NonImmigrant Visa for Trainees

By Reuben Seguritan

There are several categories under which a foreigner may enter the US as a trainee and then return to his home country after the training is completed. These are B-1 (temporary business visitor); F-1 (student visa), H-3 (nonimmigrant trainee J-1 (exchange visitor), M (vocational student visa) and Q (cultural exchange visitor).

Certain factors will determine which of the different visas for foreigner-trainees should be applied for and obtained. These factors are: the purpose of the training; the length of time for training; whether or not the foreigner will be paid; who will pay the salary; the relationship of the petitioner to the foreigner; the required education of the foreigner in order to participate in the training program; and the work experience required of the foreigner to participate in the training program.

The H-3 is the most common nonimmigrant visa for trainees. Under this visa, the trainee receives training in the US from the petitioner in any field of endeavor, other than graduate medical education or training, that is not available in the home country of the foreigner. If the H-3 nonimmigrant trainee visa is approved, it is valid for up to 2 years.

For the H-3 nonimmigrant trainee application, a training plan must be submitted by the petitioner in order for the foreigner to enter the US and receive the training. The training plan must include the following information: the petitioner must specify and explain the program objective; why the petitioner seeks to train this particular foreigner; the duration of the training program; the salary or any remuneration offered; the timeline and description of the training on a weekly basis; identity of the person who will supervise, evaluate and train the trainee; and the standards for the evaluation of the trainee.

The petitioner should also describe where the training will take place and the facilities therein; whether the instruction or training will in whole or in part be in a classroom format; the skills and knowledge the trainee will obtain through the program; if the trainee will have any productive employment, this should only be incidental to the training; explanation of how the trainee will use the knowledge and skills gained to further his career outside the US upon completion of the program; and description of the type of training and supervision to be given, and the structure of the training program.

It is also important to include the following: specify the time that will be devoted by the trainee to productive employment; how many hours will be spent, respectively, in classroom instruction and in on-the-job training; description of the work and career abroad that the training will prepare the foreigner for; reasons why such training cannot be obtained in the home country of the foreigner and why it is necessary for the foreigner to be trained in the US; the source of any remuneration received by the trainee and any benefit that will accrue to the petitioner for providing the training.

The US Citizenship and Immigration Services (USCIS) has rejected H-3 applications in the past on the following grounds: training plan did not state the fixed schedule of the foreigner, the objectives and means of evaluation of the foreigner; the training is incompatible with the nature of the petitioner’s business or enterprise; and the trainee being petitioned already possesses substantial training and expertise in the proposed field of training.

The application will also be denied if: the training, knowledge or skill received in the US will unlikely be used outside the US; the training received will result in productive employment which is beyond that is incidental and necessary to the training; the trainee will be trained for staffing or work in the US permanently and not his home country; the petitioner does not have the facilities or skilled workers to provide the training specified; and the training is designed to extend the total allowable period of training previously authorized by the USCIS.

Petitioning A Fiancé(e)

By Reuben Seguritan

A US citizen who wishes to bring his/her fiancé(e) to the US must file an I-129F Petition for Alien Fiancé(e) with the USCIS. After processing and approval, the fiancé(e) will be issued a K-1 fiancé(e) visa. This visa is a nonimmigrant visa which will allow the  fiancé(e) to enter the US in order to marry the US citizen petitioner within 90 days from arrival. If the fiancé(e) has a minor child, the minor child can also be brought to the US on a K-2 visa.

A strict process will be followed before the K-1 visa is issued. The US citizen must include the following evidence and documents to the I-129F petition: proof of US citizenship by submitting a copy of his birth certificate or certificate of naturalization or US consular report of birth document; affidavit with the narrative of the relationship and a statement of intent to marry the fiancé(e); evidence to establish the relationship and how many times the couple have met personally, (i.e., photographs together, letters or messages sent to each other, plane tickets, receipt of the engagement ring, etc.); a signed statement of the fiancé(e) certifying that he/she intends to marry the US citizen within 90 days of entering the US on a valid K-1 visa; one 2×2 colored photograph each of the US citizen and the fiancé(e) and payment of the filing fee. If the fiancé(e) is from the Philippines, she must also submit a Certificate of No Marriage (CENOMAR) which is proof that he/she can legally get married to the US citizen.

