By: Nikki Ummell
In recent months, Park Evaluations demonstrated unparalleled versatility and efficiency, particularly as we approached the bustling H-1B season. While we are known for our exceptional credential evaluations, expert opinion letters, and PERM recruitment services, a recent translation project showcased our ability to provide holistic solutions to complex immigration cases.
The Challenge: A Multifaceted Translation Project
A prominent law firm, in collaboration with a Fortune 500 company, faced the daunting task of facilitating the sale of a subsidiary, necessitating the translation of over 1,000 pages of critical business and legal documents from twelve different languages. This project was not just about translating content; it required a nuanced understanding of legal terminologies and business concepts across various jurisdictions.
Our Solution: A Full-Service Approach
Recognizing the multifaceted nature of this project, Park Evaluations mobilized its full spectrum of services to address the challenge head-on. Our translations team swiftly embarked on the translation task, delivering certified translations in less than a week—a significant achievement given the three-week deadline. This rapid turnaround, our fastest to date for such a voluminous project, highlighted our commitment to efficiency and excellence.
The Impact:
By employing a holistic approach, Park Evaluations not only facilitated the timely completion of the sale but also ensured that all immigration-related aspects of the transaction were handled with the utmost care and professionalism. Our ability to offer a full suite of services under one roof significantly simplified the process for our client, demonstrating our value as a one-stop solution for immigration law services.
Engage with Us:
Are you facing a complex immigration case? Let Park Evaluations simplify the process for you. Contact us at [email protected] for your next quote translation+ evaluation request, as we’re here to provide comprehensive solutions tailored to your unique challenges.
We all know that the PERM Process can be a long and daunting path to US citizenship. One of Park’s own, Emily Yam Grant, recently consulted with Krystal Alanis, Partner at Reddy & Neumann, P.C., to get a better understanding of the details, timing, and amazing legal work immigration attorneys undertake to get candidates to the finish line. Not all heroes wear capes!
Q: Can you give a general overview of the PERM Labor Certification process?
There are typically three steps to the employment-based green card process: PERM Labor Certification, I-140 Immigrant Petition, and I-485 Adjustment of Status from non-immigrant status to that of a legal permanent resident or apply for a green card at a U.S. consulate abroad.
Most EB-2 and EB-3 green card applications require that a U.S. employer obtain a PERM Labor Certification from the U.S. Department of Labor (DOL). The PERM process aims to protect the wages and working conditions of U.S. workers and helps ensure that U.S. workers will not be displaced. Therefore, an employer sponsoring a foreign worker for permanent employment must first adequately test the U.S. labor market for “able, willing, qualified, and available” U.S. workers.
The PERM Labor Certification process is usually the biggest obstacle to overcome because the process is lengthy, involves multiple steps, and requires careful strategizing to avoid mistakes that could lead to denial of the application. The fundamental steps of the PERM process include: Establishing the job description and minimum requirements for the job opportunity, obtaining a Prevailing Wage Determination (PWD), conducting recruitment, and adjudication of the PERM application by the DOL.
Q: As a service, Park handles the posting of recruitment efforts (advertisements) for clients. Can you explain why recruitment is necessary for this process and what it entails?
Conducting recruitment is crucial to the PERM labor certification process. Employers must test the U.S. labor market for “able, willing, qualified, and available” U.S. workers. If no such workers are found, only then can an employer file a PERM application on behalf of a foreign national on ETA Form 9089. This process is necessary to help ensure that U.S. workers will not be adversely impacted by hiring a foreign worker into a permanent position.
As part of the recruitment process, employers are required to post mandatory advertisements for the job opportunity. For example, the employer is required to post two Sunday print advertisements in a newspaper of general circulation in the area of intended employment and a 30-day job order with the appropriate State Workforce Agency (SWA). The employer must also post a Notice of Filing for 10 consecutive business days at the work location. Additionally, if the position is for a professional occupation, the employer is required to post at least three other forms of recruitment (the DOL provides a list of 10 forms to choose from). Due to regulatory timelines, it will take employers a minimum of 60 days to complete recruitment. However, the recruitment process frequently exceeds this 60-day period due to various factors.
Employers must ensure that evidence of the advertisements is properly documented based on regulatory standards. Posting advertisements correctly and for the required period of time is of utmost importance. To further complicate the matter, PERM advertisements are only valid for 180 days and the validity of the PWD must be taken into account when determining when a PERM application can be filed. Mistakes during the recruitment process can lead to missed filing deadlines or denial of the PERM application in the event of an audit.
