by Cora-Ann V. Pestaina

On April 5, 2010 AILA published the minutes of the DOL stakeholders teleconference held on March 25, 2010. See AILA InfoNet Doc. No. 10040533. These minutes presented some important/interesting information worth noting:

Employee Referral Programs:

The DOL now requires more from employers who utilize the Employee Referral Program in fulfillment of one of the three additional forms of recruitment required for professional positions under PERM. Specifically, the DOL now has new requirements as to what is considered “acceptable” evidence to demonstrate the “existence and use” of the Employee Referral Program. Thus far, employers have been able to utilize their existing Employee Referral Programs and to document its use by submitting a description of the program. In response to audits, the DOL has previously accepted photocopies of pages from the employer’s employee handbook describing the ongoing program.

Now, the DOL requires documentation that employees were made aware that they could refer applicants to the specific position sponsored for PERM. The DOL wants to see dated copies of correspondence to employees linking the Employee Referral Program to job openings within the company and to the PERM position in particular! The minutes suggest that employers execute a memo confirming the existence of an ongoing Employee Referral Program and addressing how the company’s employees were made aware that they could refer applicants to the PERM position.

While the PERM regulations do not require documentation that employees were made aware of the specific PERM position, to be on the safe side and prevent a possible PERM denial and then motion/appeal down the road, employers may want to consider adding an “available positions” section at the end of the Employee Referral Program description, including a copy of the specific PERM ad(s) and posting the program in a conspicuous location on the business premises for a specific number of days (and publishing via employer’s intranet, if any) as they do with the Posting Notice.

Processing Issues:

PERMs have recently been moving more quickly because the DOL assigned some PERMS to adjudicators in DC and Chicago. (Let’s hope they keep it that way!)

Sunday ads are still required despite changes in the newspaper industry resulting in some newspapers being eliminated or in a reduction in the number of publication days for certain newspapers.

DOL is looking into implementing PERM fees. (It was too good to last much longer.)

Expect an increase in the number of applications subjected to supervised recruitment.

DOL is frustrated, and rightly so in my opinion, with employers and attorneys who still insist on filing PERMs via mail which consumes substantial DOL resources.

HealthAmerica Issues:

Denials where the PWD issued by SWA was too short or too long: DOL agreed that it is possible that these will be HealthAmerica type issues.

It is not clear what this means since HealthAmerica refers to typos on the PERM. If the SWA issued the employer a PWD valid for less than 90 days then this validity period must be listed on the PERM. The DOL previously advised (AILA InfoNet Doc. No. 07060461) that certifying officers are trained to know that the PWD is never valid for less than 90 days.

Prevailing Wage Determinations:

DOL verified that the Form 9141 certifying officers can see the extra words typed into various fields on the Form 9141 even if these words do not show when we print the form for our records. But, the DOL pointed out that for PERM audit purposes, this will not help us and we have to find a way to prove what was on the form.

Form 9141 certifying officers are now trained to understand abbreviations like EE for Electrical Engineering and CS for Computer Science so we can save space here if needed.

IMPORTANT: On the Form 9141 put only the PRIMARY requirements that will be the PRIMARY requirements listed on the PERM. (So, it’s not which requirements we think are higher (e.g. a BS+5 might be considered higher than the alternative MS+2 requirement) but it’s what will be the PRIMARY requirements on the Form 9089!)

If there will be multiple unanticipated worksites (as with many IT professionals), still answer NO to the Form 9141 question about multiple worksites and in another field such as D.a.6 include the language about unanticipated work locations.

DOL is working on fixing the problem with the missing SOC codes on Form 9141. It will take a while.

If we neglect to include information on the Form 9141 it will be rejected but where the certifying officer just needs clarification on an issue, they will not reject but will e-mail the attorney or employer and allow 7 days for response. Once the response is received, the PWR will be promptly adjudicated.

DOL is getting ready to increase the number of officers which will help reduce the processing time on PWDs.


By Gary Endelman and Cyrus D. Mehta

Given the crushing backlogs in the EB-2 preference for India and China, and the EB-3 for India, where the wait can exceed 30 years, one would hope that the United States Citizenship and Immigration Service’s Appeals Administrative Office (AAO) would read INA § 204(j) more generously, which allows a foreign national to “port” to a new job in a same or similar occupation so long as the I-485 adjustment of status application has been pending for more than 180 days. This should happen even if the employer substituted another person on the labor certification after the original beneficiary left the employer.

Unfortunately, the AAO does not think so in an unpublished decision dated March 26, 2010, Even though the Department of Labor got rid off labor substitutions on July 16, 2007, pursuant to 20 CFR § 656.30(c)(2), substitutions were permissible prior to that date, and many thousands of foreign nationals who are beneficiaries of labor certifications may have been substituted by their employers with other foreign nationals unbeknownst to them after they left the employer. If they have I-485 applications they can “port” to new jobs in a same or similar occupation without fear of the labor certification or the I-140 petition being invalidated, but after the recent AAO’s decision, they are now in a very difficult predicament. This decision would have a disproportionate impact on people born in India and China who are caught in the EB quota backlogs.

The crux of the AAO’s reasoning is that notwithstanding INA § 204(j), which was introduced by the American Competitiveness in the 21st Century Act of 2000 (AC 21) – legislation clearly intended by to ameliorate the hardships brought about by delays in processing and visa backlogs – the underlying labor certification must still remain valid for the foreign national beneficiary. INA § 212(a)(5)(A)(i) requires an alien who seeks to enter the US to perform skilled or unskilled labor to have a labor certification. Hence, if the labor certification has been now substituted for another beneficiary, as was permissible prior to July 16, 2007, under the AAO’s strained interpretation, there is no longer a valid labor certification and the requirements of INA § 212(a)(5)(A)(i) are no longer being fulfilled. According to the AAO, “USCIS cannot interpret sections 204(j) and 212(a)(5)(A)(iv) of the Act as allowing the adjustment of two aliens based on the same labor certification when section 212(a)(5)(A)(i) of the Act explicitly requires a labor certification as evidence of an individual alien’s admissibility.”

We disagree. INA § 204(j) is broad and sweeping. It says:

A petition under subsection (a)(1)(D) [since redesignated section 204(a)(1)(F)] for an individual whose application for adjustment of status remains unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or occupational classification as the job for which the petition was filed.

Without the assistance of INA § 204(j), a labor certification can get invalidated in many ways. If the beneficiary moves to a new employer and does not intend to take up the job with the employer who filed the labor certification, it is no longer valid. Similarly, if the beneficiary does not intend to work in the area of employment, where the labor market was tested and the prevailing wage was based, the labor certification will get invalidated even if the beneficiary works for the same employer. This may be true even where the beneficiary is compelled to move to another area other than where the market was tested when an employer relocates, say from New York, where the labor market was unsuccessfully tested for qualified US workers, to California. Under all of these disqualifying circumstances, INA § 204(j) comes to the beneficiary’s rescue notwithstanding the invalidation of the labor certification, so long as she or he is working in the same or similar occupation and an I-485 has been pending for more than 180 days. It thus strains logic when the AAO distinguishes these circumstances of labor certification invalidity from when the labor certification has been substituted by the employer with another foreign national beneficiary.

