Hundreds of thousands of foreign nationals are waiting in the US for their first Asylum interview, or may be at other points in the process.  Unfortunately, the vast majority of those cases will be denied.  It will take several years, in most cases many years, to get a final decision but everyone should understand the likely outcome of a denial. 

To win an Asylum case, the applicant must prove the government of their country has singled them out, specifically, for persecution of some kind.  It is not enough to say “things are very bad in my country” or one group is persecuting another group.  It must be your government seeking to persecute you directly, or maybe a group you belong to.  But it must be the government doing the persecution, not a group of people.  

So, if we know most of the pending Asylum cases will be denied, and we know it will takes many years for a final decision, what can we do? 

The best option is through employment, specifically through a labor certification case.  For that you need an employer who offers a job to you (you have work authorization/EAD through your pending Asylum case) based on your prior experience in your home country or in the US.  These cases are complicated and require a very cooperative employer but if they are handled properly over 90% are approved. 

The only bad news is that due to delays/backlogs in the quota system, natives of India must wait too long under the quota system for this option to work. Natives of China have a similar problem but it is possible to work around the timing in some of these cases. Everyone else should be qualified.

Remember, most Asylum  cases currently pending are going to be denied regardless of what you may have been told or read on the internet.  Now is the time to begin planning another immigration option before it is too late. Good luck!

The post What to Do While Waiting on an Asylum Case appeared first on Tidwell, Swaim & Farquhar.

We are often asked whether we handle green card petitions and applications for outstanding Professors and Researchers, while avoiding the time-consuming and stressful labor certification process. We do! In fact, these are some of our favorite cases.

There are different options available for outstanding Professors and Researchers to get lawful permanent resident status in the United States without a labor certification, including the EB-1A “Extraordinary Ability” category, the EB-1B “Outstanding Professors and Researchers” category, and the EB-2 “National Interest Waiver” category.

At Tidwell, Swaim, & Farquhar, P.C., we have many years of experience and a proven track record of success with each of these categories. We are also more than happy to challenge an erroneously denied petition under one of these categories by filing a lawsuit against the U.S. Citizenship and Immigration Services (USCIS) in federal court, as we have done successfully in Eguchi v. Kelly, No. 3:16-CV-1286-D, 2017 U.S. Dist. LEXIS 104974 (N.D. Tex. July 7, 2017). In that case, USCIS denied an EB-1A “Extraordinary Ability” petition that we had filed, based on a misapplication of law. We filed a Motion to Reconsider with USCIS, pointing out their legal error and asking them to correct it, but USCIS denied that Motion. We then bypassed filing an appeal with USCIS’s Administrative Appeals Office and filed a lawsuit in federal district court. The judge granted our Motion for Summary Judgment and ordered USCIS to properly apply the law. USCIS reopened the case and approved it within three days of the court’s order. We were also able to collect the attorneys’ fees that were expended in that litigation from USCIS.

For many, the most straightforward option may be the EB-1B “Outstanding Professors and Researchers” category. It requires demonstrating international recognition for outstanding achievements in the academic field. However, this category also comes with other requirements which not all Professors and Researchers would be able to meet. It requires a definite and specific job offer from a U.S. university, institution of higher education, or private employer; that employer must be willing to file a petition on the individual’s behalf; that offered position must be tenured or tenure-track, or a comparable research position; and the individual must have three years of experience in teaching or research within their field.

The other two options do not require a definite and specific job offer, although they do require a definite plan for how the individual will continue to conduct their work in the United States. The other two options also do not require a company to file a petition on behalf of the individual; the individual may “self-petition” and file the petition on their own behalf. However, it can be more difficult to prove that the individual is qualified for either the EB-1A “Extraordinary Ability” category or the EB-2 “National Interest Waiver” category than for the EB-1B “Outstanding Professors and Researchers” category.

The EB-1A “Extraordinary Ability” category requires demonstrating extraordinary ability in the individual’s field and sustained national or international acclaim in the field.

The EB-2 “National Interest Waiver” category requires demonstrating that the work the individual will be doing in the United States has both substantial merit and national importance, that the individual is well-positioned to advance the proposed endeavor; and that, on balance, it would benefit the United States to allow the individual to get a green card without a specific job offer and without testing the U.S. labor market for qualified and willing U.S. applicants.

