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New Guidance for Issuing B-1 in Lieu of H-1B Visa

The H-1B visa is a common way for businesses to hire highly skilled workers for temporary employment. However, H-1B visa numbers sometimes run out early. For the 2013 fiscal year, the 85,000 cap was reached two and a half months after the filing period opened last April.

What if a business has an urgent need for a skilled professional but H-1B visas are no longer available? A good option to explore is the little-used “B1 in lieu of H1B” visa.

This type of visa is especially appropriate for businesses based outside the U.S. that need a foreign national to perform work in the U.S. for the benefit of the foreign-based business.

Ordinarily, foreign nationals on B-1 can only engage in limited business activities such as attending meetings and negotiating contracts. They may not work, receive payment from a U.S. source or have a business in the U.S. The B-1 in lieu of H-1B visa allows these individuals to engage in a broader range of activities for a limited duration.

The “B1 in lieu of H1” policy has been criticized as a circumvention of the H-1B program. Earlier this year, Republican Senator Chuck Grassley asked the Department of State (DOS) and the Department of Homeland Security to look into possible improper use of B-1 visas by certain U.S. companies.

The DOS has just issued a cable clarifying the guidelines for the issuance of B-1 in lieu of H-1B visas. This cable supersedes its June 21, 2012 guidance cable.

The guidelines require the B-1 in lieu of H-1B applicant to overcome the presumption of nonimmigrant intent, just as in a standard B-1 visa, by showing strong ties to the home country. In contrast, the H-1B visa allows dual intent and does not require the applicant to maintain residence abroad.

The B-1 in lieu of H-1B visa permits the foreign national to work or engage in an activity that would normally require an H-1B. This means that the activity must meet the definition of a “specialty occupation” and the foreign national must be qualified, i.e. hold a bachelor’s degree or have equivalent experience. If the consular officer is not satisfied that the activities are of H-1B caliber, the applicant will be required to file an H-1B petition with the USCIS.

The foreign national while in the U.S. must be compensated by the foreign employer. The foreign-based business continues to be the employer. The workers may not receive a salary or other remuneration from a U.S. source, except for expense allowance or reimbursement of expenses.

Finally, the B-1 in lieu of H-1B visa can only be issued for activity that is less than six months in duration. It is not intended for long-term placement, unlike the H-1B which is approved initially for a three-year period with a possibility of renewal.

In many ways, then, the B-1 in lieu of H1B visa is markedly different from the H-1B visa.

The B1 in lieu of H1B visa gives employers the flexibility to fill in short-term gaps in their workforce when they arise. Unlike in an H-1B petition, the application process is faster and there is no need for a labor condition application to be certified by the Department of Labor. Also, unlike the H-1B the B1 in lieu of H1B visas are not subject to an annual cap.

Romney if Elected Will Honor DACA Approvals but End Program

More than 4,500 young undocumented immigrants have been approved under President Obama’s deferred action for childhood arrivals (DACA) program as of October 10, 2012. Nearly 180,000 requests have been accepted by the USCIS for processing and more than 6,000 cases are under review.

The number of filings and approvals has jumped from last month when the agency released an update. During the program’s first month, only 82,000 requests were filed and a mere 29 cases completed.

But these numbers could still spike in the next few weeks after a recent announcement by Republican presidential candidate Mitt Romney.

Mr. Romney has said that he would not cancel the two-year deferrals given to young immigrants although he plans to replace it with a more permanent solution. He had been ambiguous about his stance on the DACA program but was expected by many to put an end to it if elected in office.

This development should prompt DACA-eligible individuals who are still on the fence to submit their requests right away.

Many young immigrants, or DREAMers as they are often referred to, are holding back and waiting for the results of the November 6 elections. Because there is no deadline for filing, a lot of them have chosen to “wait and see” before applying because they do not want to be at a higher risk of deportation in case the program is not continued.

Mr. Romney declared that while he will honor the two-year deportation reprieve, he will replace the program with his own. He proposes a long-term solution to the country’s immigration problem and promises that before the approvals expire, there would be a comprehensive immigration reform plan already in place.

Mr. Romney has not clarified the specifics of his immigration reform plan but he has expressed support for legislation that would give permanent resident status to undocumented immigrants who serve in the military. Unless Mr. Romney has a change of heart, proof of student status just like in President Obama’s policy would not be enough to make DREAMers eligible for the relief.

So far, therefore, it appears that under the Romney version, many of the 1.76 million childhood arrivals otherwise eligible under President Obama’s program might not qualify for relief, unless they serve in the military.

Interestingly, in clarifying his position on DACA Mr. Romney inaccurately referred to the reprieve and the accompanying work permit as a visa. He remarked that the “two-year visa” would continue to be valid and that he was not going to take something that the young immigrants had “purchased”, most likely referring to the $465 filing fee for the deferred action request. The USCIS, immigration lawyers and various organizations have tried to make it clear that the DACA program does not grant any visa or any lawful status.

It is difficult to predict if a request filed today would be completed by January 20, 2013 when the next presidential term begins, given the processing time and the huge increase in the filings in the last month. In addition, a recent information request cloaked as a demand for transparency from two Republican lawmakers to the Department of Homeland Security might have the effect of slowing down adjudications.

Still, as the saying goes, a bird in the hand is worth two in the bush. A reprieve from deportation, even if for only two years, is better than nothing. Mr. Romney has not outlined what his long-term solution is made up of. And four years ago a presidential candidate also vowed to pass comprehensive immigration reform but failed to do so with the deadlock in the bipartisan Congress.