After the US citizen submits the I-129F petition to the USCIS, it will be reviewed. If the I-129F petition is approved, the case will be sent to the National Visa Center (NVC). The NVC will provide a case number and forward the case to the nearest US consulate to the fiancé(e)’s address. The US consulate will then contact the fiancé(e) and instruct him/her to get a medical exam and attend a visa interview. The fiancé(e) must bring the following documents during the interview at the consulate: proof of completion of the online visa application (DS-160), valid passport, police clearance, evidence of support by the US citizen, and evidence of the relationship with the US citizen. After the interview and approval, the K-1 visa will be granted and the fiancé(e) can enter the US.

If the US citizen and fiancé(e) get married outside the US, it would be difficult for her to reenter the US because now he/she has a nonimmigrant intent of living and staying in the US with his/her spouse. The entry of the spouse to the US can be denied by the US Customs and Border Protection (CBP) when the spouse does not have a job or significant ties in the US. However, if the foreigner spouse has a dual intent visa such as H1-B or L-1 or soft dual intent visa such as the O-1 or E-1/2/3 to remain in the US, then the spouse will be allowed to enter the US.

It is important to note that if in the customs or culture of the fiancé(e), the US citizen and the fiancé(e) are already married after a ceremony or event that they participated in, then the K-1 fiancé(e) visa petition will not be approved. The spouse must be brought to the US using another visa. One of the ways is by the K-3 nonimmigrant visa for foreign spouse of US citizens.

If the spouse is in another country, the US citizen can apply for lawful permanent resident status (LPR) of the foreigner spouse by filing the I-130 Petition for Alien Relative with the USCIS. The petition will then be processed through the NVC and the spouse will also be interviewed at the nearest US consulate. The US citizen and spouse should include the following in the application: affidavit stating the timeline of the couple’s relationship; statement on prior marriages of the spouses; birth certificates; birth certificates of minor children if any; marriage certificate of the couple; 2×2 photographs of the US citizen and foreigner spouse and; the filing fee.

While the I-130 petition is pending, the US citizen has the option of filing for the K-3 nonimmigrant visa in order for the spouse to enter the US and complete the I-130 petition processing in the US. The K-3 visa will only be issued if the following are met: 1. The US citizen and the foreigner spouse are married; 2. There is a pending I-130 petition and; 3. Foreigner spouse seeks to enter the US to await the approval of the I-130 petition and subsequently obtain LPR status. If the foreigner spouse has an unmarried child under 21 years of age, the child can also be brought to the US using the K-4 visa.

However, the processing times for the K-3 visa has become very long and as long as the I-130 petition. Hence, it no longer makes sense to file for the K-3 visa. It would be better to wait for the processing of the I-130 petition.

New Rule on Unlawful Presence Puts Students At Risk

By: Reuben Seguritan

August 22, 2018

The United States Citizenship and Immigration Services (USCIS) recently published the final policy memorandum entitled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” which became effective on August 9, 2018. This new policy memorandum clearly shows that the USCIS is abandoning the old rules and imposing harsh rules on the unlawful presence of the following nonimmigrants: academic students (F visa), vocational students (M visa), and exchange visitors (J visa).

The Immigration and Nationality Act (INA) imposes re-entry bars on immigrants who accrue “unlawful presence” in the United States, leave the country, and want to re-enter lawfully. “Unlawful presence” is not defined in the INA or regulations. However, the USCIS Adjudicator’s Field Manual includes guidance on determining when a noncitizen accrues unlawful presence. Generally, a person who enters the United States without inspection, or who overstays a period of authorized admission, will be deemed to have accrued unlawful presence. Individuals who accrue more than 180 days, but less than one year, of unlawful presence are barred from being re-admitted or re-entering the US for three years. Whereas those who accrue more than one year of unlawful presence are barred from re-entering the US for ten years.

As a general rule, nonimmigrants with F, M or J visas could lawfully stay in the US for the duration of their nonimmigrant status or “D/S” which is annotated on their Form I-94 Arrival/Departure Record issued by the US Customs and Border Protection upon their arrival. This means that in order to remain with nonimmigrant status in the US, the student must maintain a full course of study or remain in the exchange program, not engage in unauthorized employment or other unauthorized activities, and complete the academic or exchange program within the time allowed or obtain an extension from the school or exchange program before the expiration of the period.