Q: What factors can an employer consider when determining whether an applicant is qualified for the position?
Once recruitment begins, employers may start to receive resumes from applicants. Employers are only allowed to reject U.S. workers for lawful job related reasons. The following are examples of lawful job related reasons for rejection:
- The U.S. worker does not meet the minimum requirements for the position: The employer can only disqualify an applicant based on the minimum requirements for the position. The employer cannot disqualify an applicant based on preferences or subjective criteria. The employer must also explain in a recruitment report why each applicant does not minimally qualify for the role. In its analysis, the employer must explain why the applicant’s deficiencies cannot be remedied through a reasonable period of on the job training.
- The applicant is unwilling to accept the offered wage: In order to reject on this basis, the employer must first extend an offer to the applicant with the listed salary.
- Applicant is not a U.S. worker: A “U.S. worker” per DOL regulations is a worker who is: a U.S. citizen or U.S. national; a U.S. Lawful Permanent Resident; an individual admitted as a refugee; an individual granted asylum.
Q: PERM processing delays are no secret and have caused a major impact on employers and their employees. What can be done to minimize delays from the Employer/Employee perspective?
Over the last few years, processing times for PWDs and PERM applications have drastically increased. This has caused major setbacks for both employers and their employees. Unfortunately, the DOL does not offer premium processing. Nevertheless, there are some proactive steps that employers can take to minimize delays, including: starting recruitment while the PWD is pending, ensuring the PERM application is submitted error free, becoming familiar with audit triggers, and being prepared to respond to an audit promptly and properly.
Q: What are some PERM audit triggers employers should be aware of in order to minimize the risk of receiving a PERM audit?
The DOL issues 2 types of audits: Random and Targeted. The DOL’s random selection process makes it impossible to entirely avoid the chance of an audit. The DOL can also issue targeted audits that are triggered by certain aspects of the PERM application. In such cases, the DOL may request additional information and documentation directly related to the triggering issue. Although audit triggers can change based on a variety of factors, here are a few to consider:
- Minimum requirements are not normal for the occupation or exceed the Specific Vocational Preparation (SVP) level (Business necessity explanation may be required).
- Position requires a degree (Master’s or Bachelor’s) but no experience.
- Position requires less than a Bachelor’s degree.
- A familial relationship exists between the foreign worker and the stockholders, corporate officers, incorporators, or partners.
- The employer is a closely held corporation or partnership in which the foreign worker has an ownership interest.
- The foreign worker is one of a small number of employees (10 or less employees).
- Position has a foreign language requirement (business necessity explanation may be required).
- Position involves a combination of occupations (business necessity explanation may be required).
- Certain situations where a layoff of U.S. workers has occurred.
Q: As a service, Park provides a Business Necessity letter from a professional evaluator to supplement an employer’s business necessity statement. You stated that an employer’s minimum requirements for the sponsored position that exceed what is normal for the position can trigger a business necessity audit. Can you elaborate on the specifics of a business necessity audit?
While the DOL may issue a business necessity audit for various reasons, the most common cause is when the minimum requirements exceed what is “normal” for the occupation or if the job requirements exceed the SVP level assigned to the occupation. Simply put, SVP refers to the amount of time required to perform in the position, taking into consideration education, experience, and training.
To establish a business necessity, an employer must demonstrate that the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform the job in a reasonable manner. To respond to this type of audit, an employer can, for example, provide detailed evidence of the employer’s type of business, complexity of the position, industry standard (job postings with similar requirements), contract requirements, demanding client expectations, and prior hiring practices. The employer’s statement can be enhanced by including an expert opinion (Business Necessity Letter) from a professional evaluator.
Q: Generally, what are your top 3 recommendations for employers starting the PERM Labor Certification process for the first time?
- Familiarize Yourself with PERM Requirements: Employers should have a general understanding of the PERM program’s regulations, guidelines, and documentation requirements. This includes understanding the job posting and recruitment process, prevailing wage determination, and specific related obligations.
- Maintain Detailed Records: Employers should keep detailed records of all steps taken during the recruitment process, including job postings, advertisements, resumes received, and responses from potential applicants. Documentation plays a crucial role in demonstrating compliance with PERM requirements and may be requested in the event of an audit.
