Law Summaries and Articles

February 6, 2017

Introduction

Recently, the Department of Homeland Security ("DHS") issued a decision that could significantly improve the prospects for many people seeking immigration through employment.

On December 27, 2016, the DHS' Administrative Appeals Office ("AAO") vacated Matter of New York State Dep't of Transp., 22 I&N Dec. 215 (Acting Assoc. Comm'r 1998) ("NYSDOT"), and changed the analytical framework for determining eligibility for national interest waivers under INA §203(b)(2)(B)(i).

In that decision, Matter of Dhahansar, 26 I&N Dec. 884 (AAO 2016) ("Dhahansar"), the AAO established a more flexible standard for determining whether the beneficiary of an employment-based immigration petition could obtain a waiver of the requirements for a job offer and labor certification.

Background.

The Immigration and Nationality Act ("INA") provides several eligibility categories for people to immigrate through employment, one of which is for individuals who hold either an advance degree or have "exceptional ability in the sciences, arts, or business." INA 203(b)(2).

Normally, people in this category must have a job offer and go through the arduous labor certification process to test the job market. However, under certain circumstances, those people can obtain a waiver of these two requirements.

This waiver, called the "National Interest Waiver," allows the DHS to waive these requirements if it determines "it to be in the national interest." INA 203(b)(2)(B)(i).

NYSDOT Standard

The "national interest" standard that has been used for many years was set forth in the NYSDOT administrative decision in 1998. That decision laid out a 3-prong set of criteria to determine if a particular waiver should be considered "in the national interest":

the area of employment must be in an area of "substantial intrinsic merit;"
the benefit offered by the granting of the waiver must be "national in scope;" and
the petitioner must demonstrate that the national interest would be adversely affected if a labor certification were required.

While on its face this standard seems clear enough, in the years since it was put forth, the standard has proven difficult for many petitioners to understand, and many adjudicators to apply on a consistent basis.

Dhahansar Decision

The Dhahansar decision significantly modified this framework. In that case, the self-petitioner, a "researcher and educator in the field of aeronautical engineering," Dhahansar at 884, had requested an NIW, which was denied by the USCIS. The self-petitioner appealed the decision to the AAO.

Instead of reviewing whether or not USCIS had applied NYSDOT correctly, the AAO found that the NYSDOT standard itself was "ripe for revision," and thereupon set forth to identify its weaknesses and try to produce a better standard. Id. at 888.

In looking at the first two prongs of the NYSDOT standard, the AAO found that the first prong, requiring "substantial intrinsic merit," should be modified to only require "substantial merit" (finding the word "intrinsic" to be unnecessary). The AAO further determined that the second prong of NYSDOT, requiring a benefit that is "national in scope" focused too much on the geographic impact of the benefit rather than the inherent importance of the benefit. It therefore eliminated this criterion, and modified the criterion to require the field of endeavor to have "national importance." Id. at 887.

Then the AAO looked at the more problematic third prong of the NYSDOT decision, noting two main problems -- an ambiguity caused by multiple variant restatements and a susceptibility of being misinterpreted to require the very evidence that the NIW was specifically set up by Congress to forego; namely (1) harm to the national interest if NIW is not granted, and (2) evidence that the beneficiary will serve the national interest to a substantially greater degree than an American worker with the same minimum qualifications. The AAO noted that satisfying this part of the standard has been difficult for many qualified individuals, most notably self-employed individuals, and that "harm to national interest" is not required by statute, and unnecessarily narrows the standard. The AAO therefore modified this third prong, by splitting it upon into two separate criteria, to cover two main points -- the (1) likelihood of the beneficiary advancing the proposed endeavor, and (2) whether it would be beneficial to the US to waive the job offer and labor certification. Id.

To summarize, under the new framework in this decision, the AAO stated that USCIS may grant a national interest waiver if the petitioner demonstrates:

that the foreign national's proposed endeavor has both substantial merit and national importance;
that he or she is well positioned to advance the proposed endeavor; and
that, on balance, it would be beneficial to the United States to waive the requirement of a job offer and thus of a labor certification.

