CASE: H-1B Visa Petition
PETITIONER:  Accounting Firm in Baltimore, Maryland
BENEFICIARY: Staff Auditor from Trinidad and Tobago

Our client is an accounting firm in Baltimore, MD.  They contacted our office in early-February to seek legal assistance from our office for their foreign employee.  The beneficiary obtained his Bachelor’s Degree in accounting and completed his MBA program in the United States. The proffered position for the Beneficiary is staff auditor which qualifies as a specialty occupation.  We argued that this position a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in accounting or its equivalent.

Once retained, our office promptly filed the H-1B visa petition with various supporting documents on April 1, 2013 via regular processing.

Eventually, our client’s H-1B application was approved on June 14, 2013.

On October 1, 2013, he can work for his employer for the next three years on H-1B status.

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CASE: H-1B Extension

PETITIONER: Electric Immersion Heater Manufacturer

BENEFICIARY: Indian Procurement Engineer

LOCATION: Cleveland, OH

Our client is a procurement engineer from India who currently works at an electric immersion heating manufacturing company in the greater Cleveland area. He is currently on a valid H-1B visa.

As our previous success stories show, he got his H-1B visa and I-140 petition through our legal assistance. His H-1B status was about to expire when his I-140 petition was approved. He retained our office in late September 2012 again, and sought legal assistance from us for his H-1B 3-year extension.

Ou office prepared his H-1B extension application. The Labor Condition Application was filed and approved and eventually our office filed the H-1B extension application on November 13, 2012 to the USCIS California Service Center. There was no Request for Evidence with the filing and the Petitioner did not opt for premium processing. The case was approved on January 30, 2013. The H-1B is good from February 14, 2013 to February 13, 2016.

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CASE: H-1B Extension

PETITIONER: Molded Component Manufacturer

BENEFICIARY: British Liquid Injection Molding (LIM) Process Engineering Manager

LOCATION: Cleveland, OH

Our client is a Liquid Injection Molding (LIM) process engineering manager from the United Kingdom who currently works at a molded component manufacturing company in the greater Cleveland area on a valid H-1B visa. As our previous success stories show, he got his EB-2 I-140 petition through our legal assistance. His H-1B status was about to expire when his I-140 petition was approved. He retained our office in early November 2012 again, and sought legal assistance from us for his H-1B 3-year extension.

Once we were retained, our office prepared his H-1B extension application. The Labor Condition Application was filed and approved and eventually our office filed the H-1B extension application on November 29, 2012 to the USCIS California Service Center. There was no Request for Evidence with the filing and the Petitioner did not opt for premium processing. The case was approved on January 28, 2013. The H-1B is good from December 1, 2012 to November 30, 2015.

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CASE: H-1B Extension

PETITIONER: Nursing Home Facility

BENEFICIARY: MDS Coordinator, Filipina

LOCATION: Illinois

Our client is an MDS Coordinator from the Philippines who currently works at a Nursing Care Facility in the greater Chicago area on a valid H-1B visa. Her H-1B status was about to expire before she retained our office in early June of 2012.  Our client sought legal assistance from us for her H-1B 3-year extension.

Once we were retained, our office prepared her H-1B extension application.  The Labor Condition Application was filed and approved and eventually our office filed the H-1B extension application on July 18, 2012 to the USCIS California Service Center. There was no Request for Evidence with the filing and the Petitioner did not opt for premium processing. The case was approved on January 11, 2013. The H-1B is good from October 1, 2012 to September 30, 2015.

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CASE: H-1B Visa Petition (Change of Employer)

PETITIONER:  Electric Engine / Turbine Manufacturing Company

BENEFICIARY: Global Sales Application Engineer

Our client is an Electric Engine/Turbine Manufacturing Company in Ohio. They contacted our office in early December to seek legal assistance for their foreign employee.

The beneficiary is from South Korea and obtained her Bachelor’s degree in Mechanical Engineering. The proffered position for the Beneficiary is a Global Sales Application Engineer which qualifies as a specialty occupation – the minimum requirement for this position is a Bachelor’s Degree in Mechanical Engineering or its equivalent.