Under the old rules, a nonimmigrant with an F, M or J visa would only be unlawfully present in the US in two ways. First, when the USCIS determined in a formal status violation that he had indeed been unlawfully present while adjudicating an immigration benefit, or second, when he was declared unlawfully present by an immigration judge in removal proceedings.

However, under the new rules of the USCIS, any violation could make the nonimmigrant with the F, M or J visa unlawfully present in the US, even without knowing it. The USCIS is instructed to consider any information contained in its systems; information contained in the individual’s “A File” and any information obtained through a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).

An example is if the student asked and was permitted by his adviser to drop a certain class but not from the designated school officer (DSO), he will no longer have the full course of study for one semester required to maintain his status. He has therefore violated the terms of his visa status. Another example would be if the student worked in his school for more hours than allowed, then he has violated the terms of his status.

The new rules state that for status violations that occurred before August 9, 2018, the nonimmigrant is unlawfully present beginning the day after the authorized period of admission expires. If the Department of Homeland Security (DHS) determines a status violation occurred, the nonimmigrant is unlawfully present beginning the day after the DHS denied a request for an immigration benefit.  If an immigrant judge ordered the nonimmigrant removed, then he is unlawfully present beginning the day after the removal order is issued, regardless of whether the decision is appealed. In any other case, if the nonimmigrant fails to maintain his status before August 9, 2018, then he is unlawfully present beginning on August 9, 2018.

For violations that occur on or after August 9, 2018, the nonimmigrant will be deemed to be unlawfully present in the US on the earliest of: 1. The day after he no longer pursues the course of study or authorized activity, or the day he engages in unauthorized activity; 2. The day after completing the course of study of study or program, including practical training and any authorized grace period; 3. The day after the period of authorized stay expires, if admitted until a date certain; 4. The day after an immigration judge orders nonimmigrant removed, regardless of whether the decision is appealed.

The status of the spouse and children of the F, J, or M nonimmigrant is dependent on the status of the principal nonimmigrant. However, their period of authorized stay could be shorter if they commit any act which is in violation of their status.

H-1B Specialty Occupations

Reuben Seguritan

It is sometimes difficult to determine if an occupation is a specialty occupation that would qualify for an H-1B visa. It may be clearer for jobs in architecture, engineering, medical or health sciences, accounting, because obviously, to be an architect, you need to have a bachelor’s degree in architecture; to be an engineer, you must have a degree in engineering.

It is less clear, though, for jobs such as those in marketing like Market Research Analyst or Market Specialist. Oftentimes, USCIS typically classifies them as administrative positions and not “specialty occupations”.

However, in one case, the USCIS was found to have abused its discretion when it denied an H-1B petition. This case clarified that H-1B specialty occupations are not limited to those with specifically tailored and titled degrees.

A company based in Yakima, Washington that operates gas stations, convenience stores, and hotels filed a petition for a non-immigrant worker under the H-1B classification. They wanted to hire a Fiji national to become their marketing Analyst and Specialist to assist in assessing market and geographical opportunities for expanding its hotel and convenience store business in the region and all over the US. The Fiji national had a bachelor of science degree and a certificate in business management and marketing.

USCIS denied the H-1B petition despite the company’s submission of documents to support its petition because according to USCIS, it failed to show that the position qualified as a specialty occupation within the meaning of the regulations.

The Immigration and Nationality Act (INA) defines “specialty occupation” as an occupation that requires (1) theoretical and practical application of a body of highly specialized knowledge, and (2) attainment of bachelor’s or higher degree in specific specialty (or its equivalent) as a minimum for entry into the occupation in the US.

USCIS further developed a set of four criteria to determine whether an occupation qualifies as a ”specialty occupation”, one of which must be satisfied: (1) a bachelor’s degree normally is the entry-level requirement for the job; (2) the degree is common in the industry among comparable or similar employers; (3) the employer normally requires a degree for the job, or (4) the job duties “are so specialized and complex” that you typically need to have a bachelor’s degree to perform them.

After it is established that a position is indeed a “specialized occupation”, the H-1B visa petitioner must provide proof that the beneficiary has one of the qualifying: (1) a US bachelor degree required by the specialty occupation from an accredited college or university; (2) an equivalent foreign degree; (3) an equivalent state license; or (4) an equivalent combination of education, specialized training, and work experience.

