By Ben Chappelow

With Mark Rogers 

Special thanks to Susanne Heubel, Special Counsel with Duane Morris, for contributing to this post. Be sure to follow Park Evaluations on LinkedIn for future updates.

Introduction

As vaccination rates increase and COVID-19 restrictions ease, companies will be looking to safely reopen offices. Reopening continues to present challenges as business leaders, especially in spaces served by foreign nationals immigrating the United States on a non-immigrant work visa, work hard to keep up with the latest guidance to ensure safe and effective workplaces. Leading IT services companies are transitioning to a hybrid model, where select employees will come into the office on designated workdays. Industry watchers believe this return-to-work model of work will have a comparative advantage over other models and will provide a competitive edge in the industry. This also means that many foreign workers previously working from home will return to the workplace. For H-1B holders, what will this change of location mean for their immigration status?

H-1B petitioners must provide a Labor Condition Application (LCA) to validate the job location of the employee. During the height of social distancing, so long as their remote work location was within the same metropolitan statistical area (MSA) or within commuting distance of their regular corporate office location, the employee could continue to work without changes to the underlying H-1B petition. However, for the employee to work in a location outside the MSA, or outside of commuting distance of their regular corporate office, extra paperwork is involved: the employer must file a new LCA and H-1B petition denoting the location from which the employee will work remotely.

H-1B Strategy for Reopening the Economy

Commenting on the necessity of new H-1B petitions as reopening continues, Susanne Heubel, Special Counsel with Duane Morris LLP explains:

“The impact on the need to file new H-1B petitions will depend (a) on how far away IT companies have let employees work remotely; (b) how much time existing employees have left on H-1B petitions approved prior to the pandemic; and (c) for what worksite those existing H-1B petitions had been approved.

For employees who, prior to the onset of the COVID-19 pandemic in March 2020, had existing H-1B petitions for a corporate office and who will be returning on a hybrid schedule to that office, IT companies will at least in the short-term not have to file any new LCAs or amended H-1B for the corporate office, even if in the interim the IT company had filed an H-1B petition for a home office outside of the MSA. This is because the H-1B petition approved for the corporate office pre-pandemic remains valid until its expiration date, as long as it was not withdrawn. If those existing H-1B petitions are expiring soon, IT companies will need to evaluate the where and when of a hybrid return-to-corporate-office schedule, to determine what work location(s) the H-1B extension will need to reflect.

For employees for whom the IT company only has an approved H-1B for the remote home office, the IT company will only have to file new LCA and amended H-1B for the new hybrid schedule if the corporate office is outside of the MSA/commuting distance of the home office, as indicated above.”

With the return to on-site work as reopening continues, one could reasonably expect an increase in H-1B petitions compared to the beginning of the fiscal year, especially within the IT sector. The hybrid Corporate Office – Remote Home Office model will enable employers to avoid the need to file new LCAs and amended H-1B petitions for employees outside of their MSA. Because the new model requires employees to come into the office more frequently, it is likely they will stay within commuting distance of their home-to-corporate-office commute.

The Work-from-Home Effect on Reopening

Another reason for an increase in petitions? IT specialists are categorized as Specialty Occupation positions which meet the requirements for H-1B classification. And while many employees are, by now, adapting their productivity to a remote work environment, the trend of IT companies to bring their workers back to the corporate office could indicate a need for IT specialist skills on-site.

When asked about the impact hybrid return-to-work models will have on the industry, Susanne Heubel offers these insights:

“There will obviously be a short-term urgent need to assess the need for amended H-1B petitions and the content of upcoming H-1B extensions with inside or external counsel, similar to early 2020 when the employers first had to determine the impact of sudden full-time home office work on the individual’s H-1B status.

IT companies with employees for whom ‘working remotely’ mean returning to their home countries will need to work with counsel and the employees to assist with visa stamp renewals. This means all parties involved must keep on top of visa application opportunities and options, including interview waiver opportunities (these were just broadened again through the end of 2022) and expedited visa appointment options.

If IT companies can delay the return to the corporate office from a home office location too far away to use the ‘within commuting distance’ argument until the H-1B extension has to be filed anyway, that would save time and money.

I think all work forces as a whole will see an improvement in employee productivity and motivation due to the ability to interact with colleagues in person again, or just be onsite with better equipment and resources.

I also think hybrid work schedules will be a win-win for everyone, including those who still have obligations at home, even if there may be an uptick in amended H-1B petitions needed to bring employees back to the corporate office because they have been working too far away to use the ‘within commuting distance’ argument.”

