AILA’S DO’S & DON’T’S  FOR Hs & Ls,  NEW H-1B1 FOR CHILEAN & SINGAPOREANS 

By:  Roman P. Mosqueda, Esq.

AILA Member

            At the American Immigration Lawyers Association ( AILA) Southern California Chapter’s General Membership Meeting on August 31, 2004 at the Los Angeles Marriott Downtown, Bret Gregg, Assistant (California Service) Center Director, DIV 2 Non-Immigrants, and John Abram, Supervisory (California Service) Center Adjudication Officer, DIV 2 Non-Immigrants, discussed the Do’s and Don’ts  for Hs and Ls with AILA members.

            As Assistant Center Director (DIV 2) of the California Service Center in Laguna Niguel, California, Mr. Gregg supervises eleven (11) teams and a total of 106 employees who adjudicate all types of Forms I-129 and I-539 non-immigrant filings.

            He was formerly a Supervisory  (California Service) Center Adjudications Officer, assigned to Division 1 and supervised a team which  adjudicated all types of Form I-140 employment-based petitions and Form I-485 adjustment of status applications.

            As Supervisory (California Service) Center Adjudication Officer (DIV 2), Mr. Abram supervises a team of Center Adjudication Officers engaged in the adjudication of all categories of Forms I-129 and I-539 non-immigrant filings.

            Admitted to the California State Bar with a Juris Doctor degree from Southwestern University School of Law, Mr. Abram has been employed with the U.S. Citizenship and Immigration Services since March 2003. 

H-1Bs Do’s and Don’ts: 

            The California Service Center receives approximately 8,000 to 9,000 H-1Bs applications per month, according to Mr. Gregg.

            As a general rule, no re-evaluation is done on an application for extension of H-1B employment, involving the same employer and the same job.

            An H-1B-extension application filed late may still be considered to correct an injustice, such as ineffective assistance of counsel or sickness of counsel.

            If a denial of an H-1B application  can be justified, no Request For Evidence (RFE) need be issued.

            A Request For Evidence for financial statements  and/or organizational chart may be issued  to verify information in the Form I-129 application, such as date of establishment, number of employees, gross and net income, need for the position, etc.

            Does a parking lot business require a marketing manager?  Does a nursing care facility require a financial analyst?

            Expert testimony on whether a position is a specialty occupation may be helpful, but is not given very much weight.  It should not be conclusory, per 8 C.F.R. §214.2(h)(4)(ii).  It should attach a curriculum vitae.

            The California Service Center uses regularly the U.S. Department of Labor Occupational Outlook Handbook (OOH). Credible explanation should be given for any conflict with the Occupational Outlook Handbook.

            The 3 to 1 rule [in 8 C.F.R. §214.2(h)(4)(iii)(D)(5)], which requires that “three years of specialized training and/or work experience must be demonstrated for each year of college-level training the alien lacks,”  is used internally by the U.S. Citizenship and Immigration Services in its determination of the equivalency of the degree required by the specialty occupation.

            As to time frame on the filing of Form I-129 application for change of H-1B employer, 3 to 6 months may be too long, but is determined on a case-by-case basis, depending on the general economic climate in the industry. 

Ls Do’s and Don’ts:

            Matter of Church Scientology International, 19 I.&N. Dec. 593 (BIA 1988), was cited by Mr. Abram for the proposition that: “(h)aving discretionary authority and a managerial or executive title... does not, in and of itself, mean a person is employed in a managerial or executive capacity,” to qualify for L-1 manager position.

            In that case, the beneficiary “also wrote programs which she implemented.”  The Board of Immigration Appeals found that: “This appears to be the function of a staff officer or specialist not usually performed by a manager or executive.”

            Thus, a person who provides a service or produces a product may not qualify as a manager, according to Mr. Abram.

            Not every business opened can have any manager that will qualify as a manager for L-1 status.  Although a one-person company may have a qualified L-1 manager by outsourcing all functions, in lieu  of employees, that is usually not the case.  A small company gets more scrutiny than a large company with more layers of employees.

            As for L-1A functional manager, the relevant inquiries are: What is the essential function being managed?  Is the functional manager concentrating on executive decision-making?  Are there qualified people who carry out the function, do the actual work?

            Mr. Abram gave the example of the Chief Medical Officer of a cruise line, who has a staff of physicians and nurses who carry out medical functions in each vessel, as an appropriate L-1A position.

            And lastly, on “specialized knowledge,” the relevant question is: What makes this person different from all or most persons in the company?   The norm or standard being used to differentiate this person should be made clear.

            An appeal of a decision denying Form I-129 for H-1B or L-1 by the California Service Center is treated as a motion to reconsider within 60 days from receipt, and thereafter, as an appeal to the Administrative Appeals Office to be decided by the Administrative Appeals Unit (AAU) in Washington, D.C. 

H-1Bs Quotas And Preferential Treatment For Chileans And Singaporeans: 

            A new H-1B1 non-immigrant category was created by the United States-Chile Free Trade Agreement Implementation Act (Pub. L. No. 108-77) and the United States-Singapore Free Trade Agreement Act (Pub. L. No. 108-78), both signed into law by President Bush on September 3, 2003.

            Effective January 1, 2004, the immigration provisions of the aforesaid Acts provide 1,400 H-1B1 visas annually for Chileans and 5,400 H-1B1 visas annually for Singaporeans. 

            These annual 6,800 visas will be taken from the annual 65,000 H-1B numerical cap, reduced from 195,000, starting fiscal year 2004. 

            Professionals from Chile and Singapore are eligible for the new H-1B1 category, provided that they are engaged in a specialty occupation, requiring:

1.      theoretical and practical application of a body of specialized knowledge; and

2.      attainment of a post-secondary degree in the specialty requiring four or more years of study or the equivalent of such a degree as a minimum requirement for entry into the occupation . 

But by way of special treatment, business persons who do not possess a post-secondary degree or its equivalent, but are otherwise admissible, are eligible for H-1B1 category, if: 

1.      they are nationals of Chile, and will engage in the professions of Agricultural Managers, Physical Therapists, Disaster Relief Claims Adjusters and certain Management Consultants (with a degree in another specialty area, but with experience in their specialty area); or

2.      they are nationals of Singapore, and will engage in the professions of Disaster Relief Claims Adjusters and certain Management Consultants (with likewise a degree in another specialty area, but with experience in their specialty area). 

The new H-1B1 category was created in the context of free trade agreements with Chile and Singapore, providing for aforesaid guaranteed quota of annual H-1B1 visas to each country.

With the reduction of the H-1B annual numerical cap to 65,000, more countries like the Philippines should be negotiating for an annual H-1B1 visa quota for their citizens in their own trade agreements with the United States.