USCIS Cuts Off AOS Eligibility for TPS Holders

The Administrative Appeals Office has adopted a decision that finds that a Temporary Protected Status (TPS) recipient who is granted authorization to temporarily travel abroad pursuant to section 244(f)(3) of the Act (TPS travel authorization) and who subsequently reenters the United States using a Department of Homeland Security (DHS) travel document, resumes the same immigration status the alien had at the time of departure. “Consequently, if a TPS recipient was present in the United States without inspection, admission or parole at the time of departure pursuant to TPS travel authorization, that alien upon return to the United States is returned to ‘same immigration status the alien had at the time of departure’ such that the TPS authorized travel will not satisfy the ‘inspected and admitted or paroled’ provision at section 245(a) of the Immigration and Nationality Act.” The decision will only apply prospectively to TPS holders who depart the US using a parole document on or after August 20, 2020.

The full text of Matter of Z-R-Z-C- can be found here:

https://www.uscis.gov/sites/default/files/document/aao-decisions/Matter-of-Z-R-Z-C-Adopted-AAO-Decision.pdf

USCIS Adopts 3 AAO Decision on SIJS Eligibility

U.S. Citizenship and Immigration Services (USCIS) has adopted three Administrative Appeals Office decisions governing eligibility for Special Immigration Juvenile Status (SIJS). The decision make clear that USCIS will expect SIJS orders to cite specific state law provisions governing abuse, neglect, and abandonment, and will undertake an inquiry into whether state court proceedings were brought to address abuse, neglect, or abandonment or solely for the purpose of obtaining immigration status. USCIS has clarified that it will no longer require that the juvenile court have jurisdiction to place the juvenile in the custody of the unfit parent(s) in order to make a qualifying determination regarding the viability of parental reunification.

The text of Matter of D-Y-S-C- can be found here:

https://www.uscis.gov/sites/default/files/USCIS/files/Matter_of_D-Y-S-C-_Adopted_Decision_2019-02_AAO_Oct._11_2019.pdf

The text of Matter of A-O-C- can be found here:

https://www.uscis.gov/sites/default/files/USCIS/files/Matter_of_A-O-C-_Adopted_Decision_2019-03_AAO_Oct._11_2019.pdf

The text of Matter of E-A-L-O- can be found here:

https://www.uscis.gov/sites/default/files/USCIS/files/Matter_of_E-A-L-O-_Adopted_Decision_2019-04_AAO_Oct._11_2019.pdf

AAO Interprets Marriage Fraud Bar in 204(c) for an Employment-Based Visa Beneficiary

In Matter of Christo's, Inc., a restaurant sought to sponsor a cook for his permanent residence.  The beneficiary was also the beneficiary of a marriage-based petition.  However, he claimed that the marriage certificate submitted with that petition was false, and that he had never married or met the other party named in the certificate.  United States Citizenship and Immigration Services (USCIS) revoked the previously approved employment-based petition, finding that the beneficiary had engaged in a fraudulent marriage for the purpose of obtaining an immigration benefit, and thus, was barred from being the beneficiary of any immigrant petition, such as the one submitted by the sponsoring employer.  The beneficiary's adjustment of status application was also denied.  Initially, the AAO agreed that the marriage fraud barred applied.

Upon additional review, the AAO determined that the marriage fraud bar was not implicated.  "An alien who submits false documents representing a nonexistent or fictitious marriage, but who never either entered into or attempted or conspired to enter into a marriage, may intend to evade the immigration laws, but is not, by such act alone, considered to have 'entered into' or attempted or conspired to enter into' a [fraudulent] marriage."  Such conduct, may, however, render an individual inadmissible for making a material misrepresentation for the purpose of obtaining an immigration benefit.

The full text of Matter of Cristo's, Inc. can be found here: http://www.justice.gov/eoir/vll/intdec/vol26/3831.pdf 

AAO Construes "Doing Business" Requirement for Immigrant Multinational Managers and Executives

Another milestone, folks - the Administrative Appeals Office (AAO) was busy this week and I'm blogging a lot about employment-based immigration (which is clearly a deviation from the norm!)  Now I will take up the AAO's decision in Matter of Leacheng International, Inc.

Certain multi-national executives and managers can apply for permanent residence if in the 3 years preceding the time of the executive/manager's application for classification and admission into the United States, he has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and the he seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.  The implementing regulations require that the employer have been doing business for at least one year and define "doing business" as "the regular, systematic, and continuous provision of goods and/or services by a firm, corporation, or other entity and does not include the mere presence of an agent or office."

In the instant case, the employer was essentially acting as an intermediary between a foreign subsidiary of its parent corporation and buyers and suppliers in the United States.  The District Director determined that the employer was not doing business because it was not transacting directly with an unaffiliated third party.  The AAO disagreed, finding that the fact that an employer "serves as an agent, representative, or liaison between a related foreign entity and its United States customers does not preclude a finding that it is doing business as defined in the regulations."  Since the petitioning company "established that it provides services to its foreign affiliate by marketing the foreign entity’s products, locating buyers, maintaining relationships with customers, and facilitating the completion of sales contracts and shipping arrangements in the United States," it had demonstrated that it was doing business.  The AAO sustained the petitioner's appeal.

The full text of Matter of Leacheng International can be found here: http://www.justice.gov/eoir/vll/intdec/vol26/3830.pdf

AAO Issues Precedent Decision on Material Changes in an H-1B Worker's Employment

Today is a milestone - my first blog post about case law affecting nonimmigrant employment-based visas - hold your breath, folks and let's see if I can adequately explain the Administrative Appeals Office's (AAO) decision in Matter of Simeio Solutions.

The beneficiary was approved for H-1B status for work performed in Long Beach, California.  After a few months, he traveled to India an sought an H-1B visa at the consulate.  Upon further investigation, the consulate determined that the beneficiary was providing services outside the scope of the original petition.  It notified United States Citizenship and Immigration Services (USCIS), who conducted a site visit to the beneficiary's workplace in Long Beach.  There, USCIS learned that the beneficiary was actually working from Camarillo, California and Hoboken, New Jersey.  Both of these locations were outside the geographic area covered the original labor certification filed in support of the H-1B petition.  USCIS determined that the changes in the beneficiary's places of employment constituted a material change to the terms and conditions of employment as outlined in the original petition.  

On appeal, the AAO agreed with USCIS's position, noting that the prevailing wage the employer was required to pay differed in the three geographic areas, and that the beneficiary's current salary did not meet the prevailing wage requirements in Camarillo or Hoboken.  As such, this change in locale required the filing of an amended petition along with a new labor certification.

You can find the full text of Matter of Simeio Solutions here: http://www.justice.gov/eoir/vll/intdec/vol26/3832.pdf