One more crucial aspect to monitor – as companies adapt a hybrid model and reopening continues apace in 2022 – is how these changes will manifest elsewhere in the organization. For every IT specialist position, there are often multiple downstream jobs (e.g., managerial, custodial, and clerical) that rely on the corporate office setting to carry out their duties. The lack of employees coming into the office means a lack of demand for downstream job services. However, the partial return to offices should revive the necessity for support services, thereby saving these types of jobs if a company considered eliminating them, or even reinstating them in previously downsized companies.

By: Annika Minton

The United States EB-5 visa was created in 1990 to provide a method for foreign investors (and their spouses and unmarried children under 21) to obtain a U.S. visa by investing capital with the goal of financing a business that will employ at least 10 American workers.[1] The US government allocates 10,000 of these visas per year.

This particular program has not been renewed since June 2021, when a federal judge struck down the 2019 EB-5 “modernization” regulation, the goal of which was to increase the investment threshold from $500,000 to $900,000 in targeted employment areas (a rural area or an area with high unemployment). This has left many people wondering what the future looks like for EB-5 applicants.

EB-5 applicants traditionally had the choice of investing directly or through a bigger investor pool via regional centers, which are federally approved third-party intermediaries that connect foreign investors with developers in need of funding. Regional centers are usually private, for-profit businesses that have to be approved by USCIS. As of June 30, 2021, Congress has not reauthorized the regional center program, so investors must now invest in a direct investment instead of a regional center and still directly employ at least 10 American workers.

USCIS confirmed several important points with regards to applications after June 30, 2021, including:

Why is This Program Important to the United States?

This visa has proven to be very important to the United States economy, especially since it is one of the few government programs that creates jobs without taxpayer costs. A 2015 study found that the EB-5 investor visa program actually boosted investment in the United States during the Great Recession from 2008 to 2012.[2] More specifically, the EB-5 investor program has been proven essential in filling the financing gap, especially for hotels.

What to Expect in the Coming Months

As far as pending I-526 petitions, if a significant period of time passes beyond December 31, 2021, and Congress still hasn’t adopted a program re-authorization, it is possible that USCIS could deny pending petitions. However, the American Immigrant Investor Alliance, a D.C.-based non-profit, proposed the adoption of a Foreign Investor Fairness Protection Act (FIFPA). This would allow foreign investors with pending applications to be grandfathered in and protected from loss of funds.

Follow Park Evaluations on LinkedIn for future updates.

[1] www.uscis.gov/working-in-the-united-states/permanent-workers/eb-5-immigrant-investor-program

[2] journals.sagepub.com/doi/10.1177/0891242415620009

By: Maddie Carlson

As of early December, a memo issued by the National Basketball Association (“NBA”)  revealed that any unvaccinated athlete who possesses a temporary visa status will not be allowed to reenter the United States following international travel. This statement primarily pertains to those with the P-1A Athlete visa classification, which allows athletes to compete in the United States temporarily. Concurrently, the Canadian government also announced that non-vaccinated NBA athletes are now not allowed to enter the country to participate in competitions against their Toronto team. Both announcements threaten the legal status of U.S. athletes who have planned, and are expected to, participate in any upcoming basketball competitions in Toronto.

Many NBA Athletes are eligible for the P-1A visa based on the professional athletes’ criteria, wherein USCIS stipulates that those applicants must be employed by a “team that is a member of an association of six or more professional sports teams whose total combined revenues exceed $10 million per year.” Furthermore, the association these applicants are employed by “must govern the conduct of its members and regulate the contests and exhibitions in which its member teams regularly engaged.”

What is COVID-19’s Role?

Indeed, the NBA meets these requirements, and their athletes who require a P-1A visa are expected to follow the agency’s conducts in order to keep their position and visa status. However, it is important to note that the NBA’s governance over its players does not necessarily only exist in the court. The association has a code of conduct which all athletes must follow to create a safe environment for other players and game attendees. Alongside this code, there have been amendments to the NBA’s regulations to include health and safety protocols as COVID-19 cases continue to rise. These regulations had originally included the continual enforcement of masks regardless of vaccination status during travel and games. However, with this new regulation, unvaccinated players on a P-1A visa are indeed at risk of losing their position, and therein their visa status, if they are unable to travel for competitions. Furthermore, this raises the question on what the NBA’s potential plans will be regarding travel with unvaccinated permanent and natural born U.S. athletes as international travel restrictions continue to be implemented.

However, the NBA stated that 97% of their players are vaccinated, but only an estimated 60% have received their booster shots. Currently, the CDC considers individuals who have completed their two doses of Pfizer or Moderna, or one dose of the Johnson & Johnson vaccine, to be fully vaccinated, but with the increase of COVID-19 variants, this definition may be subject to change soon.

