statistic forecasting tools.

Please note that this pilot program expires in November 2008 unless reinstated

In November 2007, USCIS released to AILA the following list of “active” regional centers as of October 2007.

Regional Centers that may have been approved, but were not designated as “active” by USCIS are not included in this list.

As the status of these Regional Centers as participants in the Pilot Program can change, before investing any money, verify the center is still approved and active in the Pilot Program.

For more information on the EB-5 Immigrant Investor visa see our other article EB - 5 Permanent Residency through Investment.

In alphabetical order by state, the Regional Centers deemed “active” as of March 2007 include:

New I-9 Form Released; 5 Docs Removed From Acceptable List For Employment Verification

USCIS has released the new Form I-9 required to be completed by all employers to verify a new employee is authorized to work in the United States. The most significant change is the removal of five documents from the list of those that may be used to verify identity and employment eligibility and the addition of one new, acceptable document, according to the press releases issued by USCIS Nov. 7.

Employers should immediately begin using the updated I-9 for any new employees. Employers do not need to fill out the new form for existing employees, but will need to use it when re-verification is required.

The five documents that are no longer acceptable proof of identity or employment are:

• Certificate of U.S. Citizenship (Form N-560 or N-561)

• Certificate of Naturalization (Form N-550 or N-570)

• Alien Registration Receipt Card (I-151)

• Unexpired Reentry Permit (Form I-327)

• Unexpired Refugee Travel Document (Form I-571)

One new document was added to List A of the List of Acceptable Documents:

• Unexpired Employment Authorization Document (I-766)

USCIS said these forms were removed because they lack features to help deter counterfeiting, tampering, and fraud.

The new, acceptable document is the most recent version of the Employment Authorization Document (Form I-766).

In total, the revised list of acceptable documents now includes:

• U.S. passport (unexpired or expired)

• Permanent Resident Card (Form I-551)

• Unexpired foreign passport with a temporary I-551 stamp

• Unexpired Employment Authorization Document that contains a photograph (Form I-766, I-688, I-688A, or I-688B)

• Unexpired foreign passport with an unexpired Arrival-Departure Record (Form I-94) for nonimmigrant aliens authorized to work for a specific employer

The Form I-9 is available in English and Spanish. However, only employers in Puerto Rico may have employees complete the Spanish version for their records. Employers in the 50 states and other U.S. territories may use the Spanish version as a translation guide for Spanish-speaking employees, but must complete the English version and keep it in the employer’s records. Employees may also use or ask for a translator/preparer to assist them in completing the form.

The new Form I-9 and M-274 handbook with detailed instructions for completing the form are available on the USCIS website. Brief instructions are available here. Forms may also be obtained by calling USCIS at 1-800-870-3676 or the national customer service center at 1-800-375-5283.

DHS TRIP Failings Under House Committee Scrutiny Nov. 8

Congress is calling DHS to task on the failings of its traveler’s redress program, which was designed to assist foreign visitors who were consistently hassled at border crossings because their name happens to resemble Osama bin Laden’s or some other name on the terrorist watch list.

The House of Representatives’ Committee on Homeland Security will be discussing the Traveler Redress Inquiry Program (TRIP) at its committee meeting tomorrow, Thursday, Nov. 8. The committee sent a letter to DHS Secretary Michael Chertoff requesting him to respond to a list of questions regarding the program that are intended to identify the problem areas and to get them resolved.

TRIP was established as a “one-stop” redress center to clear the innocent travelers so they could fly and go through border crossings freely, but the program has been fraught with problems, including backlogs in application adjudications, temporary shutdowns, and lack of inter-agency communication, among other concerns.

EB-2: Advanced Degrees or Exceptional Abilities

Overview: The second-preference, employment-based immigrant visa is available to the following two subcategories of foreign nationals: 1) members of the professions holding an advanced degree or its equivalent or 2) foreign nationals who possess exceptional abilities in the sciences, arts, or business.

