The CIS on April 7 provided a question and answer article about the AC21 same or similar occupation provision. Below is a summary of what the article discussed.

Section 106(c) of the AC21 (American Competitiveness in the Twenty-First Century Act of 2000) allows certain aliens to move jobs, retain an I-140 petition filed for their behalf, and remain eligible to adjust status without having to file another I-140. In these cases, the I-485 must have been pending with the CIS for 180 days or more and the new job must be in the same or similar occupational qualification. It applies to both job changes to different employers or to situations where one accepts a different position or receives a promotion from the same employer.

A major factor for CIS officers in determining whether a job is the same or similar is the SOC (Standard Occupational Classification). The SOC is a system of classifying jobs and occupations used by the Department of Labor. It is organized into codes, consisting of six numerical digits, with each one pertaining  to the following:

• First and Second Digits: major group
• Third: minor group
• Fourth and Fifth: broad occupation
• Sixth: detailed occupation

Note that this is not the only factor the CIS looks to in determining whether two occupations are the same or similar. There is no exact rule in how they make a determination. Other factors for consideration are wage discrepancy and job duties. Yet each of these factors can’t also be the sole basis for making their determination. So if job A and job B have a substantial discrepancy in wage, that factor can’t be the sole reason the CIS deems the two jobs as not the same or similar. CIS officers should view the totality of the circumstances in making this determination.

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Green card applications based on employment petitions rely on the visa bulletin to determine whether one can already apply. The visa bulletin is updated monthly, and is categorized into India, China, Mexico, and “Other Countries” corresponding to different types of employment-based petitions such as the EB-1, EB-2, EB-3 etc.  The availability and priority dates of these are determined by quotas, availabilities, and backlogs in the immigration service.

Charlie Oppenheim, the chief of the Immigrant Visa Control and Reporting Division of the U.S. Department of State, recently pointed out that there has been a decline in filings for the EB-1 category. He mentioned that this decline started in October 2010 and he does not anticipate any changes in the future. This led to at least 12,000 visa numbers being available to be disbursed to other visa categories. In particular, he specified  that the EB-2 category for India will be advanced in May and may also lead down the road to EB-3 advancement.

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The Department of State (DOS) has recently revised the Foreign Affairs Manual (FAM), in particular 9 FAM 41.53 N4.1, the section regarding general licensure requirements for H-1B visas. The revision helps those applicants for tourist visas who seek to enter the United States to take the National Physical Therapy Examination (NPTE).

FAM is a reference guide for consular officers as they adjudicate visa applications for foreigners wishing to enter the United States on certain visas. The FAM is constantly updated in response to new policies, misinterpretations of current language, and to foster a clearer application of the law for consular officers. The issuance of tourist and H-1B visas by consular officers are guided in part by FAM.

When someone applies for a tourist visa, there should not be any immigrant intent, and the applicant should meet his burden of showing that he plans to go back to his home country after the temporary visit to the U.S. Prior to this revision by the DOS, consular officers, especially in the Philippines, have denied B-2 visa applications for those seeking to enter the U.S. to take that NPTE exam, even though the applicants intend to come back to their home countries after the NPTE exam, and then reapply at home for their H-1B visas. The revision corrects this misinterpretation by most consular officers.

The language is revised as follows for 9 FAM 41.53 N4.1 General Licensure Requirement for H Nonimmigrant: “The requirements for classification as an H-1B nonimmigrant professional may or may not include a license because States have different rules in this area. If a State permits aliens to enter the United States as a visitor to take a licensing exam, then USCIS will generally require a license before they will approve the H-1B petition. However, some States do not permit aliens to take licensing exams until they enter the United States in H-1B status and obtain a social security number. Therefore, a visa should not be denied based solely on the fact that the applicant does not already hold a license to practice in the United States.”

This revision helps those foreigners seeking to enter the U.S. to take a certain state or national exam in order for them to eventually by eligible for H-1B petitioning. Applicants and attorneys for these applicants are advised to include this new revision in application packets for the B-2 visas. Those who were denied previously may also reapply. Still take note though that other factors for the B-2 visa applications such as non-immigrant intent have to be met in order to get approved.

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Below is a summary of new issues the CIS addressed on its latest question and answer post on the H-1B Cap Gap.

The typical school year in college ends in May, thus most Optional Practical Training (OPT) cards of F1 international students end between May to July of the following year. Those who are lucky to have an employer petition them for an H-1B can start in April 1 for the employment start date of October 1. Thus, between the expiration of the OPT (May to June typically) up to the start date of the H-1B (October 1), there is a gap of a few months for international students.