In our view, the AAO argument may be countered by explaining that once the adjustment has been on file for 180 days, the sponsoring employer lost any remaining right to the labor certification ownership of which passed to original beneficiary. This AAO decision is a significant restriction on adjustment of status portability and, by making the foreign national prove a negative, that no one else has been substituted in, is fundamentally unfair. The foreign national after the 180 days should be said to have a property interest in the labor certification. Moreover, the AAO agreed that even if the employer revoked the subsequently filed and approved I-140 petition, it would not undermine the ability of the beneficiary to “port” under INA § 204(j). This is illogical to the extreme. If the I-140 is revoked, portability is still permitted, but if the labor certification is withdrawn or substituted for another beneficiary, it undermines portability. It would be consistent with INA 204(j) to argue that regardless of whether the labor certification or the I-140 have been withdrawn, both invalidating events should still allow the beneficiary to allow him or her to “port” to a same or similar occupation.

We also credit Quynh Nguyen’s powerful observation that the AAO decision concludes by stating that the beneficiary who was taken out of the labor certification has not been able to show that the substituted beneficiary who ultimately adjusted status, based on the same underlying labor certification, did so illegitimately. This is after the AAO reasons that it is not possible for the original beneficiary to adjust once substitution occurs. A substituted beneficiary may legitimately substitute, but then may adjust status when actually inadmissible, but conceals the ground of inadmissibility. Even if the original beneficiary can now successfully point to the inadmissibility that was concealed, such as disqualifying criminal conduct or a false claim to citizenship, this in itself does not take away from the substitution, and Quynh correctly states that the AAO’s conclusion is circular. Moreover, it would create an unsavory situation where the original beneficiary would be gunning for anything to show that the substituted beneficiary obtained the green card illegitimately.

Beyond this, as Quynh Nguyen cogently reminds us, the AAO reasoning suffers from the same fundamental fallacy as the labor certification process itself, namely imposing the impossible burden of proving that a negative exists. Even though labor certification is employer-specific while INA § 204(j) is alien-centric, the flexibility that must infuse both processes to make them work is stifled by an agency predilection for requiring proof of the unseen as a precondition for approval. In each case, the proper functioning of INA 212(a)(5)(A) is primordial. DOL requires a sponsoring employer to show the absence of qualified, willing, and available US workers despite the fact that only the Secretary of Labor bears this burden of proof under INA Section 212(a)(5)(A). The AAO compels the foreign national who has ported under § 204(j) to become Sherlock Holmes and show that no one has used the labor certification to get the green card. In both instances, not only is such shifting of the burden of proof logically dubious, it is legally unjustified. The adjustment of status applicant who seeks the personal freedom and occupational mobility afforded by AC 21 has no way to find out what has happened to the labor certification he or she left behind; indeed, the notice of intent to revoke the I-140 petition only goes to the former employer who has no motive save honor to respond.

While the authors do not want the original beneficiary to get jeopardized when there is a substitution, it would likewise be fundamentally unfair for the legitimately substituted beneficiary to be robbed out of permanent residency and be similarly placed in jeopardy. There need not be a winner or a loser. Both can win. Thankfully, our good friend Angelo Paparelli and a colleague proposed the “cell mitosis” theory of labor certification. See Angelo A. Paparelli and Janet J. Lee, A Moveable Feast”: An Analysis of New and Old Portability Under AC21 § 105, 6 Bender’s Immigr. Bull. 111, 126 (Feb. 1, 2001) and available at,1119-Paparelli.shtm.

In their refreshingly original article, this is how they articulate the “cell mitosis” theory of labor certification:

In fairness to all three parties, the labor certification should be treated as “divisible” under what can be called the “cell mitosis” theory.[citation omitted] Under this theory, the labor certification would remain valid with respect to the employee’s new job, [citation omitted] and the sponsoring employer would also be permitted to substitute another alien worker on the labor certification. From the sponsoring employer’s perspective, the conditions under which the labor certification was granted remain the same (other than the fact that the initial worker has resigned); there is still a demonstrated shortage of U.S. workers for the position. To require the employer to test the market again would be unfair and unduly burdensome. Thus, just as in the process of cell mitosis, each party (the sponsoring employer and initial beneficiary employee) should be able to retain the benefits flowing from the single approved labor certification.

Ironically, the AAO decision does precisely what the DOL did not like about the prior practice of alien substitution: “We acknowledge that after enactment of AC 21, DOL’s practice of substitution effectively created a race between the employer seeking to use the labor certification to fill the proffered position on a permanent basis and the alien beneficiary named on the labor certification…” Id. at 9. That is precisely the effect of the AAO decision. Ironic. We do not see why INA § 204(j) cannot be generously interpreted consistent with the “cell mitosis” theory to allow for one labor certification to provide the basis for two beneficiaries to adjust and obtain permanent residency and still be in harmony with both § 204(j) and § 212(a)(5)(a)(ii).

Finally, the reliance by the AAO on two decisions to argue that the USCIS has been precluded from approving a visa petition when the labor certification has been used by someone else is completely misplaced. Neither is a substitution of alien case. Matter of Harry Bailen Builders, Inc., 19 I&N Dec. 412, 414 (Comm. 1986) is a case where the foreign national abandoned lawful permanent resident (LPR) status and then wanted to come back using the original labor certification approval. In Matter of Francisco Javier Villarreal-Zuniga, 23 I&N Dec. 886, 889-90 (BIA 2006), the foreign national wanted to re-use the I-130 petition his mother filed after he had already acquired LPR status on this basis before being placed in removal. This was not a labor certification case at all which is very relevant since the AAO focused repeatedly on the idea that the whole logic of its ruling rested on the validity of the labor certification. Also there was no substitution of beneficiaries and no application of portability under § 204(j) in those cases. They were both the same people attempting to use the original approvals after they lost LPR status through removal or abandonment. These people already got their green cards and wanted to use the earlier petitions without starting over again, which is very different from an individual legitimately relying on INA § 204(j) only to find that the USCIS does not grant LPR under certain circumstances involving labor certification invalidity but allows it under other circumstances.

Not even the wisdom of Solomon allows us to separate the validity of the I-140 petition from the validity of the labor certification on which it rests. The AAO relies on INA § 212(a)(5)(A)(i), together with the policy behind the regulation that removed substitutions, 20 CFR § 650.30(c)(2) (that a labor certification can only be used by one alien) to deprive the appellant in the case sub judice of the ability to adjust status once an unknown substituted beneficiary has won the race to the green card . This fundamentally misunderstands the scope and purpose of INA § 204(j), which allows the adjustment applicant to move to another job with another employer regardless of geographical location so long as the new job is in the same or similar occupational classification. Clearly, the DOL has not made any labor shortage determination with respect to this second role nor is this required. Such a foreign national therefore could not possibly rely upon the original labor certification filed by a different employer who might be located in a different city for a different job. That is why AC 21 allows the law itself to substitute for the original labor certification when the criteria for portability set forth in INA 204(j) have been satisfied. There is no conflict between AC 21 and DOL regulations if the AAO properly understood both.