Once an approved labor certification is obtained through PERM or a foreign national qualifies for the streamlined labor certification process under Schedule A II, a foreign national can then file for an immigrant visa with USCIS.  (The PERM labor certification process is described in our other article PERM Labor Certification for Immigrant Work Visas and the Schedule A II process is described in Avoiding Labor Certification: Schedule A II Occupations - Exceptional Ability.)

Professionals holding an advanced degree or its equivalent

Eligibility criteria: To be eligible for this category, the foreign national must be working in certain fields deemed “professions” and must hold an advanced degree or its equivalent.

What types of jobs are considered “professions”?

The term “profession” includes, but is not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries. 8 CFR 101(a)(32). USCIS also considers professions to include any other occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.

What is considered an advanced degree or its equivalent?

An advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A U.S. baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty is considered the equivalent of a master’s degree. If a doctoral degree is customarily required by the specialty, the foreign national must have a U.S. doctorate or a foreign equivalent degree.

Supporting documentation required: To establish the foreign national holds an advanced degree, he or she will need to submit an official academic record showing that the foreign national has a United States advanced degree or a foreign equivalent degree.

To establish degree equivalency, the foreign national must submit an official academic record showing that the foreign national has a United States baccalaureate degree or a foreign equivalent degree, and letters from current or former employer(s) showing at least five years of progressive post-baccalaureate experience in the specialty.

Foreign nationals with “exceptional ability” in the sciences, arts, or business

Eligibility criteria: To be eligible for this category the foreign national must possess an “exceptional ability” in the sciences, arts or business and be offered a job in his area of specialty.

What is considered “exceptional ability.”

The 8 CFR 204.5(k)(2) defines “exceptional ability” as a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. The USCIS “exceptional ability” standard is different from that of DOL; it is actually a slightly lower standard. Thus, if a foreign national meets the DOL standard for exceptional ability he or she should also be able to meet the USCIS standard.

Supporting documentation: To establish “exceptional ability” the foreign national must submit supporting documentation for at least three of the following:

(A) An official academic record showing that the foreign national has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;

(B) Evidence in the form of letter(s) from current or former employer(s) showing that the foreign national has at least ten years of full-time experience in the occupation for which he or she is being sought;

(C) A license to practice the profession or certification for a particular profession or occupation;

(D) Evidence that the foreign national has commanded a salary, or other renumeration for services, which demonstrates exceptional ability;

(E) Evidence of membership in professional associations; or

(F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

If the above standards do not apply to the foreign national’s occupation, other comparable evidence of eligibility is also acceptable.

Application requirements: For either subcategory, the employer must file the labor certification (Form ETA 9089) and Form I-140 along with the requisite supporting documentation with USCIS. If the I-140 is approved, the foreign national can they apply for permanent residency (green card).

Employer requirement: The employer must establish it has the ability to pay the wage offered to the foreign national. Evidence of this ability can be in the form of copies of annual reports, federal tax returns, or audited financial statements. If the U.S. employer has 100 or more workers, USCIS may accept a statement from the company’s financial officer which establishes the ability to pay the proffered wage. In some cases, additional evidence, such as profit/loss statements, bank account records, or personnel records, may be submitted or requested by USCIS.

Quotas: There are worldwide and country-wide quotas. Whether a country is backlogged is shown on the monthly State Department visa bulletin. Visa availability and cut-off dates can change monthly, moving backwards or forwards. The countries that traditionally have been vulnerable to backlogs in the employment-based categories are China and India.

PERM Labor Certification for Immigrant Work Visas

What is labor certification?

Certain employment-based immigrant visas require approval from two different agencies: the Department of Labor (DOL) and USCIS. The approval required from the DOL is the first step and is known as labor certification.

To obtain labor certification from DOL, the employer must establish no Americans are qualified for and want the particular job and the employment of a foreign national will not adversely affect the wages and working conditions of similarly employed US workers. The process for doing so is known as PERM, which stands for Permanent Electronic Review Management.

