Exiting the Year on H.R. 3012, K-1/K-2 Issues, and H-1B Marketing Manager /Marketing Research Positions Contretemps.By Alan Lee, Esq.† As 2011 begins to fade away and we await the arrival of a hopefully better 2012, we wish to exit the year by writing about three topics which may be of interest to you. 1. The latest news on H.R. 3012, the bill to open up the immigrant visa quotas with especially beneficial effect to advanced degree employment based natives of China and India, is that the Senate will not meet again to conduct business until January 23, 2012, and that Rule 14 was invoked to try to force consideration of the bill on the floor despite opposition to the bill by Senator Charles Grassley (R-IA). The bill will be open to all amendments, and Majority Leader Harry Reid (D-NV) may or may not allow the bill to be considered. Even if the above two things happen, Senator Grassley can still filibuster the bill at which point it will only pass by getting 60 "yea" votes on the bill (cloture). Behind the scenes, the Irish community is attempting to use the bill as an opportunity to have a place at the table and two senators, Chuck Schumer (D-NY) and Scott Brown (R-Mass) are negotiating to tack on an Irish E-3 visa provision which would allow 10,000 non- immigrant worker visas to the Irish under the same criteria as H-1B without the cap. Senator Schumer's proposal would include a waiver for the undocumented while Senator Brown's would not. According to the Irish Echo, 53 Democratic senators are lined up to support the Schumer bill and Schumer was seeking the support of as many as 10 Republican senators who had supported Irish visa bids in the past. Even without the Irish proposal, the bill is unfortunately provoking anxiety and glee or consternation among the immigrant communities as the bill does not add new visa numbers, only redistributing the present ones to benefit natives of some countries to the detriment of others. Points that we would like the Senate to consider are 1) its obvious value to the country in keeping graduates of American colleges and universities here rather than seeing them exiting the U.S. for China and India with all the technical and scientific knowledge gained in their graduate studies, 2) allowing unused visa numbers from the past to be added in so that the bill is not viewed as a zero sum game by many immigrant groups, and 3) limiting the number of amendments so that the bill does not die under its own weight. 2. An issue has arisen on K-1 and K-2 (fiancé/fiancée and child of fiancé/fiancée) adjustment of status applications where the K-1 is divorced or the K-2 is now over 21 that U.S.C.I.S. now says that the statute requires an I-864 affidavit of support by the petitioner. The Board of Immigration Appeals had decided two cases in 2011 that divorced K-1s and 21+ K-2 dependents whose K-1 parent married a U.S. citizen after they turned 18 were not necessarily precluded from adjusting their statuses to permanent residence. See Matter of Sesay, 25 I&N Dec. 431 (BIA 2011) and Matter of Le, 25 I&N Dec. 541 (BIA 2011). U.S.C.I.S. Headquarters stated on 10/5/11 to AILA (American Immigration Lawyers Association) that since K-1s and K-2s adjust as functional equivalents of immediate relatives, there must be Form I-864 from the K-1 petitioner. U.S.C.I.S. said it was considering how to give effect to the Board's decisions while continuing to adhere to statutory and regulatory requirements relating to public charge inadmissibility and affidavit of support requirements, and that guidance would be forthcoming. In considering affidavit of support requirements for K-2s, U.S.C.I.S. should keep in mind its own interoffice memorandum of March 15, 2007, from Michael L. Aytes, U.S.C.I.S. Associate Director, Domestic Operations, to DHS officials, that K-2 aliens seeking to adjust status are not required to demonstrate a stepparent/stepchild relationship with the petitioner. The memorandum was cited by the BIA in its Le decision where it said that "We further find that a fiancé(e) derivative child need not qualify as the "stepchild" of the fiancé(e) petitioner but, rather, must only show that he or she is the "child" of the alien fiancé(e) parent whom he or she is accompanying or following to join." Thus where the relationship is with the natural parent rather than the USC stepparent, an I-864 affidavit of support from the natural parent who has attained immigrant status should prove sufficient. 3. In the same meeting, AILA complained about U.S.C.I.S. struggles to recognize marketing managers and market research analysts as worthy of H-1B specialty occupation status, but received the flat unhelpful response from U.S.C.I.S. that job titles are not controlling in making the determination and the evidence in the record for each case is reviewed in its entirety to determine if the beneficiary will be employed in a specialty occupation. To our eyes, AILA's position has much merit. U.S.C.I.S.'s differing stances here have been nonsensical. It has variously said that market research analyst positions require master's degrees in denying petitions where the applicant had less education and then denying petitions where applicants had master's degrees with the rationale that market research analyst positions are not professional. U.S.C.I.S. has also imposed an unofficial size requirement on companies, denying most applications of companies without sizable staff. The logic of the agency is seriously flawed in believing that marketing managers and market research analysts in smaller size companies do not perform professional duties. In point of fact, those in smaller companies may be doing more professional work than those in larger companies which have junior, intermediate, and senior personnel. The agency is also wrong in relying almost exclusively on the Occupational Outlook Handbook of the Department of Labor and misconstruing it to believe that a degree is not required for these type of positions even though the Handbook states explicitly that market and survey researchers can enter the occupation with a bachelor's degree, but those with a master's or Ph.D. in marketing or social sciences should enjoy the best opportunities. U.S.C.I.S. further ignores the opposite conclusion of the Department of Labor in its Prevailing Wage Determination Policy Guidance and Occupational Employment Statistics that the positions require 4 year degrees. Because of the breakdown of logic in adjudicating these cases, the agency should undergo a serious review of its contradictory stances. Such is especially needed since appeal is not an option for many companies and individuals who cannot wait the 22 months that it takes the Administrative Appeals Office of U.S.C.I.S. to process a H-1B appeal. NOTE: We hope that your 2012 will be even better than your 2011! Happy New Year!!!
† The author is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory and registered in the Bar Register of Preeminent Lawyers. He was also recently named to the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004. |
Copyright © 2003-2012 Alan Lee,
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