Business Immigration Problem Solved
1. G.W. Corp is looking to hire a Tiger Trainer for their Zoo in Wynnewood, Oklahoma. They have identified a candidate, Joe Exotic, who is on an H-1B with his current employer, The Institute for Greatly Endangered and Rare Species (T.I.G.E.R.S.). Joe has a U.S. Bachelor’s degree in Veterinary Technology. G.W. Corp usually hires someone with a degree, but if they find great talent and the right personality without a degree, they will accept experience instead. Most other companies in the same industry follow the same practice, but there are some smaller facilities that do not require any education. Using 8 CFR § 214.2(h)(iii)(A) and any relevant case law and reputable government resources, discuss what the requirements are for showing a position is a Specialty Occupation for H-1B purposes. Please outline how you would evidence the requirements for an H-1B petition to be approved for G.W Corp’s Tiger Trainer position.
The United States has established laws that govern work permit requirements of the foreigners working in the country. These requirements are mainly specified in the H-IB Specialty Occupations. The law stipulates that for a foreign to qualify for a temporary H-1B visa work; the employer should establish whether the employee qualifies for H-IB visa “Specialty Occupation” (NAFSA, 2015)” In this context, specialty occupation means specialized expertise that is backed up by a bachelor’s degree or foreign academic qualification in the specified discipline. The 8 CFR § 214.2(h)(iii)(A) presents several requirements that suit H-1B petitions that involve specialty occupation (NAFSA, 2015):
Firstly, in entering in a given job position as enshrined in 8 CFR § 214.2(h)(iii)(A)1, a higher degree, baccalaureate or a qualification that is equivalent to the acceptable minimum entry qualifications are considered. Secondly, 8 CFR § 214.2(h)(iii)(A)2 demands that a degree requirement should be common to the industry in parallel positions or among similar organizations (USCIS, 2018). Alternatively, the employer will be required to prove that such a particular position is either unique or complicated to the extent that it can only be performed by a degree holder employee. Thirdly, 8 CFR § 214.2(h)(iii)(A)3 clarifies that an employer requires a degree or a qualification equivalent to a degree for a given position. Fourth, 8 CFR § 214.2(h)(iii)(A)4 seeks to show that the condition of the duties to be performed by the petitioner are complex or specialized, demanding for particular expertise to execute duties. This justifies a higher degree or baccalaureate.
Bachelor’s degree as a requirement for the H-1B specialty occupation has, however, been challenged by U.S. Citizenship and Immigration Services (USCIS) several. For example, in the recent case of InspectionXpert Corporation v. Cuccinelli (2020) brought before the federal court in North Carolina was due to USCIS decision to deny a general engineering candidate an H-1B visa because according to USCIS the degree requirement was broad to meet the criterion of a specialty occupation. The federal ruled against USCIS on the basis that one subspecialty cannot be used as a qualification for an H-1B specialty occupation. A general engineering degree is a collection of many subspecialties, and as such, it qualifies for an H-1B visa since the candidate brings the employer a variety and mixture of several unique and special skills. The InspectionXpert Corporation v. Cuccinelli presents increasing challenges faced by the employers as they petition for H-1B visas on behalf of foreign employees. The USCIS has become strictly, and out of the hundreds of thousands of H-1B petitions filed, USCIS approves less than half (Pierce & Gelatt, 2018). The USCIS decision sets the beginning of the new debate on reviewing H-1B visas as they are believed to be harming the American workers. Based on the four requirements, G.W. Corp must prove that it is hiring Joe Exotic, who is a foreigner for a position of a “specialty occupation.” Joe Exotic has already qualified for a position of specialty occupation since he is on an H-1B visa with his current employer, T.I.GE.R.S. As such, G.W. Corps can argue that it is operating in the similar industry with T.I.G.E.R.S and therefore, it qualifies to hire Joe. Alternatively, the potential employer can use the complexity and special skills required for Tiger Trainer and argue that Joe qualifies for the position because he has a U.S. Bachelor’s degree in Veterinary Technology.
