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Visa Bulletin February 2020

https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2020/visa-bulletin-for-february-2020.html

List of Eligible Countries- Employees of the H-2A & H-2B Program

https://www.govinfo.gov/content/pkg/FR-2020-01-17/pdf/2020-00795.pdf

Annual Update of the Poverty Guidelines 2020

https://www.govinfo.gov/content/pkg/FR-2020-01-17/pdf/2020-00858.pdf

TN Occupations

  • Accountant – baccalaureate degree, C.P.A., C.A., C.G.A., or C.M.A. 
  • Engineer – baccalaureate degree or state/provincial license 
  • Scientist
    • Agriculturist (including agronomist) – baccalaureate degree 
    • Animal Breeder – baccalaureate degree 
    • Animal Scientist – baccalaureate degree 
    • Apiculturist – baccalaureate degree 
    • Astronomer – baccalaureate degree 
    • Biochemist – baccalaureate degree 
    • Biologist – baccalaureate degree 
    • Chemist – baccalaureate degree 
    • Dairy Scientist – baccalaureate degree 
    • Entomologist – baccalaureate degree 
    • Epidemiologist – baccalaureate degree 
    • Geneticist – baccalaureate degree 
    • Geochemist – baccalaureate degree 
    • Geologist – baccalaureate degree 
    • Geophysicist (including Oceanographer in Mexico or U.S.) – baccalaureate degree 
    • Horticulturist – baccalaureate degree 
    • Meteorologist – baccalaureate degree 
    • Pharmacologist – baccalaureate degree 
    • Physicist (including Oceanographer in Canada) – baccalaureate degree 
    • Plant Breeder – baccalaureate degree 
    • Poultry Science – baccalaureate degree 
    • Soil Scientist – baccalaureate degree 
    • Zoologist – baccalaureate degree 
    • Research Assistant (working in a post secondary educational institution) – baccalaureate degree
  • Medical/Allied Professional
    • Physician (teaching and/or research only) – M.D., or state/provincial license 
    • Dentist – D.D.S., D.M.D., or state/provincial license 
    • Occupational Therapist – baccalaureate degree or state/provincial license 
    • Pharmacist – baccalaureate degree or state/provincial license 
    • Physio/Physical Therapist – baccalaureate degree or state/provincial license 
    • Recreational Therapist – baccalaureate degree 
    • Registered Nurse – state or provincial license 
    • Veterinarian – D.V.M., D.M.V., or state/provincial license 
    • Medical Technologist – baccalaureate degree of post secondary diploma and three years’ experience – must be seeking entry to perform chemical, biological, hematological, immunologic, microscopic, and bacteriological tests, procedures, experiments, and analysis in laboratories for diagnosis, treatment, and prevention of disease
  • Architect – baccalaureate degree or state/provincial license 
  • Lawyer – L.L.B., J.D., L.L.L., B.C.L., or Licencuature degree (five years) or membership in a state/provincial bar 
  • Technical Publications Writer – baccalaureate degree of post secondary diploma and three years’ experience 
  • Teacher
    • College – baccalaureate degree 
    • University – baccalaureate degree 
    • Seminary – baccalaureate degree
  • Technical Publications Writer – baccalaureate degree or post secondary diploma and three years’ experience 
  • Urban Planner – baccalaureate degree 
  • Vocational Counselor – baccalaureate degree 
  • Economist – baccalaureate degree 
  • Social Worker – baccalaureate degree 
  • Mathematician – baccalaureate degree 
  • Hotel Manager – baccalaureate degree or post secondary diploma and three years’ experience 
  • Industrial Designer – baccalaureate degree or post secondary diploma and three years’ experience 
  • Interior Designer – baccalaureate degree or post secondary diploma and three years’ experience 
  • Librarian – M.L.S. or B.L.S. (for which another baccalaureate degree was a prerequisite) 
  • Animal Breeder – baccalaureate degree 
  • Sylviculturist (including forestry specialist) – baccalaureate degree 
  • Range Manager (range conservationist) – baccalaureate degree 
  • Forester – baccalaureate degree, or state/provincial license 
  • Graphic Designer – baccalaureate degree, or post secondary diploma and three years’ experience 
  • Land Surveyor – baccalaureate degree or state/provincial/federal license 
  • Landscape Architect – baccalaureate degree 
  • Nutritionist – baccalaureate degree 
  • Dietician – baccalaureate degree or state/provincial license 
  • Computer Systems Analyst – baccalaureate degree, or post secondary diploma and three years’ experience 
  • Psychologist – state/provincial license 
  • Scientific Technician/Technologist must work in direct support of professionals in the following disciplines: chemistry, engineering, geology, geophysics, meteorology, physics, astronomy, agricultural sciences, biology or forestry must possess theoretical knowledge of the discipline must solve practical problems in the discipline must apply principles of the discipline to basic or applied research 
  • Disaster Relief Insurance Claims Adjuster – baccalaureate degree, or 3 years’ experience in the field of claims adjustment (admissible only when a disaster has been declared) 
  • Management Consultant – baccalaureate degree or 5 years’ experience in consulting or related field

