ConcealerThe basics of “Beauty 101” teach us that a great concealer will blanket your skin, cover dark spots, under-eye circles, redness and even blemishes. Much like cosmetic concealers, the blanket program for the L-1 intracompany transfer visa can help to conceal the blemishes of our current immigration system when it comes to coping with the unsightly requests for evidence and denials being issued by USCIS. As the cosmetics industry continues rapid expansion throughout international markets, such as L’Oréal’s explosive market presence throughout India, use of the blanket will streamline the employment transfer process, save significant time and resources, and effectively provide a flawless finish for industry intracompany travel programs.

The L-1 intracompany transfer visa was established in 1970 with amendments to the Immigration and Nationality Act. The establishment of this visa was intended to permit international companies to temporarily transfer employees to the United States for the purpose of improving management effectiveness, expanding U.S. exports, and enhancing competitiveness in markets abroad. The visa is available to employees who have worked abroad for a qualifying entity of the U.S. employer (parent, branch, subsidiary, affiliate, etc.) for a period of no less than one year outside of the U.S. prior to seeking the transfer. Eligible employees include managers or executives, as well as employees in possession of specialized knowledge of the employer’s products, services, or other interests and their application in the international marketplace.

There are two ways for employers to petition for an L-1 visa. Typically, smaller employers or employers with infrequent intracompany U.S. transfers tend to file individual petitions with USCIS. This means, for each and every petition or employment transfer the employer has to file a separate petition with the agency. This petitioning process is inundated with potential problems for the employer. For starters, this petitioning process can take several months, sometimes longer. Additionally, over the course of the past several years the adjudication outcome is seldom favorable. Incidences of requests for evidence and even denials have skyrocketed in recent years as employment-based immigration has been thrust into the political arena suffering constant allegations of visa abuse and fraud.

The other means to apply for an L-1 visa is by virtue of what is known as a blanket petitioning process. Eligible employers may essentially apply once for a single blanket approval. The blanket serves as prima facie evidence that a qualifying corporate relationship exists between the U.S. employer and its overseas entities. Once the blanket approval is secured from USCIS, each individual employee for whom the employer seeks a U.S. transfer may apply directly at a U.S. Consulate or Embassy for the L-1 visa stamp. Hence, the blanket process essentially bypasses the need for a petition or legal argument at USCIS.

In order to petition for an L-1 blanket, the U.S. employer must have been doing business in the U.S. for at least a year and have at least 3 or more domestic and foreign branches, subsidiaries or affiliates engaged in commercial trade or services. The U.S. employer must also have:

  • combined U.S. annual sales of at least $25 million;
  • a U.S. workforce of at least 1,000; or
  • received approval of at least 10 individual L petitions in the past 12 months.

The blanket process has potential to cover most blemishes, however there are some that may remain visible from time to time despite your best efforts to keep them masked. First, only professional occupations are eligible for blanket transfers under the L-1B specialized knowledge category. This means that employees whom are not in possession of at least a Bachelor’s degree or the equivalent may not be eligible for the blanket transfer process and would be required to apply through an individual petitioning process. Additionally, consular adjudications based upon a company blanket are not without their own challenges. For instance, L-1B adjudications in Chennai, India, are highly scrutinized and could prove challenging for industry employers expanding in that market.

Evidently, just as with any concealer, even the best product on the market won’t completely blanket your coverage. However, petitioning via company blanket to facilitate L-1 intracompany transfers can help industry employers to conceal the blemishes of the current immigration system. Use of the blanket can streamline the employment transfer process, save significant time and financial resources. For cosmetic industry employers seeking to compete in the international marketplace, my only recommendation to you is follow your own beauty tips – present your flawless self by blanketing the coverage of your intracompany travel program.

Our prior blog examined the facts leading up to the class action lawsuit that was filed in the United States District Court for the Western District of Washington at Seattle. The lawsuit sought declaratory and injunctive relief as a result of the revised October Visa Bulletin that was issued by the Department of State on September 25, 2015.

On October 2, 2015, the U.S. government submitted its brief in opposition to the temporary restraining order. Supplemental declarations were also submitted for consideration by the court. On October 6, 2015, the court issued an order to deny the motion for temporary restraining order.  The order states in pertinent part “While the Court appreciates the confusion caused by the two Visa Bulletins published in September and the potentially wasted expenses Plaintiffs incurred as a result, because Plaintiffs fail to meet the critical elements for a temporary restraining order at this time, the Court cannot issue injunctive relief.”

