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The Chicago immigration attorneys of Zneimer & Zneimer PC urge employers to seek sound legal advice from experienced H-1B attorneys to avoid denials of approvable H-1B petitions.  Many cases involve information technology or business positions in new and emerging occupations grouped under the “all other” categories that fail to meet USCIS’s idea of “Specialty Occupation” requirement due to poor communication of the job duties.   When drafting a petition, it is important  to understand the industry, requirements, and the technical terms in order to explain what tasks the job involves, what knowledge the job requires, and why such knowledge is beyond the ken of a person that does not have an academic degree in a specific specialty.  Failure to understand the job itself results in a poorly drafted H-1B petition even though the petition was approvable.  HR departments that used to prepare their own H-1Bs now turn more and more to experienced attorneys to avoid the avalanche of denials.  Some heavy users of H-1B visas saw denials jump from 4% in 2015 to 40% in FY 2019  for H-1Bs for initial employment.
According to USCIS’s the top ten reasons for Requests for Evidence and subsequent denials are:

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Applicants for citizenship must meet requirements required by law to qualify for citizenship, including periods of residence and continuous presence, as well as good moral character during such periods. Recently USCIS issued an updated guidance regarding the requirement for good moral character, and specifically discussed the effect on immigrants that engage in conduct related to marijuana.

While states like Colorado and Illinois have decriminalized marijuana, it remains a controlled substance under federal law, and any involvement with marijuana, including ownership and work in the marijuana industry, may affect a non-citizens’ ability to establish a good moral character, a prerequisite for citizenship.

An applicant for citizenship cannot demonstrate good moral character if the applicant has violated any controlled substance-related federal or state law or regulation of the United States or any foreign country during the required statutory period.  This legal impediment does not require a criminal conviction.  While it certainly applies to convictions, it also applies to an admission to such an offense, or an admission to committing acts that constitute the essential elements of a violation of any controlled substance law.  In addition, if an applicant benefited financially from a spouse or parent’s trafficking in a controlled substance, such applicant also will be subject to the bar even if the applicant personally did not participate in drug trafficking.

Marijuana remains “Schedule I”  controlled substance under the federal Control Substance Act, 21 U.S.C. §802(16).  Under Schedule I, marijuana does not have accepted medical use.  Therefore, conduct involving marijuana, even legal under state law, may violate the Control Substances Act, and will be a federal criminal offense and a bar to establishing good moral character for the purposes of citizenship. Continue reading →

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The Chicago immigration attorneys of Zneimer & Zneimer learned that starting March 22, 2019, USCIS will only accept revised form I-539 and I-539A.  The new forms will affect all non-immigrant applicants, including derivatives H-1B, L, and E workers.  In addition to requiring use of the updated I-539 form for each applicant, each co-applicant included in the application, must sign a separate form I-539A (parents can sign the separate I-539A form on behalf of children under 14),  and each applicant must must pay a separate service fee of $85 for biometrics, including children (only certain A, G, and NATO applicants are exempted).  After the applicant and co-applicants file the application, each will receive a separate biometric services appointment and must appear to provide biometrics.  This new requirement will apply to children, regardless of age.

If you have prepared the old I-539 form, remember that USCIS must receive the forms by March 21, 2019.

If you have any questions, or need any assistance with your application to extend status, contact the Chicago immigration attorneys of Zneimer & Zneimer PC.

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            International physicians who are in J-1 status in the United States become subject to 2 years home residency requirement. Physicians wishing to remain in the United States may be eligible to apply for a J-1 Visa Waiver if an Interested Government Agency agrees to recommend them for the waiver. Through this waiver, a physician may remain in the U.S. under a commitment to work for at least 3 years in a medically underserved area or the Veterans Administration.  J-1 Waiver is a prerequisite for foreign physicians to begin their path to permanent residency as without the waiver they would be inadmissible.

Physicians will work with the U.S. Department of State, USCIS, and their local health agency in order to request the J-1 Waiver. The U.S. State Department permits any US government agency to request a waiver. Some agencies have special programs to sponsor doctors. In many cases, this agency will be a state health department. Agencies sponsoring applicants for J-1 Waivers are known as Interested Government Agencies (IGA).

Of the major governmental agencies that sponsor J-1 Waivers, the Delta Regional Authority (DRA) is recognized as independent, and is unlimited in number of physicians they can recommend to receive waivers.  By contrast, the Conrad State 30 Waiver Program (administered in Illinois by the Center for Rural Health – Illinois Department of Public Health) recommends only 30 physicians per year to receive waivers.

The Delta Regional Authority sponsors both primary care physicians (including “general or family practice, general internal medicine, pediatrics, obstetrics/gynecology, and psychiatry) and specialty medicine physicians. (For specialty medicine physicians, DRA requires additional documentation.)  It serves communities in the Delta Region of the U.S., spanning Alabama, Arkansas, Kentucky, Louisiana, Mississippi, Missouri, and Tennessee. In Illinois, the DRA serves 16 counties in the state’s southern region.

