Our very own Emily Grant sat down with Shai Dayan, Senior Counsel at Gibney, Anthony & Flaherty, LLP, for our latest Attorney Spotlight Series.

Thank you Shai for sharing your astute thoughts and predictions on where our business immigration industry is heading!

By Shail Sturm and Ryan Mernin

Business immigration can present interesting challenges to immigration attorneys and their industry partners. Seasonal workloads and annual changes to the regulatory rhythm of petition filings sometimes disrupt the day-to-day operations even for industry leaders – not to mention delays and difficulties brought on by the global pandemic. But recent updates from USCIS seem to point toward a smoother process and more responsive regulatory environment. This week, Ryan and Shail spoke with Shehryar Chaudhry at Berry Appleman & Leiden to focus in on regulatory updates, USCIS’ efforts to address consulate backlogs, and other upcoming changes and challenges hitting the industry.

Park Evaluations: What visas does your firm typically handle and what Request for Evidence (RFE) trends have you noticed recently?

Shehryar: BAL is the world’s leading corporate immigration law firm focused on meeting the immigration challenges of clients around the world. On the U.S. immigration side, we handle every type of employment-based immigrant and nonimmigrant visa for our clients. Our most common nonimmigrant visas include H-1Bs, L-1s, TNs, O-1s, E-3s, H-1B1s, J-1s, and P-3s. As far as RFE trends, we have seen a welcome decline RFEs issued under the current administration. We have specifically seen a big decline in RFEs and denials for H-1Bs, which is the most common type of employer-sponsored work visa. For example, we are no longer seeing as many RFEs that challenge whether an H-1B candidate meets the definition of “specialty occupation” and the required qualifications. Along with lower RFEs, H-1B denial rates have gone back to pre-Trump levels. Employers welcome these positive trends since they remove unnecessary constraints and costs in hiring foreign national workers and reduce the risk that current employees will experience interruptions in their work authorization.

Park Evaluations: Speaking of H-1Bs, there has been talks about the US government coming up with new regulations for the H-1B visa. Do we know what impact these new regulations will have on adjudications?

Shehryar: That is correct. The Department of Homeland Security is expected to propose new regulations to modernize the H-1B visa program. The DHS has not yet released the new regulations, which were originally planned for release in May 2022, but we are expecting them to be forthcoming next year. Additionally, the Department of Labor has on its regulatory agenda a proposal to amend prevailing wage requirements for H-1B, H-1B1, and E-3 classifications, targeted for October 2022. Some of the measures the new DHS H-1B regulations are supposed to address include redefining the employer-employee relationship, providing new guidelines for site visits, addressing “cap-gap” issues, providing more clarifications on the requirements for H-1B amendments for material changes, and notification requirements for worksite location changes. At this time, it is too early to know their impact on employers but we are hoping DHS creates practical, reasonable, and clear rules that focus on streamlining the petitioning process for employers and improving the adjudication process by USCIS.

Park Evaluations: That is great news about the decrease in RFEs and Denials. How are things at the US Consulates? Has there been any improvement in the appointment backlogs?

Shehryar: Unfortunately, we are still experiencing challenges with visa appointment delays and backlogs at the U.S. Consulates. While the Department of State has allowed consular officers to waive the in-person interview requirement through the end of 2022 for certain visa applicants with approved USCIS petitions and prior U.S. visas, many employees continue to have a tough time obtaining visa appointments. This affects when new employees are able to travel to the U.S. to start their jobs and impacts expatriate employees already in the U.S. who need to travel abroad and require a visa renewal. For example, the U.S. Consulates in India are extremely backlogged and many clients are not able to find available visa appointment dates, including interview waiver/drop box appointments. For applicants who are lucky enough to find an appointment by checking for new slots daily, the appointment is usually not until several months in the future. We are expecting visa appointment delays to continue at the U.S. Consulates through the rest of the year and into 2023 due to significant backlogs and resource shortages stemming from the COVID-19 pandemic. Some U.S. Consulates remain closed or are operating at limited capacity and while we’ve seen improvements at certain posts, the vast majority of travelers should expect delays in obtaining visas at the U.S. Consulates.

Park Evaluations: That is unfortunate about the backlogs for visa appointments at the US Consulates. How about the backlog with USCIS? Have you seen any improvement with some of the recent measures implemented to address the backlog such as expansion of premium processing, increase in staffing, and work permit extensions?