While each of these categories may be an option for certain Professors and Researchers, there are considerable differences between each category, and they are not one-size-fits-all.

If you would like to see if you qualify under any of these categories, please contact our office to schedule a consultation.

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As everyone knows, the Department of Labor has not conducted many, if any, supervised recruitment or requests to audit the recruiting results.  This has been true for almost 20 years, at least with our firm.

However, what has happened is companies either innocently out of ignorance or on purpose to circumvent the PERM requirements, certify to the Certifying Office (CO) that there were no qualified US workers during the recruitment when in fact there were qualified applicants but the company gambled DOL would not require an audit. 

This information is brought to our attention when we review the PERM file for other attorneys and notice a number of qualified US workers being rejected for no reason at all. Our practice, as well as that of other Board-Certified Immigration Attorneys, is to prepare the audit response when the 9089 is submitted.  At that point, not when audited later, we have all of the recruiting steps information, list of applicants and job-related reasons for disqualification.  At no point is someone disqualified because they are “close” but not quite qualified even though they actually are qualified and the test of labor market has failed.

In addition to employers being on guard for these activities, employees should be as well.  It is “their” green card case that will collapse if DOL or CIS discover these violations of PERM law.

The post The Problem of Qualified US Job Applicants in a PERM Case appeared first on Tidwell, Swaim & Farquhar.

Below are ten issues you must consider before you apply for a Visitor’s Visa at a US consulate (or request admission if a Canadian citizen).  This list is not every conceivable topic that the US Consulate thinks is important, but we know you will be unlikely to obtain the B-1/B-2 Visa if these ten issues are not addressed properly at the interview.

1. Understand the Purpose of the Visa

As the DOS website indicates, the B-2 visa is specifically for those who wish to visit the United States for tourism, medical treatment, or visiting friends and family. It does not permit employment, study, or long-term residence. Clearly define your travel purpose and ensure it aligns with the visa type, as this will be scrutinized during the application process.

2. Prepare for the DS-160 Application

The same DOS website has the DS-160 form available; it is the online application for a U.S. non-immigrant visa. This form is comprehensive and requires detailed information about your travel plans, employment history, education, and personal background. Be thorough and accurate when completing the form, as inconsistencies can lead to delays or denials. You will definitely want to double-check all entries before submission.

3. Pay the Visa Application Fee

After submitting the DS-160 form, you must pay a non-refundable visa application fee, which varies by country. Keep the payment receipt as it is required for scheduling your visa interview. Remember that this fee does not guarantee visa approval, so be prepared for the possibility of additional costs if you need to reapply.

4. Schedule Your Visa Interview

According to U.S. Citizenship and Immigration Services (USCIS), “The first step in applying for a U.S. non-immigrant visa is to complete your application, which takes approximately 90 minutes. After you submit your application, you can move on to next steps such as scheduling your interview.”

Visa interviews are a mandatory part of the application process for most applicants aged 14 to 79. You’ll need to schedule your interview at the U.S. Embassy or Consulate in your home country. During peak travel seasons, interview slots may fill up quickly, so book your appointment as soon as possible. Be prepared to travel to the nearest consulate if one is not available in your city.

5. Gather Supporting Documents

Supporting documents are critical in proving the legitimacy of your travel plans and your intent to return to your home country. These may include:

Proof of financial stability, such as bank statements or pay stubs

A letter from your employer confirming your leave and intent to return to work

A detailed travel itinerary

Any documentation related to your visit, such as invitations from family or friends. Organize these documents neatly, and ensure they are readily accessible for your interview.

You must be able to provide clear documentation. Sharing your ties to your “home” country will help USCIS understand your intent to return to your country of origin.

6. Demonstrate Strong Ties to Your Home Country

Just to hammer that point home…One of the key factors the consular officer will assess is whether you have strong ties to your home country, which would compel you to return after your visit. Strong ties can include stable employment, family responsibilities, property ownership, or long-term educational commitments. They are doing their best to avoid granting visas to people who have a high likelihood of overstaying so be prepared to discuss these ties during your interview.