What Can We Expect?

Regardless of this discourse, there is still a possibility that a significant number of NBA athletes who are in the United States under the P-1A visa may be at risk of losing their visa if they do not meet the CDC’s criteria for vaccination status and are planning on traveling outside of the United States for upcoming matches. As of now, there has been no news on whether or not any other athletic associations in the United States will follow suit with this new mandate, nor how restrictions in other countries will impact these leagues. Nonetheless, the trajectory of upcoming tournaments and the overall structure of various teams will be completely altered as major assets to the NBA will be stepping off the court due to this new mandate.

By: Annika Minton

Spouses of L-1 and H-1B visa holders recently  got some good news. A US court decision is granting L-2 and H-4 visa holders an extension of their work authorization, lengthening the amount of time spouses can remain in the United States on work visas.

L-2 visa holders will receive a 180-day auto extension of their work authorization (or an I-94 expiration date, whichever is shorter); and all H-4 visa holders will get extensions of their H-4 employment authorization document (EAD) until the expiration of their I-94s, or 180 days from the expiration of the prior EAD, whichever comes first. L-2 visa holders will get the extension automatically without applying for it, but H-4 visa holders are still required to apply for the extension after their employment permit expires.

Over the last few years, the processing time for H-4 visa extensions has been increasingly backlogged. But thanks to the Shergill et al. v. Mayorkas lawsuit, those who have been waiting for employment authorization documents to be issued can finally see the light at the end of the tunnel.

The U.S. Department of Homeland Security’s policy alert outlines the long-awaited changes being made for dependent spouses to be authorized to work incident to their valid immigration status.

This decision is especially important for Indian American women, as a large portion of H-1B visa holders are Indian IT professionals, which makes sense of why over 90% of H-4 applicants are Indian women.

Although immigration support groups are concerned this policy update still may not simplify the process for immigrants’ work authorization, for the world of business immigration, an uptick in visa applications may be expected next year.

Be sure to follow Park’s LinkedIn page for future updates.

By: Hannah Rae Welbourn

When a multinational company sends an employee to a subsidiary in the United States, candidates will need to be granted L-1 status through USCIS. But what if they need to send more than one employee at a time? That’s where the L-1 Blanket visa comes in.

While a regular L-1 visa is granted on an individual basis, Blanket status grants multiple employees from the same company the ability to transfer to the states to work at a U.S. branch. The criteria for employees (managerial capacity for L-1A and specialized knowledge for L-1B) remains the same, but the process of obtaining this kind of L-1 status is expedited, sometimes up to six months faster. This is helpful when a company needs to send employees on short notice, as there are fewer hoops to jump through when it comes to obtaining a visa.

However, to petition for L-1 Blanket status, a company must have at least one of the following criteria:

Additionally, only companies involved in commercial trade and services with three or more foreign branches can apply for this kind of status, and the U.S. branch must have been established for at least one year prior.

Once these criteria are met and the company provides USCIS with the necessary documents, the company may send multiple qualified employees to the U.S. quickly instead of waiting for USCIS to approve every single individual petition.

So how will this shape the rest of the year? As travel restrictions related to Covid-19 continue to be eased, multinational companies may benefit from the short-notice, expedited process that the Blanket L status grants. Recently established U.S. branches could take advantage of being able to transfer qualified, experienced employees who have already been working for the foreign branches instead of hiring new employees within the states.

To request an expert opinion letter or credential evaluation related to your Blanket L-1 petition, email [email protected].

By Maddie Carlson

When a beneficiary’s innovations have been recognized either nationally or internationally, an O-1 visa may be the ideal application process for highlighting their importance to their field. An O-1, or Extraordinary Ability or Achievement letter, focuses on up to eight different criteria that demonstrate an individual’s excellence in their career. The O-1A details a beneficiary’s excellence in the sciences, arts, education, business, or athletics. This visa can also be further specified as an O-1B, which focuses on individuals with extraordinary ability and achievement in the motion picture or television industry. Forming an O-1 application requires enough evidence to build a case that the beneficiary is indeed hard to come by in their industry. Moreover, this application requires a consultation from a person with expertise in the beneficiary’s field, ideally through a Specialty Expert Letter which is a service Park provides.

To succinctly demonstrate that the beneficiary showcases extraordinary ability in their industry, there are eight main criteria that USCIS looks for to determine the beneficiary’s capabilities. The criteria chosen for the specialty letter need to be coupled with evidence of the beneficiary’s widespread acclaim. It is therefore important to understand these criteria and the documentation that supports their claims. Detailed below are the eight criteria that can be used in the Extraordinary Ability or Achievement letter, and which help to form the core arguments of Park’s Extraordinary Ability Expert Letter.