The scope of this AAO ruling is difficult to determine but its implications for the future remain troubling. This is not the first time that the AAO has sought to curtail the flexibility afforded by INA 204(j). See for example, Herrera v. USCIS, which upheld AAO’s position that the revocation of the I-140 trumps portability under INA § 204(j), And the AAO conveniently forgets this earlier decision in now holding that the invalidation of the labor certification is more fundamental than the invalidation of the I-140 petition. The result-oriented reasoning that sustains this administrative assault on AC 21 adjustment portability will doubtless make itself felt in other cases with other facts, much as the contorted definition of “employer” that the infamous Neufeld Memorandum applied to the H-1B context is migrating to other visa categories with similarly baleful results, Just as the AAO since New York State Department of Transportation,, has rewritten the national interest waiver, this current decision reminds us to our sorrow that the law changes when the AAO wants it to change; Congress can remain silent.


By Gary Endelman and Cyrus D. Mehta

We post some of the ideas that we have proposed in the forthcoming article, The Tyranny of Priority Dates,, on this blog. This post advocates that an H-1B seeking an extension beyond the six years may do so even though the other spouse is the beneficiary of a labor certification.

There is a clear basis in § 106(a) of the American Competitiveness in the 21st Century Act (“AC21”) to allow an H-1B spouse to seek an extension of H-1B status beyond six years when the other spouse is the beneficiary of an appropriately filed labor certification. There is no need for two spouses to have their own labor certifications, when only one will be required for both spouses to obtain permanent residence. USCIS must interpret existing ameliorative provisions that Congress has specifically passed to relieve the hardships caused by crushing quota backlogs in a way that reflects the intention behind the law.

On November 2, 2002, the 21st Century Department of Justice Appropriations Authorization Act (“21st Century DOJ Appropriations Act”) took effect and liberalized the provisions of AC21 that enabled nonimmigrants present in the United States in H-1B status to obtain one-year extensions beyond the normal sixth-year limitation. See Pub. L. No. 107–273, 116 Stat. 1758 (2002). The new amendments enacted by the 21st Century DOJ Appropriations Act liberalized AC21 § 106(a) and now permits an H-1B visa holder to extend her status beyond the sixth year if:

1. 365 days or more have passed since the filing of any application for labor certification that is required or used by the alien to obtain status under the Immigration and Nationality Act (“INA”) § 203(b), or

2. 365 days or more have passed since the filing of an Employment-based immigrant petition under INA § 203(b). Id. (Emphasis added).

Previously, AC21 § 106(a) only permitted one-year extensions beyond the sixth-year limitation if the H-1B nonimmigrant was the beneficiary of an EB petition or an application for adjustment of status and 365 days or more had passed since the filing of a labor certification application or the Employment-based (EB) immigrant petition. See Pub. L. No. 106-313, 114 Stat. 1251 (2000). Even under this more restrictive version of AC21 § 106(a), the Service applied a more liberal interpretation, permitting H-1B aliens to obtain one-year extensions beyond the normal sixth-year limitation where there was no nexus between the previously filed and pending labor certification application or EB immigrant petition and the H-1B nonimmigrant’s current employment. This broad reading was recently affirmed in the Memorandum of William R. Yates, Associate Director for Operations. See William Yates, Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313), Memo # USCIS HQPRD 70/6.2.8-P, May 12, 2005 (“Yates Memo”).

If a labor certification was filed on behalf of one spouse, the other should be permitted to benefit from the labor certification application that was filed, and remains pending, on behalf of her husband, because under the liberalized provision of AC21, as amended by the 21st Century DOJ Appropriations Act, “365 days or more have passed since the filing of any application for labor certification.” See Pub. L. No. 107–273, 116 Stat. 1758 (2002). The derivative spouse will use this application upon its approval to obtain status pursuant to INA § 203(b).

The Yates Memo unfortunately suggests that an H-1B spouse must meet all the requirements independently of the H-1B spouse’s eligibility for a seventh-year extension. See Yates Memo at 10. Now, both spouses need to have labor certifications filed on their behalf to obtain the benefit of AC21 § 106(a), which is unnecessary and absurd. The statute itself has more flexibility and speaks of “any application for labor certification…in a case in which certification is required or used by the alien to obtain status under such § 203(b).” See Pub. L. No. 106-313, 114 Stat. 1251, § 106(a) (2000). This interpretation is very much in keeping with spirit of AC21, which is to soften the hardship caused by lengthy adjudications and we certainly have that now with respect to China and India, as well as worldwide EB-3. The current interpretation placed upon AC21 § 106(a) is contrary to the intent of Congress. It is not enough to say that the H-1B spouse for whom a labor certification has not been filed can change to non-working H-4 status. Given the backlogs facing India and China in the EB-2, as well as worldwide EB- 3, it is simply unrealistic and punitive to deprive degreed professionals of the ability to work for years at a time but force them to remain here to preserve their eligibility for adjustment of status.

Finally, the USCIS has also argued that the absence of INA § 203(d) in AC21 § 106(a) – “any application for labor certification that is a required or used by the alien to obtain status under § 203(b).” – suggests that only the principal spouse can immigrate under INA § 203(b) and the derivative needs INA § 203(d). See id. But INA § 203(d) states that the spouse is “entitled to the same status, and the same order of consideration provided in the respective subsection (INA § 203(a), § 203(b), or § 203(c)), if accompanying or following to join, the spouse or parent.” See INA § 203(d) [8 U.S.C. § 1153(d) (2006)]. Thus, the derivative spouse still immigrates under INA § 203(b). INA § 203(d), which was introduced by the Immigration Act of 1990 (“IMMACT90”), is essentially superfluous and only confirms that a derivative immigrates with the principal. See Pub. L. No. 101-649, 104 Stat. 4978 (1990). Prior to IMMACT90, there was no predecessor to INA § 203(d), and yet spouses immigrated with the principal. Thus, it is clear that a spouse does not immigrate via INA § 203(d), and the purpose of this provision is merely to confirm that a spouse is given the same order of consideration as the principal under INA § 203(b).

(The authors thank Marcelo Martinez Zambonino, a law student at New York Law School, for his assistance in editing the post.)


