USCIS Issues Guidance on H-1B Petitions for Nursing Occupations

July 25th, 2014 by W. Scott Railton

USCIS issued guidance recently for determining whether or not a nursing position meets the definition of an “specialty occupation.”  Specialty occupations are typically eligible for H-1B and E-3 professional work visas. The guidance advises that with the increase of nursing specialization, adjudicators need to take a careful case-by-case approach to analyzing whether an individual position is a specialty occupation.  This is good news in light of the challenges hospitals and medical facilities have faced in obtaining H-1Bs for key nurse personnel.

The memo begins by clearly stating that the standard Registered Nurse position does not qualify for H-1B classification. The memo then notes that there is are three typical paths to obtaining an RN: a bachelor’s of science degree (BSN), an associate’s degree in nursing (ADN), or a diploma from an approved nursing program. The memo also notes that the increasingly, nurses are obtaining the Bachelor’s degree first, and that the private sector favors more highly educated nurses.

The memo lists a number of specializations in nursing: addiction, cardiovascular, critical care, emergency room, genetics, neonatology, nephrology, oncology, pediatric, peri-operative, rehabilitation, and other nurses. Depending on the facts of each case, some of these specializations may qualify as specialty occupations. The memo also offers a “non-exhaustive” list of Advanced Practice Registered Nurse occupations that may be specialty occupations: Certified Nurse-Midwife (CNM), Certified Clinical Nurse Specialist (CNS); Certified Nurse Practitioner (CNP); and Certified Registered Nurse Anesthetist (CRNA).

The memo advises adjudicators and stakeholders that the the appropriate evidentiary standard for determining whether a position is a specialty occupation is the “preponderance” standard, which means whether it is more likely than not. To evaluate the cases, adjudicators are instructed to weigh such factors in the record as (1) the nature of the petitioner’s business; (2) industry practices; (3) a detailed description of the duties to be performed within the petitioner’s business operations; (4) advanced certification requirements; (5) ANCC Magnet Recognized status; (6) clinical experience requirements; (7) training in the specialty requirements; and (8) wage rate relative to others within the occupation.

Time will tell how this plays out, but this memo opens the door for employers to pursue H-1Bs more confidently in cases where Registered Nurses are particularly specialized.

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Washington State Legalizes Marijuana; Immigration Authorities Have Not

July 3rd, 2014 by W. Scott Railton

The Seattle Times is reporting that Washington State’s first licensed marijuana dealer will open its doors on Tuesday. From an immigration standpoint, though, nothing has really changed in regards to marijuana.

The possession and use of marijuana violates the Controlled Substances Act, and can create a basis for inadmissibility. If the government has reason to believe someone traffics in marijuana, they can deny admission to that person, and possibly even their family members. Persons can also be denied admission for being a drug abuser.

Various immigration applications ask questions that can create issues in regards to marijuana use. For instance, the naturalization application asks whether you have ever committed a crime or offense for which you were not arrested–a difficult question for any applicant, really. Border officers have a great deal of discretion in assessing the legitimacy of a person’s visit to the United States. It will likely not be deemed an acceptable to seek entry to smoke some of Washington’s legalized weed.

Time will tell how this all plays out. The U.S. Attorney General’s Office has issued some general advisories to agency which suggest a bit of a hands-off, wait and see approach. However, the immigration process is different than most if not all other Government-person interactions, as the Government has a great deal of latitude in what they ask and what they decide. I expect that we will start hearing stories over the next few months of non-citizens who encounter issues with their applications or entry in relation to Washington’s new law and their use or intentions.

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Work Authorization Coming for Certain H-4 Dependents of H-1Bs

May 7th, 2014 by W. Scott Railton

The Department of Homeland Security announced today that it is opening for comment rules that will ultimately allow certain H-4 dependents to apply for work authorization.

As proposed, eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

a.) Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or

b.) Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

This is a move in the right direction, albeit to a limited group.  If the DHS’s goal is to attract and retain highly skilled workers, there’s a strong argument for opening up work authorization for **all** H-4 dependents. In today’s economy, many couples will not move somewhere unless both can work.

The Government also announced a proposed rules update for E-3 Australian and H-1B1 workers. These are professionals similar to the H-1B workers.  Perhaps most notably, the agency now intends to allow persons in that status the 240 day grace period of work authorization which is permitted for other nonimmigrant work categories.  The Government also proposes to modify its rules on evidence for EB-1 Outstanding Professors and Researchers.