Through the Delta Doctors Program, the DRA places physicians in Health Professional Shortage Areas, Medically Underserved Populations/Medically Underserved Areas, and Mental Health Professional Shortage Areas which are located within its service counties. However, the DRA will consider applications for J-1 waiver placements if the employer can prove that the communities of a location outside of the established service areas will be better served.

Full-time, primary care physicians in rural clinics in this region are eligible for J-1 Waiver requests by the Delta Doctors Program. The DRA provides comprehensive information of the process on their website .  It is advisable to read the J-1 Visa Waiver Program Guidelines, found above, in its entirety. Applicants must follow all specified guidelines and submit the packet, in duplicate, to the DRA. The non-refundable filing fee for the J-1 Waiver application is $3,000.00. If an application is withdrawn within 20 days after it is received by the DRA, the applicant will be issued a 50% refund. Continue reading →

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USCIS announced that in January the agency will accept employment-based adjustment of status applications based on the filing cut-off date instead of the final action cut-off date.  This will allow foreign workers to file for adjustment of status if their priority date predates the filing cut-off date.  USCIS has a grim view of February, however, and on its website notes that as soon as February 2019, it anticipates to revert back to final action cut-off date.   Although USCIS will accept the filing for adjustment of status based on the filing cut-off date, it cannot approve the adjustment of status until the final action cut-off date becomes current.

The backlogged employment-based categories moved by a few days to a few months, but the unconscionable wait for people born in China, Philippines, and especially India, continues.  The EB-1 category of priority workers that groups aliens of extraordinary abilities, outstanding professors and researchers, and multinational executives and managers, is backlogged for all immigrants.  It did inch forward a few days to a few weeks depending on the country of birth.  For example, the priority date for India-born priority workers moved from January 1, 2010, to April 1, 2010, which hardly leaves hope that India-born workers will get their green card before retirement age.  Our immigration system makes it easier and much faster for unskilled workers born elsewhere to receive a green than India-or-China-born professionals, including doctors, engineers, and even people with extraordinary abilities like Nobel Prize winners.

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The Chicago immigration attorneys Zneimer & Zneimer PC remind non-citizens that marijuana remains illegal under federal law.  Many states have decriminalized the use of marijuana.  Because under some states’ laws use or possession of marijuana is no longer a crime, many immigrants are under the very wrong impression that they can possess and use marijuana without consequences for their immigration status.  This is wrong because possession of marijuana continues to be a federal offense and immigration is in the province of federal law.

Immigration officials often question aliens about marijuana use or possession, especially in states that have legalized its use.  If an alien admits to an immigration official that he or she has ever used marijuana, the alien can face very serious immigration consequences.  The problems may occur even if the alien has never been convicted of a marijuana-related crime, and only admits that he or she used marijuana at home in a state where marijuana was legal.  Such admission will cause a number of serious problems.  Marijuana use will create immigration issues if the alien applies for permanent residence, citizenship, encounters ICE officials, travels internationally.

The best thing for any non-citizen is to avoid marijuana, including avoid investments in marijuana businesses, work in marijuana dispensaries or shops, or using marijuana.  A non-citizen should never carry any marijuana or paraphernalia, any frequent-buyer marijuana card, medical marijuana card, any phone with marijuana-related photos or messages, wear any marijuana-themed clothes, have a car with marijuana-themed bumper-sticker, and never, ever, post any self-incriminating statements about use of marijuana on social media.

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“Vague laws invite arbitrary power.” states Justice Gorsuch in his concurring opinion in Sessions v. Dimaya, finding the residual aggravated felony definition of “crime of violence” in the Immigration and Nationality Act, 101(a)(43)(F), referencing 18 U.S.C. §16,  is void for vagueness.  The decision only addresses 18 U.S.C. 16(b) portion of the definition, and holds that it is void for vagueness.

The aggravated felony definition includes a list of enumerated crimes, and includes “a crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) for which the term of imprisonment is at least 1 year.” INA Sec. 101(a)(43)(F).  Mr. Dimaya, a legal permanent resident,  had two  prior  convictions  for  first-degree  residential  burglary under California law, subjecting him to removal.  The government claimed that in committing the residential burglary offenses, he had committed an aggravated felony crime of violence.

Justice Gorsuch began with a foundational question based on Johnson v. United States, 576 U.S.__ (2015), which held that the residual clause of the Armed Career Criminal Act void for vagueness.  Citing to the late Justice Scalia’s opinion in Johnson, that the residual was  for vagueness because it “invited more unpredictability and arbitrariness” than the Constitution allows. Id., at –––– (slip op., at 6), Justice Gorsuch stated that he was “persuaded” that the “void for vagueness doctrine” serves as a “faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty under our Constitution.” Sessions v. Dimaya, No. 15-1498, 2018 WL 1800371 (U.S. Apr. 17, 2018).