Much has already been written to deservedly criticize the USCIS Memo by Donald Neufeld dated January 8, 2010 (Neufeld Memo),, which suddenly undermines the ability of IT consulting firms to file H-1B visas, The latest is an excellent blog post from my friend and colleague, Angelo Paparelli,, who shows how the Neufeld Memo is a thinly veiled attempt to kill a successful business model that have benefited American businesses. Our firm is beginning to see Requests for Evidence that regurgitate the language of the Neufeld Memo regardless of the substantial evidence submitted that established the nexus between the IT consulting firm and its client. Winning the H-1B visa petition filed by an IT consulting company used to be tough, but it has never been more challenging since the issuance of the Neufeld Memo. We hark back at the days when interpretations from the prior Immigration and Naturalization Service, although not a piece of cake, were far more reasonable and commonsensical.

The H-1B worker likely to be most severely jeopardized by the sudden shift in policy brought by the Neufeld Memo is the beneficiary of an approved I-140 petition under the EB-2 from India or China, or EB-3 from any country (especially India which is more backlogged than other countries), who must file many extensions of H-1B status while waiting endlessly for immigrant visa availability. Suddenly, this time around while requesting for the H-1B extension well beyond six years under Sections 104 (c) or 106(a) of the American Competitiveness in the 21st Century Act, the petitioner must overcome the disqualifying example, cited in the Neufeld Memo, of a third party placement where “the beneficiary reports to a manager who works for the third-party company. The beneficiary does not report to the petitioner for work assignments, and all work assignments are determined by the third-party company. The petitioner does not control how the beneficiary will complete daily tasks, and no proprietary information of the petitioner is used by the beneficiary to complete any work assignments.” Such an H-1B will likely fail since the petitioner, according to the Memo, has no right of control over the beneficiary. And even when such an IT company can demonstrate a right of control over its employee (even if the day to day assignments are overseen by the client), an adjudicator can rely on the Neufeld Memo, which will give him or her sufficient leeway to arbitrarily deny the H-1B extension request. In the recent past, it was necessary to show a link between the petitioner and the client company. Now the Neufeld Memo wants more – this esoteric right of control – which may be most difficult to establish in the context of an IT consulting firm if it does not have its own proprietary product or methodology.

We look back with dreamy eyed nostalgia at earlier guidance. A 1995 memo by the then Assistant Commissioner of legacy INS, Michael L. Aytes, Interpretations of Itinerary in H-1B Petitions, HQADN (1995), more sensibly recognized that a contractor who paid the H-1B worker at all times remained an employer. Mr. Aytes advised:

Since the purpose of the regulation is merely to insure [sic] that the alien has an actual job in the United States, the itinerary requirement…can be met in a number of ways…the regulation does not require that the employer provide the Service with the exact dates and places of employment. As long as the officer is convinced of the bona fide[s] of the petitioner’s intentions with respect to the alien’s employment, the itinerary requirement has been met. The itinerary does not have to be so specific as to list each and every day of the alien’s employment in the United States. Service officers are encouraged to use discretion in determining whether the petitioner has met the burden of establishing that it has an actual employment opportunity for the alien.

With respect to the employer-employee relationship, Mr. Aytes in the good old days of 1995 reasoned so differently from Mr. Neufeld in 2010:

In the case of an H-1B petition filed by an employment contractor, Service officers are reminded that all prospective H-1B employers have promised the Department of Labor through the labor condition application process that they will pay the alien by appropriate wage even during periods of time when the alien is on travel or between assignments. Since the contractor remains the employer and is paying the alien’s salary, this constitutes employment for purposes of H-1B classification.

Mr. Aytes’ guidance on determining the employer of an H-1B petition, based on who pays the alien’s salary, was so much simpler and consistent with real world economic reality and tax law. Take a look at this Op-Ed in last Sunday’s NY Times,, drawing attention to Section 1706 (especially after the plane crash by a computer programmer pilot into the IRS building in Austin), which specifically requires people in the IT consulting industry to be treated as employees and not as independent contractors, and excludes computer programmers from the safe harbor Form 1099 requirement under Section 560 of the IRC. The Neufeld Memo assumes, in contradiction of Section 1706, that H-1B programmers are not considered employees of the IT staffing firm, when Congress specifically directed them to be treated as such, at least for tax purposes, under 1706. Moreover, in a letter dated October 23, 2003 to Lynn Shotwell, Efren Hernandez III, then Director, Business and Trade Branch of USCIS recognized that if a new LCA was obtained as a result of a change in work location after the H-1B petition was filed, an amendment to the H-1B petition was not required. It is noted that the Neufeld Memo also contradicts DOL regulations that allow an H-1B worker to be placed for 30 or 60 days without the need to obtain a new LCA. 20 C.F.R. § 655.735(c). All this points out to the fact that an employer who assigns employees at third party sites, contrary to the Neufeld Memo, need not determine the location of every job site when filing the H-1B petition.

When a management consulting firm that may either use employees in-house to work on various client projects, or station its employees at client sites for extended periods of time, files H-1B petitions on behalf of prospective employees, it is not expected that such a firm will pinpoint every client engagement in which an H-1B employee may be involved and every client site at which an H-1B employee may be stationed. Similarly, when a law firm that may use associates in-house to handle various client matters, or station associates at client corporations for extended periods of time, files an H-1B petition, it is not expected that such a firm will pinpoint every client engagement in which an H-1B employee may be involved, and every client site at which an H-1B employee may be stationed. The rules do not differ for IT consulting firms in this respect simply because its business is software development and consulting rather than management consulting or the practice of law. And in the event of a lag between work assignments, INA 212(n)(2)(C)(vii) and 20 C.F.R. §655.731(c)(7)(i) prohibit an employer from “benching” and must continue to pay the required wage. Congress contemplated time lags between assignments, and enacted a law that required the employer to pay during the unproductive period.

We demand that USCIS immediately withdraw the Neufeld Memo and to revert back to the halcyon days of Mr. Aytes’ 1995 guidance. The Neufeld Memo not only hurts the competitiveness of U.S. business but also jeopardizes the status of H-1B workers who are waiting endlessly for the green card. If there were no backlogs in the EB quotas, they would be permanent residents by now and would not be needlessly harassed by the Neufeld Memo when applying for the next round of H-1B extensions.


Cyrus D. Mehta
* and Myriam Jaidi**


On February 2, 2010, the Department of Homeland Security (DHS) published an interim rule, (available at, which adopts the Executive Office for Immigration Review (EOIR) rule at 8 Code of Federal Regulations (CFR) § 1003.102 that provides grounds to discipline practitioners for ethical violations. One specific provision, § 1003.102(t), which is the focus of this article, sanctions practitioners for failing to file a Notice of Entry of Appearance or sign pleadings, applications, motions or other filings if they have been engaged in practice and preparation.

The Department of Justice (DOJ) rules at 8 CFR § 1003.102, which were revised on January 20, 2009, significantly expanded the grounds under which a practitioner who practices before the EOIR can be disciplined. These rules can be found on the USCIS website at and will become part of the new DHS rule on March 4, 2010, and will extend to practitioners who practice before all of the components of DHS in immigration matters. This article raises preliminary questions about the impact of the specific section, 8 CFR § 1003.102(t), on pro bono clinics and services and illustrates that practitioners need further clarification from DHS to ensure that the rule does not undermine the provision of quality pro bono services.