The H-1B Cap-Gap resolved this issue by allowing foreigners in these situations to extend their F-1 status and OPT card until the start date of their H-1B employment, provided the H-1B Petition was filed by their employer prior to the expiration of their OPT cards or the 60-day grace period after. If the H-1B is filed before the OPT expires, then the OPT is extended and the beneficiary can work until the H-1B date of October 1 kicks in. If the H-1B though is filed after the OPT expiration but before the 60 day grace period, F-1 status continues but the beneficiary is not authorized to work.

A student who obtains the benefit of the cap-gap can obtain proof of this by going to their Designated School Official (DSO) with a copy of the H-1B receipt notice. The DSO would then issue a new I-20 evidencing continued F-1 status for the beneficiary. This I-20 though, unlike those issued while one is a full-time student, could not be used to reenter the United States during the cap-gap period. One who travels abroad while on cap-gap could not reenter as an F-1 student, but instead needs to apply for an H-1B visa at the US Consulate abroad before returning.

For international students who have received science, technology, engineering, and mathematics (STEM) degrees and are working for employers enrolled in E-Verify, and who have received an initial OPT card, they can apply for a 17-month extension. Those who would benefit from STEM, who are in the middle of the cap-gap period, can still apply for a 17-month extension of their OPT.

If the beneficiary is working on an extended OPT due to the cap-gap for the H-1B petitioning employer, and that employer lays off the beneficiary and withdraws the H-1B Petition while the extended OPT is still valid, the student must show the DSO a copy of the CIS acknowledgement of the withdrawal, who will then ask SEVIS to provide a data fix. The international student can continue to work while the data fix is ongoing. But if the CIS does not receive the withdrawal prior to the H-1B effective date, then the student must file an F-1 reinstatement and wait for approval before resuming employment.  Same thing goes  in a scenario where the withdrawal occurs after October 1, the student will need to apply for reinstatement and wait until this is approved before continuing to work.

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The E-Verify Self Check is a free web-based service that can be used by a US-based worker to check on his or her employment eligibility. This is part of E-Verify, which is a program by the Department of Homeland Security in conjunction with the Social Security Administration. Unlike the beginning stages of the E-Verify program, the Self Check option is more for the employee rather than the employer, in that it is the first service offered directly to them by the E-Verify program. It gives the worker access to their eligibility to work, and gain knowledge about any inconsistencies that they may wish to correct either with the DHS or Social Security Administration.

The Self Check is described as a response to Congressional requests to provide a service in which the U.S. worker could verify their own eligibility status. As of March 21, 2011, this service is available to those who maintain residence and are physically located in Arizona, Idaho, Colorado, Mississippi, Virginia, or the District of Columbia. It shall be expanded to other states in the coming months.

The steps in using Self Check are as follows:

• Click on this Self Check link
• Enter to basic identifying information such as your name, address, birthday, and social security number
• You would answer security assurance questions provided by a third party identity assurance service
• Provide possible eligibility information including immigration documents, citizenship, work permit information etc.
• A response is provided almost instantly on whether your employment is authorized or if there is a mismatch

With regards to privacy, it should be noted by employees using this service that the information they provide to Self Check is never shared with any employer.

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One of the biggest recipients of H-1B visas in the past few years have been major outsourcing companies from India. Of the five biggest users of the program from 2007 to 2009, four are from India namely Infosys, Wipro, Mahindra Satyam, and Tata. Microsoft was the only US company in the top five. These data have been critical in American business owners in support of the H-1B visa, as hearings with the House Committee have recently indicated.

A lot of American companies are thus requesting an increase in the annual national limit of 65,000 H-1B visas issues per year, stating that this is too low and inflexible to meet their needs for scientists and engineers. The need is so imminent that business owners are even urging the availability of green cards (permanent residence) rather than simply H-1Bs. Bruce Morrison of the Institute of Electrical and Electronics Engineers, testifying before the House Subcommittee for Immigration Policy and Enforcement, urged them to even consider green cards for foreign students with advanced degrees in science and mathematics from American universities. Many foreign students who get advanced degrees in the U.S. could not remain because work visas are not available.

Fraud has also declined with the H-1B program. Donald Neufeld, a CIS official, testified that auditors have found a decrease in H-1B fraud from 21% in 2008 to only 7% today. This counters the possible argument of those against the H-1B visa that most employers are simply using this to take advantage of foreign workers and displace US workers in their respective fields, resorting to fraud at times to hire foreign workers.

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Attorney General Eric Holder recently appointed three new immigration judges. Steve Day joins the Boston Immigration Court, while Edward Kelly and Deepali Nadkarni would each be assistant chief immigration judges. 

Judge Steven Day obtained his BA in 1975 from Gustavus Adolphus College and JD in 1978 from the University of Denver College of Law. He also obtained a MA degree from the Naval War College in Newport, Rhode Island. He most recently was a trial attorney for the Office of Immigration Litigation, Civil Division, Department of Justice. 