 

Criteria 1: Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.

 

If the beneficiary has evidence of employment in positions that are necessary for the success and operations of a business, this section should be included in the application. Positions that are applicable to the definition of critical capacity can include management positions such as top executives or lead researchers for novel developments in the industry. However, the position is contingent on its relation to the beneficiary’s industry. The beneficiary’s responsibilities in the position help further define how essential their role is to the company’s operations. Responsibilities that will lead to the company having a global influence, major increases in profits, and/or uniquely solidifying branding are often not only achieved in essential positions but are successfully carried out by individuals with extraordinary ability and expertise in their correlating industry.

Important Documentation: Reference letters from colleagues and employers and resumes.

Criteria 2: Original scientific, scholarly, or business-related contributions of major significance in the field.

 

Another way to determine if a beneficiary qualifies for an O-1 visa is if they have established landmark contributions in their field. In the sciences or education this section could be dedicated to new findings in research that have become highly cited or common practice in the industry’s theory and/or processes. In business this may manifest as new processes, methodologies, and/or tools including new forms of forecasting or management methods. For individuals in athletics, major contributions may include the achievement of new records in their field and/or in competitions. As for the arts, creating works that are highly acclaimed or revolutionary to the industry’s approaches are generally considered to be of major significance. In general, this criterion depends on the beneficiary’s industry and thus may require a deeper description on their effect on the field.

Important Documentation: Reference letters from peers that detail these contributions.

Criteria 3: Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought.

 

Furthermore, a beneficiary’s work being discussed in the media also indicates extraordinary ability and influence. Usually, such discussions in the media include interviewing the beneficiary about their work, dialogue on their successes, and/or informative articles discussing the success of a company while they were working there. It is important to note that the beneficiary should be mentioned in these articles alongside their work as the media should be giving them and their work accolades.

Important Documentation: The articles the beneficiary and their work are mentioned in which include the publication name, text, and year published.

Criteria 4: Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought.

 

If the beneficiary has scholarship published, then this criterion can apply to them as well. While these publications are not exclusively sourced from professional journals, it may help the beneficiary’s case if the professional journals are not predatory journals. Not only are those journals less credible among academics, but these articles may be cited less because of that – lowering their sphere of influence in the field. Additionally, while a beneficiary may be a secondary author in some publications, having more publications in which the beneficiary is the primary author would build a better case. Sharing publications wherein the beneficiary is the primary author makes a clearer case that states that the beneficiary authored and developed the information and findings in this scholarship. This criterion may be used more often for academic fields but can be included for other industries if there is evidence to support the claim.

Important Documentation: A screenshot of the article being accepted for publishing, a list of publications, a screenshot and/or file of the published article(s), and evidence of the article(s) being cited.

Criteria 5: A high salary or other remuneration for services as evidenced by contracts or other reliable evidence.

 

When a beneficiary showcases a history of extraordinary ability and expertise in their industry, they usually are highly sought after by employers and will be earning a higher-than-average salary. To demonstrate that a beneficiary is indeed earning a high annual salary for of their ability, it is important to compare it to others in their position. To further strengthen the case, it is wise to include annual salaries from previous employers, if applicable.

Important Documentation: Evidence of the beneficiary’s salary with the petitioner or most recent employer and, if applicable, with previous employers.

Criteria 6: Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor.

 

Another determinant of extraordinary ability includes rewards for the beneficiary’s extraordinary accomplishments in their corresponding industry. While not every beneficiary who falls under this visa category may receive a prize for their expertise, if they have been given one from a reputable association then it will strengthen their application. Awards from these associations further validate that the beneficiary is also well-known due to their successes and innovations in their field. Awards can be given either for the beneficiary’s innovations, or their participation in competitions or summits. However, the award should still address their expertise in their industry.

Important Documentation: Evidence of awards including award letters or medals and a screenshot of the institution’s website.

Criteria 7: Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field.

 

The beneficiary being a part of an association which requires invitation and/or includes other reputable individuals from the industry is another way to classify them as extraordinary. Associations that exclusively invite members should be primarily listed in this section, as it strengthens the argument that the applicant is highly sought after for their expertise. Furthermore, associations that have a positive impact on future members of the industry can strengthen the argument that the beneficiary is indeed influencing the future of their field.

Important Documentation: A list of memberships which the beneficiary is in, evidence of membership including screenshots and/or invitation letters, and screenshots of the association’s website.

Criteria 8: Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought.

