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(g) Adjudicative Issues.
관리자  (Homepage)
2016-05-11 17:20:08, 조회 : 493, 추천 : 82
(1) Deciding If the Proposed Employment Is a Specialty Occupation.

Although
        a) the definition
                i) of specialty occupation

            is included in the statute itself and
        b) the regulations are specific
                i) regarding the criteria
                        (a) for determining
                                (i) what qualifies as a specialty occupation,

1) approval or denial often comes down
        a) to a judgment call
                i) by the adjudicating officer.


a judgment call  (American)
a decision someone has to make using their own ideas and opinions
Usage notes: In sport, a judgment call is a decision made by an official in a competition using their own opinion of what they have seen.
It's a judgment call - do we go by plane or risk taking the car to the conference.
See also: call, judgment


There are numerous references
        a) available
        b) (such as the DOL’s Occupational Outlook Handbook)
                i) to describe specific vocational preparation
                        (a) for various occupations.

However,

it is important to note that
        a) occupations are rapidly evolving and
        b) job titles themselves are often meaningless.

In order to correctly adjudicate a case,

it is necessary to consider all the facts
        a) surrounding the petition:
                i) the beneficiary’s
                        A) education and
                        B) work experience,
                ii) the nature
                        A) of the petitioner’s business,
                iii) industry practice, and
                iv) salary
                        A) (both
                                I) offered to the beneficiary and
                                II) typical for the industry).

It is important
        a) not to be so influenced
                i) by a single factor,
                        (a) such as
                                I) the job title or
                                II) salary,
                ii) that other indicators are overlooked.

If significant doubts exist
        a) regarding the beneficiary’s work experience,

1) the adjudicating officer may
        a) request an overseas investigation
                i) (see Chapter 10.5(d)) or
        b) refer the case
                i) to the appropriate local ICE office
                ii) for
                        (a) interview,
                        (b) field examination (see Chapter 17), or
                        (c) local investigation.

(2) Equivalency of Experience and Education.

One of the most common situations
        a) an adjudicator will encounter

1) is an H-1B petition
        a) filed for an alien
                i) in specialty occupation
                        (a) where the alien lacks a U.S. bachelor’s degree.

Adjudicators should be thoroughly familiar
        a) with 8 CFR 214.2(h)(4)(iii)(D)
                i) which describes the kind and amount of experience
                        (a) which can be used
                                (i) to establish the equivalence of a degree.

Three years
        a) of professional experience

1) may be used
        a) to substitute for each year
                i) of college-level training.

The most critical aspect
        a) of this type of adjudication

1) is deciding
        a) whether the quality
                i) of experience

            is at high enough level
                i) to qualify as “professional.”

Experience
        a) is generally documented
                i) through letters
                        A) from past employers and
        b) may be so lacking in specificity
                i) as to make the qualitative determination difficult or impossible.

The regulations
        a) for deciding equivalency

1) are very specific and
2) must be closely followed.

Foreign
        a) educational credentials,
        b) licenses and
        c) other forms of documentation

1) are easier to evaluate
        a) than experience.

The petitioner may establish
        a) from an authoritative source or
        b) from
                i) transcripts,
                ii) certificates, or
                iii) other such school records
        c) that the alien has college-level education.

College-level training may have been acquired
        a) at
                i) a college or
                ii) university or
                iii) other academic institution
                        A) which grants
                                I) a degree,
                                II) diploma, or
                                III) certificate,
                        B) such as a technical college.



What Is the Difference Between a Certificate, Diploma and Degree?
Certificates, diplomas and degrees differ in the time it takes to earn each, as well as the credits required in order to graduate. Each of these academic achievements are suitable for certain specific fields or career goals.

Certificate Overview
A certificate is earned by a student after taking a series of courses in a particular subject.
Students often earn certificates to get a step ahead in the professional field of their interest, and certificates may be offered in similar programs leading to degrees.
For instance, there are certificates in business, literature and technical fields. In some technical programs, a certificate may be required.

There are also graduate certificates, often taken either alone or alongside a graduate degree program.
In some programs, the student may use his or her electives to fulfill a certificate in order to make him or herself more desirable to a potential employer.

Certificate programs taken alone are similar to associate's degree programs. However, they take less time because general education courses are not required.

