Below please find a copy of a January 2011 AAO [Administrative Appeals Office] decision which overturns a denial issued by USCIS in an L-1 “New Office” extension case.
L-1 “New Office” petitions are commonly used when an established foreign company wants to expand in the United States and send a manager/executive or specialized knowledge employee to work for the NEW U.S. entity.
New Office L-1s are granted for one year by showing, among other things, physical premises in the U.S. and the financial viability of the U.S. entity.
One of the hidden pitfalls of the New Office L-1 is securing an extension of L-1 status for the transferee. Commonly, the USCIS will determine the U.S. enterprise is not sufficiently developed to establish the transferee will continue to be employed in a qualifying capacity [manager/executive/specialized knowledge].
The decision below, which includes my highlights and handwritten notes, offers an excellent discussion of the issues surrounding the New Offices L-1 extensions.
AAO New Office L-1A Decision_1-2011
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Michael Ryvin, Partner
Ryvin Wallace Group
Q: I am in F-1 OPT [optional practical training] status and my employer wants to apply for green card. I graduated with a Master of Science in December 2010 and started my OPT in February 2011. Currently I am working for a leading IT company on a contract basis from March 2011 – present. I am planning to apply for an H-1B visa for April 2012 quota. For now, my employer wants start green card process while I am in F-1OPT status. My questions:
1. Am I eligible to start green card when I am in OPT status?
MR: Yes, the employment based green card process can start while you are in F-1 [student] status. Notably, your green card case is based on a prospective offer of employment. In other words, you need only be employed in the prospective position “upon issuance of the green card” – which means when your I-485 [adjustment of status] application is approved. Depending on the nature of your case, this might not occur for years.
2. If eligible, will I be considered as potential immigrant because I am applying in OPT (without H1) and will it spoil my future visa processing?
MR: Yes, you would be considered a potential immigrant, which is why companies often have a policy of changing F-1s and TNs [another temporary intent visa classification] to H-1Bs BEFORE starting the green card process. However, this change is not required for eligibility to start a green card case, and you need to consider in what context the issue of intent becomes relevant.
Primarily, immigrant intent might harm you if you are seeking an extension of your F-1 status, or if you are seeking entry to the US in F-1 status. In either of these scenarios USCIS/CBP might refuse the extension/entry based on determination you have immigrant intent [and therefore do not meet the temporary intent requirement for being a student].
Assuming you are not seeking an extension or plan to travel and return in F status, you should have no trouble avoiding either of this potential pitfalls. NOTE: Once you secure H-1B status on October 1, 2011, the next time you leave the US you will likely need to secure an H-1B visa stamp at a US consulate abroad. The H-1B does not require temporary intent, so a pending green card matter should not have a negative impact on your H-1B visa stamp application.
The other common scenario where immigrant intent might harm an F-1 is when the F-1 files a green card application shortly after entering the US in F-1 status. This might lead to a presumption of fraud. Specifically, that the F-1 never intended to study in the US; rather, just wanted to enter for the purpose of filing a green card application inside the US.
Assuming you started F-1 status year(s) ago, attended and finished school, this presumption should not apply to you.
3. If not eligible then what is the edibility criteria and when to start the process?
MR: As discussed above, you are eligible to start. To be clear, someone does not have to be in H-1B status to start a green card case. This is just the most common scenario. Eligibility criteria for employment based green card can be reviewed here: http://www.ryvinlaw.com/services/employment-based-green-cards/
4. Can you please brief me about the green card process for my situation.
MR: I would need to see your resume to review your best available green card options. You should also note that for most green card categories, both you and position offered must qualify. For example, with a Master’s degree, you have the qualifications for EB-2, but if the job offered does not require someone with a Master’s degree [or equivalent] then you cannot file in the EB-2 category.
Please let me know if you require clarification. Sounds like you have some good options ahead of you and I wish you the best of luck!
Michael Ryvin, Partner
Rvyin Wallace Group
Courtesty of AILA (AILA InfoNet Doc. No. 10102268)
The AILA Verification & Documentation Liaison Committee has received confirmation from E-Verify that it will no longer verify work authorization for an employee who is working for an employer under H-1B portability where the employee previously held H-1B status but has since held an intervening status.
In the past, many AILA members had advised that such employees were work authorized based on the clear language of the statute. E-Verify had likewise determined such employees to be work authorized. However, the Committee recently received reports that E-Verify has been issuing final nonconfirmations for employees working pursuant to H-1B portability who currently hold another status, such as H-4 or F-1. The Committee followed up with E-Verify to address the issue, citing the language in the statute which permits a beneficiary to work if he or she “was previously issued” an H-1B visa or status and meets the other requirements for portability. INA §214(n).