7. Practice for the Visa Interview

I know it can cause anxiety to go into any governmental interview, but the visa interview is another opportunity to present yourself as a trustworthy applicant who will not overstay. Prepare by reviewing possible questions related to your travel plans, employment, and ties to your home country. Practice answering confidently and concisely. Remember, honesty is crucial; any attempt to mislead or provide false information can result in a visa denial.

8. Be Aware of Security and Background Checks

The U.S. visa application process involves thorough security and background checks. Be prepared for this step, especially if you have a complex travel history or have lived in multiple countries. Ensure that any previous visa applications or travel to the U.S. are consistent with your current application.

9. Understand Visa Processing Times

Visa processing times can vary significantly depending on your country of residence and the time of year. Check the current wait times for interviews and processing at your local U.S. Embassy or Consulate. Again, you need to apply well in advance of your planned travel date to avoid any last-minute complications.

10. Know Your Rights and Responsibilities

If your visa is approved, it’s important to understand your rights and responsibilities as a visa holder. The visa allows you to travel to the U.S., but it does not guarantee entry; the final decision is made by Customs and Border Protection (CBP) at your port of entry. Adhere strictly to the terms of your visa, including the duration of your stay, to avoid future visa issues.

Prepared by Kathryn Bouchard, Member of AILA’s Affiliated Paralegal Program.

Should you have any questions about the B-1/B-2 Visa process, do not hesitate to contact David Swaim, [email protected].

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It is rare to discuss happiness and the US immigration process together, but those are today’s topics.  

Let’s focus on the most common immigration case in the employment setting:  the H-1.  Most employers (below a certain size) retain attorneys to “represent the company”.  They then leave the H-4 dependents to fend for themselves.  

As a basic matter of ethics, this leaves the “company’s attorney” in a quandary since very good legal arguments can be made regarding that attorney’s ethical responsibilities to represent the dependents as well as the principal H-1 employee.  See, Navigating the Fundamentals of Immigration Law 29 (2007-2008 ed.) (AILA).

But there is a more compelling reason the “company’s attorney” should represent the dependents: it alleviates the anxiety and often panic that befalls the H-1 employee and her dependents when the company and “its” attorney refuse to assist.  

When companies compensate employees who relocate, they do not pay for the employee only and leave the family members on their own.  Or at least that is not the common approach.  Why, then, do we leave the family out of the immigration process?  

Since our firm’s founding in 1978, dependents have been included in every nonimmigrant case we handle, including of course, H-1s.  There is no increase in the attorney’s fee.  This was the standard model for decades in most immigration firms until recently.  The unanswered question is why it changed for newer attorneys and law firms. 

I cannot imagine representing an H-1 foreign national without also addressing the spouse and children.  Many times, there are issues with the H-1 employee’s family that impact the H-1 process and vice versa.  Even if that is not true, the family is treated as part of the employment and receives the “company’s attorney’s” counsel and assistance as their own.  

This unfortunate situation has become so common that H-1 employees just accept it as part of the legal landscape.  But the opposite is also true:  H-1 foreign nationals and their families are impressed and relieved when they find out everyone will be taken care of at the same time by the attorney who knows the most about their case.   And the company can provide, at no additional cost, the feeling of inclusion and safety which makes a positive and lasting impression. 

That is at least one contribution to the well-being and happiness of some of your most valuable assets. 

The post Happy People Make Happy Employees appeared first on Tidwell, Swaim & Farquhar.

Smart companies/most companies file Labor Condition Applications (LCAs) for more than one location.  That way, a new H-1 petition, etc., is not required if an employee transfers permanently to a new location. 

The clearest example is a company with ten locations in the US.  When the original H-1 package is filed, all ten locations (and their PWDs) are included in one LCA.  In this way, we avoid two regulations: the Department of Labor (DOL) requires a new LCA for a new location; and CIS requires a new H-1 process if a new LCA is required.  

We avoid all of this expense and wasted time by simply including any possible place of relocation in the original LCA.  We have prepared one LCA for more than 50 locations for a placement company, based on anticipating where it might have clients in the future.  Sometimes a new client would retain the placement company in a new location not listed on our LCA, but at least we tried to cover as many as possible.  The point being that the company does not have to have a presence in every location the employee might end up. We just include all locations which are theoretically possible.