Under the new framework, the first prong focuses on the specific endeavor, which may be in a wide range of areas including business, entrepreneurialism, science, technology, culture, health, or education. Evidence of economic impact is not required, so, for example, fields in the pure sciences with no clear economic impact, would not be excluded. Id. at 889.

The second prong shifts the focus to the individual, and asks whether he/she is well positioned to advance the endeavor. Under that prong, the focus is on the individual's education, skills, knowledge, and record of success; a model or plan for future activities; any progress towards achieving the proposed endeavor, and the interest in that endeavor by potential customers, users, investors, etc. A key point is that the petitioner need NOT show the endeavor is likely to succeed, just that the beneficiary is well-positioned to advance the endeavor. Id. at 890.

The new third prong requires the petitioner to show that, on balance, it would be beneficial to waive the job offer and labor certification requirements. In other words, the adjudicator must weigh the benefit of granting the waiver against the benefit of protecting the American workforce through the labor certification program. The AAO outlined some factors to consider including (1) the impracticability for the beneficiary to secure a job offer or obtain labor certification (for example, in cases where the beneficiary has unique knowledge or skills not easily articulated in a labor certification application, or where the beneficiary is an entrepreneur), and (2) the urgency of the need for the benefit to the national interest. The AAO emphasized that this criterion does not require a showing of harm to the national interest or a comparison with US workers in the same field, unlike the standard in the NYSDOT decision; and moreover, explicitly stated that this new standard is intended to be more flexible than NYSDOT, and to apply to a greater variety of individuals. Id.

The AAO then proceeded to apply its new standard to the facts at hand. It first determined that the beneficiary's endeavor -- research into the design and development of propulsion systems for potential use in nano-satellites, missiles, and rockets -- met the standard contained in the first prong of substantial merit and national importance. Id. at 892.

The AAO then went on to find that the beneficiary was well-positioned to advance that endeavor, considering "[t]he petitioner's education, experience, and expertise in his field, the significance of his role in research projects, as well as the sustained interest of and funding from government entities such as NASA and AFR positioned him well to continue to advance his proposed endeavor of hypersonic technology research." Id.

Finally, the AAO applied the third prong to consider whether, on balance, granting the waiver would be beneficial to the US, and re-visited the beneficiary's credentials, the importance of the field and interest of the US government in that field, and evidence that this particular beneficiary's work was considered important and successful. The AAO found that the evidence showed, on balance, it would be more beneficial to the US to grant the waiver. Id. at 893.

The new standard does remain somewhat ambiguous in some respects, but that may be just an inherent feature of a discretion-based standard. At any rate, it clearly is meant to be more flexible and apply to a wider variety of people. Specifically, evidence frequently required by USCIS under the NYSDOT standard, which would not be required under this standard, include:

evidence that the benefit be "national in scope" (just that the endeavor have "national importance";
evidence that the endeavor is likely to succeed (just that the beneficiary is well-positioned to advance the endeavor);
evidence that the national interest would be harmed unless that waiver were granted; and
evidence comparing the beneficiary to minimally-qualified American workers.

It will be up to future decisions to clarify what ambiguity remains; but, nevertheless the Dhahansar decisions will certainly open the door for many more individuals whose knowledge, expertise and skills could benefit the US national interest. The decision is therefore, arguably, a step in the right direction.

USCIS trains its officers to look for several indicators or "red flags" that may indicate fraud in the various types of immigration and visa cases.