Judge Edward Kelly obtained his BA in 1982 and JD in 1987 from the University of Notre Dame. He most recently was senior counsel and chief of staff for the Office of the Chief Immigration Judge. 

Judge Deepali Nadkarni obtained his BA in 1991 from Mercer University and his JD in 1994 from Emory University law School. From October 1995 to March 2011, Judge Nadkarni worked for the Board of Immigration Appeals, serving various positions from attorney advisor, supervisory attorney-examiner, and senior panel attorney.

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Not all registered nurses are eligible for H-1B visas. In order for an H-1B for a registered nurse to be approved, the petition should prove that the offered nursing position is a “specialty occupation” which requires at least a bachelor’s or higher degree. It has been hard to meet this standard because the minimum requirement to be licensed as a registered nurse is a two-year associate’s degree in nursing, instead of a four-year degree. Thus, the CIS applies a restrictive standard for registered nurses, as they base their assessment on the Department of Labor’s guidelines which has determined that there is no industry-wide standard that a nurse needs a bachelor’s degree to perform the job of a professional registered nurse. 

There are several specialized positions though in the field of nursing, positions that in and of itself require at least a bachelor’s degree. 

• Advanced Practice Registered Nurse (APRN): These nurses have more specialized skills on specific fields of nursing, obtained not only from experience and training, but also from obtaining the requisite education for such field, a specific bachelor’s degree. Clinical nurse specialists (CNS), certified nurse-midwives (CNM), certified nurse practitioners (NP), certified registered nurse anesthetist (CRNA) fall within this category, and could be petitioned for H-1Bs.  
• Nurses in administrative positions such as nurse managers.  
• Specialized nursing positions such as operating room or critical care nurses wherein the petitioner could show that such positions are so specialized and complex that one would normally expect the person to have attained a bachelor’s degree or higher.  

If the registered nurse will perform duties identical to those in the previously mentioned categories, with extensive documentation, a thorough employment letter, and a clear brief in support of the H-1B petition, it is certainly possible to obtain an H-1B for certain types of registered nurses.

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He was tired. He just got out of jail a few weeks ago. Ten plus years in the United States. Multiple lawyers, hearings, consultations, all for nothing at that point. He had a dream during that faithful day at the airport in New York, somewhere around 2000, after a month long trip, the itinerary of which was deftly planned by some snakehead, one who instructed him to destroy his passport in the plane prior to landing, which he did.

At customs in the airport, as it was with every foreigner trying to enter the United States, he was inspected and questioned by an officer. He had nothing. Not his real passport, not a fake passport, not a card, no immigration document whatsoever, just as the snakehead instructed him.

A common occurrence in the mid to late nineties on to the turn of the century, he was a Chinese national who was paroled as an arriving alien. Through a myriad network of “travel agencies” and lawyers, he went through what a lot of Chinese individuals went through around that time. Some ended up with brilliant lawyers, eventually winning their asylum cases, leading them to permanent residency and eventual naturalization. The unfortunate some ended up with worse attorneys, who half-heartedly represented their clients with minimum effort and “formula” arguments. He said he fell into the latter group, and he lost his case, even with a BIA appeal filed after, the decision was still sustained. He had a final order of removal.

He moved around New York City, working from restaurant to restaurant, toiling day in and day out to make a living. He eventually met what would later on be his wife. They almost had the same path of coming to the United States, almost the same set of people encountered through this immigration maze, from her entry, to her counsels, to her hearings. Alas they had different results to their asylum cases, unlike her husband, she won.

They eventually got married in New York, and she eventually became a permanent resident, and they eventually had two wonderful kids, and they also moved out of New York City, away from it all, where they’d find peace in raising their kids, or so they thought. They moved to a small suburb of Cleveland in Northeast Ohio. They ran a Chinese restaurant, bringing with them the work ethic that they’ve always had. He still had a final order. As far as he knew he was simply running a reverse race against time. He thought nothing could be done. He had a final order, he thought, and that was it.

He consulted with our firm sometime after he was released from immigration detention on an order of supervision. Immigration knew about him anyway, might as well consult with an attorney even though as far as he was concerned, he was done.

I still remember that day, that hopeless submissive look, that tired recounting of his experience, probably told dozens of times with different people, all with the same conclusion – “There’s nothing we can do, you have a final order”. He did not know the terms. He did not know what an arriving alien was. He went through the basics, his entry, his A number, his denied asylum case, his marriage, his detention, his tiring past. He brought two bags of files, and was adamant in simply dumping all paperwork on our tables, as we sifted through what should be the most important parts of the file.

It didn’t take long, to his surprise. We saw the notice to appear. He was an arriving alien. He destroyed his passport in the plane according to the various documents in his file.

We informed him he can apply for and get his green card.

