In this case, Residential Finance Corporation filed an H-1b petition on behalf of Mr. Geza Rakoczi. The company hoped to hire him as a market research analyst. Mr. Rakoczi graduated from Franklin University who obtained a Bachelor of Science degree in marketing and finance. USCIS denied the petition with the reason that the subject position of Market Research Analyst is not a specialty occupation as required in immigration law.

A “specialty occupation” is an “an occupation that requires . . . attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” 8 U.S.C. sec 1184(i)(1)(B).

The USCIS reached its decision based on its reading of the United States Department of Labor’s 2010-11 edition of the Occupation Outlook Handbook (“OOH”). It reasoned that although the OOH recognized a bachelor degree is the minimum educational requirement for many market and survey research jobs, the OOH does not indicate that these degrees need to be in a specific specialty directly related to market research. The USCIS’s position was that since OOH did not mention specifically that a degree in specific specialty is required, therefore the position of Market Research Position is not a specific specialty occupation.

The Court disagreed with USCIS’s position that it is too narrow.  The Court opined: “A market and survey researcher is a distinct occupation with a specialized course of study that includes multiple specialized fields, that Rokozci had completed such specialized study I the relevant fields of marketing and finance . . . “  The Court further stated that “[t]he knowledge and not title of the degree is what is important.  Diplomas rarely come bearing occupation-specific majors. What is required is an occupation that requires highly specialized knowledge and a prospective employee who has attained the credentialing indicating possession of that knowledge”

In conclusion, the fact that a specific degree is not available in a specific field does not preclude a position in that field to be in a specialty occupation.

The H-1B petitions for 2013 fiscal year can now be filed staring April 1, 2012.  For those employees whose H-1B petition gets approved, they can start to work for their petitioning employers the earliest on October 1, 2012.

The Immigration and Naturalization Act allows 85,000 cap-subject H-1B petitions each fiscal year. Of these 85,000 H-1Bs, 20,000 are reserved for persons who are in possession of an advanced degree from a university in the U.S.  In 2011 (for the fiscal year of 2012), the 20,000 cap was reached on October 28, 2011 and the 65,000 cap was reached on November 22, 2011.  

As what happened in the past few years, the entire H-1B quota was used up before the end of fiscal year.  As it is, all employers and employees who are subject to numeric caps should submit their petitions as early as possible to avoid the possibility that the quota runs out when they want to apply.

As to those who want to be cap-exempted, below is a H-1B cap-exempt employer list:

• The employer is an accredited public institution of higher education that awards Bachelors or Associates degrees.
• The employer is a nonprofit entity related to or affiliated with an institution of higher education.
• The employer is either a nonprofit research organization or a governmental research organization.
• The employees will be working in Guam or the Northern Mariana Islands (CNMI).
• The employer is a new employer and the H-1B professional previously worked for an employer subject to the Guam-CNMI cap.

In addition to those employers, certain H-1B holders are exempt from the cap under these situations:

• The H-1B holders who have been counted towards the cap during the past six years, and;
• J-1 nonimmigrant physicians who have received waivers of the two-year home residency requirement.

Step 1: Contact the National Customer Service Center (NCSC) at 1-800-375-5283. The NCSC can assist customers, community-based organizations and liaison groups with case related inquiries. Before calling the NCSC please have available your receipt number, alien registration number, type of application filed and date filed. During your call we recommend that you take note of the following information:

-The name and/or id number of the NCSC representative

-The date and time of the call

-Any service request referral number, if a service referral on a pending case is taken

Step 2: If more than 30 days have passed since contacting the NCSC and the issue has not been resolved or explained, the petitioner or applicant can email the proper USCIS Service Center to check the status of the case.

- California Service Center: csc-ncsc-followup@dhs.gov

- Vermont Service Center: vsc.ncscfollowup@dhs.gov

- Nebraska Service Center: ncscfollowup.nsc@dhs.gov

- Texas Service Center: tsc.ncscfollowup@dhs.gov

Emails should be sent to the Service Center where the case is pending. The receipt notice will indicate EAC for the Vermont Service Center, SRC for the Texas Service Center, LIN for the Nebraska Service Center, and WAC for the California Service Center.

