Posted On: January 29, 2010

Updated Administrative Appeals Office Processing Times

The Administrative Appeals Office (AAO) Processing Times were released on January 28, 2010 with processing dates as of January 4, 2010.

If you filed an appeal, please review the links below to determine the applicable processing time associated with your particular case.

Administrative Appeals Office

The current processing time for an I-129 H-1B Appeal is 13 months. The current processing time for an I-140 EB2 Appeal for an Advanced Degree Professional is 24 months; for an I-140EB3 Appeal for a Skilled or Professional Worker is 23 months. Most other cases are within USCIS's processing time goal of 6 months or less.

Posted On: January 28, 2010

Filing an H-1B nonimmigrant cap/transfer/extension/amended visa petition after the release of the “MEMO”

In support of an H-1B petition, a petitioner must not only establish that the beneficiary is coming to the United States temporarily to work in a specialty occupation but the petitioner must also satisfy the requirement of being a U.S. employer by establishing that a valid employer-employee relationship exists between the U.S. employer and the beneficiary throughout the requested H-1B validity period. The Petitioner must also file an LCA specific to EACH location where the beneficiary will be working.

“United States employer,” is defined at C.F.R. 214.2(h)(4)(ii) as follows:
United States employer means a person, firm, corporation, contractor, or other association, or organization in the United States which:

(1) Engages a person to work in the United States;
(2) Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee; and
(3) Has an Internal Revenue Service Tax identification number.

In considering whether or not there is a valid “employer-employee relationship” for purposes of H-1B petition adjudication, USCIS must determine if the employer has a sufficient level of control over the employee. Level of control meaning right to control, which is different from actual control. An employer may have the right to control the beneficiary’s job related duties and yet not exercise actual control over each function performed by that beneficiary. The employer-employee relationship hinges on the RIGHT to control the beneficiary.

Evidence which helps to establish the employer-employee relationship between Petitioner and Beneficiary:

INITIAL PETITION
• A complete itinerary of services or engagements that specifies the dates of each service or engagement, the name and addresses of the actual employer, and the names and addresses of the establishment, venues, or locations where the services will be performed for the period of time requested;
• Copy of signed employment agreement between the petitioner and beneficiary detailing the terms and conditions of employment;
• Copy of an employment offer letter that clearly describes the nature of the employer-employee relationship and the services to be performed by the beneficiary;
• Copy of relevant portions of valid contracts between the petitioner and a client (in which the petitioner has entered into a business agreement for which the petitioner’s employees will be utilized) that establishes that while the petitioner’s employees are place at the third party worksite, the petitioner will continue to have the right to control its employees;
• Copies of signed contractual agreements, statements of work, work orders, service agreements, and letters between the petitioner and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary, which provide information such as a detailed description of the duties the beneficiary will perform, the qualifications that are required to perform the job duties, salary, or wages paid, hours worked, benefits, a brief description of who will supervise the beneficiary and their duties, and any other related evidence;
• Copy of position description or any other documentation that describes the skills required to perform the job offered, the scours of the instrumentalities and tools needed to perform the job, the product to be developed or the service to be provided, the location where the beneficiary will perform the duties, the duration of the relationship between the petitioner and beneficiary, whether the petitioner has the right to assign additional duties, the extent of petitioner’s discretion over when and how long the beneficiary will work, the method of payment, the petitioner’s role in paying and hiring assistants to be utilized by the beneficiary, whether the work to be performed is part of the regular business of the petitioner, the provision of employees benefits, and the tax treatment of the beneficiary in relation to the petitioner;
• Description of the performance review process; and or
• Copy of petitioner’s organizational chart, demonstrating beneficiary’s supervisory chain


EXTENSION PETITIONS

• Copies of the beneficiary’s pay records (leave and earnings statements, and pay stubs, etc) for the period of the previously approved H-1B status;
• Copies of the beneficiary’s payroll summaries and/or Form W-2s, evidencing wages paid to the beneficiary during the period of previously approved H-1B status;
• Copy of time sheets during the period of previously approved H-1B status;
• Copy of prior years’ work schedules;
• Documentary examples of work product created or produced by the beneficiary for the past H-1B validity period ( copies of: business plans, reports, presentations, evaluations, recommendations, critical reviews, promotional materials, designs, blueprints, newspaper articles, web-site text, news copy, photographs of prototypes, etc) NOTE: the materials must clearly substantiate the author and date created;
• copy of dated performance review(s); and/or
• copy of any employment history records, including but not limited to, documentation showing date of hire, dates of job changes, (e.g. , the petitioner is able to demonstrate that it did not meet all the terms and conditions through no fault of its own). Such a limited exception will be made solely on a case-by-case basis.