Today, the Department of State issued the November Visa Bulletin, which shows no movement in eligible filing dates for employment-based preferences from that presented in the revised October Visa Bulletin. Based on these facts, while the litigation will continue, any immediate recourse as a result of the revisions to the October Visa Bulletin is unlikely.   MB_Globe_Icon

Mehlman Barnes LLP will continue to monitor this issue and will provide updates as they become available.

05 Oct 2015
October 5, 2015

The Diversity Visa: Trick or Treat?

shutterstock_203304139 by Shannon Napier Barnes, Partner & Attorney at Law

In the spirit of the Halloween season, I thought it would be useful to share some information regarding the Diversity Visa and answer the question, is it a Trick or a Treat? Quite often people think things like “Diversity Visa… what’s the TRICK here?” or “Is this some online scam that I will wake up and regret more than the sugar withdrawal and tummy ache that I know I’m destined for on November 1?” Well I’m happy to report that the Diversity Visa is not a scam, it is not a trick and it won’t leave you waking up with a sugar hangover… The Diversity Visa is in fact a congressionally mandated TREAT that many, many, foreign born persons are eligible to apply for. So read on and act fast because your chance to apply expires one week from today!

What is the Diversity Visa?

The Diversity Visa is a congressionally mandated program administered annually by the Department of State pursuant to the Immigration and Nationality Act § 203(c). This provision provides for admission of certain “diversity immigrants” from countries with historically low rates of immigration to the United States. Visas are distributed among six geographic regions and no single country may receive more than seven percent of the available diversity visas in any single year.

Persons seeking to apply for the Diversity Visa must meet the program eligibility requirements and submit an online application through the Department of State. Subsequently, applications will go through a randomized computer selection process. If selected in the lottery, applicants are then eligible to complete processing of either an immigrant visa at a U.S. Consulate or Embassy or apply for adjustment of status to that of lawful permanent resident, if the individual is already present in the United States in another status.

Am I eligible?

There are three requirements to the Diversity Visa: 1) Chargeability; 2) Education or work experience; and 3) Eligible for admission as a lawful permanent resident. For the complete application instructions and FAQ concerning eligibility requirements, visit http://travel.state.gov/content/visas/english/immigrate/diversity-visa/instructions.html.

1) Chargeability

This year, natives of the following countries are ineligible for the Diversity Visa: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Unless listed above as ineligible, natives from all other countries are eligible to apply. Note that the list of eligible countries is subject to change each year.

An applicant may be considered a “native” through any of the following: 1) birth in a qualifying country; 2) claiming a spouse’s country of birth, provided that both the applicant and the spouse are listed on the Diversity Visa application, are issued diversity visas and enter the U.S. simultaneously with those visas; or 3) claiming one or more parent’s country of birth if it is a country whose natives are eligible, and if neither of the parents was born in or a resident of the applicant’s country of birth at the time of the applicant’s birth. As a general matter, people are not generally considered residents of a country in which they were not legally born or naturalized, if they were only visiting, studying, stationed temporarily for business or professional reasons, etc.

2) Education or Work Experience

In order to be eligible for the diversity visa, the applicant must have at least a high school education or the equivalent or have two years of work experience within the past five years in an occupation that requires at least two years of training or experience. For purposes of this requirement, a “high school education” must be successful completion of a 12-year course of elementary and secondary education in the United States or the foreign equivalent of said education. Only formal courses of study meet this requirement; correspondence programs and equivalency certificates such as the GED are not acceptable.

3) Otherwise Eligible for Admission as a Lawful Permanent Resident

Evidence that the eligibility requirements have been met will be required of the applicant at the time the applicant appears at a U.S. Consulate or Embassy for a visa interview or at the time the applicant applies for adjustment of status. At that time, the applicant will present proof of the country of chargeability, proof of the education or work experience, and will also be required to demonstrate that he/she meets all other requirements for admission as a lawful permanent resident. Summarily, such requirements include but are not limited to long-term immigrant intent and other admissibility considerations (criminal convictions and offenses, health related concerns, moral turpitude, immigration history, etc.) can be potential factors which impacting eligibility.

How do I apply and how do I know if I’m selected in the visa lottery?

Applicants for the Diversity Visa must submit their applications no later than Tuesday, November 3, 2015 at 12:00 p.m., Eastern Standard Time (EST). To apply, applicants can complete the application online at www.dvlottery.state.gov. Applicants will need to return to the Diversity Visa web-site between May 3, 2016 and September 30, 2017 to conduct an Entrant Status Check and determine whether the application has been selected in the lottery. Processing of all diversity visas must conclude by midnight on September 30, 2017.