(Please note: The PERM labor certification process for EB-2 and EB-3 categories is not necessary if the foreign national possesses an “exceptional ability” in the sciences, arts or performing arts, known as Schedule A II occupations. See our related article Avoiding Labor Certification: Schedule A II Occupations - Exceptional Ability)

What are the requirements of PERM

PERM describes the recruitment procedures an employer must follow in order to obtain a labor certification from the DOL. The PERM procedures vary somewhat depending on whether the job is a professional or non-professional job. Also, special procedures exist for sheepherders, college or university teachers and professors, and Schedule A occupations.

This article will only address requirements for professional and non-professional jobs.

General job requirements: The position offered must be full-time, permanent (as opposed to seasonal or temporary) and it must be a bona fide job opening available to U.S. workers. The employer must pay at minimum the prevailing wage for that type of position in the region of intended employment.

The job requirements must conform to what is normally required for the occupation in the United States. It may not be tailored to the desired foreign worker’s qualifications and it cannot be unduly restrictive, such as requiring foreign language capability, unless these restrictive requirements can be established to arise out of business necessity.

Recruitment steps: PERM requires the employer to follow a series of recruitment steps, the details of which differ depending on if the job is a professional or non-professional occupation.

Professional Occupations

20 CFR 656.3 defines a professional occupation as “an occupation for which the attainment of a bachelor’s or higher degree is a usual education requirement.” Work experience may be accepted in lieu of a degree, however, provided certain PERM recruiting and application procedures are followed. Generally, the law requires that if the employer is willing to accept work experience in lieu of a baccalaureate or higher degree, such work experience must be attainable in the U.S. labor market and must be stated on the application form. If the employer is willing to accept an equivalent foreign degree, it must be clearly stated on Form ETA 9089, the Application for Permanent Employment Certification form.

In addition, alternative recruiting procedures exist for college and university teachers, which is outside the scope of this article.

Types of advertising: There are several forms of advertising and recruitment an employer must conduct as part of the labor certification process, including:

• Mandatory advertising:  There are two forms of mandatory advertising: The position must be advertised 1) via a job order placed with the state and 2) in two print advertisements (i.e. Sunday newspaper and a professional journal).  This advertising must be conducted at least 30 days, but no more than 180 days, before the filing of the application.

• Additional recruitment steps: The employer must do at least three of the 10 recruiting steps named in the list below. Only one of these additional steps may consist solely of activity that took place within 30 days of the filing of the labor certification application. None of the steps may have taken place more than 180 days prior to filing the application.

1. Job fairs.

2. Employer’s Web site.

3. Job search Web site other than the employer’s.

4. On-campus recruiting.

5. Trade or professional organizations.

6. Private employment firms.

7. Employee referral program with incentives.

8. Campus placement offices.

9. Local and ethnic newspapers.

10. Radio and television advertisements.

Non-Professional Occupations

For a non-professional job, the employer must at a minimum, place a job order with the state and advertise in two different Sunday editions of a general circulation newspaper. The steps must be conducted at least 30 days but no more that 180 days before the filing of the application.

No other recruitment steps are required.

Labor Certification Employee Notice Requirement: The employer must give notice of the intent to file a labor certification application in connection with the available position to the employees’ bargaining representative. If no such representative exists, the employer must inform its employees by posting a notice in a conspicuous place at the job site for 10 days. This posting must take place between 30 and 180 days of filing the labor certification application. The notice must also be published on any in-house media.

 

Post-advertising requirements: After advertising, the employer must interview all qualified candidates who responded to the advertisements. For all candidates not selected, the employer must document the reason. The employer must prepare a recruitment report for submission to the DOL describing the recruitment steps taken and the outcome.

Employers must keep in mind that a U.S. worker is considered qualified for the job if the worker can acquire the skills necessary to perform the job duties during a reasonable period of on-the-job training. In other words, an employer cannot reject a U.S. worker because he lacks the necessary skills if that worker can acquire the skills through on-the-job training.

The employer must maintain documentation of the recruitment and be prepared to submit this documentation in the event of an audit or in response to a request from the DOL prior to rendering a final determination.