General Behavioral Fraud Indicators

extreme nervousness
over-interaction
lack of knowledge about basic questions
late for interview
answers prompted by attorney or other
lack of interest or interaction
lack of eye contact
evasive or overly general answers
answers interrupted by attorney or other
attorney attempted to distract or mislead

Other General Fraud Indicators

documents issued immediately before interview
documents issued immediately after interview
over-submissions
proactive, explicit, or staged photographs
suspect tax flings or financial transactions
multiple applications or petitions by a single applicant or petitioner
common preparer (known or suspected by USCIS to have previously engaged in fraud)
preparer, notary, etc., are all the same person
tip letter or phone call
suspect documents
photographic evidence suggests imposter
biometric discrepancies
denied for abandonment or withdrawal after request for evidence issued
suspicious filing history of beneficiary or applicant

I-130 Family-Based Petition Fraud Indicators

short time between entry and marriage
unusual marriage history
children born during marriage to other parent
unusual number of children and large discrepancy in age
unusual dates on submitted documents
divorce and new marriage close in time
unusual associations between family members
unusual cultural differences
low employment/financial status of petitioner
prepare, notary, and minister are all the same person
same employer of petitioner and beneficiary
previous marriages to foreign nationals
unusual or large age discrepancy between spouses (when found in conjunction with other indicators)

I-140 and I-129 Employment Based Fraud Indicators

unknown or unusual addresses or email addresses
skill, age, salar, or education does not match job requirements
no record of correspondence with parent company
zoning inconsistent wiht business
unusual data in quarterly reports
labor certification right before sunset of 245I (April 30, 2001)
multiple filings by petitioner is inconsistent with company size
location on ETA-750A or ETA-9035 differs from place of employment
no record of providing goods or services
boilerplate documents that are in more than one petition

I-360 Religious Worker Fraud Indicators

skill, age, education, and/or religious training does not match job requirements
concregation size does not match number of employees
zoning inconsistent with organization
preceding two years of tax document list different position than petitioned for
service conducted at non-religious properties

I-539 Student Visa Fraud Indicators

unusual financial support or bank statements
age is not commensurate with education sought
affidavit of support identifies benefactor as friend rather than relative
biolierplate justification to change to F1
benefactor's income ppears insufficient to cover expenses
B1/B2 visitor applying for extension with insufficient evidence or motive
educationa request doesn't coorelate with beneficiary's employment background

I-589 and I-730 Asylum Fraud Indicators

similar claims or documents on multiple applications
unusual travel outside US
conflicting information from different application or petitons
unusual or excessive length of stay in US
return to country they claim to fear
common addresses on different applications
children that are not on I-589 but later claimed on I-730

I-90, I-131, I-765 Fraud Indicators

multiple filings
name does not match what is in DHS system
photographic evidence suggests imposter
claims of eligibility based on suspicious asylum claims

FOR MORE INFORMATION:

Public charge has been part of U.S. immigration law for more than 100 years as a ground of inadmissibility and deportation. An individual who is likely at any time to become a public charge is inadmissible to the United States and ineligible to become a legal permanent resident. However, receiving public benefits does not automatically make an individual a public charge. This fact sheet seeks to inform non-citizens about public charge determinations and help them to make informed choices about whether to apply for certain public benefits.

Background

Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to that of an individual lawfully admitted for permanent residence (green card) is inadmissible if the individual, "at the time of application for admission or adjustment of status, is likely at any time to become a public charge." If an individual is inadmissible, admission to the United States or adjustment of status is not granted.

Immigration and welfare laws have generated some concern about whether a non-citizen may face adverse immigration consequences for having received Federal, state, or local public benefits. Some non-citizens and their families are eligible for public benefits – including disaster relief, treatment of communicable diseases, immunizations, and children's nutrition and health care programs – without being found to be a public charge.

Definition of Public Charge

For purposes of determining inadmissibility, agency guidance has, since 1999, defined "public charge" to mean an individual who is likely to become "primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense." See "Field Guidance on Deportability and Inadmissibility on Public Charge Grounds," 64 FR 28689 (May 26, 1999). In determining whether an alien meets this definition for public charge inadmissibility, a number of factors must be considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor - other than the lack of an affidavit of support, if required - will determine whether an individual is a public charge.