Shehryar: The recent measures are certainly positive steps in the right direction. To its credit, USCIS is aware of the issue of the backlogs and is coming up with solutions to fix it. For example, a couple of months ago the agency announced new internal processing goals it hopes to achieve by the end of fiscal year 2023 that would see I-485, Adjustment of Status applications adjudicated within 6 months and EAD applications processed within 3 months. To reach these goals, USCIS plans to increase capacity, improve its technology, and expand staffing.

As far as the recently implemented measures, we have seen limited impact so far from the expansion of premium processing for EB-1 multinational managers. This is because the premium processing upgrades are available for certain petitions filed in early 2021 and that are still pending. We expect to see the benefit of premium processing when it expands to other applications such as dependent extension-of-status applications and EAD applications, but these changes are not expected to go into effect until USCIS improves its resources and staffing, which could take a few years.

That said, we have seen some reductions in backlogs and quicker adjudication trends for certain applications filed in 2022. For example, we have seen improvement in the approvals of nonimmigrant dependent (e.g., H-4) extension of status applications and EADs filed in 2022 for certain cases. These steps have been in the right direction and we are seeing them affect our clients. Faster processing will alleviate the frustrations of our clients, especially H-4 visa holders, who have had to wait sometimes a year or longer for their extensions and EAD applications to be approved.

Park Evaluations: What are some changes you hope to see in the coming months and even coming years, as far as business immigration goes?

Shehryar: I will start with changes I would like to see long-term in business immigration. I would like to see continued use of technology to help streamline the immigration process for employers and their employees. From someone who has experienced H-1B cap both under the old system and now with the electronic registration system, I believe that the new system has been a net positive, not only for legal practitioners in the business immigration field, but also for our clients by making the process more efficient and removing the need to spend time and resources preparing unnecessary petitions. I would like the immigration agencies to continue to adopt new technologies, including automation, to help improve operational efficiencies and help reduce backlogs and make the business immigration process more consistent, efficient, and streamlined for employers, employees, and law firms.

In the short term, we would like to see the agencies address the chronic green card backlogs that have been heavily exacerbated by COVID-related delays. In the short term, they should take immediate steps to ensure that the record high number of available green cards/immigrant visas this year do not go to waste when the fiscal year expires Sept. 30.

Park Evaluations: Thank you for raising this issue. USCIS indicated that 66,781 employment-based immigrant visas/green cards went unused at the end of Fiscal Year 2021. What are we expecting for the rest of Fiscal Year 2022, which ends Sept. 30, 2022, as far as green card approvals.

Shehryar: USCIS stated there are approximately 280,000 employment-based immigrant visas/green cards for FY 2022. This is double the typical annual amount due to unused visas from FY 2021. I am hoping that USCIS will find a way to adjudicate as many AOS applications as possible for applicants whose priority dates are current to avoid green cards going unused and being wasted this fiscal year. For the first time, USCIS publicly encouraged EB-3 applicants to switch to EB-1 and EB-2 categories, where more visas are available, (in a process known as interfiling) if eligible.

We are hoping USCIS is able to maximize the use of all of their resources across the agency to ensure they use all visas available this fiscal year. Unused green cards negatively impact businesses and the U.S. economy as eligible workers are unnecessarily deprived from obtaining permanent legal resident status. With record numbers of employment-based green card applicants waiting in line, any wasted green card causes wait times to increase even further.

Park Evaluations: Thanks. Great advice. Last question here. What’s the most rewarding part would you say of being an immigration attorney?

Shehryar: For me, no matter how many petitions or applications I’ve filed, it still feels really good to get an approval. I know that each approval profoundly affects someone’s life, their goals and dreams and their family members. As an immigrant myself, who was born in Pakistan and came to the U.S. at a young age, I know first-hand how hard it can be to live in a new country and adapt to a life here. So anything I can do to help other immigrants and make a positive difference in their lives is rewarding. In addition to helping people personally, I also take pride in being a reliable and trustworthy advisor and lawyer for my corporate clients and helping them navigate challenges for their immigration programs and their global workforces.

By Shail Sturm and Ryan Mernin

Despite pandemic shocks, business immigration continues to be a strong route for the world’s talent to enter the United States. Shail and Ryan caught up with Hiba M. Anver at Erickson Immigration Group to provide clarity on current trends and obstacles facing foreign nationals seeking entry to the United States on the H-1B visa. This entry in our Attorney Spotlight series continues our focus on emerging challenges and changes in the business immigration world.