The foreign beneficiary in this case already had her H-1B visa from her previous employer which was in a similar industry. Her H-1B visa has not yet expired, but she wanted to extend her H-1B status on the change of employer basis.

Once retained, our office filed the H-1B visa petition with various supporting documents on December 14, 2012 via premium processing. Since this petition was based on a change in employer, this petition was exempted from the annual cap of the H-1B. There were no Requests for Evidence during the processing of the H-1B.  Eventually, our client’s H-1B Petition was approved on December 22, 2012.  Now the Beneficiary can work for her Petitioner-Employer as an H-1B visa holder and she can work there for next three years.

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CASE: H-1B Visa Petition

PETITIONER:  Capital Investment Company in Georgia

BENEFICIARY: Lithuanian International Compliance Manager

Our client is a Capital Investment Company in Georgia which owns local and international travel clubs and sells memberships. They contacted our office in late April of 2012 to seek legal assistance for its foreign beneficiary’s H-1B visa petition.

The beneficiary is Lithuanian and obtained her Bachelor’s and Master’s Degree in International Law in Lithuania. She has worked for different companies in the United States on an H-1B visa and got an offer from our client. The proffered position for the Beneficiary was for an International Compliance Manager which we argued qualified as a specialty occupation. We argued that the minimum requirement for this position is a Bachelor’s Degree in International Law/Relations or its equivalent.

Upon retention, our firm prepared and eventually filed the H-1B visa petition with various supporting documents on May 1, 2012 via premium processing. However, the USCIS Vermont Service Center issued a Request for Evidence (RFE) on July 13, 2012.

The USCIS argued that the offered position does not qualify as a “specialty occupation.” They claimed that the business was new and that a Bachelor’s degree was not required for this position.  They claimed that the beneficiary’s position is not specialized and complex enough to be qualified as a specialty occupation as the law requires.

In response to the RFE, our office argued in an 6-page response brief with 15 exhibits that the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a Bachelor’s degree.  Moreover, we argued that the degree requirement is common to the industry in parallel positions among similar organizations.

Our office filed the response to the USCIS Vermont Service Center on October 1, 2012. Our client’s H-1B application was approved 15 days later on October 15, 2012. Now the Beneficiary can work for the Petitioner on an H-1B status until March 31, 2015.

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The Cap

H-1B petitions per year are capped at 65,000, with an extra 20,000 for those who are petitioning someone with a U.S. earned master’s or higher degree. These cap numbers only apply to initial H-1B filings. Thus, H-1B extensions and transfers are not subject to the cap. April 1 of each year is the earliest that an H-1B petitioner can file an initial cap-subject filing. A few years ago, this quota was filled on the first day. Applications outnumbered the quota. The US Citizenship and Icemmigration Service (USCIS) resorted to a lottery system. Thus an employer may have filed at the earliest possible time and still got rejected. This year, the quote was filled by July, merely two months from April 1. A lot of people are thus wondering if there is anyway an employer can file an initial H-1B petition without having to wait for April 1, 2013.

Cap-Exempt

Other than extensions and transfers, there are other ways where a petitioner gets exempted from the cap. A beneficiary of employment petitions from an institution of higher education, or related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations are not subject to the cap. Thus, for these employers, H-1B petitions could be filed all year round, regardless of whether the cap is closed.

Institution of Higher Education

By law, an institution of higher education is defined as one which: 1) admits students who have completed secondary education; 2) is licensed to provide education beyond secondary school; 3) provides education programs for which the institutions award bachelors’ degrees or provide programs of not less than 2 years that are acceptable for full credit toward bachelors’ degrees; 4) is a public or nonprofit institution; and 5) is accredited or has been granted pre-accreditation status by a recognized accrediting agency. Each of these elements should be met to be cap-exempt.

Primary or Secondary Education Schools

Based on statutory language and legislative history on the definition of “institutions of higher education,” primary or secondary education schools are not within this definition, and if the argument for making these schools cap-exempt is solely based on including them within the definition of an “institution of higher education,” the USCIS will not find the petition cap-exempt.