His reaction was not that of joy, nor excitement, nor of surprise. It was more of a yearning look, a few ticks from begging, more close to hoping. Hoping that this is not a hoax nor a false promise. We could tell he’s been through it all. We were not sure if he believed us due to his past experiences, but we knew he can get it. We could not read his face, a blank look, even a doubting look. So it was to our surprise that within ten minutes he decided to retain our firm for his green card application. To this day we had no idea why he decided to retain us. We still remember that blank look on his face after we told him it’s possible. He probably thought he had nothing to lose. Immigration knows him already. He was just detained recently. Might as well go for it. My last chance.

The whole crux of these cases stem from a complex and sometimes epic tale spanning ten or more years, but fall under a simple premise: Arriving aliens with an unexecuted order of removal who remain in the United States past their final order are eligible to adjust status based on marriage to a U.S. Citizen, and the USCIS has jurisdiction over these applications. He was an arriving alien. He had a final order of removal. He was married in good faith to a U.S. Citizen. No fraud. No criminal record. Case is possible.

It was the usual process on our end since then, preparing the applications and arguments, attaching immigration memorandums on arriving alien eligibility, preparing the client for his interview, and ultimately accompanying our client at his interview.

Finally, after over a decade of toiling in the United States, he received his green card around two weeks later.

It was only then that his reaction could finally be discerned, when that numb expression on his face flew out the door. Ten plus years in the United States, multiple hearings, lawyers, consultations, and finally, he was not tired anymore. He finally has his green card.

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Introduction

People who could not afford to pay the filing fees for certain immigration paperwork can file a fee waiver request. The USCIS developed the new Form I-912, Request for Fee Waiver, in an effort to facilitate the fee-waiver request process. The form has been available to the public since November 23, 2010. Since the use of this form is not mandated by regulations, and was only implemented to actually help potential applicants, the USCIS will continue to consider applicant-generated fee-waiver requests.

Fee-waiver requests are reviewed by considering whether the applicant is receiving a mean-tested benefit, whether the applicant’s household income level renders him or her unable to pay, or whether recent financial hardship otherwise renders him or her unable to pay.

Specific Forms and Conditions

The USCIS may waive fees for the following more popular forms based on an inability to pay

• Biometrics services fee
• I-90, Application to Replace Permanent Resident Card
• I-751, Petition to Remove Conditions on Residence
• I-765, Application for Employment Authorization
• I-821, Application for Temporary Protected Status
• N-400, Application for Naturalization

For I-485 Adjustment of Status applications, the USCIS may waive a fee based on an inability to pay and subject to the conditions specified:

• An Afghan and Iraqi interpreter who has received a Special Immigrant Visa
• A “Registry” applicant filing under section 249 of the INA who has maintained continuous residence in the United States since before January 1, 1972; or
• An applicant who is exempt from the public charge grounds of inadmissibility under section 212(a)(4) of the INA, including but not limited to
  • Applications filed by asylees under section 209(b) of the INA;
  • Applications for Special Immigrant Juveniles
  • Applications under the Cuban Adjustment Act, the Haitian Refugee Immigration Fairness Act (HRIFA), and the Nicaraguan Adjustment and Central American Relief Act (NACARA), or similar provisions; and
  • Applications filed by Lautenberg Parolees

For I-601 Applications for Waiver of Grounds of Inadmissibility for an applicant who is exempt from the public charge grounds of inadmissibility of section 212(a)(4) of the INA.

Based on an inability to pay, the USCIS may waive any fees associated with the filing of any benefit requested by a VAWA self-petitioner or T-Visa applicant, U visa applicant, battered spouses of an A, G, E-3, or H non-immigrant, battered spouse or child of an LPR or USC, and TPS applicants. This would include filings not otherwise eligible for a fee waiver or eligible only for conditional fee waivers such as Forms I-212, I-485, I539, and I-601.

Steps and Criteria

1. Whether the request is submitted on Form I-912 or in the form of a written statement, the applicant may submit additional documentation to provide proof of his or her inability to pay
2. Is the individual receiving a means-tested benefit? A means tested benefit is a benefit where a person’s eligibility for the benefit, or the amount of the benefit, or both, are determined on the basis of the person’s income and resources, including those that may lawfully be deemed available to the person by the benefit-granting agency. The applicant should provide proof in the form of a letter, notice, or other official document containing the name of the agency granting the benefit.
3. Is the individual’s household income at or below 150% of the Federal Poverty Guidelines at the time of filing? Evidence of current employment , W-2 forms, income tax returns, and other documents evidencing income may be submitted.
4. Is the individual under financial hardship, due to extraordinary expenses or other circumstances that renders the individual unable to pay the fee? Unexpected medical bills is an example of this option.

Decision

After review of the fee-waiver request and supporting documentation, the fee-waiver approval or denial would be recorded in the receipt block of the underlying form for which the applicant is requesting a fee waiver. If it is denied, the applicant receives Form G-1054.

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