Benefits Subject to Public Charge Consideration

The agency guidance specifies that cash assistance for income maintenance includes Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program and State or local cash assistance programs for income maintenance, often called "General Assistance" programs. Acceptance of these forms of public cash assistance could make a non-citizen inadmissible as a public charge, if all other criteria are met. However, the mere receipt of these benefits does not automatically make an individual inadmissible, ineligible to adjust status to lawful permanent resident, or deportable on public charge grounds. See "Field Guidance on Deportability and Inadmissibility on Public Charge Grounds," 64 FR 28689 (May 26, 1999). Each determination is made on a case-by-case basis in the context of the totality of the circumstances.

In addition, public assistance, including Medicaid, that is used to support aliens who reside in an institution for long-term care – such as a nursing home or mental health institution – may also be considered as part of the public charge analysis of the totality of the circumstances. Short-term institutionalization for rehabilitation is not subject to public charge consideration.

Benefits Not Subject to Public Charge Consideration

Under the agency guidance, non-cash benefits and special-purpose cash benefits that are not intended for income maintenance are not subject to public charge consideration. Such benefits include:

• Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases, use of health clinics, short-term rehabilitation services, prenatal care, and emergency medical services) other than support for long-term institutional care
• Children's Health Insurance Program (CHIP)
• Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
• Housing benefits
• Child care services
• Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
• Emergency disaster relief
• Foster care and adoption assistance
• Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education
• Job training programs
• In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
• Non-cash benefits under TANF such as subsidized child care or transit subsidies
• Cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans' benefits, among other forms of earned benefits, do not support a public charge determination
• Unemployment compensation is also not considered for public charge purposes

Some of the above programs may provide cash benefits, such as energy assistance, transportation or child care benefits provided under TANF or the Child Care Development Block Grant (CCDBG), and one-time emergency payments under TANF. Since the purpose of such benefits is not for income maintenance, but rather to avoid the need for on-going cash assistance for income maintenance, they are not subject to public charge consideration.

FOR MORE INFORMATION:

Contact John Byrley at tel: 410-719-1501.

Introduction

The USDOL has implemented regulations that establish an new labor certification program called "PERM." All cases filed on or after March 28, 2005, will be subject to this new system.

The new PERM program is supposed to work much faster than the old system. The goal with the new PERM system is to reach a decision in 45-60 days.

The drawbacks of PERM include the fact that there are more extensive recruitment requirements, the required offered wage will almost certainly be higher than under the previous system, and that some of the rules are still unclear.

PERM allows an employer with a previously filed labor certification to withdraw the old case and file a new case for the same position under PERM and retain the same priority date (the date the old case was filed). The filing of the new PERM case will automatically withdraw the old case.

How the Process Works

To begin a PERM filing, the employer usually should first obtain a prevailing wage determination ("PWD") from the appropriate State Workforce Agency ("SWA") (for example, the DLLR in Maryland, the VEC in Virginia, or the DES in Washington, DC).

The SWA is supposed to render its PWD within a reasonable period of time, but no time frame is guaranteed. A reasonable expectation would be 2-8 weeks, depending on the state of employment.

PERM requires more extensive recruitment than the old system. In general, the recruitment must occur between 30 and 180 days of filing the case. The recruitment steps for non-professional jobs required by PERM are as follows:

1) Posted Notice

The employer must post notice of the job opportunity for at least ten consecutive business days. The notice period must be between 180 and 30 days before filing. The notice must contain the salary, but may contain a wage range, so long as the lower level of the range meets or exceeds the prevailing wage.

2) Use of Other In-House Media

In addition to printed posted notice, the employer must use any and all in- house media, whether electronic or printed, in accordance with normal procedures used for recruitment for similar positions in the organization.

3) Job Order

The employer must place a job order with the State Workforce Agency (in Maryland, the Department of Labor, Licensing and Regulation) for a period of 30 days.

4) Advertisements in newspaper or professional journals

The employer must place an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment.