Application Process: Once the recruitment phase is finished the employer will fill out DOL Form ETA 9089, Application for Permanent Employment Certification and file it electronically with the DOL. Paper submissions are also accepted. When an approved labor certification is received, the employer may then file the I-140 immigrant visa petition. Upon receiving an approved I-140, the foreign national can then apply for an immigrant visa at his home consulate. If the foreign national is already in the U.S. he can apply for permanent residency based on the approved I-140.

Avoiding Labor Certification: Schedule A II Occupations - Exceptional Ability

Obtaining an immigrant visa for a foreign national in the employer-sponsored second-preference (EB-2) or third-preference (EB-3) categories generally is a two-step process requiring both Department of Labor (DOL) and USCIS approval. The first step is obtaining an approved labor certification from DOL. The second step is obtaining an approved immigrant petition from USCIS.

(More information on this process as it relates to specific types of employment can be found in our other articles under the category of Work Visas - Immigrant. )

There are certain jobs, however, that enjoy a streamlined processing of the first step, labor certification, because DOL has already pre-determined that insufficient American workers exist to fill them. These jobs are known as Schedule A occupations and can be found at 20 CFR 656.5. This article focuses on Group II of Schedule A, those with “exceptional ability.”

Specifically, the streamlined process avoids the time-consuming recruitment formalities of PERM for those foreign nationals who can demonstrate an “exceptional ability” in either: 1) Sciences or Arts or 2) Performing Arts. For both categories, the key issue is international recognition. A person who has received national, but not international recognition, does not meet the “exceptional ability” standard.

Sciences or Arts

This group includes foreign nationals who have an exceptional ability in the sciences or arts, including college and university teachers, who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States.

For purposes of this group, 20 CFR 656.5(b)(1) defines the term “science or art” as any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/or skill.

A foreign national need not have studied at a college or university in order to qualify for the Group II occupation. Instead, sufficient experience can be used to establish the applicant meets the “exceptional ability” criteria.

How to Prove “Exceptional Ability” for the Sciences and Arts?

To prove a foreign national has the requisite “exceptional ability,” the employer must file documentary evidence showing 1) the widespread acclaim and international recognition accorded the foreign national by recognized experts in the foreign national’s field; 2) documentation showing the foreign national’s work in that field during the past year did, and the foreign national’s intended work in the United States will, require exceptional ability; and 3) documentation about the foreign national from at least two of seven identified categories involving receipt of prizes, published or authored articles and other prestigious honors.

1. The widespread acclaim and international recognition accorded the foreign national by recognized experts.

This criterion may be met by submitting reference letters from a diverse group of recognized experts in the field of the foreign national’s “exceptional ability.” The letters should discuss both the foreign national’s accomplishments and where those accomplishments have been recognized. In other words, the recognition must be international in scope, meaning that the letter writers should come from different parts of the world, not just one country, or the letters should refer to the foreign national’s accomplishments in various countries.

2. The foreign national’s work in the field during the past year did, and the foreign national’s intended work in the United States will, require exceptional ability.

This criterion involves proving three points: 1) the foreign national has at least one year of experience; 2) the foreign national’s work during the past year required exceptional ability; and 3) the future work in the U.S. will require exceptional ability.

To establish the first point, the experience must have been gained during the year prior to application. In other words, if an applicant worked for a year, then took a year off, and now wants to apply under this program, he will not be eligible. He must return to work again for a year before applying.

For the second and third points, the foreign national should submit letters from recognized experts explaining how the past and future work can only be performed by someone with the “exceptional ability” such as the foreign national. In addition, the foreign national’s employer(s), past and future, should also submit letters confirming the past and future positions require someone with exceptional skills.

3. Confirmation the foreign national has fulfilled at least two of the following seven categories:

• Documentation of the foreign national’s receipt of internationally recognized prizes or awards for excellence in the field for which certification is sought;

• Documentation of the foreign national’s membership in international associations, in the field for which certification is sought, which require outstanding achievement of their members, as judged by recognized international experts in their disciplines or fields;

• Published material in professional publications about the foreign national, about the foreign national’s work in the field for which certification is sought, which shall include the title, date, and author of such published material;

• Evidence of the foreign national’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which certification is sought;

• Evidence of the foreign national’s original scientific or scholarly research contributions of major significance in the field for which certification is sought;

• Evidence of the foreign national’s authorship of published scientific or scholarly articles in the field for which certification is sought, in international professional journals or professional journals with an international circulation;

• Evidence of the display of the foreign national’s work, in the field for which certification is sought, at artistic exhibitions in more than one country.