Request for Evidence (RFE)
If Requests for Evidence (RFE) are made, such RFEs, must specifically state (1) what is at issue (e.g., the petitioner has failed to establish through evidence that a valid employer-employee relationship exists) and (2) be tailored to request specific types of evidence from the petitioner that go directly to what USCIS deems as deficient. The RFE should neither require that a specific type of evidence be provided, unless provided for by regulations (e.g., an itinerary of service dates and locations), nor should it request information that has already been provided in the petition. Officers should state what element the petitioner has failed to establish and provide examples of documentation that could be provided to establish H-1B eligibility.


WHAT IS ULTIMATELY REQUIRED?
Compliance with 8 C.F.R. 214.2(h)(2)(i)(B) assists USCIS in determining that the petitioner has concrete plans in place for a particular beneficiary, that the beneficiary is performing duties in a specialty occupation, and that the beneficiary is not being “benched” without pay between assignments.

Source: AILA InfoNet Doc. No. 10011363 (Posted 1/13/2010)

If you have any questions relating to the information summarized above, please do not hesitate to contact our office to schedule a consultation.

Posted On: January 20, 2010

Updated Service Center Processing Times

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on January 15, 2010 with processing dates as of November 30, 2009.

If you filed a petition with one of the Service Centers, please review the links below to determine the applicable processing time associated with your particular case.

California Service Center
National Benefits Center
Nebraska Service Center
Texas Service Center
Vermont Service Center

If your petition is out-side of the normal range listed, contact USCIS. (1-800-375-5283)
If you are a client of the MVP Law Group and would like our assistance, please contact our office.

Posted On: January 19, 2010

Reported Advance Parole Document Validity Date Error

FYI - The American Immigration Lawyers Association (AILA) has reported a glitch in the issuance of Advance Parole Documents during the first part of January 2010. The date of issuance on the documents is noted as January 1990 instead of 2010.

USCIS has identified all of the cases in which the wrong date was issued, and will issue revised forms as soon as the software issue is corrected.

***No further action will be necessary to receive a corrected document***

If you need to travel urgently and you have received a document with an invalid issue date, then you may travel using the incorrect document. U.S. Customs & Border Protection (CBP) has been alerted however, you may be questioned about the issuance date. Therefore, please print this explanation to share with CBP if necessary.

Posted On: January 19, 2010

EAD and Advance Parole Renewal SPECIAL continued - Valid until 1/31/2010

$450 flat fee (no admin fee) for filing both EAD and Advance Parole per applicant

OR

$200 + $50(admin fee) if filing either EAD or Advance Parole separately

Our normal legal fees are $250 + $50(admin fee) per application

**If an RFE is received, an additional legal fee will be required to respond**


Contact our office to process your EAD and Advance Parole Renewal!


FREQUENTLY ASKED QUESTIONS:

Question: How soon can I renew my EAD and Advance Parole (AP)?
Answer: You can file the renewal 120 days prior to the expiration date. However, AP applicants are advised to reapply within 30 days or less remaining on their current I-131 document.

Question: I have a valid H-1B. Do I need to renew EAD and AP?
Answer: No. You do not have to renew your EAD or AP. According to the new USCIS guidance issued last November, People on L1 or H-1B status can travel without AP. However, it is advisable to renew the EAD and AP as a precautionary measure if you plan to travel. For instance, if you travel outside the U.S. and you are not allowed back into the U.S. by customs on H-1B for any given reason, you can always come back in with AP and ensure that your adjustment of status proceeding continues.

Question: My spouse has H4 and is currently not working; do I need to renew EAD? Can I renew later when I need it?
Answer: You do not need to renew EAD. You can reapply for EAD anytime while your I-485 is pending.

Question: How long does it take to get a new EAD and AP?
Answer: Current processing times can be viewed on the USCIS website.

Question: My H-1B is expiring, should I extend H-1B or be on EAD?
Answer: You can work on EAD while your adjustment of status application (I-485) is pending. However, in the unforeseen event that your adjustment of status application is denied by the USCIS, you would fall out of status. Therefore, it is a good idea to maintain H-1B status as long as you can. However, this is decision that you have to make.

Question: Can I renew AP while I am outside the U.S.?
Answer: No

Question: What happens if my EAD expires and I’m still waiting for an approval of 485 while I am working?
Answer: If not on valid H-1B/L status, you cannot work until you get an approval.

Question: If I am currently on O1 status, and would like to travel, should I apply for AP and EAD, or just AP?
Answer: If you are on a nonimmigrant status other than H-1B, H-4, L-1, or L-2, you should obtain an AP, but EAD is not needed. Problems could occur while traveling, especially when attempting to reenter the U.S. Therefore, it is recommended that if you are not on H-1B/L status, that you should obtain both an EAD and AP if you wish to travel outside the U.S. while your I-485 is pending.