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A foreign national epidemiologist petitioned USCIS for an immigrant petition, filing a petition herself, without an employer.  She argued that her work is important for the national interest of the U.S. and the USCIS should not require her to have a job offer.  USCIS disagreed and the epidemiologist appealed to the Administrative Appeals Office (“AAO”). The AAO dismissed the epidemiologist’s appeal, agreeing with USCIS’s decision.

One way a foreign national living in Chicago or elsewhere can become a permanent resident is through employment, if a U.S. employer petitions for the foreign national.  To sponsor a foreign worker for permanent residence, a U.S. employer must go through an expensive, complicated, and lengthy application process to the Department of Labor for a labor certification.  The Department of Labor must certify that the employer has tested the U.S. market and that there are no U.S. workers that are willing, able, qualified, and available to take this employer’s position.  Only then can an employer petition USCIS for an immigrant petition on behalf of a foreign worker.

The labor certification process is important to the national interest.  It ensures that a foreign national does not displace an available U.S. worker that is minimally qualified for the job.  In certain unique cases where a foreign national’s work is very important for the U.S., testing the U.S. market and seeking a labor certification may not be in the national interest.  In such cases, a foreign national can file his or her own petition and seek a waiver of the job offer requirement and the labor certification process.   We call this “a petition for a national interest waiver.”

The Administrative Appeals Office that reviews decisions of USCIS, has outlined an analytical framework for USCIS in Matter of Dhanasar, 26 I. & N. Dec. 884 (AAO 2016). USCIS applies this framework on a case by case basis to decide if it should waive the labor certification process for an alien worker as a matter of national interest.

The Chicago law firm of Zneimer & Zneimer is tracking decisions under the NIW framework and is providing a summary of decisions applying Matter of Dhanasar.  We outlined in more detail the framework in our earlier blog.  The framework imposes three prongs on the petitioner:

  1. That the proposed endeavor has both substantial merit and national importance;
  2. That the foreign national is well positioned to advance the proposed endeavor; and
  3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

Petitioner’s Claim: The alien was an epidemiologist and a program officer in an HIV/STD prevention program focused on expanding HIV prevention.  The alien worked in data management, monitoring HIV testing grantees, and evaluating their effectiveness at providing preventive services.  The petitioner also tracked trends of HIV epidemic, helping her organization to direct efforts Continue reading →

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The Chicago law office of Zneimer & Zneimer PC reminds interested immigrants that the Diversity Lottery  DV-2019 begins on Tuesday, October 3, 2017 at 12:00 noon, Eastern Daylight Time (EDT) (GMT-4), and ends on Tuesday, November 7, 2017 at 12:00 noon, Eastern Standard Time (EST) (GMT-4).   There is no filing fee to participate in the lottery.

Bear in mind that participating in the DV Lottery demonstrates immigrant intent, and can affect future eligibility for non-immigrant visa that does not allow an immigrant intent.  In addition, even if selected for the lottery, a person needs to be admissible to the United States in order to obtain permanent residency.  People who are or have been in the United States out of status or unlawfully present, should contact an attorney to determine whether they may be inadmissible to the United States and whether there is a waiver of inadmissibility.

For DV-2019, natives of the following countries are not eligible to apply, because more than 50,000 natives of these countries immigrated to the United States in the previous five years:
Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.  There are exceptions, so check with an attorney.

Instructions for the DV Lottery have been published by the State Department. Continue reading →

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The Chicago attorneys of Zneimer & Zneimer PC reviewed the final regulations entitled Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, 81 FR 82398-01, that the that the Department of Homeland Security published on November 18, 2016.  These regulations interpreted several employment-based sections of the Immigration and Nationality Act, including those regulating employment of non-immigrant workers.

The updated regulations made some changes to the rules applicable to E–1, E–2, E–3, H–1B, L–1, or TN.   They added up to 10 days of admission before the authorized work period begins, and up to 10 days of grace period after the work-authorized period ends.  During these extra 10 days on both ends, the foreign worker may not work.

These extra days at the end of the authorized work period will be helpful to foreign workers and their families if they wish to leave the United States.  However, Chicago attorney Sofia Zneimer cautions, that for workers and employers who wish to continue their work relationship in the United States, these additional days may cause issues if not properly monitored.

One thing to keep in mind is that these extra 10 days are not work authorized.  This means that the employee will have an I-94 card that will include the additional grace period even though this period will not be work-authorized.  Thus, unless both the foreign worker and the HR mangers overseeing the I-9s for their companies are mindful of this added grace period,  they both can get in trouble, if the foreign workers inadvertently works during the grace period relying solely on the expiration of the foreign worker’s I-94.   It is important to remember that the the top of the I-797 Approval Notice will reflect the actual work-authorized period, and not the I-94.  An employee relying solely on the expiration of the I-94, who works during these extra days without authorization, can fall out of status for working without authorization.  By permitting unauthorized work during the grace period, the employer will violate the immigration law subjecting itself to fines and penalties.

Important points for HR managers and foreign workers: Continue reading →

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