Performing Arts

This group includes foreign nationals of exceptional ability in the performing arts whose work during the past 12 months did require, and whose intended work in the United States will require, exceptional ability.

How to Prove “Exceptional Ability” in the Performing Arts

To prove a foreign national has the requisite “exceptional ability,” the employer must file documentary evidence showing: 1) the foreign national’s work during the past year did, and the foreign national’s work will, require exceptional ability; and 2) must submit documentation to show this exceptional ability. The DOL provides a list of suggested documentation, as follows, but does not specify how many of the categories must be addressed. The more evidence submitted, however, the greater the chance of success. The evidence requested by DOL includes:

• Documentation attesting to the current widespread acclaim and international recognition accorded to the foreign national, and receipt of internationally recognized prizes or awards for excellence;

• Published material by or about the foreign national, such as critical reviews or articles in major newspapers, periodicals, and/or trade journals (the title, date, and author of such material shall be indicated);

• Documentary evidence of earnings commensurate with the claimed level of ability;

• Playbills and star billings;

• Documents attesting to the outstanding reputation of theaters, concert halls, night clubs, and other establishments in which the foreign national has appeared or is scheduled to appear; and/or

• Documents attesting to the outstanding reputation of theaters or repertory companies, ballet troupes, orchestras, or other organizations in which or with which the foreign national has performed during the past year in a leading or starring capacity.

Other General Requirements: Prior to submission of the application, the employer is required to post notice of the intended labor certification filing at the place of the foreign national’s employment for 10 days. It also must be posted in any in-house media normally used to recruit for similar positions.

The foreign national’s pay must be equal to or more than the state workforce agency’s prevailing wage determination.

Application Process: The employer must fill out and sign the labor certification form (Form ETA 9089) and submit it in duplicate to USCIS along with the I-140 and all supporting documentation. Whether the foreign national should apply for EB-2 or EB-3 will depend on the foreign national’s qualifications and other considerations such as visa availability.

New Rule Simplifies (somewhat) Re-Entry to U.S. for Travelling H-1’s and L’s

Starting today, Nov. 1, H-1 and L non-immigrant visa holders and their dependents who have pending I-485 permanent residency applications and travel abroad no longer need to present the application receipt notice to re-enter the U.S., according to a new rule issued by DHS. 

The new rule applies to visa holders in the following categories: H-1B (specialty occupations), H-1C (nurses in disadvantaged areas), L-1A (intracompany transferee -managers, executives), L-1B (intracompany transferee - specialized knowledge) and their dependents. The notice amending rule 8 CFR 245.2(a)(4)(ii)(C) was printed in today’s Federal Register.

Previously, H-1 and L non-immigrant visa holders who had pending permanent residency applications and traveled outside of the U.S. had to present the original receipt notice at the border to avoid having their applications deemed abandoned. (Generally, applications for adjustment of status under INA 245 are considered abandoned when the applicant leaves the United States unless certain procedures are followed before the trip.)

This requirement presented hardships to those visa holders who needed to travel and had not yet received a receipt notice due to USCIS’ lengthy processing times. These visa holders either had to cancel their trip or risk having their application denied, thereby forcing them to spend more money and time to re-apply.

DHS determined the document was an unnecessary burden to the visa holder because the information is already available in the government’s database.

The visa holder must still establish he or she remains eligible for H or L status, is returning to resume employment with the same, previously authorized employer, and holds a valid visa, if required.

The rule change does not apply to those in removal, exclusion or deportation proceedings.

Rumors True: DHS Issuing New I-9 Employment Eligibility Verification Form

After initially denying rumors a new I-9 form was on its way, DHS has just informed AILA the new form and employer handbook may arrive as early as the week of Nov. 5.