For those thinking that getting multiple PWDs is time-consuming by itself, that is true.  But it is not as time-consuming or as costly as filing new H-1 cases for each relocation. And for companies that do not believe this is legally possible, a quick review of the DOL and CIS regulations – along with the fact that we have been doing this since the early 1990s when the regulations for IMMACT ’90 went into effect – will allay those fears. If your company is not protecting itself this way, there is no time like now to save time and money! 

P.S. And, yes, we have encountered situations where a company’s attorney (who, by the way, represents the foreign worker also, whether the attorney realizes this or not!) did not use multiple locations on the original LCA either out of ignorance or simply to create more work/money for the attorney. 

The post Stop Filing All Those H-1s!  appeared first on Tidwell, Swaim & Farquhar.

In our last email we discussed qualifying an entry-level employee for a labor certification.  We discussed the specialization of companies which result in the employee gaining skill sets and the employer offering a position which requires those skill sets.  

One immediate hurdle to this strategy is the rule that experience gained with the petitioning company cannot be used to qualify for the job.  Unfortunately for DOL, this is certainly not true if we look at DOL’s regs and relevant BALCA and Federal Court case law. 

If you look into one of the immigration law practice’s main treatise, Kurzban’s Immigration Law Sourcebook (18^th Ed.), Chapter 10, p. 2655, you will find an interesting discussion on qualifying work with the same employer for a labor certification.  While it was true under the old Delitizer decision by BALCA, it was difficult to meet the “substantially different” or “job similarity” tests. That is less true under the current DOL regulations and case law. Page 2655 of Kurzban’s explains this with citations to the most important cases. 

In most cases, the experience gained through the same employer becomes “usable” by incorporating the job requirements for both positions (or more positions) into what is called a Progression Affidavit. This document, if executed truthfully and appropriately, will address each and every legal requirement to use experience gained by the same employer.  

Finally, since we will be claiming the entry level job is substantially different than a higher, offered position, a new LCA and, therefore, a new H-1 petition and extension of status are required to support our legal position that the higher position used for the labor certification can require experience gained with the same employer, even for entry-level jobs. This approach has a 100% success rate with our Firm, which includes anywhere from dozens to hundreds of Labor Certifications we file each year. So, be sure to add this arrow to your HR immigration quiver.  

The post Obtaining a PERM/Labor Certification for an Entry-Level Employee (Part 2) appeared first on Tidwell, Swaim & Farquhar.

Today’s issue is obtaining a PERM/Labor Certification for an entry-level employee, Part I. Although this looks daunting, it is actually straightforward in the normal course of career progression.

Robert graduates from Faber College with a master’s degree in accounting. He is hired by ABC Accountants, LLC, and begins his accounting career. For the purposes of today’s issue, we are not addressing any OPT, STEM OPT or H-1 issues.

After several years, Robert inquires about starting the LPR/PERM process, and eventually the firm agrees to go forward. What everyone knows at this point is we will not successfully test the labor market using Robert’s current position. That position only requires a master’s degree and no experience (which is what Robert had when initially hired, and he has not changed jobs). As a general rule, we do not use entry-level jobs for PERM cases.

However, Robert is an outstanding employee and is offered a promotion from Acct. I to Acct. II, which he accepts. Again, leaving H-1 issues aside for today, the new Acct. II position should have an experience requirement. So, this position should require a master’s degree in accounting and, let’s say, two years of accounting experience. Will this work for our test of the labor market? Probably not; there are thousands of US workers with a Master’s degree in accounting and two years of accounting experience.

So, how do we go forward with the PERM case? The “secret surprise” to PERM cases like this is that companies and firms specialize. Likely Robert does not have two years of experience in general accounting. More likely, the firm specializes, let’s say, in oil and gas tax auditing, and that is the experience the position requires. Or Robert works for a larger accounting firm that has different sections for different skill sets, like oil and gas tax audits. A test of the labor market should be successful with the appropriate requirement of software, computer languages, government regulations, etc., which are specific to the Acct II position with this firm.

Our next edition will address the H-1 issue associated with the PERM process for an entrylevel employee, outlined above.

