"Cutting-Edge Topics in H-1B Practice"
Part 2 held on December 19, 2002
1. Specialty Occupations
Tapis Intern v. INS, 94 F.Supp.2d 172(D. Mass 2000) [Reversed AAO because it denied H-1B on grounds that job did not require bachelor’s degree while ignoring that regulation permit equivalency]; Shanti v. Reno, 36 F.Supp.2d 1151, 2264-66 (D. Minn. 1999) [Restaurant Manager not specialty occupation]; All Aboard Worldwide Couriers v. Attorney General, 8 F.Supp.2d 379 (S.D.N.Y. 1998)[Upheld denial of public affairs consultant position in shipping industry because applicant failed to prove degree requirement in this specific industry even if public affairs consultants are professionals in other industries]; Louisiana Philharmonic Orchestra v. INS, 44 F.Supp.2d (E.D. La. 1999) [ Court held that H-1B petition of violinist erroneously denied as INS had previously approved three violinists’ H-1B petitions]; Defensor v. Meissner, 201F.3d 384 (5th Cir. 2000) [Affirmed INS’ denial of H-1Bs to nurses with bachelor degrees because the hospitals where they would work did not require B.N.S. degrees even if the employment agency that hired them did]; Matter of Shanmukam, LIN 99 243 50365 (AAO May 23, 2000) reported in 77 Interpreter Releases 861-63 (June 30, 2000)( AAO reversed NSC holding that Software engineer with bachelor’s degree in electrical and electronic engineering was a specialty occupation).
Although an owner of a petitioning employee may be barred from obtaining a labor certification, non-precedent AAO decisions support the right of a corporation to petition for its owner if the owner is qualified for a H-1B visa. Matter of X, _____, SRC 98 101 50785 (AAO Aug 9, 1999), 21 Immig. Rept. B2-6 [Following Matter of Aphrodite Investments, Ltd. a sole owner and sole employee of the petitioning company is not precluded from receiving an H-1B].
On whether nurses can qualify for an H-1B visa, See Memo, Johnny Williams, Executive Associate Commissioner, HQISD 70/6.2.8-P (November 27, 2002), available on www.ilw.com.
2. Credential Evaluations
Criteria set forth in 8 CFR § 214.2(h)(4)(iii)(D)(5); See also Shanti, Inc. v. Reno, 36 F.Supp.2d 1151, 1161-66 (D.Minn.1999) [Upheld denial because notwithstanding evaluation where applicant could not show that combined education and experience constituted equivalent in specialized area].
3. AC21 Act Portability and Gaps in Employment
Memo, Cronin, Acting Ex. Assoc. Comm. Program, HQPGM 70/6.2.8 (June 19, 2001) reprinted in 78 Interpreter Releases 1108-17 (July 2, 2001).
Memo, Pearson, Ex. Assoc. Comm. HQOPS 70/20 (Jan 29, 2001), reprinted in 78 Interpreter Releases 381-83 (Feb. 12, 2001).
See generally, Nathan A. Waxman, H-1B1 Portability: Is There A Safe Harbor In These Uncharted Waters? 79 Interpreter Releases 97 (January 21, 2002).
On the issue of travel on the former employer’s visa, Letter from Edward Odom, Chief, Advisory Opinions Division, DOS, to James A. Bach, reproduced in 73 Interpreter Releases 1289 (Sept. 30, 1996); INS Memo from Michael Aytes, July 8, 1997, reproduced in July/August AILA Monthly Mailing 1997.
4. Representing A Terminated H-1B Employee in Maintaining Status
Letter of Thomas W. Simmons, INS Business Services Branch Chief, to attorney Harry Joe, Esq., indicating that once an H-1B nonimmigrant’s services are terminated, the alien is no longer in valid status, available on AILA Infonet (Doc. ID 2313), and
Letter of Efren Hernandez III, Director, INS Business and Trade Services Branch, dated March 27, 2002, to attorney Wendi S. Lazar distinguishing between “laid off” and “fired” nonimmigrant workers, reproduced in 78 Interpreter Releases 616 (April 2, 2001).
Is an employee who takes extended leave maintaining status? See correspondence between Thomas W. Simmons, INS Business Services Branch Chief and attorney Bernard P. Wolfsdort regarding maintaining H-1B status during extended leave, reproduced in 76 Interpreter Releases 46 (Jan. 10, 2000).
For invoking INS discretion for forgiving failure to maintain status, 8 CFR § 214.1(c)(4) or 8 CFR § 248.1(b).
5. Representing the H-1B employee in Financial Difficulty
See Naomi Schorr and Stephen Yale-Loehr - Corporate Cuts: Reductions in Pay and Hours For Nonimmigrants, Bender’s Immigration Bulletin, Vol. 7, No. 8 (April 15, 2002) (note 25, amendment does not signify repeal).
Can amendment happen after change has already taken place? The INS has said yes. Letter from Yvonne LaFleur, then Chief of the Nonimmigrant Branch, INS Office of Adjudications, to Susan J Cohen, File No. HQ 214th-C (Oct. 12, 1995), reprinted in 72 Interpreter Reseases 1600-01 (Nov. 20, 1995). But see letter from Bednarz, chief, Nonimmigrant Branch, INS Adjudications Office to Mark Bravin, File Nos. CO 214th-C, CO 1773-C (Sept. 10, 1993), reproduced in 70 Interpreter Releases 1573-74 (Nov. 22, 1993)(“If an amended petition is required, it must be adjudicated prior to the alien commencing employment under the terms of the amended petition”).
6. Tolling six-year limit for time not spent in the US
8 CFR § 214.2(h)(13)(iii); Nair v. Coultice, 162 F.Supp. 2d 1209 (S.D.Cal. 2001).
For INS interpretation permitting the “recapture” of periods only if they meaningfully interrupt the alien’s employment in the United States; Memorandum to field by Lawrence J. Weinig, INS Acting Assoc. Comm’r. Exam., dated Mar. 9, 1994, file CO 214h-C, CO 214L-C, reproduced in 71 Interpreter Releases 582 (Apr. 25, 1994); letter of Jacquelyn A. Bednarz, Chief, Nonimmigrant Branch, Adjudications, INS CO, to attorney Jeffrey J. Rummel, dated Feb. 15, 1994, file CO 214h-C, reproduced in 71 Interpreter Releases 340 (Mar. 7, 1994).