When contacting the Service Centers by email, it is required to provide the information outlined in Step 1. If the NCSC did not issue a service request after the phone call, indicate the reason the NCSC representative did not issue the request.

Step 3: In the event there is no response within 21 days of contacting the appropriate Service Center, the petitionerr or applicant may email the USCIS Headquarters Office of Service Center Operations by email at: SCOPSSCATA@dhs.gov.  According the USCIS' information, a response should be received from this email address in ten days.

The fifth category of employment-based immigration visa provides a method for individuals to invest a required amount of money in the United States which will create at least 10 full-time employees to apply for US permanent residency (“green card”), and the creation of the jobs should be “within the next two-years,” stated in 8 CFR 204.6.

One thing had been no so clear was when will the two-year period start.  In the memo the USCIS decided that the two-year period starts six months after the adjudication of the form I-526, which is the form for the investor to file for immigration petition.

USCIS in the memo also gave more flexibility of determining job creation in the I-829 stage (for investor to petition to remove green card condition).  USCIS amended the language in relevant part to “Form I-829 must contain evidence that the petitioning alien has created or can be expected to create within a reasonable time ten full-time jobs for qualifying employees.”

The key point here is “within reasonable time.”  In an I-829 petition, USCIS will look at evidence submitted and determine whether the required jobs are more likely than not going to be created within a reasonable of time.  This gives both the investors and reviewing officers flexibility to work on the satisfaction of the 10 full-time positions creation.

The memo did not specify the factors to decide “more likely than not” and “reasonable time,” so there is a fair amount of discretion or uncertainty involved.  Nonetheless this memo should be a positive development to the EB-5 investors.

Can a spouse of a US citizen continue her green card application after her US citizen husband passed away?  A case decided by the First Circuit of the US Court of Appeals says she can.

Mr. and Mrs. Taing got married in October 2004 in the United States and in December the same year Mr. Taing filed an immediate relative green card petition for his wife.  It was a straight forward case until in July 2005, Mr. Taing passed away.   The USCIS subsequently terminated Mrs. Taing green card application procedure.  The reason was that USCIS thinks Mrs. Taing is no longer a spouse of Mr. Taing after Mr. Taing’s death.  The USCIS then drew a conclusion that since Mrs. Taing is no longer an "immediate relative" of Mr. Taing, her green card application should therefore be terminated.  To see the details of the Court's decision, please click here.

Mrs. Taing filed a complaint in a US District Court and then the case was appealed to the First Circuit Court.  The Court disagrees with the USCIS' position.  The First Circuit Court rules that the plain language in the Immigration and Nationality Act is clear that Mrs. Taing is still Mr. Taing's spouse even after Mr. Taing's death, and therefore Mrs. Taing should be able to contine her green card application under the circumstance. 

The result of the case is justified in that Mrs. Taing's green card application should not be affected because of the fact that Mr. Taing died before the USCIS approves Mrs. Taing's green card application.  Should USCIS processed the application faster or Mr. Taing lives another few years, this case might have not happened.

Similar cases in the Ninth and Sixth Circuits have reached the same result.  However the Third Circuit has ruled otherwise.  Therefore applicants living in different areas of the United States may have different results in the same case scenario as in the Matter of Taing.  It needs the ultimate decision of the US Supreme Court to solve this issue.

For certain employees it can be very important for them to have faster results on their I-140 petitions.  For example, if an employee is almost at the end of his or her 6-year H1B status, he or she will be benefited by having an approved I-140 petition.  Under the American Competitiveness in the Twenty-first Century Act (AC21), the employee can apply for another three-year extension on the H-1B status notwithstanding the H-1B 6-year limit.  The employee can use the additional time to wait for his or her immigration visa in H-1B status.

The resumption of the I-140 premium processing can be a great new development to certain I-140 beneficiaries.