For the full DHS announcement, visit here:

http://www.dhs.gov/news/2014/05/06/dhs-announces-proposals-attract-and-retain-highly-skilled-immigrants

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USCIS Receives 172,500 H-1B Applications in First Week

April 12th, 2014 by W. Scott Railton

USCIS announced this week that it received about 172,500 applications for H-1Bs for U.S. employers in the first week of availability for Fiscal Year 2015. The statutory cap is 65,000 slots for regular filings, and there are an additional 20,000 slots for graduates of Master’s programs or highers from U.S. institutions of higher education. The 20,000 quota was also filled. Consequently, a lottery will ensue, based on a computer-generated random process. For those who are not selected, USCIS will return the petition with filing fees.

H-Bs are specialty occupation worker petitions. Persons with at least a bachelor’s degree or the equivalent may hold an H-1B for at least up to six years, during which time some employers will sponsor them for permanent residence. The application process includes significant filing fees, sometimes rising above $3000, and employers must guarantee the U.S. government and the employee that they will pay the greater of the prevailing or actual wage for the position.

The fact that the cap filled in the first week is really not a surprise. This has happened the past few years. The number of applications filed though has increased significantly, to the point that the lottery is very real for employers and beneficiaries. Master’s grads from U.S. schools will have a bit of an edge, though. Even if they miss out on the first 20,000 spots, they then may be selected in the 65,000 pool.

What does this mean going forward? For one, employers will increasingly file for H-1B petitions for recent college graduates, even if they have more than a year left to go of optional practical training work authorization. Science, Technology, Engineering and Mathematics (STEM) grads can extend their work authorization for 17 months beyond their first year grant of work authorization. Employers who have already invested in employee training for a year won’t want to buy just one lottery ticket going forward, if the chance of selection is so uncertain. So, I expect we’ll see even more early filings for H-1Bs in years to come, until the system gets a fix.

Another issue is the once-per-year application ritual itself, otherwise known as “H-1B season.” Business doesn’t operate this way.  Business needs are ever-evolving throughout the year, which Congress recognized once upon a time when it passed the American Competitiveness in the 21st Century Act.  Nowadays, the The H-1B program doesn’t offer much use to the employer who determines they need a specialty occupation worker sometime later in the year.

There needs to be some way that employers can bring a key person from outside of the country during the rest of the year, without that person having to prove they are extraordinary, exceptional, or that their employment will serve the national interest. The H-1B system as currently operating lacks this needed flexibility, and that hurts the U.S.’s ability to compete in the global labor market.

Now, there are cap-exempt employers, including non-profit research organizations, institutions of higher educations, and organizations affiliated with institutions of higher education. Many hospitals fall into the latter category, due to their affiliations with medical school and nursing programs. This is noteworthy for these types of employers, and for prospective H-1B employees who might meet their HR needs.

One possible temporary fix may be to create more cap exemptions. For instance, if there is a known shortage of STEM graduates in the labor pool, perhaps a STEM exemption or STEM cap is something to look at.

Talent knows no boundaries, and for the U.S. to remain an innovator and leader of economies, there needs to be a means for employers to employ certain specialty occupation workers throughout the year.

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USCIS Announces Procedures for April 1st H-1B Filings

March 26th, 2014 by W. Scott Railton

U.S. Citizenship and Immigration Services issued a press release today, saying it will accept cap-subject petitions for H-1Bs on April 1st. The filing window will again be five business days, until April 7th. Premium processing will not commence until April 28th.  We are in the process of preparing many applications for clients for the April 1st filing date.

The annual H-1B week is really not a way to run an effective immigration system, from the business immigration standpoint.  Once the numbers are used up, they’re gone for another year, which leaves employers with one less immigration option for the other 51 weeks of the year.

Here’s the press release:

USCIS to Accept H-1B Petitions for Fiscal Year 2015 Beginning April 1, 2014
Release Date: March 25, 2014

Premium Processing for Cap-Subject Petitions to Begin by April 28, 2014

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2015 cap on April 1, 2014. Cases will be considered accepted on the date that USCIS receives a properly filed petition with the correct fee. USCIS will not rely on the date that the petition is postmarked.

The congressionally mandated cap on H-1B visas for FY 2015 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.

USCIS anticipates receiving more than enough petitions to reach both caps by April 7. The agency is prepared to use a random selection process to meet the numerical limit. Non-duplicate petitions that are not selected will be rejected and returned with the filing fees.