In response to the Committee’s inquiry, E-Verify provided the following response:
The Office of Chief Counsel at USCIS has advised us that similarly situated individuals are not employment authorized. The H-1B Portability Rule does not apply to a nonimmigrant who was in H-1B status at one time, but who is currently in another valid status and for whom a non-frivolous I-129 Petition to obtain H-1B status has been filed. … USCIS has interpreted Section 105 of AC21 (INA section 214(n)) as allowing those who are currently in H-1B status, or who are in a “period of authorized stay” as a result of a pending H-1B extension petition(s), to begin new employment upon the filing by the prospective employer of a new (H-1B) petition on the alien’s behalf. USCIS guidance dated December 27, 2005, states that “porting under INA §214 does not require that the alien currently be in H-1B status as long as he or she is in a ‘period of stay authorized by the Attorney General.'” That statement serves to clarify the earlier section specifically referring to an “H-1B alien” and should be read in the context of the particular example given: an alien who was in H-1B status and is now in an authorized period of stay based on a timely filed extension of H-1B status petition on the alien’s behalf, and who then seeks to start working for a different H-1B employer upon that employer’s filing of a petition. This interpretation is consistent with USCIS guidance to the public on its website (Nonimmigrant Services, H-1B FAQs, page 61) which states:
Changing employers – An H-1B worker can change employers, but first the new employer must file a labor condition application and then file a new H-1B petition. If the worker is already an H-1B, he or she can then begin the employment as described in the petition without waiting for USCIS to approve the petition. This is called a “portability provision,” and it only applies to someone already in valid H-1B status.
Based on this guidance, E-Verify queries will continue to result in nonconfirmations in similar cases.
The Verification & Documentation Committee believes that the USCIS interpretation underlying the E-Verify protocol is inconsistent with the clear language of the immigration statute and will work with the USCIS Liaison Committee to advocate for USCIS to revise its current position.
Despite the fact that the statute on its face appears to authorize employment upon the filing of the H-1B petition, in light of the government’s current stance, practitioners filing an H-1B petition with a beneficiary who previously held H-1B status, but who now holds an intervening status, may want to consider advising the employer to expedite the petition with premium processing and wait for the approval before placing the employee on payroll.
TN or “Trade Nafta” status is available to Citizens of Canada or Mexico seeking temporary entry to the United States under NAFTA (North American Free Trade Agreement) to engage in business activities at a professional level.
“Activities at a Professional Level” under NAFTA are defined as having to fall into a profession on the NAFTA List and requiring at least a baccalaureate degree or appropriate credentials demonstrating status as a professional. TNs, unlike H-1Bs, enjoy no statutory limitation on stay, but must prove their intent not to immigrate.
The List of Professions designated by NAFTA is provided below for your reference:
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NAFTA Professionals List
Further, a special note for Management Consultants:
Every designated profession included in above list require possession of some post secondary education (usually a Bachelor’s degree) and a license (if applicable) with the exception of two – the Management Consultant & Scientific Technician Technologist.
While some straight-forward Canadian TN applications might be approved by US CBP with nothing more than a passport, job offer letter, and copy of the applicant’s degree – the Management Consultant application, in particular, requires substantially more information and preparation.
The extra attention from immigration officials stems from a widely held belief that the Management Consultant category is one of the most widely abused US visa categories. Remember, it is one of only two categories which do not require post secondary qualifications, so you can imagine that many non-degreed professionals have tried their luck with this category, after realizing they cannot qualify for any of the other listed professions.
The IFM (Inspectors Field Manual) defines a Management Consultant as someone who:
provides services which are directed toward improving the managerial, operating, and economic performance of public and private entities by analyzing and resolving strategic and operating problems and thereby improving the entity’s goals, objectives, policies, strategies, administration, organization and operation. Management Consultants are usually independent contractors or employees of consulting firms under contracts to U.S. entities.
Although the applicant does not need any post-secondary education, he or she must establish five years of professional level experience, either as a Management Consultant or in a field or specialty related to the consulting agreement. This experience is generally established through reference letters from prior employers.
Practice Tip: After reading these letters, an immigration official should come away with an understanding of why the applicant is qualified to provide the proposed consulting services.
Further, Management Consultants should not be involved in the day-to-day operations of a company. Rather, they should be separate from its operations and looking objectively at its activities to identify areas for improvement and make suggestions to company management.
Practice Tip: In the US company support letter, which confirms the applicant is coming to the US to provide “pre-arranged professional services”, there should be a sufficient explanation of company operations, beyond the usual stats, ie, company description, number of employees, revenues, etc. The additional explanation should serve to justify the need to bring the Management Consultant on-board, with documentation to support it, where applicable.
Further, applicants should also be prepared for extensive questioning at the Port of Entry/Pre-Flight Inspection where the application is being submitted; AND the employer should be ready to field questions as well. Yes, US CBP has been known to call the employer in the US, from the Port of Entry to ask questions about the application.
Procedure: Note the TN application may be made in person by submitting paperwork to US Customs & Border Protection (CBP) at a US/Canadian Port of Entry or Pre-Flight Inspection. Also note that Mexican applicant’s must first apply for a TN visa stamp at a US Embassy or Consulate, before presenting themselves to CBP.
Finally, recent changes in the law now allow applicants to seek three years of TN status, instead of only one.
Practice Tip: As a practical matter, it might not be advisable to seek three years for a Management Consultant, unless you can justify the need for this length of time. We often ask for a term which matches the duration of the consulting agreement. If contract lasts longer than one year, we see if it makes sense to break down the consulting services into separate, successive phases.
Our attorneys have extensive experience working with this visa category, in particular with Canadians making cross border applications, and are ready to answer your questions.