5) Additional recruitment steps for professional positions (those that require a university-level degree)

The employer must select three additional recruitment steps from the alternatives listed below. Only one of the additional steps may consist solely of activity that took place within 30 days of the filing of the application. None of the steps may have taken place more than 180 days prior to filing the application. The other steps are as follows:

-Recruitment at job fairs
-Advertising on Employer's Web site
-Advertising on job search Web site other than the employer's
-On-campus recruiting
-Advertising in trade journals or newsletters
-Private employment firms
-Use of an employee referral program with incentives
-Advertising with a campus placement office
-Advertising in local and ethnic newspapers
-Advertising on radio and television

If a qualified worker applies for the job, and wants the job after an interview, then the PERM case could not be filed at that time. The employer must wait six months and try again. (However, as always it is important to remember that the employer is never required to actually hire someone based upon a labor certification recruitment.)

As long as the employer does not file the PERM application, the old case remains "untouched" and pending at the BPC.

6) File new labor certification application: Form ETA-9089

If no qualified worker is interested in the job after the recruitment period has passed, the employer then prepares a report laying out the steps taken and the results, and files the report, along with the ETA 9089 Form, with the PERM Center. The USDOL has implemented online filing for this form.

Risks for PERM "conversions"

Although there is the potential for significant time savings, there are risks. Among these are as follows:

First, additional time and money would need to be spent on attorney charges, advertising, and recruitment expenses to re-advertise the position, which would be essentially wasted if someone wants the job.

Second, the new filing must be acceptable as a PERM "conversion" by USDOL. If something is wrong with the new filing (for example, if the new filing is for a different job than the old filing), then the old case and the new PERM case would both be closed - the employer loses both the PERM filing (it is rejected) and the priority date of the old filing.

FOR MORE INFORMATION:

Child Status Protection Act

Enacted August 6, 2002, The Child Status Protection Act (CSPA) changes the definition of "child" for purposes of determining immigration benefits, and protects many sons and daughters of US citizens and permanent residents from losing these benefits when they turn 21 (also known as "aging out").

Aging-out refers to a beneficiary losing immigration benefits upon turning 21. For example, an "aging out" beneficiary of an I-130 filed by US citizen is automatically transferred from the "immediate relative" classification to the "Family First" preference classification. Likewise, an "aging out" beneficiary of an I-130 filed by a permanent resident is automatically transferred from the "Family 2A" preference classification, to the "Family 2B" classification. The affects change in classification has an profound impact on when, and even if, that beneficiary may immigrate to the U.S.

Under prior law, when a beneficiary of a Petition for Alien Relative (Form I-130) to turned 21 prior to a grant of adjustment of status or an immigrant visa admission into the U.S., that beneficiary would be automatically transferred to a different classification of relative, without regard to processing delays.

The CSPA amends the law in one important respect. It factors in processing delays in determining when an I-130 beneficiary ages out.

There are different applications of the law, depending upon the immigration status of the I-130 petitioner (i.e., the beneficiary's parent).

The beneficiary of an I-130 filed by his/her U.S. citizen parent prior to the beneficiary's 21st birthday will continue to be considered a child for immigration purposes even if the USCIS does not act on the petition before the child turns 21.

The beneficiary of an I-130 filed by his/her permanent resident parent prior to the beneficiary's 21st birthday will preserve his/her classification according to the following formula: the beneficiary's age is determined by taking his/her age at the time the priority date is current (or the I-130 is approved whichever is later), and subtracting the number of days the I-130 was pending. In addition, the beneficiary must seek to acquire the status of a lawful permanent resident within one year of visa availability. (This provision also applies to derivative beneficiaries on family-based and employment-based petitions.)

For a more detailed explanation of the CSPA, a good source is H.R. 1209 – The Child Status Protection Act, August 7, 2002, and The Child Status Protection Act, September 20, 2002.

FOR MORE INFORMATION:

Contact John Byrley at tel: 410-719-1501.