- Seek Professional Guidance and Start Early: The PERM process is complex and one misstep can derail the entire process and cost the company time and money. Employers should strongly consider working with a qualified immigration attorney who can provide a plan of action for the company’s specific needs. Further, delays in PERM processing times present a major problem for employers and foreign workers. Employers should plan to begin the PERM-based green card process as early as possible to avoid potential issues with the foreign worker’s temporary work visa status and ability to work in the U.S.
By: Hailey Sylvander
We recently facilitated an interesting expert opinion letter for one of our clients’ National Interest Waiver (NIW) petitions. The beneficiary worked in mechanical engineering and robotics, specifically as it applies to biotechnology – a field with countless benefits to the United States, its economy, and its society.
While demonstrating the national importance of this work would not normally be a challenge for our experts, the stated endeavor at the heart of this petition carried a strong focus on the beneficiary’s work for the petitioning company. And supporting a “proposed endeavor” that is employer-focused does require extra care, as USCIS often does, and most likely would here, quibble with equating an endeavor that benefits an employer with an endeavor benefitting the U.S.
In fact, we’ve seen RFEs challenging this exact question be issued more frequently. So for this case, Park was able to work with our experts to approach a more employer-centric endeavor and draw a “national importance” argument out of it. We accomplished this with a couple of strategic steps:
- Find what the employer was working on, is working on, or plans to work on that is particularly important to the United States;
- Determine which of the employer’s goals and projects the candidate has, is, or would work on that would benefit the United States;
- Explain in detail these projects and goals, highlighting how they would benefit the United States; and
- Focus on and stress the particular areas of benefit that connect to the candidate’s proposed endeavor, work history, and academic background.
In the NIW opinion letter discussed above, our expert looked to what this American biotech company was working on or had accomplished that was particularly important to the United States, reviewing the petition’s documents and researching the company’s offerings. Based on the company’s goals and projects, a clear case could be made that the candidate’s work would benefit U.S. society through improving the country’s health security and its bioeconomy. More specifically, these areas of benefit were chosen after we had found certain company projects and engineering work through research on the company’s website, press releases, and major media articles. Our expert opinion letter went on to explain these projects in more detail, highlighting the benefits to U.S. sustainability efforts and to Americans’ health in the process, particularly during the COVID-19 Pandemic.
Overall, our goal was to show that, while working here, the candidate would be working to better the nation, since the company has a history of and a penchant for doing so. Of course, it should be stressed that we ensured that we did not just cite the company itself when discussing these projects because we never want credibility to be an issue with adjudicators at USCIS. Instead, it was critical to incorporate corroborating third-party sources, such as major media articles, that discussed some of the company’s projects and successes in order to stress both the verity and impact of the works mentioned in the letter. The result was a strong expert opinion that’ll act as a key part of this important petition going forward.
NIW approval rates are high, but as we all know, each case can and will present its own challenges. At Park, solving those challenges is what we do best.
In a 2020 development, India’s University Grants Commission approved a change in duration for the Indian Master of Computer Applications (MCA) degree— the MCA was shortened to a two-year program.
This update is significant as students have now completed and are graduating from this new program. Formerly spanning three years of study, the program has transitioned to a two-year structure, starting with the class of 2020-21. The All India Council of Technical Education (AICTE) stated the decision was prompted by a decrease in enrollment of students coming from backgrounds not related to Computer Science, such as Physics, Mathematics, and Chemistry. When the program was first introduced in the late ‘90s, the first-year prepared students with principles such as the basics of coding. Now, most students pursuing an MCA already have this knowledge and do not need the introductory year, leading to the shortened curriculum. As a result of this change, AACRAO has reviewed the updated program structure and revised their credential advice.
Park Evaluations has reviewed the program structure and AACRAO’s updated guidance and has decided to change how we evaluate MCA degrees. Previously, Park Evaluations equated completion of this program to a US Masters of Applied Computer Science if the candidate also provided evidence of completion of an underlying three-year baccalaureate degree. Park Evaluations will now be evaluating MCA degrees utilizing the following guidance:
– 3 year MCA’s will continue to be deemed equivalent to Masters of Applied Science degree in the US
– Park will be able to perform a single-source evaluation for PERM petitions that includes Masters level equivalence for 3 year MCA’s.
– 2-year MCA’s will be evaluated as equivalent to a baccalaureate degree in the United States.
As a result of this change, Park Evaluations will need to see transcripts for contemporary MCA degrees so that we can properly determine whether the new 2-year or the legacy 3-year MCA program was completed. Do you still have questions as to how this change impacts your clients? Feel free to email us at [email protected] or give us a call at 212-581-8877.