Beware of the Occasional Trick!

Although most doors you encounter on Halloween will be offering treats, the cautious Trick or Treater must always stay alert for the occasional trick. Similarly, although the Diversity Visa program is no doubt a treat, there have been instances of third party scams as an attempt to extract payment from unknowing Diversity Visa applicants. The Department of State cautions, and I echo, please remember that the Diversity Visa program is administered online and applicants will not receive a notification letter or email providing information about lottery success. Similarly, applicants should never provide advance payment by any means to anyone, as fees are collected directly from the applicant at the time of visa interview or adjustment of status. To view the complete fraud warning, visit http://travel.state.gov/content/visas/english/general/fraud.html.

Now that you know that the Diversity Visa is not a TRICK, act fast and take advantage of the congressionally mandated TREAT before you lose your chance!

White HouseAs presented in our prior blog, on September 25, 2015, the Department of State rescinded the September 9th edition of the October Visa Bulletin. The revised Visa Bulletin significantly pushed back the eligible adjustment of status filing dates impacting EB India, China and Philippines. EB-2 China was moved back by 1 year and 4 months, EB-2 India moved back 2 years, and EB-3 Philippines moved back 5 years. Almost simultaneously, USCIS confirmed that the agency only intends to follow the dates on the revised bulletin for determining eligibility to file applications for permanent residency in the month of October.

The implications of the revised Visa Bulletin are wide spread, causing thousands of foreign nationals lawfully present in the U.S. to miss their opportunity to file adjustment of status applications only days before the filing window was set to open. In the wake of this announcement, widespread disappointment and even outrage have ensued because having a pending adjustment of status application carries many ancillary benefits including employment portability, child status protection, travel and employment authorization for dependent family members. Separately, the rescission of the Visa Bulletin left these individuals at a significant financial loss for having already incurred legal costs, medical examination and vaccination expenses, etc. that are associated with the application process.

Select members of the immigration bar have gone above and beyond to protect the rights of these thousands of individuals who have been unfairly penalized in violation of the Administrative Procedures Act as well as the Fifth Amendment Due Process Clause. On September 28, 2015, a class action lawsuit was filed with the United States District Court for the Western District of Washington at Seattle seeking declaratory and injunctive relief. The filed lawsuit requests the Court to issue a temporary restraining order followed by a preliminary injunction to prevent enforcement of the revised Visa Bulletin, and requiring USCIS to accept adjustment of status applications in accordance with the original Visa Bulletin issued on September 9, 2015.

A hearing pertaining to the temporary restraining order was scheduled, however is currently delayed until the government has time to respond.  While we await further updates pertaining to the temporary restraining order, we encourage the public to support a petition to the White House pleading the Obama Administration to require USCIS’ adherence to the terms of the original Visa Bulletin. Join this call to action and let your voice be heard.

Pink World MapOn September 28, 2015, a class action law suit was filed with the United States District Court for the Western District of Washington at Seattle seeking declaratory and injunctive relief as a result of the revised October Visa Bulletin that was issued by the Department of State on September 25, 2015.

The law suit explains that the much needed modernization outlined by the original October Visa Bulletin issued on September 9, 2015, would work to resolve a flawed process that currently allows tens of thousands of visas to go unused annually while hundreds of thousands of individuals are gridlocked in visa backlogs for upwards of a decade. The lawsuit highlights the fact that the new procedures outlined in the original Visa Bulletin actually better enable the Department of State to fulfill its statutory obligation to assess immigrant visa demands and ensure all of the visas Congress allots each fiscal year are used.

In reliance on the original Visa Bulletin, the lawsuit explains that class participants now stand to suffer the loss of significant ancillary benefits, as discussed in our prior blog. Apart from loss of these significant ancillary benefits, class participants have also incurred expenditures for legal fees, medical examinations, vaccinations, document translations, etc., as well as other costs associated with the application process, only to learn days before the filing window was scheduled to open that the government flippantly changed its mind and reneged the benefit announced only weeks prior.

The filed lawsuit concludes that the revised Visa Bulletin retroactively alters the legal rights of the complainants in violation of the Administrative Procedures Act (APA) and the Fifth Amendment’s Due Process Clause. In forms of relief, the lawsuit requests the Court to issue a temporary restraining order followed by a preliminary injunction to prevent enforcement of the revised Visa Bulletin, and requiring USCIS to accept adjustment of status applications in accordance with the original Visa Bulletin issued on September 9, 2015.

Mehlman Barnes LLP will continue to monitor the progression of this lawsuit and will provide updates as they become available.