Question: What is the validity period for the EAD card?
Answer: As of June 30, 2008, USCIS will issue EAD valid for two years for individuals who qualify. The new two-year EAD is only available to individuals who have filed Adjustment of status I-485 and are unable to become a lawful permanent resident because an immigrant visa number is not currently available.

Posted On: January 15, 2010

UPDATE on the Federalized Process for Obtaining PWD Requests

Effective January 21, 2010, the Department of Labor's iCERT online system will be updated to allow the submission of electronic prevailing wage determination requests. This electronic process will allow Employers and/or their Designated Representatives to submit and obtain prevailing wage determinations (PWD) for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs through the iCERT portal.

Until January 21, 2010, all prevailing wage determination requests must continue to be submitted by U.S. Mail or comparable physical delivery service to the Washington, D.C. address listed below.

BACKGROUND - On December 19, 2008, the Department published a Final Rule addressing the Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes. The Final Rule implemented a federalized process for obtaining PWD requests for use in the H-2B temporary nonagricultural labor certification program directly from the Employment and Training Administration's (ETA) appropriate National Processing Center (NPC)--which was designated as the Chicago NPC.

Furthermore, effective as of January 1, 2010, the Final Rule also federalized PWD for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, E-3 (Australia), and the permanent labor certification programs.

Requestors must submit PWD requests using the Application for Prevailing Wage Determination, Form ETA-9141.

Requestors must submit PWD requests to the NPWHC by U.S. Mail or comparable physical delivery service at the following address until January 21, 2010 when electronic means are available:
U.S. Department of Labor-ETA, National Prevailing Wage and Helpdesk Center,
Attn: PWD Request:
1341 G Street, NW
Suite 201
Washington, DC 20005-3142

In summary, State Workforce Agencies (SWAs) and the Chicago NPC no longer accept and process PWD requests received on and after January 1, 2010. All PWD Requests submitted on and after 1/1/2010 must be centralized and processed at the DOL Washington, D.C. office until electronic means are available on January 21, 2010.

Posted On: January 14, 2010

Updated List: SEVP Approved Schools

The United States Immigration and Customs Enforcement (ICE) recently updated their list of Student and Exchange Visitor Program (SEVP) approved schools .

The schools listed have all been certified to participate in the program. The program allows foreign students interested in obtaining an education in the United States to complete a visa petition, pay the required fee, and attend a U.S. College or University. The Department of Homeland Security (DHS) created a web based system called the Student Exchange Visitor System (SEVIS) which maintains information on the foreign students accepted into the program. The SEVIS monitors the students for the duration of their approved stay, as required by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996.

Interested Foreign students: There is a process in obtaining a student visa, but it is not a difficult one. The student must first obtain Form I-20 from the U.S. College or University from which he/she intends to enroll, pay the required visa fee (Form I-901) and contact a local U.S. Consulate/Embassy to schedule an interview. At the interview, the student must have Form I-20, proof of payment of Form I-901, financial support documentation, and a completed visa application. The SEVP procedures differ among U.S. Consulates/Embassies; contact your U.S. Consulate/Embassy NOW to determine its particular procedure on applying for a visa before planning for the interview.

Interested Schools: There is a separate process to obtain F & M Certification. Authorized school officials must obtain and complete Form I-17. An overview of the SEVP Certification process can be found on the ICE website . If approved, the school will be certified and allowed to issue Form I-20 to qualifying foreign students.

If you need assistance or an explanation of the SEVP/SEVIS, please contact our office to schedule a consultation.

Posted On: January 13, 2010

BALCA upholds denial of Labor Certification – Employer Failed to Timely Address Business Necessity Issue

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Dental Assistant."

The employer filed a LC which was accepted for processing on January 16, 2007. ETA Form 9089 indicated that the job required a high school education and twenty-four (24) months of experience in the job offered. The CO issued an Audit Notification letter indicating that the O*Net indicates that one (1) year of experience is normal for the occupation and specifically directed the Employer to establish business necessity for its two (2) year requirement. The Employer responded to the Audit Notification but failed to address the business necessity issue. Thereafter the CO issue a denial letter, the Employer responded by requesting reconsideration and submitted a letter regarding why two (2) years experience was required for the position. The CO issued a letter of reconsideration indicating that the new letter constituted new evidence that was not in the record at the time that the application was filed and on which the denial was based.

PERM Regulation 20 C.F.R. § 656.20(b) controls and it provides that when an application is audited, the audit procedure specifies that a substantial failure by the employer to provide required documentation will result in that application being denied. In the instant case, the CO’s Audit Notification specifically requested that the Employer document the business necessity for its two (2) year experience requirement. BALCA stated that the failure to address the business necessity was clearly a substantial failure to provide documentation required by the audit notification. In addition, the regulations governing motions for reconsideration provided that the request for reconsideration may not include evidence not previously submitted.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

Matter of Dr. Haig Rickerby Dental Office

Posted On: January 11, 2010

February 2010 Visa Bulletin

The Department of State has released its latest Visa Bulletin.

