Master’s Series #2. Richard Fleischer Talks about Letters of Recommendation

Richard I. Fleischer - Immigration and Naturalization Lawyer

   Letters of Recommendation in Certain Employment-Based Cases

In general, the two most common ways to obtain legal permanent residence in the United States (symbolized by the so-called “green card” are through certain family members or through employment.

If through employment a potential employer goes through the labor certification process to show, if able, that there are no U.S. workers who are ready, willing and able to be hired for the job.

There are several categories in which there are exceptions to having the potential employer go through this recruiting process such as Aliens of Extraordinary Ability, Outstanding Researchers and National Interest Waiver cases. No test of the labor market is needed for these categories, but the regulations and case law require proof that the elements of each are met.

In those cases that do not require an alien labor certification, letters of recommendation are a “must.” These letters are not in a style that one requests for a job, that is showing a person’s uniqueness, hard working style, or easy to work with personality. The letters that are needed are all about a petitioner’s IMPACT on a field of endeavor.

Therefore, the key is picking the field of endeavor as all letters of recommendation go toward this. I like to make the field as narrow as possible to show impact easier, but not so narrow that that there may be a problem finding an employer in the same field. An employer is not necessary to actually file the petition for Outstanding Researchers (EB 1-2) and National Interest Waivers (waiver of alien labor certification) (EB-2) but is necessary for Aliens of Extraordinary Ability EB 1-1. However, a potential employer is for all these employment-based categories once the initial petition is approved, to get the next step, the immigrant visa or if in the US the application for adjustment of status to legal permanent residence. Such employment must be in the field that the initial approved petition was approved for.

Once the field is picked the letters of recommendation go toward showing the alien’s impact on the field.

Letters should come from people that do not know the alien directly but do know if his/her work. USCIS still thinks the letters only from people who know the alien, maybe a colleague or mentor, will always be favorable and therefore not as reliable as compared to writers who do not work with the alien and, therefore, will give an unbiased impact opinion as he/she has “nothing” to lose.

Letters should come from inside the U.S. and if can, from outside the U.S. If in the U.S. they should come from as many different locations as possible to show wide impact. If can, letters should come form industry and well as form academia.

Since a number of writers of the letters are not used to writing in the way the USCIS favors, obtaining a rough draft is advisable in order to edit it. Also, sending sample letters to writers is helpful as a guide.

 

 

USCIS raises the Premium Processing Fee

– U.S. Citizenship and Immigration Services (USCIS) announced  it is RAISING the premium processing fee for Form I-129, Petition for a Nonimmigrant Worker and Form I-140, Immigrant Petition for Alien Workers beginning on Oct. 1, 2018 to more effectively adjudicate petitions and maintain effective service to petitioners. The premium processing fee will increase to $1,410, a 14.92 percent increase (aer rounding) from the current fee of $1,225.

The system allows petitioners to request 15-day processing of certain employment-based immigration benefit requests if they pay an extra fee. The premium processing fee is paid in addition to the base filing fee and any other applicable fees, which cannot be waived. USCIS intends to hire additional staff and make investments in information technology systems with the premium funds that are generated by the fee increase. This will allow the agency to provide premium processing service with less disruption while improving adjudications and operational processes. For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter (@uscis), Instagram (/uscis), YouTube (/uscis), and Facebook (/uscis)

 

 

USCIS suspends Premium Processing Again

USCIS is extending the previously announced temporary suspension of premium processing for cap-subject H-1B petitions and, beginning Sept. 11, 2018, will be expanding this temporary suspension to include certain additional H-1B petitions. We expect these suspensions will last until Feb. 19, 2019, and will notify the public via uscis.gov before resuming premium processing for these petitions.

While H-1B premium processing is suspended, we will reject any Form I-907, Request for Premium Processing Service filed with an affected Form I-129, Petition for a Nonimmigrant Worker. If a petitioner submits one combined check for the Form I-907 and Form I‑129 H-1B fees, both forms will be rejected.

Who Is Affected

The expanded temporary suspension applies to all H-1B petitions filed at the Vermont and California Service Centers (excluding cap-exempt filings as noted below).

The previously announced suspension of premium processing for fiscal year 2019 cap-subject H-1B petitions was originally slated to last until Sept. 10, 2018, but that suspension is being extended through an estimated date of Feb. 19, 2019.

We will continue premium processing of Form I-129 H-1B petitions that are not currently suspended if the petitioner properly filed an associated Form I-907 before Sept. 11, 2018. Therefore, we will refund the premium processing fee if:

  • The petitioner filed the Form I-907 for an H-1B petition before Sept. 11, 2018; and
  • We did not take adjudicative action on the case within the 15-calendar-day processing period.