 

Beneficiaries being invited to judge the work of others indicates that their perspective is extremely valuable in the industry because of their extraordinary ability and expertise. For this criterion, the beneficiary may be participating in reviewing other’s work in editorial boards, dissertation committees, or at competitions. What the beneficiary participates in does depend on their industry, but they must be providing an evaluation of their peers.

Important Documentation: Invitations to join panels, screenshots of journals that were reviewed, or screenshots with the beneficiary’s name listed as a judge.

The Kazarian Phase and Putting It All Together

 

Because contemporary adjudication for O1 visas calls for a two-part assessment—namely, that enough of the above criteria points have been met, and that the candidate meets the “final merits determination” when all of the facts of the case are weighed on balance—Park’s expert letter does the same, making the argument that, on the whole, when taking all relevant factors into consideration, the discussed candidate is truly the best of the best in their field.

Remember…

 

The ultimate goal for an O1 petition and an Extraordinary Ability Expert letter is to represent an individual who is not only an expert in the field but has contributed to the field in a significant way that has innovated the processes or theory utilized. Ensuring that these criteria points are detailed in a specialty letter by an expert of the beneficiary’s field is often an excellent strategy in giving a petition extra muscle, and Park Evaluations’ team of dedicated experts is prepared to help attorneys and businesses meet the toughest O1 challenges.

To request an Extraordinary Ability Letter, email [email protected].

By Kelsi Swenson

It’s no surprise that the business immigration sphere, in addition to the rest of the world, experienced some arduous and unprecedented moments over the past couple of years. The coronavirus pandemic coupled with the former presidential administration created a seemingly impenetrable barrier for visa seekers. However, despite a largely dismal 2020, there were small victories against USCIS—from overturning IFRs to refining the definition of specialty occupation, it seems the path to more flexible business immigration regulations is not as inaccessible as believed.

For all the changes happening over the past two years, the future of business immigration is certainly malleable, but also opaque. There are still numerous processing delays, waiting lists, and outdated regulations needing to be addressed and reimagined. The talent and innovation possessed by many of these prospective immigrants is crucial for the United States to continue to evolve and maintain its place as a world leader.

For this piece, Park spoke with Christopher Thorn, the Immigration Practice Chair at Buchanan Ingersoll & Rooney. This piece is an installment in Park’s Attorney Spotlight series.

Q: What has changed the most from the time you entered business immigration to now?

A: I just started my 16th year of practicing business immigration.  There are days I’m amazed at how much has changed, and there are days I’m amazed at how much hasn’t.  One of the biggest changes for me is how much more sophisticated the immigration consumer has become and how that has impacted the way I practice. Clients, whether individuals or corporations, have more information at their fingertips and are more technologically advanced.  As a result, they expect a higher level of innovation, more value for their money, and greater efficiency. To remain competitive, I’m constantly thinking of new and better ways to meet the needs of my clients, which are frequently being defined by emerging technologies.  The pandemic and need to operate virtually has made the focus on ingenuity even more critical.  An interesting observation I’m finding is that even with all of the advances in technology, clients are placing a greater emphasis on the fundamentals of good client service – being highly responsive and accessible.  I think this probably has something to do with all of the changes and uncertainty that we experienced under the last administration and which we’re continuing to see today.  I think we’ll see a trend towards a more “bespoke” model of providing immigration services – one that feels more personal but still prioritizes efficiency.

Q: What visa types do you, or your firm, typically work with? Have you noticed any new trends?

A: Buchanan currently has immigration teams in Pittsburgh, Philadelphia, Tampa, and Miami.  We handle the full alphabet soup of employment-based visas as well as family-based immigration matters, but my particular practice focuses on business immigration.  I help companies ranging from start-ups to multinational Fortune Global 500 organizations secure temporary TN, H-1B, E-3, L-1, and E-2 visas for their key personnel.  I also prepare all categories of permanent residence filings (e.g., National Interest Waiver, Labor Certification, and Extraordinary Ability).  I have what some would consider a niche expertise handling J-1 waiver/H-1B petitions for foreign national physicians who work in health professional shortage areas.  I’ve recently been handling a number of O-1 and permanent residence filings for models and entertainers as well as P-1s for professional athletes.  I also represent a number of IT consulting companies that have some unique industry-specific immigration considerations.