Due to the high level of premium processing receipts anticipated, combined with the possibility that the H-1B cap will be met in the first 5 business days of the filing season, USCIS has temporarily adjusted its current premium processing practice. To facilitate the prioritized intake of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases no later than April 28, 2014. For more information on premium processing for FY 2015 cap-subject petitions, see the USCIS Alert.

H-1B petitioners should follow all requirements to avoid processing delays and possible requests for evidence. USCIS has detailed information, including an optional checklist, to assist in completing and submitting an FY 2015 H-1B petition. The processing worksheet is available on the USCIS website, www.uscis.gov.

U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.

For more information on the H-1B nonimmigrant visa program and current Form I-129 processing times, visit the H-1B FY 2015 Cap Season Web page. Or call the National Customer Service Center at (800) 375-5283 or (800) 767-1833 (TDD for the hearing impaired).

For more information on USCIS and its programs, please visit www.uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis), Facebook(/uscis), and the USCIS blog The Beacon.

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Washington State Passes State Version of DREAM Act

February 19th, 2014 by W. Scott Railton

The Washington State Legislature passed its State version of a DREAM Act this week, which is intended to create opportunity for certain undocumented students through the increased availability of state-based need grants. According to the Seattle P-I, this was the first major bipartisan bill to pass the legislature this year. The bill will be signed into law by Governor Inslee, who stated via Twitter that he is “Proud to give fair access and financial support to aspiring Washington students.” The passage of the bill has been more than 6 years in the making.

Senate Bill 6523 expands the availability of state need grants to:

• Any person who has completed the full senior year of high school and obtained a high school diploma, either at a Washington State public high school or an approved private high school, or a person who has received the equivalent of a diploma;

• Who has lived in Washington State for at least three years immediately before receiving the diploma or its equivalent;

• Who has continuously lived in Washington State after receiving the diploma or its equivalent and until such time as the individual is admitted to an eligible institution of higher education and has been granted deferred action for childhood arrival status (DACA) pursuant to federal rules.

The act itself says that is it to be known and cited as the Real Hope Act, and includes an appropriation of $5 million.

The concept behind the law is that hardworking students should be provided with opportunity, which is good for all. More than 15 states have now passed variations of their own DREAM act. Washington State will be the fourth state, along with New Mexico, California and Texas, to allow financial aid to undocumented students. Washington State includes the grant of DACA status as a prerequisite to receiving aid, and so the underlying requirements and costs of the DACA program will qualify eligibility.

Besides creating opportunity for education, this law also shows the growing reach of President Obama’s DACA program, which has been implemented without the vote of Congress.  The President said in his recent State of the Union address that he would act where Congress does not, to meet the immediate needs of the U.S. people.  Washington’s Dream Act is yet another case where a state government took action to deal with the on-the-ground realities of Congress’ inaction on immigration reform.

National politics aside, this law feels like a win for Washington’s young people and the economy, and is great to see the State Legislature support this bill in bipartisan fashion..

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USCIS Doubles the Length of its N-400 Naturalization Form

February 4th, 2014 by W. Scott Railton

U.S. Citizenship and Immigration Services today released a new 21 page N-400 form that must be completed to naturalize as a U.S. citizen. The old form was only 10 pages. This is the most significant change to the format in a long, long time.

The Government’s official statement on the revision says:

The revised Form N-400 contains:
• Clearer and more comprehensive instructions which highlight general eligibility requirements and specific instructions on how to complete the application;
• 2D barcode technology used for each page on the revised Form N-400, which will enhance our ability to quickly and accurately process the application; and
• New questions based on legal requirements related to national security and good moral character.

Although USCIS revised the Form N-400, it is important to note that:

• The naturalization eligibility requirements have not changed; and
• The filing fee remains the same where applicable.

USCIS will continue to accept previous versions of Form N-400 for a period of 90 days until May 5, 2014. After May 5, USCIS will only accept the revised version of the Form N-400.