Immigration practitioners are encouraged, even challenged, to take on pro bono representation and to participate in pro bono clinics. These clinics do a yeoman’s job in providing desperately needed assistance to indigent individuals who are unable to afford counsel and often require assistance on applications that are relatively straight forward and tend to require a simple, though thorough, review by an immigration attorney to spot important issues. In some clinics, non-attorney volunteers also assist in the filling up of applications that are supervised by volunteer lawyers. Typical examples of such applications are the N-400 for naturalization and more recently in the wake of the devastating earthquake in Haiti, the I-829 for Temporary Protected Status applicable to Haitian nationals. The need is significant and has prompted Second Circuit Judge Robert Katzmann and Second Circuit judicial nominee Denny Chin (currently a Federal District Court judge in the Southern District of New York) to bring together judges, private practitioners from large firms and solo offices, academics, clinicians, legal aid providers, and grievance committee members to study what could be done to promote good legal representation for low income immigrants. The reports of the study group are available here,

The rule DHS will adopt on March 4, 2010 and which concerns us here, 8 CFR § 1003.102 (t), sanctions a practitioner who:

t) Fails to submit a signed and completed Notice of Entry of Appearance as Attorney or Representative in compliance with applicable rules and regulations when the practitioner:

(1) Has engaged in practice or preparation as those terms are defined in §§1001.1(i) and (k), and

(2) Has been deemed to have engaged in a pattern or practice of failing to submit such forms, in compliance with applicable rules and regulations. Notwithstanding the foregoing, in each case where the respondent is represented, every pleading, application, motion, or other filing shall be signed by the practitioner of record in his or her individual name…

The terms “practice” and “preparation” are defined in new sections 8 CFR § 1.1 (i) and (k), as follows:

The term practice means the act or acts of any person appearing in any case, either in person or through the preparation or filing of any brief or other document, paper, application, or petition on behalf of another person or client before or with DHS.

The term preparation, constituting practice, means the study of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activities, including the incidental preparation of papers, but does not include the lawful functions of a notary public or service consisting solely of assistance in the completion of blank spaces on printed DHS forms, by one whose remuneration, if any, is nominal and who does not hold himself or herself out as qualified in legal matters or in immigration and naturalization procedure.

As is quite evident, “practice” and especially “preparation” have been defined broadly to encompass pro bono assistance that an attorney may provide at a clinic where he or she may assist numerous individuals in understanding the requirements of and filling out particular applications. After these forms are completed, the applicant is responsible for submitting the application on his or her own to the appropriate filing address. Does this mean that a pro bono volunteer attorney needs to submit a notice of entry of appearance and sign his or her name on, for example, the I-829 or N-400 form? Given that these clinics often include a system whereby some volunteers check individuals in to determine whether they have the necessary documents with them, other volunteers may rove and answer questions raised by individuals as they complete the forms on their own, and another set of volunteers who do a final review of the application and documents, which of these volunteers would be required to sign as the preparer or put in the G-28?

Clearly, this rule was not intended to target pro bono lawyers who render assistance at a pro bono clinic for a deserving cause. The preamble to the proposed rule that sought to expand the grounds for disciplining practitioners in 8 CFR §1003.102, published in the Federal Register at page 44183 ( states,

This provision is intended to address the growing problem of practitioners who seek to avoid the responsibilities of formal representation by routinely failing to submit the required notice of entry appearance forms. Furthermore, the difficulties in pursuing a practitioner for discipline for participating in the preparation of false or misleading documents are apparent when the practitioner fails to submit a completed notice of entry of appearance.

Nevertheless, without clarification, it appears that pro bono attorneys may need to submit a notice of appearance or to sign forms as preparers under 8 CFR § 1003.102(t).

While 8 CFR § 1003.102(t)(2) appears to make the failure to file a notice of entry of appearance a ground of discipline only applicable to one who is deemed to have “engaged in a pattern and practice of failing to submit such forms,” the signing of the form by the practitioner in his or her name is a separate requirement in the next sentence of § 1003.102(t)(2). That sentence indicates that the attorney would be required to sign the forms only where “the respondent is represented . . . by the practitioner of record.” However, considering that “the term representation . . . includes practice and preparation as defined in paragraphs (i) and (k),” 8 CFR § 1.1(m), what triggers the signature requirement is unclear. Overall, the rules do not provide clear guidance as to whether a pro bono attorney who is participating in a clinic to assist individuals who will submit forms pro se must sign as preparer.

The scope of acts that may fall under the rule must be clarified, given that the definition of “practice” includes not just a person appearing in a case, but also includes, through the added definition of “preparation” activities such as “the study of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activities, including the incidental preparation of papers…” This definition is broad enough to include acts such as an attorney giving only brief advice through a consultation. Under those circumstances it is virtually impossible for such an attorney to submit a notice of entry of appearance if nothing is prepared or filed after the conclusion of such brief advice. On the other hand, if an attorney assists in the preparation of a motion, pleading or application, or reviews an application prepared pro se by the applicant, in addition to giving the brief advice, and even if the applicant will ultimately file pro se, it would trigger the requirement, at the very minimum, of the attorney signing his or her individual name on the application.

Although the regulations do not target pro bono attorneys, language in the preamble to the EOIR proposed rule indicates that pro bono attorneys are meant to be covered by the rule if their actions are found to fall within the definitions of “practice” and/or “preparation”:

11. Section 1003.102(t)–Notice of Entry of Appearance

Comment . One commenter thought that the proposed provision was too broad because it subjects practitioners who provide pro bono services to discipline if they do not sign pleadings or submit a Form EOIR-27 or EOIR-28. The commenter suggested that disciplinary sanctions only be imposed when filings demonstrate a lack of competence or preparation, or the practitioner has undertaken “full client services.” Another commenter approved of this change, but suggested that pro se aliens be provided notice of this requirement in their own language and that immigration judges inform all who appear before the court of the requirement.

Response. The Department believes that all practitioners should submit Forms EOIR-27 and EOIR-28, and sign all filings made with EOIR, in cases where practitioners engage in “practice”’ or “preparation” as those words are defined in 8 CFR 1001.1(i) and (k). It is appropriate to require practitioners who engage in “practice” or “preparation,” whether it is for a fee or on a pro bono basis, to enter a notice of appearance and sign any filings submitted to EOIR. As stated in the supplemental information to the proposed rule, this provision is meant to advance the level of professional conduct in immigration matters and foster increased transparency in the client-practitioner relationship. Any practitioner who accepts responsibility for rendering immigration-related services to a client should be held accountable for his or her own actions, including the loss of the privilege of practice before EOIR, when such conduct fails to meet the minimum standards of professional conduct in 8 CFR 1003.102. It is difficult for EOIR to enforce those standards when practitioners fail to enter a notice of appearance or sign filings made with EOIR. However, in an effort to ensure clarity of this ground for discipline, a sentence will be added to this provision that makes it clear that a notice of appearance must be submitted and filings signed in all cases where practitioners engage in “practice” or “preparation.” If a practitioner provides pro bono services that do not meet these definitions, then a notice of appearance is not necessary.