The USCIS contended that the position of a Market Research Analyst is an occupation that does not require a baccalaureate level of education in a specific specialty as a normal, minimum for entry in to the occupation.

In the reversal of the earlier USCIS decision, it was clarified by the court that a market research analyst is “a distinct occupation with a specialized course of study that includes multiple specialized fields”. It is wrong to narrow down the plain language of the law to include only those occupations with specially tailored degree programs. Otherwise, it will ignore the language of the law that requires the attainment of the “equivalent” of specialized bachelor’s degree as a requirement for entry. In the reversal, the court clarified that “it is clear that Congress and the INA recognized that the needs of a specialty occupation can be met even where a specifically tailored baccalaureate program is not typically available for a given field.”

Investigating Marriage Fraud

Reuben Seguritan

Entering into marriage for the sole purpose of obtaining immigration benefits is fraudulent and is a basis for removal.

Under US immigration laws, an alien is removable if he was inadmissible “at the time of entry or adjustment of status”. An alien is inadmissible by fraud or willfully misrepresenting a material fact, if he sought to procure or has procured a visa, other documentation, or admission into the United States or other immigration benefit. This includes fraudulently entering into a marriage for the sole purpose of getting immigration benefits.

This was underscored in a recent case involving a citizen of Kenya who came to the United States after being admitted as a nonimmigrant student. He later married a US citizen and dropped out of school after. He then applied for Adjustment of Status that year but was later on placed on removal proceedings because of the fraudulent marriage.

In cases like this, it is the Department of Homeland Security (DHS) that has the burden to prove by clear and convincing evidence that an alien who was admitted to the US is removable. DHS had to prove that said Kenyan citizen and his US citizen spouse did not intend to establish a life together at the time they were married.

In this particular case, the immigration officers and fraud detection officers were able to present evidence that the couple did not intend to establish a life together. During visits by the fraud detection officers to the supposed residence of the couple, the Kenyan citizen was there with several other males but without the US citizen wife or any signs of her belongings. When asked about her whereabouts, the Kenyan citizen said that she left a week ago and did not leave any of her things behind. The fraud detection officer was also able to obtain documentary evidence showing that the US citizen still claim to be single and living with her mother and children in a different address. In her applications with the Social and Rehabilitative Services and several other organizations, she did not state being married and there was no indication of her living with her supposed husband for the said timeframe.

The DHS also investigated the school where the US citizen’s daughter was enrolled and the principal attested that the Kenyan citizen was not listed on the child’s school records nor did said child live at his supposed address.

During his removal hearing, the Kenyan citizen was unclear as to when he started living with his US citizen wife. He also stated that he did not know that she applied for state benefits. He clarified that he divorced his US citizen wife in December 2012.

It must be noted that marriages that end up in divorce are not automatically deemed as fraudulent. If a couple have initially entered into marriage in good faith but subsequently ended up in divorce, it does not mean it is fraudulent. Fraudulent marriages mean that from the onset, the couple had no intention of establishing a life together.

In this case, it was proven by clear and convincing evidence that the two did not intend to have a good faith marriage. What was clear was that their marriage was entered into to obtain immigration benefit for the Kenyan citizen after the expiration of his student visa.

Fraudulent marriages have serious consequences not just for the foreign national but also for the US citizen involved. In this case, the Kenyan citizen was placed on removal proceedings and was held to be removable. Both the foreign national and the US citizen could face imprisonment and a fine.

Visa Cancellation Due to Overstay

By Reuben Seguritan

A citizen of a foreign country may enter the United States with a B-2 visa for tourism and leisure purposes. Using this nonimmigrant visa, a foreign national may be allowed to stay in the United States for 6 months at a time. The B-2 visa for tourists itself has a separate validity period of 10 years or 5 years, depending on the validity granted by the US consulate in the home country. The B-2 visa will state if the foreign national may enter the United States multiple times during the validity period or only for one time.

When the foreign national enters the United States using the B-2 tourist visa, the US immigration officer will write a specific date on his Form I-94 which is the date his authorized stay expires. If the foreign national does not leave the United States by this date, then he is overstaying and will be considered out-of-status and hence, deportable under US immigration laws. Another consequence is that his B-2 visa is automatically cancelled for overstaying in the United States. There is no waiver or forgiveness for this and a new visa must be obtained from the US consulate in his home country to return to the United States in the future.