For the H-1B petition to be approved for G.W Corp’s Tiger Trainer position, there are certain requirements that should be met as provided by 214.2(h)(iii)(B). Firstly, the petitioner is required to prove through certification from the Secretary of Labor that the petitioner has applied for labor conditions with the secretary (NAFSA, 2015). G.W. Corps cannot use the previous Joe’s engagement with T.G.E.R.S as proof that the potential employee has already filed a labor condition. Instead, G.W. Corps but obtain a Foreign Labour Certification (LCA) as a condition it will protect Joe’s employment rights (USCIS, 2018). Secondly, the petitioner is supposed to have a well-written statement that satisfies the labor condition application for the period of the foreign worker authorized by their stay in the United States. Finally, the petitioner will need to provide an evidence that the foreign employee is qualified to execute the functions in the specialty occupation capacity. In the petition, G.W. Corps should show in the H-IB form how Joe possesses unique skills that are essential in performing the Tiger training duties. The petitioner will also show that Joe is qualified, having attained a Bachelor’s degree in Veterinary Technology in the United States.
While G.W. Corps can petition successfully for Joe to fill the position of the Tiger trainer, it will have to undertake the H-1B transfer process. The immigration laws allow the H-1B holders to change their employers under the H-1B transfer process (USCIS, 2018). However, for the holder to apply for the transfer, they must first accept the offer of the new job. Before Joe could initiate the transfer of is H-1B visa, he must accept the job offer from G.W. Corps. Joe’s transfer of H-1B should be initiated by the new employer, G.W. Corps, who will obtain an LCA from the Department of labor, which is a requirement for all United States employers hiring foreign workers. The certification is a guarantee to the foreign worker that new employer will take care of their welfare, including work protection rights and compensation. The transfer of H-1B by the new employer is treated as a new application on behalf of the foreign worker, and as such, G.W. Corps will pay all initial fees incurred in the acquisition of the new H-1B. Since Joe has a valid H-IB, he will only fill the DS-160 Form and submit the necessary documents.
2. T.I.G.E.R.S. hired Joe as a student after he finished his Veterinary Technology degree. They won the H-1B lottery for him and switched him from an F-1 to an H-1B. Joe’s status changed to H-1B on October 1, 2018. T.I.G.E.R.S. has not sponsored Joe for a green card, as they have identified some concerns and were not sure if they wanted Joe to remain with them long term.
3. Discuss how long Joe is currently eligible to remain in H-1B status. Discuss what steps G.W. Corp will need to take to sponsor Joe for a green card. Specifically focus on the green card process required for EB-2 or EB-3 and discuss the steps to obtain the necessary approvals. Discuss the necessary steps for Joe to continue working in the US beyond his limit in H-1B status.4. Joe was born in India, but has a beautiful fiancé who was born in Russia. Discuss what the final step in the green card will look like for Joe. Specifically focus on how long will it take for him to file his green card application.
5. Joe received his green card but the owners have decided to retire and sell G.W. Corp. Joe’s long lost cousin twicemremoved, Mario, wants to buy the business but he also wants to get his green card. Mario is from Cuba and has significant money to use to buy G.W. Corp. There are a lot of rumors about where Mario gets his money, but Mario promises it was all obtained through legal means. He says he inherited most of the money from his late father’s exotic animal business and the rumors relating to any drug trade are false. He recently bred and raised a rare tiger that he is planning to sell for $1,000,000. The business is based in Wynnewood, Oklahoma a small town with a population of just over 2,000 people. Based on the business plan, the initial costs for the business is roughly $500,000 and operational costs will be about $400,000 for the next 2 – 3 years. Mario will plan to have a day shift of five people to operate the tourist portion of the business and a night shift of five people to care for the animals. Mario loves to play with the animals but is not very interested in the operational matters and only wants to cuddle tiger kittens. Mario is concerned about losing his investment and him and Joe have an agreement that if business does not work out, Joe will repay Mario over 10 years with no interest for any money he has lost. Discuss if Mario will be able to obtain his permanent residency through an EB-5 investment.
Note- For question 2a., when you say ‘Discuss how long Joe is currently eligible to remain in H-1B status’, are you referring to the duration of his current I-797, or the total amount of time he can spend in H-status? The amount of time is eligible to spend in H status.
Also, when you ask us to discuss the EB-2/EB-3 green card process, are you specifically referring to PERM-based green cards, or would that potentially include Schedule A processing as well? Specifically PERM.
For question 3, should we assume
Mario is currently residing in Cuba? Yes
And do we need to know if he has any Communist Party affiliations? No you do not.
Also, if he is in Cuba, should we mention consular processing complications since Cubans have to go to the U.S. Embassy in Guyana for IV applications/interviews? No need to mention that. The focus should be on the EB-5 elements of the question and not the actual green card process itself.