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The Department of State has announced a pilot program to resume domestic visa renewals for qualified H-1B non-immigrant visa applicants who meet certain requirements. In short, this pilot program allows certain H-1 employees to obtain a new H-1 visa without having to leave the US and go to a US consulate. But note that the program ultimately does not apply to many people and only runs from 1/29/24 to 4/1/24.

Please also note the program only applies to certain H-1 employees who previously obtained an H-1 visa between 1/1/20 to 4/1/23 from US consulates in Canada and 1/1/20 to 4/1/23 from US consulates in India. 

• The pilot program will accept applications from January 29, 2024, through April 1, 2024, or when all application slots are filled, whichever comes first.
• Participation in the pilot program is voluntary.
• Individuals who do not meet the requirements for participation in the pilot program, or those who choose not to participate in the pilot program, may continue to apply for visa renewal at a U.S. embassy or consulate overseas.

There are several steps to apply for this pilot program:

1. Select the country where your most recent H-1B visa was issued (Note: this initial pilot is limited to renewal of visas issued in India and Canada).  Then follow the online navigator tool to assess your qualifications for participation in the pilot.
2. If you meet the requirements for participation, follow the instructions in the portal to complete and submit an Online Non-immigrant Visa Application (form DS-160).
3. Use the online portal to pay the required, non-refundable, non-transferable Machine-Readable Visa (MRV) application processing fee of $205.00.
4. Follow the instructions on the portal to mail your passport and other required documents for processing.

Application slots will be released on the following entry period dates:

• January 29, 2024
• February 5, 2024 
• February 12, 2024
• February 19, 2024 
• February 26, 2024

WHICH APPLICANTS QUALIFY FOR THE PILOT PROGRAM?

Participants in the pilot program will be limited to applicants who(se):

• Seek to renew an H-1B non-immigrant visa only (no other visa classifications, including H-4 visas for dependent spouses and children, will be processed through this pilot program);
• Prior H-1B visa that is being renewed was issued by U.S. Mission Canada with an issuance date of January 1, 2020, through April 1, 2023; or by U.S. Mission India, with an issuance date of February 1, 2021, through September 30, 2021; 
• Are not subject to a non-immigrant visa issuance fee (commonly referred to as a “reciprocity fee”);
• Are eligible for a waiver of the in-person interview requirement.
• Have submitted ten fingerprints to the Department in connection with a previous visa application;
• Prior visa does not include a “clearance received” annotation;
• Do not have a visa ineligibility that would require a waiver prior to visa issuance;
• Were most recently admitted to the United States in H-1B status;
• Are currently maintaining H-1B status in the United States;
• Have an approved and unexpired H-1B petition;  
• Period of authorized admission in H-1B status has not expired; and 
• Intend to reenter the United States in H-1B status after a temporary period abroad.

WHAT DOCUMENTS AND FEES ARE REQUIRED?

You will need to submit the following documents as part of the application process:

• A passport containing the most recently issued H-1B visa. A DS-160 barcode sheet for a properly completed and electronically filed form DS-160, Online Nonimmigrant Visa Application. Non-refundable and non-transferable $205.00 MRV application processing fee, payable via the online portal after completing the form DS-160. 
• One photograph (taken within the last six months), which meets the specifications at https://travel.state.gov/content/travel/en/passports/how-apply/photos.html.
• A passport valid for travel to the United States, which is valid for at least six months beyond the visa application date, and contains at least two blank, unmarked pages for placement of a visa foil.
• Copy of current Form I-797, Notice of Action.
• Copy of Form I-94, Arrival-Departure Record (available at https://i94.cbp.dhs.gov/I94/#/home or on the Form I-797).

How do I show that I intend to reenter the United States in H-1B status after a temporary period abroad?

To qualify for participation in the pilot program, you must intend to reenter the United States in H-1B status after a temporary period abroad.  You are not required to submit evidence of this intent with your application; however, the Department may request additional evidence of intent on a case-specific basis. 

May I pay a fee to expedite my application?

No. The Department will not expedite domestic visa renewal applications.  All applications will be handled on a strict first-received, first-processed basis.  If you have an urgent need to travel, you may choose to apply for your visa at a U.S. embassy or consulate overseas.