Final Rule on Public Charge

Final Rule on Public Charge Ground of Inadmissibility

On August 14th, 2019, U.S. Department of Homeland Security (USDHS) published the first of three new rules informing interviewing officers to deny U.S. residency based upon a finding that the non-citizen applicant is predicted to become a “public-charge” if allowed to enter the U.S. as an immigrant or non-immigrant.  The rule creates a broader definition of “Public Charge to also include receipt of one or more public benefits for more than 12 months within a 36-month period. Which public benefits trigger the Public Charge rule depends upon whether the non-citizen’s interview is located with U.S. Citizenship and Immigration Services (USCIS) in the United States or is located with U.S. Department of State (USDOS) at a U.S. Consulate abroad.  For both USCIS and USDOS residency interviews, public benefits considered in Public Charge determinations are:

●Supplemental Security Income (SSI)

●Temporary Assistance to Needy Families (TANF)

●State or local cash benefit programs for income maintenance

●Programs (including Medicaid) for long-term nursing home or mental health institution care.  

Our attorneys are following the Public Charge determination rule carefully and we are working closely with clients to know what to expect and how to avoid a public charge determination. 

For the full article, including a full list of programs reviewed for Public Charge determinations, please use this link to our website.

Immigration Officers will review the non-citizen applicant’s:

            ●Age               ●Assets           ●Family status            ●Education

●Health           ●Resources     ●Financial status         ●Skills

For processing in the United States, the interviewing USCIS Officer will deny residency to the non-citizen if their U.S. spouse and/or children received public benefits when the non-citizen is “the only source of income and assets” for the family.  It is important that the U.S. spouse and/or children be employed or some other source of income or assets.  For processing at the U.S. consulates, the interviewing Consular Officer will deny residency to the non-citizen even if the U.S. spouse and/or children have additional income or assets if they received public benefits. Receipt of public benefits is a “heavily negative factor.” Even if a co-sponsor submits an Affidavit of Support, it is only one factor and the Consular Officer can still find Public Charge. It is important the non-citizen show his or her income and assets combined with the income and assets of his or her spouse and children will exceed the poverty threshold.

The Public Charge rule does NOT apply to the following individuals:

●Applicants serving in active duty or in the reserves and their immediate family

●International adoptees

●Children applying for U.S. Citizenship

●Pregnant Immigrants

●Medicaid received by immigrants that are under age 21

● Refugee Status and Asylum Applicants

● Amerasian Entrants through EFRPAA of 1988

●Cuban and Haitian Entrants through IRCA of 1988

●NACARA Applicants of 1997

●Registry Applicants INA § 249

● Special Immigrant Juvenile Status Applicants

●Syrian Asylees through P.L. 106-378

●T Non-immigrant Status Applicants

●U Non-immigrant Status Applicants

●Violence Against Women Act (VAWA) Applicants

●Non-citizens who are already Conditional Residents or Lawful Permanent Residents

●U.S. Citizens who were Previously Immigrants to the United States

https://www.forbes.com/sites/stuartanderson/2019/10/21/usciss-cuccinelli-boasts-of-increasing-immigration-bureaucracy/#37a7c2c1beae

TPS Employee Handbook

https://www.uscis.gov/i-9-central/42-automatic-extensions-employment-authorization-documents-eads-certain-circumstances

Case Study: H-1B RFEs for Level 1 Wages Successfully Overturned
In the past few years of H-1B cap-subject seasons, a USCIS approval trend has emerged that calls occupations set at level one wages into question.  Instead of approval, these cases receive RFEs.

The reason is because adjudicators assume that just because a job is set at level one wages it’s an entry-level position.  Entry level positions in some career tracks do not require a minimum of a US bachelor’s degree or higher for entry into the position.  USCIS claims that because the job does not require a minimum of a US bachelor’s degree or higher or its equivalent, it does not meet the H-1B definition for specialty occupation, which an H-1B beneficiary must hold in order to qualify for this visa. 

However, many of these instances actually DO require a minimum of this advanced degree in MOST CASES but not all.  The job that has taken the hardest hit is computer programmers making level one wages, but this is not the only position that has been called into question.

Last year, we worked with clients who received RFEs for level one wages, which often arrived as a double RFE paired with the specialty occupation issue.  USCIS claimed they were either A) not making the prevailing wage for the job, as per H-1B requirements, or B) the job was not specialized.

We were able to get these RFEs answered with a 90% success rate.  The beneficiary and sponsor must provide as much information as possible about the job and its duties, as well as the company’s past hiring practices and industry standards for what is required for entry into the position, and an analysis of the factors that went into setting the wage level.  Oftentimes, new hires fresh out of college will require a high level of training and supervision, which effects their pay grade.  Since one of the goals of the H-1B program is to attract bright foreign students to US schools with the option of staying to work after graduation, this is the situation of many H-1B candidates. 

Then, an expert in the field writes an opinion letter that analyzes the information provided and lends an opinion based on their extensive field experience that covers the wage level and the specialty occupation.  Expert opinion letters written by professors with minimal field experience have been rejected by USCIS.  The RIGHT expert must have a great deal of experience WORKING IN THE FIELD of the H-1B job, beyond simply instructing in the subject.

EOIR Final Rule on Administrative Review Procedures

https://www.aila.org/infonet/eoir-84-fr-31463-7-2-19

Challenge Essay JAR

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