Programs for Investors, Doctors and Religious Workers Extended

President Obama recently signed into law a Congressional extension of four programs until September 30, 2015. These programs are the EB-5 regional center program for immigrant investors, the Conrad 30 program for J-1 visa holders, the special immigrant visa for religious workers, and E-verify. These programs were slated to expire on September 30, 2012 but have been regularly reauthorized since their inception.

The EB-5 regional center program grants a green card to foreign nationals who invest in any of the more than 70 regional centers in the U.S. Unlike the regular EB-5 program which requires the investor to create 10 full-time jobs in two years, a regional center investor can use the more relaxed requirement of indirect job creation.

Another main difference is the amount of capital to be invested. Under the standard program the investment must be $1,000,000 unless it is made in a targeted employment area, which means that the place is a rural or high unemployment area. On the other hand, $500,000 is usually sufficient for investment in regional centers because most of them are already in targeted employment areas.

As many as 3,000 visas can be granted regional center investors annually. With a current processing time of 8 months and ongoing efforts to speed up the process in order to promote the program’s job-creation benefits, the EB-5 visa is one of the fastest routes to a U.S. green card.

Another program extended by the law is the employment-based 4th preference category visa for non-minister religious workers. This visa grants special immigrant status to individuals who are in a religious vocation or occupation but are not religious ministers.

The applicant must have been a member of a religious denomination with a bona fide non-profit religious organization in the U.S. and he must have also been working in a religious vocation or occupation. A religious vocation or occupation excludes positions that are primarily administrative in nature.

There are 5,000 visas reserved for this category which includes accompanying and following-to-join spouses and children.

The Conrad 30 program allows state health departments and agencies to recommend the waiver of the 2-year foreign residence requirement for up to 30 foreign medical graduates per year in J-1 status who agree to serve in medically underserved areas. This waiver allows them to change their status to H-1B or adjust to permanent residence and meet the demand for healthcare in areas where doctors are in short supply. Those who obtain the waiver are not subject to the annual H-1B cap.

The E-Verify system is an Internet-based program that allows a participating employer to electronically confirm the employment eligibility of a newly-hired employee using the databases of the USCIS and the Social Security Administration.

Currently, more than 400,000 employers use the program and in the past year more than 20 million employment verification queries have been made using E-verify. While the program is still voluntary for most employers, many states have passed laws making compliance with E-verify mandatory for some businesses.

Aged-Out Beneficiaries Win in Latest CSPA Ruling

Thousands of aged-out children will no longer have to wait at the back of the line for a green card. That is, if the government relents and concedes that it had been wrongly and unfairly interpreting the law for a long time.

In a recent ruling that will have far-reaching consequences, the Ninth Circuit Court of Appeals held that derivative beneficiaries of all types of family petitions could retain the priority date of the original petition filed on behalf of their parents.

This is the latest in a legal saga that revolves around a key provision of the Child Status Protection Act.

The CSPA calculates a child’s age using a formula which takes into account the government’s delays in processing a visa petition. If even after the age-reducing computation, a child’s age is still 21 or over, Section 1153(h)(3) still preserves the aged-out child’s chances for a green card by allowing the petition to be automatically converted to the appropriate category. It also allows the child to retain the original priority date.

This way, aged-out children get credit for the years or even decades that they and their parents waited to reach the front of the line for an immigrant visa.

But the USCIS has interpreted this provision narrowly and said that automatic conversion and priority date retention did not apply to derivative beneficiaries of F3 (married sons and daughters of U.S. citizens) and F4 (brothers and sisters of U.S. citizens) petitions.

The plaintiffs in the case De Osorio v. Mayorkas were derivative beneficiaries of F3 and F4 visa petitions. One of the plaintiffs, Cuellar de Osorio, was the primary beneficiary of an F3 petition filed by her U.S. citizen mother with a priority date of May 1998. Her son at the time was 13 years old. When a visa became available in November 2005, her son had aged out and became ineligible for an immigrant visa. After she immigrated to the U.S., she filed an F2B (unmarried son or daughter of permanent resident) petition for her son in August 2006 and requested that he retain the 1998 priority date. The USCIS denied her request.

Plaintiff Costelo was also the beneficiary of an F3 petition filed by her U.S. citizen mother in 1990. Her daughters had aged out when the priority date became current in 2004. She filed F2B petitions for her daughters and requested retention of the 1990 priority date.

Plaintiff Ong was the beneficiary of an F4 petition by his U.S. citizen sister in 1981. His daughters, who were 2 and 4 years old at the time of the petition, had aged out when a visa became available in 2002. In 2005, Ong filed F2B petitions for them and requested retention of the 1981 priority date. The USCIS did not respond to Ong’s and Costelo’s requests.

While this case was pending with a district court in California several years ago, the Board of Immigration Appeals issued a restrictive interpretation of Section 1153(h). It said that only subsequent visa petitions that do not require a new petitioner may convert automatically to a new category and retain the original petition’s priority date. This meant that automatic conversion and priority date retention were available only to derivatives of F2A (spouse and children of permanent resident) petitions.

The district court thus ruled against the aged-out children, prompting them to file an appeal with the Ninth Circuit Court of Appeals. A three-judge panel of the appeals court deferred to the strict interpretation of the BIA.

But on rehearing, the Ninth Circuit en banc handed victory to the aged-out children. It found that based on the plain language of the law, automatic conversion and priority date retention applied to all family-sponsored derivative beneficiaries. It therefore rejected the unfair reading given by the government.

The story, however, may still be far from over as the government can file an appeal with the U.S. Supreme Court. If the government persists despite this most recent refutation of its interpretation, thousands of families will continue to be separated for many years during the wait for an immigrant visa.

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