Stuart Anderson wrote a piece in Forbes Magazine which I think resonates with a lot of foreigners in the medical field. As a Filipino myself, I know a lot of Filipino nurses and physical therapists who were disadvantaged by the backlog of Schedule A positions. Thing is that hospitals are still in need of these people.

Stuart wrote that physical therapists are considered one of the fastest occupations in the U.S. today. The need for such professionals is even going to grow more as years come. However, U.S. immigration restrictions involving these foreign-born physical therapists are not going to help address the need. The procedures in licensing and giving foreign-born physical therapists the chance to work in the U.S. is even made more difficult with the move to require a Ph.D. as a minimum requirement for foreign-born PT professionals.

He continued by mentioning that the existing procedure to get an H-1B visa for foreign-born physical therapists involves making sure they pass the Test of English as a Foreign Language (TOEFL) exam (I’m fine with this) and an evaluation from the physical therapy board in the state that the person wishes to work. More often than not, the foreign-born physical therapist is required to take a few more classes or training to be granted the chance to work in the country where the need for such professionals are continuing to rise. Hopefully, the government would consider reducing the wait times for these skilled immigrants and make available the H-1B visa not only for the benefit of these physical therapists but also for the betterment of the citizens of the country.

Source: Forbes.Com

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The recent presidential election has not only provided another term for President Obama, but also allowed him to have another chance to improve our immigration legislation. One of the goals of the Obama administration is to have a better legislation that will provide better border security and at the same time a pathway to citizenship for those illegal immigrants who are already in the country.

President Obama and his aides are more open than ever to work in partnership with Mexico in order to ‘increase economic competitiveness in both countries, promote regional development, advance bilateral efforts to develop a secure and efficient 21^st century border, and also address other common security challenges’.  Both countries will soon have these concerns addressed especially after that visit by President-elect Enrique Pena Nieto to President Obama at the White House days ago.

Source: USA Today

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CASE: I-485 approval based on approved I-140 petition (EB-1C Category: Executives and Managers of Multinational Organizations)
EMPLOYER: Multinational Tire Corporation
BENEFICIARY: Korean
LOCATION: Akron, Ohio

Our client is a vice president of a multinational tire corporation in Ohio. He is from Korea, and has worked for its parent company for 24 years in positions of increasing responsibility including that of team manager. He came to the United States in July 2011 with an E-2 visa to work for the current petitioner company (wholly-owned subsidiary of his previous employer). He contacted our firm in December 2011, and discussed with us his chances of getting a green card. Based on our client’s educational and professional background and his current position at the worksite, our office determined that he was clearly eligible for the EB-1C classification for his I-140 petition. Our client eventually retained us for his I-140 and subsequent I-485 adjustment of status application on December 15, 2011.

As our previous success story states, our office prepared and filed the I-140 petition for this client under EB-1C (Executives and Managers of Multinational Organizations) category.

On the application package, we included a detailed job offer letter, employment verification letter from our client’s previous employer (parent company), an organization chart, and a dispatch order. Also, we included evidence regarding the relationship between the Petitioner-Company and its Parent company in South Korea. The evidence included a copy of the certificate of ownership, a copy of the articles of incorporation, a copy of the business registration certificate, a copy of the approval for overseas investment, a copy of the annual report and consolidated financial statements. The I-140 Petition was filed on March 15, 2012. On June 1, 2012, the I-140 was approved with no Requests for Evidence.

Once the I-140 was approved, On August 9, 2012, our office filed an I-485 adjustment of status application for our client and his derivative family members. Everything went smoothly and the receipt notices and fingerprint appointment came on time.  On October 19, 2012, the USCIS Nebraska Service Center approved our client’s adjustment of status application.  On November 16, 2012, the CIS approved our client’s derivative family members’ adjustment of status applications as well.

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BALCA in Matter of Select International Inc. 2011-PERM-01478, held that where a resume showed a broad range of experience, training, and education, the employer had a duty to investigate the applicant given its willingness to accept a “combination of education, training, or experience.”