In terms of trends, we’re certainly seeing an uptick in H-1B transfer filings at the moment given The Great Resignation.  This year’s H-1B lottery had the highest number of employer submissions that we’ve seen in the past several years, so it will be interesting to see if that uptick continues.  Given the talent war companies are facing in the United States and globally, I would not be surprised to see next year’s numbers look even higher. Because the U.S. consular posts have been operating at such limited capacity, we had been seeing a markedly reduced number of L-1 and E-2 applications on behalf of employees working abroad, but those have started to pick back up over the last month or so as visa appointments are slowly starting to become available again.  Effective November 8, 2021, the United States will be ending the country-based entry restrictions which have been in place since March 2020, so I expect we’ll be seeing a significantly higher volume of immigration filings overall in 2022.

Q: What are some changes you hope to see in the upcoming months and years?

A: In the short term, I’d love to see the USCIS processing times improve significantly.  Today, it’s taking USCIS 8.5 to 11 months to adjudicate an I-539 application extending the H-4 or L-2 status for family members.  It’s taking USCIS 7.5 to 13 months to adjudicate an I-765 application for an employment authorization document (EAD).  These delays are causing severe financial burdens on families which are dependent on two incomes because spouses are having to stop work due to the lapse in their U.S. work authorization. If USCIS can’t find a way to improve its processing times, it should allow L-2 and H-4 spouses to receive the automatic 180-day extension of work authorization that is available to EAD applicants in other categories.  I-140 Immigrant Petitions for Multinational Managers and Executives are taking an astounding 12 to 45 months currently, and I-140 petitions for those seeking National Interest Waivers (NIW) are currently taking 12.5 to 29 months.  These permanent residence categories are supposed to be for our “priority workers” whose skills and talents are most important to the United States, yet it can take two years for a decision. In addition to improving its processing times overall, USCIS should finally make the premium processing option available for these I-140 petition categories, as well as for I-539, I-765, and I-131 applications (for travel documents).

In the long term, I’d love to see immigration reform that makes it easier for the United States to attract and retain top global talent.  Other countries, like Canada, are doing a better job of developing immigration programs that make for simpler and faster migration for those with special skills.  Foreign students completing their education in the U.S. are having to leave the country because they can’t get an H-1B under the Cap which is limited to just 85,000 visas per year.  For the most recent fiscal year, there were 308,613 registrations which meant only 28% of those entering the random lottery process were selected.  We can’t afford to lose top talent in a global economy, especially in certain areas such as technology, engineering, and healthcare.

Q: What advice would you give to an international student who wants to stay in the United States to work after they complete their degrees?

A: Firstly, seek to secure a degree in a STEM field if you have the goal of staying in the United States after you graduate. STEM majors are eligible for three years of Optional Practical Training (OPT) while non-STEM majors are only eligible for one year.  This is important when you consider that only 20-30% of students get selected in the H-1B lottery each year.  Having STEM OPT gives you at least two and sometimes three chances of getting selected.  Secondly, focus your job search on employers that have an established immigration program and are enrolled in the E-Verify program.  Only employers enrolled in E-Verify can employ F-1 students on STEM OPT.  Thirdly, focus on positions where the job duties clearly align with your field of study.  Degree and position alignment is a big focus area for USCIS when adjudicating H-1B petitions at the moment.  Fourthly, know your obligations as an F-1 student while in OPT or STEM OPT and educate yourself as much as possible about the H-1B lottery process and timing considerations.  Be mindful of the unemployment restrictions on OPT/STEM OPT. Don’t be afraid to discuss your need for future H-1B sponsorship with a prospective employer but be prepared to sell the fact that your EAD allows you to work without any need for immediate sponsorship (or the related costs). Offer to introduce the company to an immigration attorney or your international student advisor if they have questions about your work eligibility.  Finally, stay confident and focus on all the skills, knowledge, and experience you bring to the table.  Employers are looking for diverse perspectives and you bring that as an international student.

Q: Have you dealt with TN visas? Are you noticing more conversation about them at all?

A: We help clients with TN visa applications all the time.  Because of the H-1B Cap, more companies are starting to leverage TNs since there is no quota and they can be renewed indefinitely.  The application process is also more straightforward since Canadian citizens can apply directly at the land port-of-entry, or a preflight inspection location, and Mexican citizens can apply directly at the consulate.  We do quite a number of TNs under the “Engineer” and “Computer Systems Analyst” categories, but they are increasingly becoming a strategic option for healthcare organizations facing workforce shortages, since registered nurses, physical therapists, occupational therapists, and psychologists are some of the medical professional positions eligible for TN classification.

Q: What’s the most rewarding part of being an immigration attorney?

A: Practicing immigration law fundamentally revolves around people and I’m a “people person.” Whether it’s helping a company develop a strategy to mobilize its global workforce, assisting an investor start a business in the U.S., or helping a family secure U.S. citizenship, each day presents opportunities to positively impact lives.