By: Annika Minton
When the United States military withdrew its troops from Afghanistan in August of 2021, thousands of Afghan civilians were left seeking asylum in the U.S. Around 5,000 Afghan asylum-seekers arrived in the states in September of 2021, hoping for a smooth, quick approval process—unfortunately, the wait time for a response on an asylum-seeker’s claim is between two to six years.
Some law firms took this opportunity to help these Afghans in need and are continuing their pro bono work to help them fill out their EAD (employee authorization documents) extensions and TPS (Temporary Protected Status) applications, which would allow them to continue to work in the United States while waiting for their asylum case to be adjudicated.
While law firms initially filed the I-589 form (the application for asylum) for Afghan asylum-seekers, the lengthy wait time to earn asylum status is where the TPS and EAD extensions come in. If they haven’t gotten a response on their claim by the time their EAD expires, then the TPS must be filed to extend their protected status while they wait for their application to be processed. The cycle of getting statuses extended continues until they are finally granted asylum status.
As one can imagine, asylum-seekers are required to provide a lot of documentation for the government to file and verify before they are granted asylum in the United States; but when they come from a non-English speaking country, all those documents need to be translated to English first.
Park is supporting AM500 law firms with pro bono translations to help these asylum-seekers get their EAD extended so they can continue to work and make a living while they wait (potentially for several years) for their case to be adjudicated and be granted asylum status.
If you’re an attorney and need support for standard or pro bono translations, don’t hesitate to reach out to [email protected] to discuss your case.
Follow Park Evaluations on LinkedIn for future updates.
By Ryan Mernin
Ryan recently caught up with Nancy Shalhub of Ogletree Deakins to discuss the relatively new H-1B lottery and other potential immigration policy changes. This entry in our Attorney Spotlight series continues our focus on emerging challenges and changes in the business immigration world.
Q: What visas does your firm typically handle?
Nancy: Ogletree Deakins has one of the nation’s largest business immigration practices, providing premier immigration services for nearly 28 years. Our largest corporate immigration clients are Fortune 10/50/100 companies with thousands of employees requiring immigration support worldwide. Our most common nonimmigrant visas include H-1Bs, TNs, E-3s, O-1s, L-1s, and H-1B1s. For all of our clients, we offer comprehensive immigration representation, counsel on internal immigration processes and policies, guidance, development, education, and offer day-to-day support and strategic advice to management, Global Mobility, and human resources (HR) in relation to their immigration programs.
Q: What are the major changes you’ve witnessed in the industry, from the time you began working in business immigration up to the present?
Nancy: Over the years we have experienced constantly changing trends at the rate Requests for Evidence (RFE) have been issued. In the last few years, there was an uptick in RFEs across all visa processes (NIV and IV). As of most recent, under the current administration, we have seen somewhat of a decline in RFEs. Over the years we have also seen an increase in processing times for Adjustment of Status (AOS) applications due to backlogs, as well as EADs (both NIV and AOS). With USCIS’ more recently announced premium processing option for some applications that did not previously qualify for premium processing, this welcome change should bring about positive impact for many applicants that have in the past experienced delays that extended over several months.
Q: How has the (still relatively new) H-1B lottery system impacted your clients? Any predictions for upcoming years, for example whether we’ll continue to see multiple rounds of lottery selections?
Nancy: The H-1B electronic registration process for the H-1B lottery system has been overall a positive change for many clients. Prior to the electronic registration process, clients would wait several months before they knew whether one of their petitions was selected. The electronic registration system has allowed clients the opportunity to better plan with their foreign national population, alongside the business, allowing for smoother transitions and more visibility into the H-1B lottery. As per multiple rounds of selections, I believe we could continue to see multiple rounds of lottery selections.
Q: Any major policy changes you’d like to see in the coming years?
Nancy: I would like to see continued use of technology as it relates to our petitions and filings. The H-1B electronic registration process is a great example of creating more efficiency due to the integration of new tools and technologies. I believe the use of technology can assist with backlogs, efficiency, consistency, and transparency for both businesses and foreign nationals.
Q: What’s the most rewarding part of being an immigration attorney?
Nancy: Being able to work with our clients and being a small, positive part of their immigration journey is the most rewarding part of being an immigration attorney. As a daughter of immigrants, I understand the obstacles families face and the concerns they might have in relocating to a new country. I am proud to be a trusted advisor and partner to our clients as they navigate the immigration system as well as their immigration programs.
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.
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.