A brief comparison of the old and new forms shows many differences:

• The new form calls out the legal basis for requesting exemption from the English Language Test.
• A more detailed personal contact information section, separate from the residence section.
• A new, full section on parentage, presumably for better examination of existing claims to citizenship.
• More exhaustive questioning about past employment, education, and residences in the new form. Gathering the information will provide headaches on occasion, I’m sure.
• The new form also goes to greater lengths to investigate marital and children history. For example, the new form specifically calls out the need to list all children, including children alive, missing, deceased; born in and outside the U.S.; married and unmarried; living with you or not; current stepchildren; legally adopted children; and children born out of wedlock. The old form did not get into this level of detail in explaining information needed.
• Additional new questions regarding hereditary titles and orders of nobility.
• “Have you ever called yourself a “non-U.S. resident” on a Federal, State or local tax return since you became a Permanent Resident?” is a new question.
• The new form seeks more information about any Group an applicant has been a member of, including the “Purpose of the Group” and the “Dates of Membership.”
• Many, many more questions with specificity regarding being involved or attached to terrorist activities and human rights violations (e.g. “Were you ever involved in any way with any of the following: “badly hurting, or trying to hurt, a person on purpose?”
• The new form requests more information concerning arrests, and specifically asks for a year/month/day count on served jail or prison time.
• Other new questions on the new form include, “Have you ever married someone in order to obtain an immigration benefit?”; “Have you ever made any misrepresentation to obtain any public benefit in the U.S.?”; and “Have you ever given any U.S. Government official(s) any information or documentation that was false, fraudulent or misleading?”
• The new form adds and modifies questions regarding U.S. armed service.

On the one hand, the new form provide adjudicators more information about each applicant. On the other, I expect it will take longer to prepare and adjudicate, and there will most certainly be some questions that end up creating issues of interpretation.  The current fee to naturalize is $680 for most applicants. I hope that USCIS is not creating a basis for asking even higher fees to adjudicate the same form, as a raised fee would make it all the tougher for long-time residents to apply.

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H-1B Season Is Upon Us

January 28th, 2014 by W. Scott Railton

H-1B filing season is upon us. H-1Bs are specialty occupation work authorizations, and are one of the more common ways U.S. employers are able to employ foreign professionals.

Here are a few things to know:

• April 1st is important for H-1Bs. Most employers must file on or very soon after this day for H-1B start dates of October 1st.

• H-1Bs availability is governed by quotas. The current quota allows for 65,000 approvals per year, plus an additional 20,000 approvals for persons with graduate degrees from a U.S. school. Additionally, some employers are exempt from this cap, including those affiliated with institutions of higher education and non-profit research organizations. Cap exemption can sometimes be a sticky subject.

• If it’s anything like last year, the quotas will probably be filled up by the end of the first week of April. In fact, in recent years, the agency has had to hold a lottery because the applications received have exceeded the quotas.

• Waiting until the last minute is a mistake. Proper preparation of the applications takes a while. Employers are required to first file a labor condition application with the Department of Labor, and this can take a week. Gathering the appropriate supporting documentation can slow things down as well.

• H-1Bs are typically granted to employees for 3 years, and renewable for another 3 years. H-1Bs are permitted to have immigrant intent, and so lawful permanent residence can be sought during this time, without DHS repercussion to the status.

• Filing fees are somewhat expensive for H-1Bs. They can include a $325 filing fee related to the I-129 form; $1500 or $750 “training fee”, based on the number of employees a company has; and a $500 fee for fraud prevention. There is an optional $1225 fee for premium processing, which guarantees initial adjudication in 15 days or less.

• H-1B applications can be complicated by any number of factors. U.S. Citizenship and Immigration Services has shown a propensity for challenging applications in recent years.

This is just a snapshot of things. The H-1B program is laden with rules and exceptions to those same rules.  We make it our business to know the ins and outs. Along those lines, April 1st is one of the most important “ins” for clients to be aware of, and so I’m putting up this post.

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After-Lease Service Agreement Admissions for Temporary Business Visitors Authorized By New Agency Memo

January 8th, 2014 by W. Scott Railton

I’m pleased to post here that Greg Boos recently procured a U.S. Customs and Border Protection (CBP) memorandum of great significance, through persistent use of the Freedom of Information Act. This is really a great find.

The memo, dated February 22, 3103, instructs CBP officers to admit persons as Visitors for Business (B-1) who seek to enter the United States to provide services to commercial or industrial equipment, machinery, or computer software that has been leased from an enterprise located outside the United States.  Such admissions have in the past been limited strictly to after-sales agreements.  This memo helps businesses who wish only to lease their equipment, machinery or computer software to U.S. customers. It amounts to an expansion of the rules for temporary admission for business visitors.

The full memo and guidance to agency officers is available here.

This memorandum reflects a policy decision which favors business interests at the border, and is a result of U.S.-Canada “Beyond The Border” discussions, which Greg has been following very closely for some time. We commonly work with clients that would prefer or need to enter into lease agreements rather than sales agreements.

