Category Archives: H-1B Visas

Attorney General Sessions Denies Request Of DHS That He Suspend Briefing Schedules And Clarify Question Presented And Grants, In Part, Parties Request For Extension Of Deadline For Submitting Briefs.

On March 30, 2018, Attorney General Sessions issued an order addressing requests from both parties in a case he had previously referred to himself for review. The parties had been asked to submit briefs and schedules for initial, amici and reply briefs had been set.

However, respondent requested an extension of the deadline for submitting initial briefs and, 3 days later, DHS moved to: 1)suspend the briefing schedules to allow the Board of Immigration Appeals (BIA or Board) to rule on the certification order of the Immigration Judge (IJ), 2)clarify the question presented, and 3)extend the deadline for submitting its initial brief.  Respondent then filed a request for the same relief.

In his order, the Attorney General (AG) first stated that certification from the IJ was “not properly pending before the Board”, claiming the IJ had not acted within his authority as delineated by the controlling regulations as he had not issued a “decision” on remand that could be certified to the BIA.

The AG also denied DHS’s request to clarify the question presented, stating that he had requested briefing on whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable “particular social group” (PSG) for asylum or withholding of removal purposes.  Noting that he had invited the parties and interested amici to brief the relevant points, the AG declared that if being a victim of private criminal activity qualifies one as a PSG member, “the briefs should identify such situations” or explain why such situations do not exist. Observing that DHS was requesting clarification because “this question has already been answered at least in part, by the Board”, AG Sessions held that “Board precedent…does not bind my ultimate decision in this matter”, citing to INA §103(a)(1).  He then gave new duties for the filing of initial, amici, and reply briefs, holding that no further requests for extensions would be granted.

Matter of A-B-, 27 I&N 247 (A.G. 2018)

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Labor Certification

Q: Is the Labor Certification part of the H-1B? What type of a Visa is that?

A: It’s to help the person get a Green Card. So, there are subcategories for the Green Card, but ultimately it is to get an Immigrant Visa, whereas the H-1B is a non-immigrant visa.

These are terms that are often used interchangeably.

Under the H-1B Visa process there is an application called the Labor Condition Application, and that is something that basically guides the company to know when and where they can hire the individual and what their salary requirements are for the 3-year H-1B period. Whereas the PERM Labor Certification process is designed to allow the employer to sponsor the person for a permanent visa or immigrant visa, so that they can basically employ the person with no restriction.

And, that’s a very valuable tool because something we haven’t mentioned so far is when you’re hired in a nonimmigrant classification, as a general rule, you are restricted to that employer, you are restricted to the position you are sponsored under, etc.

Whereas, in the green card scenario, you are sponsored by a specific company for a specific position, but after a reasonable amount of time, you are not required to remain in that position. The employer can promote you, you can move around to different parts of the U.S. or even different parts of the world, in some circumstances without any of the restrictions that you would have under a nonimmigrant visa category.

But the Labor Certification process is a much longer process than for the H-1B because you are undertaking essentially 3 stages:

The employer is proving that there is no one able, willing or qualified to do the job by advertising the position and then filing the application with the Department of Labor.

If that is certified, then the employer is for the first time going to USCIS to file an I-140 petition, (this is the green card petition).

If that finishes, then, depending on where the person falls under the Visa Bulletin, which is the monthly quota system, then they can go and apply for the actual green card, whether it’s through the process called “Adjustment of Status” in the United States, or Immigrant Visa process in their home country, or wherever they are residing at the time.

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