As for the suggestions made by the second commenter, the Department declines to codify in the regulations a rule that requires notice to pro se aliens or anyone appearing before an immigration judge of an attorney’s obligation to enter a Notice of Appearance. The scope of this rule is to provide notice to attorneys of their responsibilities when engaging in practice and preparation before EOIR and to provide grounds for discipline when an attorney fails to carry through on his or her responsibilities.

73 Fed. Reg at 76914 (July 30, 2008). This fact makes clarification essential to the continued viability of pro bono clinics. In order to meet the challenges proclaimed by Judge Katzmann and the needs presented by human crises, such as the recent devastation caused by the earthquake in Haiti, pro bono attorneys need to know how to proceed when they assist indigent immigrants in preparing applications.

Clearly, 8 CFR § 1003.102 (t) appears to be in conflict with ABA Opinion 07-446 (May 5, 2007),, which holds, “A lawyer may provide legal assistance to litigants appearing before tribunals ‘pro se’ and help them prepare written submissions without disclosing or ensuring the disclosures of the nature or extent of such assistance.” Although the opinion is not binding and assumes a context in which no law regulates undisclosed advice, it raises the important issues, not contemplated in the preamble or the rule itself, of the right of an individual to proceed pro se without disclosing a lawyer’s involvement, the importance of “unbundling” legal services to allow assistance tailored to a specific need (and this is authorized under ABA Model Rule 1.2(c)), and the question of whether the fact of the assistance is material or the failure to disclose that assistance would constitute fraud in some way.

Although some may question the harm pro bono attorneys are concerned about in signing an application as a preparer, the signing requirement may dissuade volunteers from participating for fear of sanctions or potential litigation against them. Many clinics require individuals seeking assistance to sign a waiver or a limited scope of services agreement in order to protect the sponsoring organization and individuals volunteering from legal action. Most lawyers participating in pro bono clinics do not expect to be sanctioned as a result of reviewing a document or answering simple questions about a form that may be unclear to a non-lawyer. The new rule therefore jeopardizes the availability of pro bono services for the immigrant poor because it fails to clarify the scope of its reach.

The authors suggest that interested bar associations and organizations organizing pro bono clinics around a brief services model send in comments to the DHS rule on or before March 4, 2010 asking for modification of this requirement for pro bono volunteers providing pro se assistance to indigent immigrants.

(The views expressed in this article are solely of the authors and do not represent the views of any of the organizations they have any involvement with, presently or in the past.)

* Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. He is also an Adjunct Associate Professor of Law at Brooklyn Law School where he will teach a course on Immigration and Work. Mr. Mehta has received an AV rating from Martindale-Hubbell and is listed in Chambers USA, International Who’s Who of Corporate Immigration Lawyers, Best Lawyers and New York Super Lawyers. Mr. Mehta is a former Chairman of the Board of Trustees of the American Immigration Law Foundation (2004-2006). He was also the Secretary and member of the Executive Committee (2003-2007) and the Chair of the Committee on Immigration and Nationality Law (2000-2003) of the New York City Bar. He is a frequent speaker and writer on various immigration related topics.
** Myriam Jaidi is an Associate with Cyrus D. Mehta & Associates, PLLC where she represents clients on a full range of employment- and family-based immigration matters. Ms. Jaidi received her J.D. from the University of Michigan Law School where she served as Editor-in-Chief of the Michigan Journal of Race & Law and was awarded the Dores McCree Award for Service to the Law School Community. She received her M.A. from Stanford and her B.A. cum laude from Harvard University in History.


So USCIS has at long last heard and understood about the hardships that the new iCERT system of DOL was causing H-1B workers. Normally, the USCIS does not care what the DOL does and vice verse, and so this gesture comes as a pleasant surprise.

The new iCERT system consistently denies Labor Condition Applications if it cannot verify the employer’s Federal Employment Identification Number (FEIN) even if it is valid, and the employer has been routinely using this number for years on its tax forms. If one’s H-1B status was about to expire, and iCERT denied the LCA due to an “invalid” FEIN, the employer’s H-1B petition also got denied if it could not be filed with a certified LCA. The poor H-1B worker fell out of status.

USCIS issued today a news bulletin, but dated November 5, 2009,, that it would accept an H-1B petition with an uncertified LCA between November 5, 2009 till March 4, 2010. Such a filing, though, will only be accepted if the LCA was filed at least 7 days before the H-1B petition is filed, and there is evidence of such a filing. After the filing, the USCIS will issue a Request for Evidence asking for submission of the certified LCA within 30 days.

We need further clarification. It makes no sense that the LCA should be pending for 7 days. If an LCA is filed, within 2 days, iCERT denies it erroneously for an allegedly invalid FEIN. One then needs to submit proof of the employer’s FEIN such as a document issued by the IRS. After 2-3 days, iCERT indicates that it has verified the FEIN and invites the employer to submit an LCA. Once a new LCA is submitted, it gets certified after another 2-3 days. None of these individual steps take 7 days, but the whole process of filing and receiving an initial denial, submission of proof of the FEIN, and re-submission of the LCA can take longer than 7 days. Hopefully, USCIS should accept an H-1B petition even after the initial LCA was denied and the employer has submitted proof that it has a valid FEIN.

Also, what happens to the unfortunate filers whose H-1Bs were denied because they could not file with a certified LCA prior to this policy change on November 5?

Clearly, the ability to file H-1Bs without a certified LCAs will also increase the number of H-1Bs. As of last count on October 30, 2009, USCIS had received 53,800 H-1B petitions towards the 65,000 cap.

New Indian Immigration Regime for Foreign Nationals in India

*By Poorvi Chothani, Esq.

Recently, the Ministry of Commerce and Industry (the MCI), India announced (the MCI Announcement) that business visas cannot be granted to foreign nationals to work on projects or specific contracts in India. The formal announcement also requires all foreign nationals on such visas to leave India and return on employment visas. Initially they were required to leave before the end of September 30, 2009, but the deadline was later extended by the Ministry of Home Affairs by way of a clarification (the MHA Clarification), till October 31, 2009. Individuals who are in India on business visas in connection with investments, joint ventures or buying and selling industrial products can continue to remain in the country. Both the government communications also state that going forward business visas will only be issued for activities specified in their circulars. However, since the circulars were rather ambiguous the Ministry of Home Affairs published a set of frequently asked questions on October 29, 2009 (the FAQs). These provide some clarity but have not resolved all ambiguities.

Companies and expatriates in India are concerned as many of these foreign nationals are currently in India on business visas and are expected to remain in India for short periods usually to train local personnel, hold meetings or supervise the working of the Indian affiliate.

