USCIS Advises on Period of Admission for H-4 and L-2 Nonimmigrants

In a USCIS memo dated December 5,2006,USCIS stated that it will not considertime spent in H-4 or L-2 nonimmigrant status to count against the authorizedperiod of admission for L-1 or H-1B status.For example,if a husband and wifeenter the U.S. together with the husband in H-1B status and the wife in H-4status,and spend six years here,then at the end of the six years,the wife couldchange to H-1B status and the husband could obtain H-4 status as her dependent.The same goes for an L-1 and an L-2 spouse.

USCIS had not previously issued guidance on the question of whether H-4 and L-2 time counts against the maximum period of stay for H-1B (six years) or L-1 (fiveor seven years) status.Conservative immigration practitioners therefore advisedclients to consider H-4 and L-2 time as counting against the H-1B and L-1maximum.

While the memo is a positive policy decision on the part of USCIS,it raisesimportant questions:

1.)Does time spent in L-2 status count against the six-year maximum for H-1Bstatus and does time spent in H-4 status count against the five-year maximum forL-1B status or the seven-year maximum for L-1A status?

2.)Does the memo apply only to H-1B/H-4 and L-1/L-2 nonimmigrants or doesits rationale extend to other emploment-based nonimmigrant statuses,such as R-1/R-2 as well?

These questions have yet to be answered.

BALCA Decision Raises Questions About the Definition of "Employer" for Labor Certification Purposes

In order to qualify for a labor certification filed on his behalf,an alien mustpossess the minimum level of education and experience required by the employerat the time the labor certification is filed, and none of the qualifying experiencemay have been gained with the employer that files the labor certification.In orderto determine whether experience was gained with the same employer, it isessential to define the term "employer."

In a recent decision, Matter of Harvest Office Services,Inc.,2005-INA-111(12/7/06),the Board of Alien Labor Certification Appeals (BALCA) ruled thatdespite the fact that the employer that files the labor certification is a distinctlegal entity from the employer with which the alien gained qualifying experience,the experience may be considered to have been gained with the same employer--and therefore disqualify the alien from using the labor certification-- if there is aclose relationship (e.g. in terms of corporate officers,personnel,and physicallocation) between the two entities.

Matter of Harvest Office Services, Inc. dealt with a pre-PERM labor certification.A question thus arises as to the extent, if any, to which the decision applies toPERM applications.Prior to PERM,labor certification regulations at 20 C.F.R. §656.3 defined an "employer" as follows:

a person,association,firm,or a corporation which currently has a location withinthe United States to which U.S. workers may be referred for employment, andwhich proposes to employ a full-time worker at a place within the United Statesor the authorized representative of such a person, association, firm, orcorporation. ...

The PERM regulations,at 20 C.F.R. § 656.3,retain this definition of "employer"but add the sentence, "An employer must possess a valid Federal EmployerIdentification Number (FEIN)." In addition,PERM regulations at 20 C.F.R. §656.17(i)(5)(i) state that an employer is "an entity with the same FederalEmployer Identification Number (FEIN),provided it meets the definition of anemployer at § 656.3.The comments published in the Federal Register when thePERM regulations were implemented,at 69 Fed.Reg. 77354 (Dec. 27, 2004)indicate that despite public comments advocating that DOL "pierce the corporateveil" in determining what constitutes an "employer" for labor certificationpurposes,the DOL chose to simplify the definition to mean an entity with adistinct FEIN.

It would seem that the Department of Labor has modified the definition of"employer" for labor certification purposes,such that Matter of Harvest Services,Inc. would only apply to cases filed under the pre-PERM regulations which morebroadly defined an "employer." However,it remains to be seen whether the DOLwill attempt to extend the rationale of Harvest Services to PERM applications.

Retention of I-140 Priority Dates Where Previous I-140 Withdrawn

An alien on whose behalf an I-140 petition has been approved may use thepriority date established by that petition in subsequent employment-basedimmigrant petition.This provision is set forth in immigration regulations foundat 8 C.F.R. § 204.5(e),which state:

A petition approved on behalf of an alien under sections 203(b)(1),(2),or (3) ofthe Act accords the alien the priority date of the approved petition for anysubsequently filed petition for any classification under sections 203(b)(1),(2),or(3) of the Act for which the alien may qualify.In the event that the alien is thebeneficiary of multiple petitions under sections 203(b)(1),(2),or (3) of the Act,the alien shall be entitled to the earliest priority date.A petition revokedunder sections 204(e) or 205 of the Act will not confer a prioritydate,nor will any priority date be established as a result of a denied petition.Apriority date is not transferable to another alien.

(Emphasis added).

This regulation seems to indicate that a priority date from a previously approvedI-140 petition can only be retained if the I-140 has not been revoked undersections 204(e) or 205 of the Immigration and Nationality Act. Section 205 of theAct states:

The Secretary of Homeland Security may,at any time,for what he deems to begood and sufficient cause,revoke the approval of any petition approved by himunder section 204.Such revocation shall be effective as of the date of approval ofany such petition.

Thus under the law and regulations,an I-140 revoked for any reason will notsupport retention of a priority date on a later filed I-140 petition.Often USCISrevokes I-140 petitions because the I-140 petitioner requests withdrawal. 8 C.F.R.§ 205.1(a)(iii)(C) states that an I-140 petition is automatically revoked upon awritten request by the employer that the case be withdrawn.

Despite the law and regulations in this area,the Adjudicators Field Manual(AFM),which is the adjudications handbook for immigration officers,hasrecently been updated to state,"once the alien's Form I-140 petition has beenapproved,the alien beneficiary retains his or her priority date as established bythe filing of the labor certification for any future Form I-140 petitions, unless thepreviously approved Form I-140 petition has been revoked because of fraud orwillful misrepresentation."

Thus the AFM indicates that the priority date of a previously revoked I-140petition can be retained so long as it was not revoked for fraud or willfulmisrepresentation.While this is contrary to the law and regulations, it appears tobe the guidance that USCIS officers will follow in adjudicating I-140 petitionsrequestion retention of a priority date.

USCIS Sends Boilerplate Requests for Evidence on All I-360 Religious Worker Immigrant Visa Petitions

As previously reported in Immigration Newswire,USCIS is conducting a massivefraud investigation into religious worker visa fraud.In an apparent effort tocombat fraud through administrative inefficiency,CIS has transferred all R-1 andI-360 petitions to the California Service Center and has sent out boilerplateRequests for Evidence (RFE) on all I-360 religious worker immigrant petitions.Immigration attorneys around the country are reporting receipt of exactly thesame RFE.The RFE asks for basically every piece of information required by theI-360 regulations.In most cases all of the evidence was already submitted withthe initial filing, though perhaps in a slightly different format than requested bythe RFE,such that it is necessary to gather new information for submission inresponse to the RFE.In addition to the standard information required,the RFEsare requiring copies of the beneficiary's federal income tax returns, presumablyto determine whether the beneficiary has ever worked without authorization foradditional employers while in the U.S.

As our office prepares R-1 and I-360 petitions in the future,we will follow theformat suggested by the boilerplate RFE in the hope of avoiding receipt of thesame RFE on every case,although it appears that USCIS is not performing anyinitial review of the petitions to determine whether or not the evidence they arerequesting has already been submitted.