Premium Processing Remains Available for Certain H-1B Petitions

The suspension does not apply to:

  1. Cap-exempt petitions that are filed exclusively at the California Service Center because the employer is cap exempt or because the beneficiary will be employed at a qualifying cap exempt institution, entity, or organization; or
  2. Those petitions filed exclusively at the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer” (Box b. on Part 2, Question 2, Page 2 of the current Form I-129) with a concurrent request to:
    1. Notify the office in Part 4 so each beneficiary can obtain a visa or be admitted. (Box on Part 2, Question 4, Page 2 of the current Form I-129); or
    2. Extend the stay of each beneficiary because the beneficiary now holds this status. (Box c. on Part 2, Question 4, Page 2 of the current Form I-129).

This temporary suspension of premium processing does not apply to any other nonimmigrant classifications filed on Form I-129.

IMPORTANCE of PERSONAL STATEMENTS in CERTAIN EMPLOYMENT-BASED PETITIONS

Richard Fleischer has been practicing Immigration Law since 1973. He has an international reputation in handling complex National Interest waiver and other Employment based petitions.  Our Firm  will begin a Master’s series from this immigration guru

 

IMPORTANCE of PERSONAL STATEMENTS in CERTAN EMPLOYMENT-BASED PETITIONS

 

In general, the two most common ways to obtain legal permanent residence in the United States (symbolized by the so-called “green card” are through certain family members or through employment.

If through employment a potential employer goes through the labor certification process to show, if able, that there are no U.S. workers who are ready, willing and able to be hired for the job.

There are several categories which exceptions are to having the potential employer go through this recruiting process such as Outstanding Researchers and National Interest Waiver cases. No test of the labor market is needed for these categories, but the regulations and case law require proof that the elements of each are met.

One of the ways to do this includes the Personal Statement of the petitioner written since the petitioner will not be present when the USCIS adjudicating officer reviews the petition.

The Personal Statement is the petitioner’s chance to tell about his/her field that is being applied for and the petitioner’s impact on that field. This is done in the “best way” as long as it is told accurately and truthfully.

The advantage is that we can tell these things to make it easier for the USCIS adjudicator to understand whatever field is being applied for, since the USCIS has NO expertise in ANY field and the petitioner’s impact on such field. So, if the adjudicator does not understand the field easily or the impact on such field, the adjudicator cannot approve the filed petition. Therefor, we have clients write the Personal Statement so a 12 year old child can understand, and, because this is often a hard thing for the client to do, we offer samples used by pervious clients which we like as a guide and we then refine the rough draft(s) as often as necessary until we are at a point where we think all this can be understood by the USCIS examiner.

When the adjudicator can understand, he/she can fairly adjudicate the petition we prepare.

STEM employees are no longer to work at third Party Sites

In April 2018, USCIS updated the page on its website for Optional Practice Training for STEM students which seems to indicate its view that F-1 students in the STEM OPT program are not permitted to engage in OPT at third party locations. Of particular concern is the following statement: “For instance, the training experience may not take place at the place of business or worksite of the employer’s clients or customers because ICE would lack authority to visit such sites.” According to the preamble to the March 11, 2016 STEM OPT Final Rule:

There are several aspects of the STEM OPT extension that do not make it apt for certain types of arrangements, including multiple employer arrangements, sole proprietorships, employment through ”temp” agencies, employment through consulting firm arrangements that provide labor for hire, and other relationships that do not constitute a bona fide employer-employee relationship…. Accordingly, DHS clarifies that students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Training Plan, and the employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience.

Therefore, it appears that the change in language on the USCIS website is overreaching, and that a STEM OPT employee could be placed at the worksite of an employer’s client or customer, as long as the STEM OPT student is a bona fide employee of the employer signing the training plan, and the employer that signs the training plan provides the practical training experience. This issue has been brought to the attention of DHS and interested members of Congress through industry groups and others and we understand that the issue is currently under review. AILA is monitoring this issue closely and will update this page with additional information as it becomes available.

USCIS to destroy Green card and EAD card returned to them by the USPS

Undeliverable  Permanent Resident and Employment Authorization Cards and Travel Documents to be Destroyed After 60 Days
Starting April 2, USCIS will destroy Permanent Resident Cards, Employment Authorization Cards and
Travel Documents returned as deliverable by the U.S. Postal Service after
60 business days if USCIS is not contacted by the document’s intended recipient to provide the correct address.
USCIS encourages applicants to report a change of address within 10 days of relocation using the
procedures outlined at uscis.gov/addresschange

 

A few tips to avoid this problem

  1. IF you move immediately file an AR-11 online with USCIS .
  2. Additionally notify  the office where your petition is pending
  3. In any circumstance, make sure you “tape” you name to the inside of your mailbox
  4. Go to you local post office to make sure they have a record of you living at your address

As Always contact us if you have questions or concerns