The past couple of months have been really special because I’ve had clients finally receive their green cards after waiting 10 years.  I can’t personally relate to the experience of being in limbo for such a long period of time and all of the anxieties and difficult emotions that must go with that, but I certainly feel for my clients in those situations.  They consider the U.S. to be their home but don’t have any certainty that they can stay here.  Many of them would face very challenging conditions in their home countries if they were forced to leave the U.S.  The reward for me is knowing that I’ve played even just a small part in helping change someone’s life circumstances for the better.

Christopher R. Thorn

Christopher Thorn is the Chair of Immigration Practice at Buchanan Ingersoll & Rooney. Currently in his sixteenth year aiding clients in their business immigration process, Chris provides top-tier and customized service to each of his clients and their businesses through analyzing their needs and envisioning the best course of action to take. With experience handling many visa types including, but not limited to, H-1Bs, E, L-1, O-1, TN, PERM, and other specialty visas, Chris is a knowledgeable and extraordinary attorney capable of handling any and all business immigration needs.

For more information about Park’s Attorney Spotlight series, or to express interest in participating, please email [email protected].

By Madison McKenzie

 

What is a TN visa?

 

The TN visa is a special classification issued under the United-States-Mexico-Canada Agreement (USMCA), which replaced the North American Free Trade Agreement (NAFTA) in 2020. Under this classification, citizens of Mexico or Canada can fill certain specialty occupations—listed under the approved list of USMCA professions—in the United States for an initial period of three years.

 

 

What eligibility requirements must be met to file a TN visa?

 

As outlined by USCIS, an applicant is eligible for a TN visa if they meet the following criteria:

 

 

The first two stipulations listed above are rather straightforward, so let’s focus on how a position qualifies under one of the accepted USMCA professions, requiring a USMCA professional, and how an applicant meets the qualifications of the USMCA professional needed for the position.

 

 

How does a position qualify as an accepted USMCA profession?

 

While the job title of proffered position in the United States does not need to be a replication of the USMCA profession classification, the petitioner must establish that the position’s duties align with the business activities typically associated with the USMCA profession as outlined by the U.S. Department of Labor’s Occupational Outlook Handbook. As with H-1B specialty occupations, USCIS will scrutinize the duties of the position in question, so it is critical that the proffered position be properly classified and that the listed duties of the proffered position appropriately coincide with the classified USMCA profession.

 

 

How does a candidate meet the qualifications of the USMCA professional?

 

Each USMCA profession has its own academic requirements and/or alternative credential requirements—the list of professions and correlating requirements can be found here. The applicant must meet the minimum requirements for the USMCA profession under which the proffered position has been classified in order to be eligible for a TN visa. For academic requirements, a candidate must either have a post-secondary degree from Mexico, Canada, or the United States or the equivalent of a United States post-secondary degree. It is important to note that, unlike a petition for an H-1B visa, the applicant’s academic and experiential credentials cannot be evaluated together to produce an academic equivalence. The candidate’s academic and experiential credentials must stand on their own to meet the necessary requirements as set out by USCIS.

 

 

What do Park Evaluations’ TN expert opinion letters do?

 

The TN expert opinion letters that Park Evaluations provides can help build upon and strengthen your TN visa petition by analyzing the proffered position and/or the applicant’s credentials. In terms of analyzing the proffered position, the TN expert opinion letter compares the job duties outlined by the petitioner and the job duties typically associated with the USMCA profession and makes the argument that the position does, in fact, coincide with the professional business activities of the USMCA profession category and thus falls within the specified USMCA classification. Park Evaluations’ TN expert opinion letters can also provide an analysis of the applicant’s academic and/or experiential credentials, arguing that the applicant has met the qualifications of the specified USMCA professional through their attainment of a relevant degree and/or work experience in the field. Ultimately, Park Evaluations’ TN expert opinion letters can help reduce the risk of your TN visa petition receiving an RFE or a denial from USCIS by providing a supplemental analysis of the petition from an expert in the field.

 

 

To request an expert opinion letter, email [email protected].

By Rachel Horner

A Supervised Recruitment PERM Audit is issued by the Department of Labor as a final opportunity to satisfy their requirements for PERM Recruitment. If you’re receiving a request from the DOL to run a Supervised Recruitment Campaign, you’ve already completed a standard PERM Campaign that was ultimately rejected. During this much more rigorously scheduled recruitment timeline, a Campaign Officer (CO) will be directing you on which steps you must follow and will either approve or deny your subsequent petition.