The February 2010 Visa Bulletin still shows employment based third preference (EB-3) visas as oversubscribed while the employment based second preference (EB-2) is current for all areas of chargeability except for China and India.

Already applied in EB3, thinking about filing in EB2...if you are eligible, contact MVP Law Group toll free at 1-800-447-0796.

Click here to view the February 2010 Visa Bulletin.

Posted On: January 8, 2010

FY2011 H-1B CAP preparation & filing SPECIAL

MVP Law Group is currently offering the following special for FY2011 Cap Subject H-1B petitions - complete an H-1B questionnaire and send all requested documents to our office by February 28, 2010 and save $150.00.

Our normal legal fees are $1500.00 plus an administrative fee of $150.00 per petition.

Act Now, Don't Delay! Contact our office today!

Posted On: January 5, 2010

Updated Administrative Appeals Office Processing Times

The Administrative Appeals Office (AAO) Processing Times were released on December 31, 2009 with processing dates as of December 2, 2009

If you filed an appeal, please review the links below to determine the applicable processing time associated with your particular case.

Administrative Appeals Office

The current processing time for an I-129 H-1B Appeal is 12 months. The current processing time for an I-140 EB2 Appeal for an Advanced Degree Professional is 26 months. Most other cases are within USCIS's processing time goal of 6 months or less.

Posted On: January 4, 2010

Staff Promotions Help MVP Law Group Prepare for 2010 Expansion of Services

In preparation for the firm’s expansion of services, MVP Law Group promoted Staff at all Levels

Mr. Meetesh V. Patel, Senior Counsel of MVP Law Group, P.A., is pleased to announce the expansion of MVP Law Group’s Services into the practice areas of:

 Business Compliance
 Business Law
 Contract Law
 Estate Planning

To handle the services offered in these new areas of practice, MVP Law Group is pleased to announce the addition to our staff of a new Managing Attorney – Kellie N. Lego, Esq. We welcome her to the MVP Law Group and believe that her contributions will allow MVP to continue to provide clients with excellent results and exceptional service.

Expansion of Services
With an ever changing regulatory environment and economy, MVP Law Group has decided to expand its services into the practice areas of Business Compliance, Business Law, Contract Law and Estate Planning.

Business Compliance - We offer a number of personalized services, both ongoing and project based that can assist businesses with maintaining compliance mandated by the Department of Labor (DOL), US Citizenship and Immigration Services (USCIS), Employment Eligibility Verification (Form I-9), Securities Exchange Commission (SEC), Health Insurance Portability and Accountability Act of 1996 (HIPPA), and Sarbanes-Oxley Act (SOX404), among others.

Business Law – Our services are geared around providing you with the assistance you need in order to successfully start and effectively run your business. These Services include: Business Formation; Contract Review; Drafting Business Agreements & Letters – purchase/sale of business, employment agreements, policies and handbooks, independent contractor agreements; and credit collection letters, etc.

Contract Law – Contracts are complex legal documents that if not well drafted can end up costing a business its livelihood. MVP Law Group has expanded its practice to offer existing clientele and new clientele services ranging from contract modification to drafting.

Estate Planning – We offer a number of personalized services from drafting a simple will to creating a complex will with trust and power of attorney provisions. Additionally, our services include the creation of advance directives (living wills) which enable a designated agent to receive medical information and make appropriate medical decisions on your behalf. Lastly, as part of our estate planning services, we offer prenuptial as well as post nuptial agreements.

For more in-depth information about our new services, please visit our new website www.mvplg.com.


Kellie N. Lego, Esq.
Ms. Lego began her tenure in the legal field as a law clerk for MVP Law Group in 2005. After completion of her legal studies, Ms. Lego joined MVP Law Group as an attorney and currently handles the day to day operations of the law firm. Ms. Lego has embraced the law firm's philosophy and has a hands-on approach with each and every client in the areas of Estate Planning, Business law, Contract law and Business Immigration law. Ms. Lego is an ardent advocate for client's rights. Ms. Lego earned her Bachelor of Science Degree in Justice Studies and Political Science with a minor in Sociology from Frostburg State University. Ms. Lego completed her law degree at North Carolina Central University School of Law. As a law student Ms. Lego provided pro bono legal services to indigent clients in the Pro Bono Clinic at NCCU, and worked as a volunteer for the Innocence Project. Ms. Lego is a licensed member of the Maryland State Bar (MSBA), and the American Bar Association (ABA).