Ninth Circuit Finds H-1B Holder Ineligible for Adjustment of Status

Ma’s employer filed for an extension of his H-1B visa, but it was denied, and his employer failed to file an application for status adjustment within 180 days of the expiration of his H-1B visa. Because the application to extend the H-1B visa was denied, Ma was without lawful status in this country for 331 days before he applied to adjust his status—well over the 180 days permitted by 8 U.S.C. § 1255(k)(2)(A), which would have otherwise protected him from removal. He was, however, legally authorized to work in the country during the months between the expiration of his H-1B visa and the denial of his application for an H-1B extension pursuant to 8 C.F.R. § 274a.12(b)(20). Nonetheless, because 8 C.F.R. § 1245.1(d) does not recognize regulatory employment authorization as conferring lawful immigration status for purposes of status adjustment under 8 U.S.C. § 1255(k)(2)(A), the court concluded that Ma is ineligible for status adjustment.

“While nonimmigrant workers like Ma may legally continue working in this country for up to 240 days while they wait to hear back from the USCIS on their extension applications, they do not have lawful status during this period of time for purposes of status adjustment.

The full text of Ma v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/02/15-73520.pdf

Second Circuit Construes Notice Requirements for Revocation of an Employment-Based Immigrant Petition

Certain beneficiaries of employment-based immigrant visas, who have filed for their residency but whose applications remain pending, can take advantage of a procedure known as "porting," which permits them to change employers without affecting their pending applications for residency.  The new employer effectively substitutes in as the sponsoring petitioner for the former employer who actually filed the immigrant petition on the employee's behalf.  The question becomes, if U.S. Citizenship and Immigration Services (USCIS) believes there is grounds for revoking the approved immigrant petition, and the employee has ported to a new employer, who must USCIS notify? The original petitioning employer (with whom the beneficiary/employee no longer has any relationship), the beneficiary/employee, or the new employer/sponsor? 

In a published decision, the Second Circuit ruled that notifying the former employer is not sufficient.  The court remanded for the District Court to determine f the requisite notice should go the beneficiary/employee, the new sponsor/employer, or both.

The full text of Mantena v. Johnson can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/d2fe6f7c-3e22-435a-b753-bf6dca1fa9bd/1/doc/14-2476_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d2fe6f7c-3e22-435a-b753-bf6dca1fa9bd/1/hilite/

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