Here are a few things to remember when it comes to PERM supervised recruitment:


  1. The ad text must be approved by the CO prior to its publication

The CO will look for, in addition to the normal requirements for an ad, a complete job description, the offered wage rate, the minimum job requirements, and whether or not job training is required.

  1. Applicants must send their resumes/information to the CO — not the petitioner

The CO will be the first party to review applicants – not the employer. This is one instance of how the supervised recruitment process takes much more time; the CO must read over the resumes and personal information of each applicant, and only then will it be sent to the employer.

  1. The advertisement will most likely need to be published in a high-circulating area newspaper for three consecutive days (one of which must be a Sunday)

If a Sunday newspaper is chosen as a method of advertisement (which it most likely will be), the advertisement will require more days of publication and visibility, instead of the usual requirement of two advertisements which do not need to be consecutive.

  1. Withdrawing from multiple supervised recruitments may disbar the employee from the labor application process

While employers have the option to withdraw from the supervised recruitment process, doing so multiple times may prompt the DOL to investigate. If a pattern of negligence or failure to comply with the supervised recruitment process is found, the employer can be banned from the labor application process for more than three years.

Remember…


The PERM supervised recruitment process operates on a tight timeline and holds requirements much stricter than that of the normal PERM recruitment process.

In addition to more typical PERM audits, Park Advertising has experience dealing with these specific types of supervised recruitment cases. Our case-tracking system, which went live earlier this year, swiftly facilitates the recruitment process and is instrumental for cases where deadlines are more important than ever. Our technology solutions, coupled with our dedicated staff, make for an airtight process that will help reduce the stress that we know comes with the territory.

If you’d like to reach out for a consultation or questions, contact [email protected].

By Dillan Wright

Recently, our expert evaluator Howard Borenstein, gave a presentation on the recent challenges from USCIS we’ve seen regarding PERM (those who missed it can view it here).

We’ve recapped below a few of the ways we can help you meet them with our expert letter services and our proprietary case management system.

USCIS Challenges / Expert Letter Answers

Recently, Park Evaluations has seen an uptick in certain challenges coming from USCIS. A number of our Expert Opinion Letters allows petitioners to face them head on.

For example, a common question we’ll see coming from USCIS is something to the effect of “why does this position require a candidate to have an advanced degree. Couldn’t a candidate with a bachelor’s degree be able to do the job?” At that point we must show that it is reasonable for the position in question to require an advanced degree, and we do that by providing them with the Business Necessity Expert Opinion Letter. In this letter, our experts will argue that a position does in fact require candidates with certain qualifications to fulfill them, and we will even include an interview add-on (upon request and for an additional fee) with the company offering the position in question, showing that it is within reason for them to expect candidates with advanced qualifications.

That is just one of the services we offer. Park Evaluations has also developed the PERM Audit Expert Letter in response to assertions that there must be an American worker who could fulfill the duties of the role in question. In this letter we categorically show why each American worker who applied for the position is in fact not qualified for the job.

Similarly, the Position Comparison Expert Letter was created in response to questions of why the requirements for a position are suddenly more complex than that of the position a candidate previously held. In this letter, our experts will argue that the new position is essentially an entirely new role, or more specifically, at least 50% different than the candidate’s previous role.

PERM Advertising and the Importance of Prep

In addition to Park Evaluations’ PERM advertising service offerings, there are several steps an attorney or business can take to make the advertisement process as smooth as possible.

To begin, it is crucial to keep an eye on the prevailing wage deadline. At least one step in the recruitment process needs to take place before the deadline expires or you will have to refile with a new prevailing wage and start from scratch. Second, the recruitment process can’t even begin if you’re not registered with the appropriate state’s job board, so it is imperative to have this done first and foremost. Then, you’ll need to choose your publications wisely; you’ll need to choose a publication that the DOL will most likely recognize and that could plausibly be seen by a reasonable number of people. Lastly, you must be meticulous. Choosing the wrong job category or having an unfortunate typo is enough for the Department of Labor to penalize you and conclude that your mistake is ultimately the reason why more candidates did not apply for a position. Park Advertising takes all of these factors into account while handling a PERM recruitment campaign, in order to ensure a smooth and error-free process that will minimize the chance of an audit.

Technology and How Parks Stays Organized

Park has implemented technological innovations across the board that help keep each PERM advertising campaign organized and allow attorneys to move through each of their requests confidently and efficiently. Park’s “PERM Portal” allows Park and its clients to track every case through the entirety of the process, from the initial request to the case delivery. To see a demo of the PERM Portal in action, reach out to Shail Sturm at [email protected].

For updates on future webinars and demos from the team at Park Evaluations, be sure to follow our LinkedIn page.

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