Park Evaluations: What visas do your firm typically handle and what trends have you noticed recently?

Hiba: Our firm handles the full range of employment-based immigration options available to companies that seek to hire foreign talent.  The visas that we work with the most include H-1Bs, TNs, E-3s, O-1s, L-1As, L1Bs, etc.  In terms of trends, we’ve seen some pretty problematic trends in the last few years, beginning with the Trump administration. There were a lot of new rules released and even though we were still getting our cases approved, the process seemed to take longer and we had to jump through more hurdles to make it to the finish line. Now, its all about COVID and the impact that COVID had on immigration.  There were significant delays resulting from embassy closures as well as entry bans. We had to deal with situations in which some of our clients were either stuck abroad without the ability to return to the U.S. or, conversely, desperately needing to return to their home countries and unable to do so. At the present time, immigration backlogs are probably one of the hardest things we’re dealing with.

Park Evaluations: Let’s talk about H-1B’s. Obviously, the numbers came out about three weeks ago: 400,000+ registrations and only 85,000 were selected. What advice would you give to someone who maybe wasn’t selected in the lottery this year?

Hiba: The best advice that I can give to someone who was not selected in the lottery is to immediately connect with your immigration attorney to assess what alternative options you have available to you, knowing that alternative options vary from person to person. Alternative options can include switching to a different immigration status, to re-enrolling in a university full-time program, to talking to your employer about potentially transferring to a different international office, to returning to your home country. Because there’s no “one size fits all” solution, the best advice that I can give is talk to your immigration attorney so that you can quickly identify the solution that works best for you in your specific immigration situation.

Park Evaluations: What are some changes you hope to see in the coming months and even coming years, as far as business immigration goes?

Hiba: An improvement in backlogs. USCIS Director Ur Jaddou recently testified before Congress and stated that USCIS had 8.5 million pending cases and that 5.3 million had been pending beyond published processing times.  There are certain immigration applications that are so significantly delayed that it’s really starting to impact the quality of life of our clients. Clients are becoming increasingly anxious about when they will officially become green card holders. Many of them have been waiting on employment authorization documents for several months and have not been able to either start working or return to work. USCIS has, however, implemented a number of changes and measures in the last several months to try to eliminate that backlog and I really hope to see some improvement soon.

Park Evaluations: You mentioned the backlog, and I know there were some recent measures announced in an effort to address that backlog. There’s the expanding premium processing, the addition of new case workers, and work permit extensions. What are your thoughts are on those as a sort of first step?

Hiba: I’m definitely very appreciative of all of these measures, but the case types that are the most backlogged are not going to be eligible for premium processing until fiscal year 2025. That, to me, is a little concerning because I’m not able to envision exactly how that’s going to assist in clearing the existing backlog right off the bat.  But, I’m really happy the new 540 day automatic extension period for certain EAD holders.  I think that is a really significant development.

Park Evaluations: Okay. I’ll switch this question up a little bit, but what advice would you give to someone who wants to study in the United States – and wants to stay in the country after they complete their degree – while they’re searching for schools and programs to study in?

Hiba: I don’t know if I necessarily have any advice to somebody who wants to study in the United States. I think that that’s a very personal decision. Once an individual has settled on the United States, however, my advice to them would be make sure that you’re staying in touch with your university advisor and also possibly consulting with an immigration attorney so that you understand what your potential immigration journey is going to look like. The more education and information you can obtain on the front end, the better.  The other piece of advice I would give is to folks who are eligible for more than 12 months of OPT:  If your employer is amenable, then try your luck with the H-1B lottery as soon as possible.  You want to make sure that you are participating in the lottery as many times as your immigration status allows so that you can increase the odds of being selected.

Park Evaluations: Thanks. Great advice. Last one, here. What’s the most rewarding part would you say of being an immigration attorney?

Hiba: I think the most rewarding part is knowing you made a positive impact on a person’s life.  Sometimes our clients will tell us that we helped them achieve their dreams and sometimes they will tell us that we helped them achieve their parents’ dreams for them. Hearing things like that really means a lot to me because I’m also the child of immigrants and I know the sacrifice it takes for immigrant families to establish a life here.  In my opinion, that is the most rewarding part of the job.

 

By Maddie Carlson 

What is a National Interest Waiver and how can you get one?