In addition, hundreds of expatriates have received letters from the Indian Government asking them to leave the country before the deadline and return on appropriate employment visas. Even individuals who have not received such letters but are here on project or contract work were required to leave the country. It is important to note that the Indian company or organization that has engaged foreign nationals to execute projects or contracts will be held responsible for the conduct of the foreign national during his or her stay in India and for the departure of such a foreign national.

Business Visas

In order to highlight the impact of these recent changes this article provides background information about the older system.

Generally, business visas were issued for short term visits or for long term stay depending on the individual’s circumstances. Short Term Business Visas is a term used in this article to differentiate it from the business visas that permitted an individual to remain in India for long periods, which are referred to, here, as Long Term Business Visas.

Short Term Business Visas were issued with a validity of six months or longer while permitting a stay of a maximum of 180 days on each visit. Short Term Business Visas were also issued to individuals who wanted to visit India on business for short term assignments. Intra-company transferees often used the Short Term Business Visas to remain in India for training, supervision, execution of projects, migration of work to outsourcing service providers and other activities. Since a Short Term Business Visa permitted a foreign national to remain in India for not more than 180 days, individuals who wished to remain in India for longer periods would depart from the country and return after a brief absence enabling them to stay for additional periods of 180 days. Some companies rotated the deputation of their representatives in India to avoid a stay of 183 days, which would establish an individual as a resident in India for tax purposes. Indian residents are required to pay income tax in India on their world wide income.

Long Term Business Visas were issued with a validity of periods up to 10 years to foreign nationals from specific countries or to those who have set up or intend to set up business ventures in India. Individuals on a Long Term Business Visa were permitted to stay for extended periods without any limitations per visit or on the cumulative period in India.

The MCI Announcement states that business visas may be only granted to individuals in connection with the following activities and in strict compliance with the Visa Manual for Business Visas.

1. Establish industrial or business ventures in India;
2. Explore possibilities to establish industrial or business ventures; or
3. Purchase or sell industrial products in India.

Since individuals who seek to travel to India in connection with a project or contract do not meet the above mentioned criteria they are ineligible for a business visa and are required to apply for employment visas. This in effect eliminates the Short Term Business Visa.

Summary of FAQs Regarding Business Visas

The FAQs published by the MHA confirm that Business Visas may be granted to individuals who wish to establish or explore the possibility of establishing an industrial or business venture in India or wish to purchase or sell industrial products in India. Additionally, the FAQS provide that a Business Visa can be granted subject to a set of criteria including the financial standing and relevant expertise of the applicant. It cannot be granted to an individual who wishes to come to India in connection with money lending or petty trading or to undertake full time employment in India.

The FAQs also specify that the grant of Business Visas will be subject to any instructions that may be issued by the government of India, based on reciprocity with foreign countries.

The FAQs also provide an indicative list of situations where applicants may be granted a Business Visa. Some of the situations are described below:

1. Foreign nationals coming to set up or explore the possibility of setting up a business or industrial venture in India.
2. Foreign nationals coming to India for technical meetings or attending board meetings or other general meetings for business services support.
3. Foreign experts/specialists coming on a short duration in connection with an on-going project with the objective of monitoring progress, conducting meetings or providing high level technical guidance.
4. Foreign national trainees of multinational companies or corporate houses who wish to attend in-house training conducted at the regional hub of the company located in India.
5. Foreign nationals coming to India to purchase/sell industrial products or commercial products or consumer durables.
6. Foreign nationals coming to India to recruit manpower.
7. Foreign nationals who are partners in a business or are on the Board of Directors of an Indian company.
8. Foreign nationals who wish to participate in, or render consulting services with regard to exhibitions, trade fairs, business fairs, etc.
9. Foreign buyers who come to transact business with suppliers, potential suppliers or to evaluate or monitor quality, provide specifications, place orders, negotiate further supplies etc., in connection with goods or services procured from India.
10. Foreign nationals coming to India for pre-sales or post-sales activity not amounting to actual execution of any contract or project.
11. Foreign students sponsored by AIESEC as interns on project based work in Indian companies or industries.

Employment Visas

The MCI Announcement specified that Employment Visas should be issued in “strict conformity with the Visa Manual” and described its salient points, briefly set out below. Employment Visa will be issued only to:

1. Skilled and qualified professionals; or
2. Persons employed by an Indian entity, including a company, organization, industry or undertaking on contract or employment basis at senior level, skilled positions in the capacity of:
a. Technical experts;
b. Senior executives; or
c. Managerial positions.

The MCI Announcement emphasized that Employment Visas should not be granted for jobs in positions where large numbers of qualified Indians are readily available. Also, Employment Visas should not be granted to individuals who will be employed in routine, ordinary, secretarial or clerical jobs in India.

Further, the MCI Announcement requires all consular missions abroad to return Business Visa applications in connection with project or contract work in India requiring the applicant to reapply for an employment visa.

Summary of FAQs Regarding Employment Visas

The FAQs confirm what the MHA had specified in its earlier announcement that Employment Visas can only be granted to skilled and qualified individuals to undertake non-routine, ordinary, secretarial or clerical jobs for which there are already a large number of qualified Indians.

Additionally, the FAQs clarify that a foreign company that does not have a base in India, in the form of a project or branch office, a subsidiary or a joint venture, cannot sponsor an applicant’s Employment Visa. Indian companies that have awarded a contract to a foreign company can sponsor an applicant’s Employment visa. It is important to note that according to the FAQs, if an Indian company sponsors an applicant on an Employment Visa, the Indian company is not necessarily the employer of the foreign national.

The FAQs also provide an indicative list of situations where applicants may be granted an Employment Visa. Some of the situations are described below:

1. Foreign nationals coming to execute a project or contract irrespective of the duration of the visit.
2. Foreign nationals on short visits to customer locations to repair plants or machinery as part of a warranty or maintenance contract.
3. Foreign experts coming to impart training or to provide technical support/services or to take up employment as coaches in India.
4. Foreign nationals coming as consultants for a fixed remuneration.
5. Self-employed foreign nationals providing skilled services like engineering, medical, accounting, legal or such other highly skilled services as independent consultants.
6. Foreign, interpreters, teachers, chefs and artists employed in hotels, clubs or other organizations.
7. Foreign engineers or technicians coming to India for installation and commissioning of equipment, machines or tools that have been supplied under a contract.
8. Foreign personnel traveling to India in connection with technical support, technical services or transfer of know-how for which the Indian company pays fees/royalty to the foreign company.
9. Foreign sportsmen under time bound contracts with local clubs or organizations.
A foreign company or organization that does not have any Project Office, subsidiary, joint venture or branch office in India cannot sponsor a foreign national as an employee of a foreign company for employment in India.

An Indian company or organization which has awarded a contract for execution of a project to a foreign company, which does not have any base in India, can sponsor an Employment Visa for an employee of that foreign company.