On February 22, 2007, Select International (“Select”) filed for Permanent Employment Certification (“PERM”) for the position of Industrial /. Organizational Psychologist. On June 22, 2007, the Certifying Officer (“CO”) issued an Audit Notification. Select responded on July 25, 2007. On September 30, 2008, the CO requested a signed affidavit and documentation explaining why it is not feasible to train a worker to qualify for the job opportunity. Select filed its recruitment report and other supporting documentation on February 23, 2009. On February 4, 2010, the CO denied the application because Select rejected three U.S. Citizen applicants for non-lawful job-related reasons. Specifically, the CO stated that three potentially qualified applicants were rejected despite Select’s statement in its ETA Form 9089 that it “will accept any suitable combination of education, training, or experience.” Select filed a request for reconsideration.

PERM regulations require an employer to conduct mandatory recruitment steps in good faith to recruit U.S. workers prior to filing an application for permanent alien labor certification. 20 C.F.R. § 656.17(e). To conduct recruitment in good faith, an employer “must take steps to ensure that it has lawful job-related reasons for rejecting U.S. applicants, and not stop short of fully investigating an applicant’s qualifications.” E. Tenn. State Univ., 2010-PER-00038. “Rejection of one or more U.S. workers for lacking skills necessary to perform the duties involved in the occupation, where the U.S. workers are capable of acquiring the skills during a reasonable period of on-the-job training, is not a lawful job-related reason for rejecting the U.S. workers.” Id.

The Employer’s Recruitment Report indicated that eight U.S. workers responded to its recruitment efforts. Regarding applicant Avi Avigdor, Select found that he did not have the required experience, so he was not offered an interview. The CO cited Mr. Avigdor’s 47 months of experience in its denial, and Select argued that they were not related to the position. Mr. Avigdor had a master’s degree in I/O Psychology, was in the process of obtaining his Doctorate in I/O Psychology, had 16 months experience in Organizational Development, 8 of which was in a similar position to Select’s, and also has experience using SPSS. BALCA stated that if an applicant’s resume demonstrates a broad range of experience, education, and training, such that it is reasonably possible that he or she is qualified for the job, the employer has an obligation to further investigate the applicant’s credentials beyond the face of the resume. BALCA in this case found that Select had the duty to investigate his qualifications further, and thus affirmed the denial of the labor certification.

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The October 2012 Visa Bulletin was released on September 10, 2012. October is the start of the fiscal year for immigration purposes. As you may know, the EB2 employment category retrogressed a few months ago, including those in “other countries”, which has almost always been current.

Dates for EB2 India is September 1, 2004 and EB2 China is July 15, 2007. “Other countries”, the Philippines, and Mexico all had January 1, 2012 as EB2 priority dates. These are way under the predictions made for the October priority dates. The expectation for India prior to this release was 2007,  3 years less. For Indians under the EB2 category, in order to apply for a green card, or, if pending, for their green card applications to be adjudicated, the I-140 priority date should be September 1, 2004 or earlier.

Porting from EB3 to EB2 has increased the number applicants for EB2 India, putting the priority dates way back. The demand data which was released on September 10 shows that for EB2 India, there are 1,350 applicants with a priority date before January 1, 2007, 5,500 before January 1, 2008, and 20,000 before January 1, 2009.

Source: www.travel.state.gov

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Some people can apply for a green card despite overstaying their status, such as those who are legal entry overstays who apply for a green card based on marriage to a US Citizen, or those who are applying based on employment, overstayed their status, but benefit from Section 245i. When you have a green card application pending, you may apply for advance parole, a travel document that in theory permits you to travel and reenter the United States. So those who overstayed and applied for a green card usually still obtain advance parole.

Prior to Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), which we shall discuss in a bit, the Department of Homeland Security’s (DHS) position was that those who departed the U.S. on an advance parole, after incurring unlawful presence of six months or more, would be subject to either the three or ten year bars, and are thus inadmissible. Because of this position, a lot of people who have approved advanced paroles after incurring years of unlawful presence (marriage to a U.S. Citizen or those eligible for adjustment due to INA 245i) were not able to return to the United States due to either the three or ten year bar. Why does the I-131 advance parole get granted when the applicant will be inadmissible anyway? Who knows. Those applicants would’ve been better off had the I-131 been denied, because at least it would have prevented them from traveling abroad. It was a tricky and deceiving aspect of advance paroles and adjustment of status applications for those with unlawful presence issues, especially for those who did not seek legal advice.