Related or Affiliated Nonprofit Entity

However, primary or secondary schools can still meet the cap-exempt requirement through the second prong of the exemption category, that of the “related or affiliated nonprofit entity” (with an institution of higher education).

In filing the H-1B cap-exempt petition, the cover letter should demonstrate how the petition is cap-exempt by explaining how the petitioner, beneficiary, line of work, and how they fit the exemption clause and the entities covered. Citing specific language from two important documents on this issue, the 2006 Aytes Memo on H-1B Cap Exemption and the Administrative Appeals Office (AAO) 2006 Texas decision (EAC 06 216 52028) is a must in arguing whether the petitioner is cap-exempt, especially if one is using the “related or affiliated” argument.

The AAO case mentioned (2006 EAC 06 216 52028) has been one of the most cited sources for “related or affiliated” cap-exempt based H-1B petitions. This case addressed the issue of whether a Texas nonprofit public school district as the petitioner was cap exempt. The USCIS in Vermont initially denied the case and one of the grounds was that the petition was subject to the cap. After appeal, the AAO granted the H-1B, finding that the school’s Teachertrak program is related or affiliated with an institution of higher education. The AAO provided citable language, stating that in order to demonstrate that the petitioner is an affiliated or related nonprofit entity, it should show one or more of the following: a) shared ownership or control by the same board or federation; b) the petitioner is operated by an institution of higher education; or; c) the petitioner is attached to an institution of higher education as a member, branch, cooperative, or subsidiary. The AAO found that the petitioner in this case met the third prong, that of a member, branch, cooperative, or subsidiary, and thus made a finding that it was related or affiliated with an institution of higher education.

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CASE: H-1B Visa Petition
PETITIONER:  Hospital / Medical Research Center
BENEFICIARY: Strategic Planning Analyst
ISSUES: Cap-Exempt, Research Organization

Our client is a large hospital and medical research center located in Columbus, OH. They contacted our office in the middle of June to seek legal assistance from our office for their foreign employee. The beneficiary obtained her MBA degree in the United States. The proffered position for the Beneficiary is a strategic planning analyst. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Business related curriculum or its equivalent.

Prior to our client contacting us, the numerical cap of H-1B visas for fiscal year 2013 was reached.  Our client was very disappointed and thought they would have to wait until April 1, 2013. We told our client that we can argue that they are qualified for cap-exempt petitions and emphasize that they are a non-profit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C). Cases have gone both ways for hospitals, but we thought that if the research aspect of their work is highlighted, that chances of approval are high.

INA Section 214(g)(5) says “the numerical limitations contained in paragraph (1)(A) shall not apply to any non-immigrant alien issued a visa or otherwise provided status under section 101(a)(15)(H)(i)(b) who –

(B) is employed (or has received an offer of employment) at a nonprofit research organization or a governmental research organization.”

According to the June 6, 2006 Michael Aytes’ Memo (Published by USCIS) on the Guidance Regarding Eligibility for Exemption from the H-1B Cap Based on Section 103 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313), it outlines the fee and cap exemption for nonprofit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).  Under 8 C.F.R. 214.2(h)(19)(iii)(C), a non-profit research organization is “an organization that is primarily engaged in basic research and/or applied research. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest.  It may include research and investigation in the sciences, social sciences, or humanities.  Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met.  Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services.  It may include research and investigation in the sciences, social sciences, or humanities.”

Our office argued that the Petitioner was primarily engaged in applied research, and was thus qualified as a non-profit research organization as defined in 8 C.F.R. 214.2(h)(19)(iii)(C).

Once retained, our office filed the H-1B visa petition with various supporting documents on June 28, 2012 via premium processing. There were no Requests for Evidence during the processing of the H-1B. Eventually, our client’s H-1B application was approved on July 13, 2012.  She can now work for her employer for three years on an H-1B status starting October 1, 2012.  She will continue to work there on an OPT in the meantime.

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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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