General Qualifications of the Employer and Employee

To qualify for L-1 classification in this category, the employer must

• Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
• Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1.  While the business must be viable, there is no requirement that it be engaged in international trade.

Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.

Also to qualify, the named employee must

• Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
• Be seeking to enter the United States to render services in an executive or managerial capacity to a branch of the same employer or one of its qualifying organizations.

Executive capacity generally refers to the employee’s ability to make decisions of wide latitude without much oversight.  Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization.  It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others.  See section 101(a)(44) of the Immigration and Nationality Act, as amended, and 8 CFR 214.2(l)(1)(ii) for more complete definitions.

New Offices

For foreign employers who are seeking to send an employee to the United States as an executive or manager in order to establish a new office, it must also be shown that

• Sufficient physical premises to house the new office have been secured
• The employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition; and
• The intended U.S. office will support an executive or managerial position within one year of the approval of the petition.

See 8 CFR 214.2(l)(3)(v) for details.

Period of Stay

Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year.  All other qualified employees will be allowed a maximum initial stay of three years.  For all L-1A employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of seven years.

Family of L-1 Workers

The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age.  Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee.  If these family members are already in the United States and seeking change of status to or extension of stay in L-2 classification, they may apply collectively, with fee, on Form I-539.  Spouses of L-1 workers may apply for work authorization by filing Form I-765 with fee.  If approved, there is no specific restriction as to where the L-2 spouse may work.

Blanket Petitions

Certain organizations may establish the required intracompany relationship in advance of filing individual L-1 petitions by filing a blanket petition.  In order to establish eligibility for blanket L certification, the employer

• And each of the qualifying organizations must be engaged in commercial trade or services
• Must have an office in the United States which has been doing business for one year or more
• Must have three or more domestic and foreign branches, subsidiaries, and affiliates
• Must meet one of the following criteria
  • Along with the other qualifying organizations, have obtained at least 10 L-1 approvals during the previous 12-month period; or
  • Have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or
  • Have a U.S. work force of at least 1,000 employees.

The approval of a blanket L petition does not guarantee that an employee will be granted L-1A classification.  It does, however, provide the employer with the flexibility to transfer eligible employees to the United States quickly and with short notice without having to file an individual petition with USCIS.  In most cases, once the blanket petition has been approved, the employer need only complete Form I-129S, Nonimmigrant Petition Based on Blanket L Petition, and send it abroad to the employee along with a copy of the blanket petition Approval Notice and other required evidence, so that the employee may present it to a consular officer.

See 8 CFR 214.2(l)(4) and 8 CFR 214.2(l)(5) for more details regarding blanket petitions.

Is it permissible to enroll in school while in B-1/B-2 status?

No, it is not.  The regulations, at 8 CFR 214.2(b)(7), specifically prohibit study in the United States while in B-1 or B-2 status.

Before enrolling in classes, individuals who are in B-1 or B-2 status must first acquire F-1 (academic student) or M-1 (vocational student) status.  Enrolling in classes while in B-1/B-2 status will result in a status violation.  Individuals in B-1 or B-2 status, who have violated their nonimmigrant status by enrolling in classes, are not eligible to extend their B status or change to F-1 or M-1 status. These regulations provide no exceptions.

How can I obtain F-1 or M-1 status?

If you currently hold B-1 or B-2 nonimmigrant status and would like to enroll in classes, you may apply for a change of status to F-1 or M-1, as appropriate, if:

• You have not yet enrolled in classes
• Your current status has not expired
• You have not engaged in unauthorized employment

To change your nonimmigrant status from B-1/B-2 to F-1 or M-1, you must file an Application to Extend/Change Nonimmigrant Status (Form I-539), and include the required fee and documents listed in the filing instructions.

Please Note:

• If you enroll in classes before USCIS approves your Form I-539, you will be ineligible to change your nonimmigrant status from B to F or M.
• If you are applying to extend your B-1/B-2 stay and you have already enrolled in classes, USCIS cannot approve your B-1/B-2 extension because of the status violation.

What if I am not eligible?

If you are not eligible to change your nonimmigrant status to F-1 or M-1, you may apply for an F-1 or M-1 visa at a consular post abroad.  For information about consular processing, please visit the Department of State’s website at www.state.gov/travel.  For information about the Student and Exchange Visitor Program (SEVP), please visit the SEVP website at:  www.ice.gov/sevis.

We encourage all students and prospective students to work closely with their designated school official (DSO) to coordinate the timing of applying for change of status and enrolling in classes.

Press Release

Newark CA – On August 13, 2010 President Obama signed into law H.R. 6080, an act making emergency supplemental appropriations for border security for the fiscal year ending September 30, 2010, and for other purposes. This law includes an increase of certain H-1B and L-1 application fees.