As one might expect from the name alone, having an offer of employment is typically required for individuals seeking an EB-2 employment-based, second preference visa. But in certain cases, a candidate may want to waive the employment requirement and labor certification portion of the EB-2 petition process. This commonly occurs when an applicant displays expertise in their industry and is seeking work that would benefit the United States. In these cases, the candidate may qualify for a National Interest Waiver (NIW) that would remove the need for a pre-established employment offer.

However, pursuing a National Interest Waiver does add to the petitioner’s burden of proof. In addition to demonstrating that they will enter the United States to pursue an endeavor that is in the national interest, the petitioner must also provide evidence of their exceptional ability in their field and/or an advanced degree (at least a Master’s degree, or its foreign equivalent) in their field. Pairing either of these criteria not only strengthens the argument that the candidate’s endeavor would benefit the United States but also demonstrates that they can successfully fulfill it, which is a key point to prove en route to a successful NIW request.

There are three criteria laid out by USCIS that a candidate must meet in order to qualify for a National Interest Waiver. These guidelines all focus on the candidate’s abilities, their endeavor, and their experience in their field:

National Interest Waiver standard 1: The foreign national’s proposed endeavor has both substantial merit and national importance.

The first criterion focuses on the candidate’s line of work. Your petition must discuss the candidate’s professional plan and how their work is valuable and would benefit the United States. Arguments that one’s endeavor has merit and is of national importance to the United States often seek to find the connections between a particular professional field and topics of great national importance, such as the federal economy, technological innovation, job growth, global competition, health, security, or infrastructure. These connections should be backed up with data and analysis from reputable sources, such as government databases or articles in scholarly and trade journals.

This element of a NIW petition can greatly benefit from requisitioning a support letter written by an expert in the candidate’s field. Park Evaluations has experts in a variety of industries and academic fields ready to assess any petitioner’s line of work and demonstrate its merit and national importance.

National Interest Waiver standard 2: The foreign national is well positioned to advance the proposed endeavor.

The second criterion of the NIW requirements focuses on a candidate’s expertise and history of success in their area of endeavor. Evidence for this criterion should document the candidate’s academic background, work experience, career accomplishments, and accolades from professional colleagues.

If the candidate does have a degree, particularly one equivalent to at least a U.S. Master’s, then your evidence should include a discussion of their education. This allows the petition to outline the knowledge gained through the candidate’s studies and how it will directly benefit their endeavor.

Even more persuasive is evidence of the candidate’s work experience. This should include discussion of the skills gained throughout their career and how they relate to foreign national’s professional endeavor. By illustrating a career of sustained achievement, progression, and success in their field, you are able to demonstrate the candidate’s accumulation of expertise and the likelihood of their continued success in the United States.

One important evidentiary element for illustrating the candidate’s capacity for continued professional success in the United States is letters of recognition from supervisors, clients, colleagues, and other professional acquaintances. These letters should emphasize the candidate’s impact and history of success in their field by detailing, for instance, specific projects they have worked on; complex challenges they have solved; and products, strategies, or processes they have innovated.

National Interest Waiver standard 3:It would be beneficial to the United States to waive the job offer and labor certification requirements.

The final criterion has to do with USCIS’ evaluation of the overall potential benefits of the foreign national’s entry and weighing them against the notion of the candidate entering the U.S. workforce without the review-process built into the labor certification. For petitioners, satisfying this criterion means supplying an overall argument that essentially synthesizes the previous two requirements, reinforcing that their work will be of great value to the country and fits a position of need in the United States, as well as the certainty the candidate will be able to succeed in contributing to the national interest of the United States through their professional endeavor.

The key is to approach the candidate and their endeavor from a holistic perspective, using data and expert testimonials to demonstrate that the foreign national’s skills are unique and needed in the United States, to the point that denying or delaying their entry would, all things considered, cost the country an opportunity to improve an area of national interest.

Remember…

The ultimate goal for a petitioner seeking a National Interest Waiver is to present the case that an EB-2 candidate’s work is important, that the candidate has a track record of success and will continue to succeed after relocating to the United States, and that it is in the best interest of the country to waive the labor certification process and free the candidate of the requirements and delays it so often can bring. Ensuring these points are detailed in an expert testimonial from an authority within the candidate’s field is an excellent strategy for giving a petition with an NIW request extra merit, and Park Evaluations’ team of dedicated experts is prepared to help attorneys and businesses meet the toughest NIW challenges.

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].

.