The Department is unable to accept reciprocity fees domestically. Nationals from countries with a reciprocity fee may not participate in the pilot.

To view current reciprocity information, go to the U.S. Visa: Reciprocity and Civil Documents by Country information on the following web page: https://travel.state.gov/content/travel/en/us-visas/Visa-Reciprocity-and-Civil-Documents-by-Country.html

As mentioned above, this program is very limited in duration and requires extremely specific documentation and information.  The procedure for application is all very detailed and each and every step must be completed quickly and in the proper order.

Should you need assistance with this pilot program, please contact David Swaim, Managing Partner, [email protected].

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In some cases, a person can be waiting patiently on their Priority Date on the monthly Visa Bulletin but suddenly the next month’s Bulletin shows that current dates have moved back!  This does not happen often but it does happen enough that it is important to understand how it happens and what it means to your case.

The American Immigration Lawyers Association has prepared a very concise, easy-to-understand explanation of visa retrogression and it is reproduced below. While learning about this situation, remember that Visa Categories that go back almost also move forward in the future to the point that that the Category moved back is “made up” so the date is back to where it was originally.

As always, if you have any questions related to US immigration law, please email me at [email protected].

Understanding Visa Retrogression

The Department of State (DOS) puts out a monthly document called the Visa Bulletin. It tells people when they can apply for green cards. The dates in the Visa Bulletin are like deadlines. They are based on how many green cards are available each year and where people are from. There are different categories for getting green cards, like for work or family.

In the Visa Bulletin, there are two lists for each category: one for when you can start applying and another for when you can finish the application. The U.S. Citizenship and Immigration Services (USCIS) looks at these lists to decide when you can send in your green card application. If there are enough green cards, you use the “Dates for Filing Applications” list. If not, you use the “Application Final Action Dates” list. It’s like waiting for your turn.

Usually, the dates in the Visa Bulletin either move ahead or stay the same every month. But sometimes, a date that was okay for applying one month might not be okay the next month. This is called “visa retrogression.” It means you must wait longer to apply for a green card.

Why does visa retrogression happen?

Each month, DOS estimates how many visas will be available in each category. DOS uses different factors to estimate available immigrant visas, including how many applications will likely be approved, how many people have a priority date in more than one category, and how many related family members will receive a green card with the main applicant. Sometimes, the demand for visas is greater than the number of visas that are available. In these cases, the DOS revises its previous estimate and uses an earlier “cut off” date to ensure that more visas are not issued than allowed.

What if my visa category retrogresses?

You will not lose your place in line and your priority date will not change. If you have already attended a visa interview or applied in the United States and your priority date retrogresses, your application will remain in line until your priority date is current again. If you have not yet attended a visa interview or applied for adjustment

of status, then you must wait until your priority date becomes current to take one of those steps.

If my green card application is pending and my visa category retrogresses, what can I do?

While your green card application is still being processed by USCIS, you’re allowed to stay in the United States. This is called a “period of authorized stay.” You can also ask for permission to work and travel. You can keep renewing these permissions as many times as you need.

If your I-485 application has been with USCIS for at least 180 days, you can switch to a new job in a similar field.

Your children who applied for green cards with you might still qualify to stay in the U.S. even if they turn 21, thanks to the Child Status Protection Act.

What if my priority date moves ahead in a different visa category? Can I change categories?

Yes, you can ask to switch to a different visa category. For instance, if you have a pending or approved I-140 petition for a different work-related visa category with a current date, you can ask to use that for your green card application instead. You might need to fill out an extra form called I-485 Supplement J.

If you have a family-based case with a current date in a different category, you can also ask to change your green card application to that category by sending a written request to USCIS.

It’s a good idea to talk to an immigration lawyer to see if you can use either of these options.

When will I receive my green card?

It is often hard to predict how fast or slow the dates in the Visa Bulletin will move. You’ll get your green card when your turn comes up in the Visa Bulletin. If you’re still eligible when that happens, your application will be approved. It’s like waiting for your number to be called.\

We are closely monitoring the monthly Visa Bulletin and encourage you to contact our office at Tidwell, Swaim & Farquhar at 972-385-7900, or email David Swaim ([email protected]) if you have any questions.

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