A foreign national may apply for extension of stay by filing a Form I-539 or Application to Extend/Change Nonimmigrant Status. The USCIS recommends that it be filed at least 45 days before the authorized stay expires.

The foreign national may apply for extension of stay if he was lawfully admitted to the United States with a nonimmigrant visa; the nonimmigrant visa status remains valid; he has not committed any crimes that make him ineligible for a visa; he has not violated the conditions of his admission; and his passport is valid and will remain valid for the duration of his stay.

A foreign national will not be allowed to file for extension of his stay if he was admitted to the United States under the following visa categories: Visa Waiver Program; Crew member or D nonimmigrant visa; in transit through the United States (C nonimmigrant visa); in transit through the United States without a visa (TWOV); fiancé of a US citizen or dependent of a fiancé (K nonimmigrant visa); or informant and his accompanying family on terrorism or organized crime (S nonimmigrant visa).

If the application for an extension is approved, the foreign national will be issued a replacement I-94 with a new departure date. The foreign national can remain in the United States up to this new I-94 date. When he leaves the United States, he must submit both the old and new I-94 forms to the airline staff on check in counter.

However, if the application for an extension is denied, the B-2 tourist has 30 days to depart the US starting from the date of the letter notifying him of the decision that the extension was denied. If he does not depart within 30 days, he will be considered deportable by US authorities.

If the denial of the extension of stay is dated or received after the date on the I-94 form, then the B-2 visa of the foreign national is automatically cancelled. The foreign national must return to his home country and apply for a new visa at the US consulate in order to return to the United States.

This means that the 30 days given to those whose application for extension of stay was denied is meaningless because their B-2 visa was automatically revoked anyway. It would have been better for the foreign national to return to his home country before the deadline on the I-94 and then re-entered the United States using the B-2 visa.

15000 H-2B Visas Added to Relieve Shortage

By Reuben Seguritan

The Department of Homeland Security (DHS) recently announced that US businesses in danger of suffering irreparable harm due to shortage of temporary nonagricultural workers will be able to make use of the H-2B program. They are allowed to hire up to 15,000 additional temporary nonagricultural workers under the H-2B program to bridge the shortage.

DHS Secretary John Kelly recently confirmed that there are not enough qualified and willing US workers available to perform nonagricultural work. “As a demonstration of the Administration’s commitment to supporting American businesses, DHS is providing this one-time increase to the annual cap set by Congress,” said Kelly.

The H-2B program allows U.S. employers to hire foreign non-agricultural workers to perform temporary services on a one-time, seasonal, peak load or intermittent basis. These workers are usually needed in the construction, health care, lumber, manufacturing, food service/ processing and resort/ hotel industries.

Each year the USCIS allocates 66,000 visas for the H-2B program, with 33,000 allocated for the first half of the fiscal year and 33,000 for the second half.

The H-2B process starts with the filing of a temporary labor certification for H-2B employment with the U.S. Department of Labor. When the labor certification is issued, it must be attached to the H-2B petition on Form I-129 by the petitioner and filed with the USCIS. Starting July 19, eligible petitioners for H-2B visas can file and must submit a supplemental attestation on Form ETA 9142-B-CAA with their petition.

The petitioner of an H-2B petition may be a U.S. employer or U.S. agent. However, the petitioner must show that the need is only temporary in nature. He must demonstrate that the work will terminate after a definite period of time.

Multiple beneficiaries may be included in a single H-2B petition if they will all be performing the same work for the same period in the same location.

The beneficiary of an H-2B petition may be in the United State or overseas. The H-2B petition can be filed with an unnamed beneficiary if the beneficiary is overseas and will be applying for the visa at a U.S. consular office abroad. However, if the name of the beneficiary is required to establish eligibility or that the beneficiary is not from a participating country, the beneficiary must be named in the petition.

When approved, the validity of the H-2B visa will reflect the period indicated in the labor certification. This should reflect the period of the employer’s need. Generally, the period granted is limited to one year which may be extended for another year up to a maximum of three years.

The Philippines as well as 84 other countries have been identified by the USCIS as participating countries under the H-2B program in a list that was recently released.

An H-2B petition may be approved for a beneficiary who is not from any of the participating countries only if the Secretary of Homeland Security finds that it is in the interest of the U.S. to approve the petition.