But in Matter of Arrabally and Yerrabelly, the Board finally held that a departure under an approved advance parole is not a “departure” for purposes of INA § 212(a)(9)(B) which triggers the three and ten year bars. Thus, those who have over six months of unlawful presence, who are eligible to adjust status in the United States, would now be able to come back on the advance parole without being inadmissible anymore. This is a big decision for those employment-based 245i green card cases by applicants with six or more months unlawful presence. Since visa retrogression has delayed a lot of green card applications, those applicants with unlawful presence issues but are 245i eligible can now apply for advance parole and visit their home countries, without being subject to the three or ten year bars that the DHS used to impose on them upon return prior to this BIA decision.

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In a recent BALCA Decision, In re MILLC, Case No. 2011-PER-01256, BALCA affirmed the Certifying Officer’s decision denying employer’s labor certification application for failure to include travel requirements in its advertising. The employer’s Form 9089 stated that travel between 34% to 45% of the time is required. Their newspaper advertisements though did not include this requirement. BALCA cited 20 C.F.R. § 656.17(f)(4) which states that “Advertisements placed in newspapers of general circulation or in professional journals before filing the Application for Permanent Employment Certification must… indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.” BALCA concluded that the ads did not sufficiently indicate the geographic area of employment for the job opportunity described in Form ETA 9089 Section H.

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Deferred action for childhood arrivals is a policy by the Department of Homeland Security that allows individuals who came here at a young age, and who meet other requirements that would explained below, to have work permits and have possible removal deferred as an exercise of prosecutorial discretion. As we posted in our previous article, DHS Secretary Napolitano issued a memorandum announcing that the DHS will offer deferred action for two years to certain young people who came to the U.S. as children and meet other eligibility criteria. This memo came out on June 15, 2012.  According to the memo, individuals who receive deferred action will not be placed in removal proceedings or removed from the U.S. for the duration of the grant. Individuals in removal proceedings, those with final orders, and those who have never been in removal proceedings will be able to affirmatively request deferred action from the USCIS.

According to USCIS FAQs released in August 2012, an individual who meets the following criteria may apply for deferred action:

1. Was under the age of 31 as of June 15, 2012;
2. Came to the U.S. before reaching his/her 16th birthday;
3. Has continuously resided in the U.S. since June 15, 2007, up to the present time;
4. Was physically present in the U.S. on June 15, 2012, and at the time of application to the USCIS;
5. Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012;
6. Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a GED, or is an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces; and
7. Has not been convicted of a felony, a “significant misdemeanor,” three or more other misdemeanors, or does not otherwise pose a threat to national security or public safety;

To request deferred action from USCIS, individuals must submit:

1. I-821D, Consideration of Deferred Action for Childhood Arrivals
2. I-765, Application for Employment Authorization (cannot be e-filed)
3. I-765 WS, Worksheet
4. Government Fee of $465 payable to the “USCIS”

Should you wish to have your case assessed for deferred action purposes, feel free to contact our office at (216) 573-3712 or 1 (800) 496-8043, email us at info@sarmientoimmigration.com, or place your questions below on the comment section.

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The July 2012 Visa Bulletin is out, and please be informed that the EB2 Category is not current anymore for Mexico, Philippines, and “Other Countries”. India and China actually have an “unavailable” priority date and it will likely be “unavailable” until the October 2012 Visa Bulletin comes out.  Whereas other countries including the Philippines and Mexico have always been current on the EB2 category, now, based on the visa bulletin for July 2012, the priority date is January 1, 2009. This means that for Mexico, Philippines, and other countries, even if EB2 labor certifications are approved, the I-140 could not be filed simultaneous to the I-485 adjustment of status application. Even if the I-140 is approved, with the priority date listed as 2009, it may take close to 3 years before one can even file the adjustment of status application. For China and India, even those with I-140s approved and priority dates of 2008, 2009, and 2010 could not even file I-485s until the visa numbers become available, and their priority dates current.  Thus, it is very important to maintain non-immigrant status until the priority date becomes current again.

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On June 11, 2012, the SCIS received a sufficient number of petitions to reach the statutory cap for FY 2013.  On June 7, 2012, USCIS also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption.  According to the USCIS’ Website, the USCIS will reject petitions subject to the cap for H-1B specialty occupation workers seeking an employment start date in FY 2013 (normally October 1, 2012) that are received after June 11, 2012.

Nevertheless, USCIS will continue to accept petitions exempted from the cap and DOD cooperative research worker H-1B petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2013.

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