USCIS conducted a teleconference today and provided additional details on these fee increases. Since this bill was signed into law by the President, the fee increase is effective immediately. Any petition filed as of August 14th or later will be subject to the fee increase provisions. USCIS is working on updating the I-129 form.

Companies with 50 or more US employees also have 50% or more of their employees on H1B or L status are required to pay an additional, non-refundable $2000 for new/change of employer petitions H-1B petitions, and $2250 for L-1 petitions. Extension petitions where the employee is already with the employer are not subject to this fee increase. The 50 employee count only includes US employees, so if a company had 40 US employees working in the US, and 15 employees working abroad, it would not have to pay this additional fee. The 50% count includes the total of all employees on H1B and L status, combined, including those on L2, so, hypothetically, if a company had 50 US employees, and 30 of their employees were in L2 status with work authorization, then any H-1B or L-1 petition would be subject to the additional fee. Finally, the employer is required to pay the additional fee; it may not force the employee to pay.

We anticipate that this fee increase will dramatically change the playing field in the IT consulting world. This creates a disadvantage to large IT consulting companies, and we anticipate that larger IT consulting companies may be more hesitant to file H-1B petitions, thus, creating more opportunities to smaller IT consulting companies to hire foreign national programmers, software engineers, systems analysts, etc.

For More information call 510 742 5887
http://peerallylaw.com

http://shahpeerally.com

USCIS Press Release on H1B Fee Increase

On August 13, 2010, the U.S. District Court of the District of Columbia dismissed with prejudice Broadgate, Inc.,et al v. USCIS, a case challenging the January 8, 2010, Neufeld employer-employee/third-party placement memo. The court concluded that the Memorandum does not constitute final agency action subject to judicial review and the notice and comment requirements under the APA. The court concluded that the Memorandum establishes interpretive guidelines for the implementation of 8 C.F.R. § 214.2 and does not bind USCIS adjudicators in their determination of plaintiff’s H-1B visa applications.

PORTLAND, Ore. – An Oregon resident who served four years in the Zvornik Brigade in Bosnia and Herzegovina in the mid-1990s was convicted on Aug. 6 by a federal jury on charges of visa fraud and making a false statement to an agency of the United States, following an investigation by U.S. Immigration and Customs Enforcement (ICE) Office of Homeland Security Investigations (HSI).

Zeljko Boskovic, 50, of Beaverton, Ore., came to the United States as a refugee in 1998. At that time, he claimed that he did not participate in the Bosnian Civil War, which took place from 1992 to 1996. He claimed he lived outside of Bosnia during those years.

However, evidence presented during trial showed that Boskovic’s claims were false.

Records and other documents showed that he lived in Zvornik, Bosnia, during the war and served in the Zvornik Brigade from July 1992 through at least February 1996. He initially served with the infantry for two years before being transferred to the military police for the remainder of the war.

The Zvornik Brigade participated in the executions of unarmed Bosnian Muslim men and boys captured from the United Nations designated safe-area of Srebrenica in July 1995. Members of the Zvornik Brigade were responsible for atrocities at or near four school sites, including the Orahovac School, which was in close physical proximity to the Zvornik Brigade headquarters.

“Those who knowingly hide their past not only defraud our nation’s immigration system, they hope to avoid taking responsibility for the crimes they have committed,” said Leigh Winchell, special agent in charge of the ICE Office of HIS in Seattle. “We have made it a priority to use our unique investigative authorities to ensure that human rights violators do not use the United States as a safe haven.”

“Our nation’s refugee programs are among the most generous and compassionate in the world,” said U.S. Attorney Holton. “Refugee applicants who create fraudulent personal histories in order to be admitted to the United States – and to deny affiliation with groups like the Zvornik Brigade – abuse that generosity and compassion. Their misrepresentations cast a pallor of suspicion over all legitimate refugees who played by the rules.”

Trial evidence included military records seized in 1998 from the headquarters of the Zvornik Brigade, Army of the Republika Srpska in 1998. The search was conducted pursuant to a warrant issued by the International Criminal Tribunal for the former Yugoslavia in The Hague, the Netherlands.

Boskovic is scheduled to be back in federal court for sentencing on Oct. 14, 2010. The maximum penalties for visa fraud and false statement are 10 years and five years imprisonment respectively.

U.S. Attorney Holton praised the investigative work of the special agents in ICE HSI who worked on the case. Assistant U.S. Attorney David Atkinson of the District of Oregon and Trial Attorney Matthew Singer of the Criminal Division’s Human Rights and Special Prosecutions Section handled the prosecution of the case.

Abused spouses options under immigration laws