The after-sales service agreement visitor rules which are spelled out in 8 C.F.R. § 214.2(b) are now also applicable to lease agreements. The rules apply to persons seeking to enter to install equipment, provide warranty work, or training related to agreement. One of the key requirements is the service agreement must be called for in the original lease agreement.

Applicants for admission on this basis should bring with them a copy of the lease or sales agreement, to point to the actual clause which authorizes the after-lease or sale work. The memo also restates the basic rules for admission for any B-1  Visitor for Business, including:

• Establish and maintain employment with the foreign entity
• Maintain a residence in a foreign country which the applicant does not intend to abandon
• Maintain the principal place of business and place of remuneration in the foreign country
• Temporary intent for entry
• The nature of the temporary work must require specialized knowledge which would not be something that could be hired out locally.

After-sales and lease visitors for business can include installers, repair and maintenance personnel, and supervisors having specialized knowledge of equipment, machinery or computer software that was sold or leased.

We routinely help businesses with immigration challenges related to after-sales installation, service, and training issues related to immigration, and will of course be available now in relation to after-lease agreements as well. Advanced planning is key to the process.

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U.S. v. Windsor, Marriage Equality, and State Law: Considerations for Same-Sex Couples Who Travel or Reside Outside of Marriage Equality States **

January 8th, 2014 by Greg Boos

The Supreme Court’s decision in U.S. v. Windsor was fantastic news for same-sex immigrant couples: their marriages are now valid for U.S. immigration purposes. United States Citizen (USC) spouses can finally petition for their same-sex noncitizen spouses, USC parents for their same-sex noncitizen married sons or daughters, and much more.

However, while the Windsor decision answered many questions regarding federal recognition of same-sex marriage, it also resulted in new questions regarding the application of the law in the majority of states that do not recognize same-sex marriage. Post-Windsor, will a valid same-sex marriage that took place in a jurisdiction that recognizes same sex marriage still be void in a state that does not?

For example, if a same-sex couple living in Washington (which recognizes same-sex marriage) crosses state lines into Oregon (which does not), does that valid marriage suddenly become void upon entry into Oregon and then suddenly valid again the second that couple crosses state lines back into Washington? At this point, the answer appears to depend on whether the marriage is being examined through the lens of federal or state law.

For immigration purposes, the Board of Immigration Appeals (BIA) recognizes the “place of celebration” rule, under which “the validity of a marriage is determined by the law of the State where the marriage was celebrated.” Matter of Lovo-Lara, 23 I. & N. Dec. 746, 753 (BIA 2005). However, under DOMA, regardless of what the state recognized, the federal government was barred from defining a same-sex union as a marriage.

Post-Windsor, the BIA has affirmed the place of celebration rule and lack of federal recognition is no longer an issue. Matter of Zeleniak, 26 I. & N. Dec. 158 (BIA 2013). So if our couple was married in Washington State, Canada, or any other marriage equality jurisdiction, that marriage is valid for immigration and other federal purposes during the entirety of their travels. If our couple instead resides in Oregon and traveled to Washington or Canada to marry, their marriage will remain valid under federal law after their return to Oregon. Because no U.S. state with marriage equality maintains a residence requirement to marry there, our couple could theoretically enter a marriage equality state, obtain a marriage license, marry, and return to their home state all on the same day with a marriage valid under federal law.

However, regardless of the fact that the federal government will recognize the marriage as valid for its own purposes, for state law purposes, that marriage will be void in the majority of states that do not recognize same-sex marriage. One very relevant implication of this disparity is divorce. Because half of marriages end in divorce, and because state law governs divorce, this is a significant issue for married same-sex couples living in non- marriage equality states. Although their marriage may be federally valid, because it is void under state law, they may not be able to divorce there.Unlike with marriage, all states maintain residency requirements for divorce, with six months to a year being most common. Even Nevada, with the shortest residency requirement, still requires a period of six weeks.

The above discussion raises the question: Can a marriage recognized by both the jurisdiction of celebration and the federal government really be against the public policy of a state such that the Full Faith and Credit Clause of the U.S. Constitution does not demand recognition? Or are we left to resolve the issue through legislation? This conflict in applying federal and state law will no doubt continue to be litigated in the months and years to come.

**This blog was penned by Heather Fathali. Heather is a 3rd year law student at Seattle University School of Law who spends her spare time working with Greg Boos at Cascadia Cross-Border Law.

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