Where to Apply

A very important stipulation in the MCI Announcement stated that employment visas could only be obtained in the applicant’s country of origin. Earlier, consular posts issued visas to third country nationals who could prove that they were residents of the host country where they were applying for the visa. The MCI Announcement would have posed an immense burden on long term residents who would need to travel to their country of nationality to obtain an Indian Business or Employment Visa Thankfully, the FAQs have solved this problem and applicants who have resided in a country for two years or more can now apply at an Indian Consular Post in the host country.

Miscellaneous Provisions

It is important to note that the MCI Announcement makes Indian companies engaging foreign nationals responsible for the conduct of the employees and for their departure from the country. Additionally, individuals and/or employers who violate the visa regime will face penalties, which currently include monetary fines, blacklisting of the employers, deportment, ban on re-entry for the individual, and/or imprisonment. The enforcement authorities exercise wide discretionary powers when determining penalties.

A foreign national will also have to comply with all statutory requirements and pay taxes.

Indian Consular Posts may grant an ‘X’ or dependant visas to the family members of a foreign national granted who has been issued a Business Visa or Employment Visa at their discretion, subject to usual security checks provided the family members are otherwise eligible for such visas. ‘X’ Visas granted in conjunction with a principal applicant’s Employment Visa is likely to be issued to co-terminate with the principal visa. In some instances it may be granted for a shorter duration.

The FAQs also provide a list of documents that should be presented in support of each of the categories and indicates the duration of each type of visa.

It is important to note that the MCI Announcement also prescribes specific procedures for the application and issue of employment visas to Chinese nationals.


We have been advising our clients that all foreign nationals who are still present in India on a Business Visa, and the purpose of their visit does not conform to the stipulations of the FAQs, should depart from India on or before 31 October 2009.

These new stipulations will have a significant impact on foreign nationals wanting to visit India on short term assignments. As per the announcement some of these individuals will now require an Employment Visa as opposed to a Short Term Business Visa. Further, the issuance of a Business or Employment Visa will continue to depend upon the discretion of the consular officer. The change in the visa category would definitely have tax and social security ramifications for the foreign nationals and their employers during their stay in India. Additionally, these changes may also generate corporate tax ramifications in rare cases, depending on the nature of the individual’s activities in India.

It is important that companies seeking to assign foreign nationals to India on a short term basis should assess their projects to identify and comply with visa requirements and tax implications. It is expected that the outcome of a business or employment visa, which will be based on evidence submitted at the time of application will be subject to severe scrutiny to determine the caliber of the applicant and the nature of the job or business in India.

*Poorvi Chothani, Esq. is a founder and managing member of LawQuest, a law firm in Mumbai, India. She is admitted to the New York State Bar with an LL.M from the University of Pennsylvania, USA, and is registered as a Solicitor in England and Wales. Poorvi has been practicing law in India since 1984 and is admitted to the Bar Council of Maharashtra and Goa. She can be reached at
The contents of this publication are not a comprehensive consideration of the subjects discussed and are designed to provide preliminary, general information. The Business and Employment Visa Manuals are not available for public inspection. Readers should not conclusively rely on the information as legal advice and should seek independent counsel before any action is taken with respect to these or other specific issues.


A recent article in Newsweek,, notes a trend toward 3 year bachelor’s degree programs in the United States instead of the usual four year program. The main advantage of cutting a year from the 4 year program is to reduce the tuition costs by 25%. Neither the quality nor length of the education gets affected in a 3 year degree program since the program can extend into the summer months over each of the 3 years. Also, the fall to spring academic year is a relic of an era prior to the American Revolution, where students would put down their books and work on the farms during the summer months.

While the Newsweek article suggests that there are good reasons for a shift towards the 3 year degree program, and educational systems in other countries have sensibly followed the 3- year program, possessing a 3 year degree puts a foreign national at a severe disadvantage when being sponsored by a US employer for the green card. Within the employment-based preference system, being classified under the Employment-based Second Preference (EB-2) puts one at a significant advantage over one who is classified under the Employment-based Third Preference (EB-3). There is no backlog in the EB-2 for most countries while the EB-3 is hopelessly backlogged, Even if the EB-2 for countries like India and China is backlogged, it is less so than the EB-3.

To be classified under the EB-2 under Section 203(b)(2) of the Immigration and Nationality Act, the job must require an advanced degree or its equivalent, which the USCIS defines as a bachelor’s degree plus five years of post baccalaureate experience. This is a reasonable interpretation of the equivalency requirement to satisfy the advanced degree under Section 203(b)(2). Unfortunately, under the strained interpretation of Section 203(b)(2) by United States Citizenship and Immigration Service (USCIS), the bachelor’s degree must be a 4 year degree program in the foreign country in order for it to be equivalent to a US bachelor’s degree. If the foreign national possesses a 3 year degree, it would generally not be recognized as being equivalent to a 4 year degree even if the course load during the 3 year program is comparable to the course load of a 4 year program. While the USCIS makes an exception to some 3 year degree programs, such as a U.K. degree, it only does so because the student spends one year in the A-level prior to college, which is comparable to a year in college in the United States. Other 3 year degree programs, such as the Bachelor of Commerce or Bachelor of Science degrees of India, do not qualify as being equivalent to a 4 year US degree. To add further insult to injury, even if the holder of a 3 year Indian degree has additional education such as a Charted Accountancy certification or a post-graduate diploma in Computer Science, that would not suffice. The USCIS, especially its Nebraska and Texas Service Centers, which adjudicates I-140 immigrant visa petitions, insist on a single source 4 year degree.

It serves absolutely no public policy purpose for the USCIS to deny EB-2 classification to those who graduate from universities that have 3 year degree programs, even though it can be demonstrated that such a degree may be qualitatively similar to a 4 year US degree. And even if such an individual seeks EB-3 classification, it is imperative that the labor certification properly define what the employer means by a degree that is less than a 4 year bachelor’s degree. Thus, in the above examples, if the employer fails to state on the labor certification that it will accept a 3 year bachelor’s degree plus one or more years of educational course work, the I-140 petition will get denied even if it is filed under EB-3 rather than EB-2. Most of these individuals are here legally in H-1B status and must wait for endless years in the EB-3 to get the green card even though their employers have undertaken a good faith, albeit unsuccessful, test of the domestic labor market. Many out of frustration will leave and return to their home countries, and the United States will be the loser of their valuable skills which were found to be in short supply.

If the USCIS chose to interpret the EB-2 provision, Section 203(b)(2), more broadly and sensibly, there is enough leeway to do so. Also, there is now sufficient evidence even in the US of 3 year degree programs. On the other hand, if the agency still desires to cling onto its narrow interpretation, which has caused needless hardship to 3-year degree holders, Congress must step in and clarify the degree equivalency requirement under EB-2. Indeed, the degree equivalency requirement to establish eligibility for an H-1B visa is so much more sensible as it allows the foreign national to combine education and experience to demonstrate the equivalency of a US 4 year degree. The same standards of equivalency ought to apply when the foreign national is being sponsored by an employer for permanent residency.