Diploma Overview
Diplomas are similar to certificates, and they're often awarded through community or technical schools.
For instance, a diploma of nursing is offered as an alternative to an associate's degree or bachelor's degree. This diploma program is only offered at hospitals with specialty programs that provide training.

Degree Overview
An academic degree can be earned at many levels, including the associate's (two years); bachelor's (four years); master's (two years beyond a bachelor's degree); and doctoral, which is several years beyond a master's degree.

A degree program differs from certificates and diploma programs in that it often requires the student to take general education courses to support a more rounded education.

For instance, at many universities, those earning their bachelor's degree are required to take English, math, science, philosophy and history.

Earning a degree also opens up more potential doors to the student than would a certificate or diploma.

Many careers require that the applicant has earned at least a bachelor's degree; several career options require more than this.


It may be useful to compare
        a) the beneficiary’s age
                i) at completion and
        b) the duration of the course of study,
        c) with the average age
                i) of graduates
                        A) of United States institutions
                                I) offering similar programs

1) as a factor
        a) in determining equivalency of education.

Specialized training may have been acquired
        a) through
                i) an apprenticeship program,
                ii) employee-sponsored training courses,
                iii) vocational training schools, or
                iv) other commercial training facilities.

The
        a) starting and
        b) ending
                i) dates of all training
                        (a) in the field

1) must be shown.

        a) Training certificates and
        b) an outline or
        c) summary
                i) of the curriculum

1) should be submitted.

Membership
        a) in a professional association,
        b)  per se,

1) is insufficient evidence of equivalency.

An association
        a) which grants
                i) certification or
                ii) registration
                        A) in the profession

1) should have an accrediting body
        a) which has standards
                i) for the profession, and
        b) which issues an official document
                i) to applicants
                ii) verifying that
                        A) they have been awarded professional credentials
                                I) in the profession.

The standards
        a) of the organization

1) should be reviewed to ensure
        a) that bachelor’s degree or higher, or its equivalent, is required for membership.

In suspect cases,

overseas experience can be verified
        a) by the overseas DHS office
(see Chapter 10.5(d)
        a) on requesting an overseas investigation).

Such investigations
        a) should not be routinely requested,
        b) but can be used
                i) when
                        (a) all other avenues have been explored and
                        (b) there is still serious doubt about claimed experience.

(3) Unsolicited Evaluations.

An evaluation        
        a) by an official
                i) who has authority to grant college-level credit
                        A) at an accredited
                                I) college or
                                II) university
                ii) with
                        A) training and/or
                        B) work experience
                                I) in the profession

1) can also be used
        a) to support an equivalency claim.

USCIS does not require the alien
        a) to be enrolled
                i) in a program for college credit
                        (a) at the university
        b) in order to accept the evaluation of such an expert.

However,

the official must be formally involved
        a) with the college or university’s official program
                i) for granting credit
                        (a) based on training and/or experience
                
1) to have the required authority and expertise
        a) to make such evaluations.

The evaluation may be done
        a) in the official’s name
                i) as an individual, or
                ii) as an authorized representative
                        A) of the college or university.

Any such evaluation should be given considerable weight
        a) in determining eligibility.

Results of
        a) recognized college-level equivalency examinations or
        b) special credit programs,
                i) such as
                        (a) the College Level Examination Program (CLEP), or
                        (b) Program on Noncollegiate Sponsored Instruction (PONSI)

1) must be translated into college credits
        a) by an authoritative source
                i) in the particular program or
        b) by an authorized official
                i) from an accredited college or university,
                ii) such as the registrar,
2) in order for the results
        a) to be applied towards the degree requirement.

There are a number of outside organizations
        a) which evaluate educational credentials
                i) to determine degree equivalency.

Some organizations may also provide an opinion
        a) on the equivalency
                i) of experience
                        (a) to education.

It is important
        a) that the adjudicator distinguish
                i) between these two types of evaluations.

The latter type of evaluation carries little weight.

Although USCIS does not specifically recognize or accredit any sources of evaluations,

1) foreign educational degree evaluations can be of assistance
2) if they are
        a) thorough,
        b) well documented and
        c) specific
                i) in reaching an equivalency determination.

(4) Assessing the Needs of the Petitioner for the Services of the Beneficiary.

This issue is occasionally present
        a) in H-1B petitions
                i) filed
                        A) by small businesses
                        B) for aliens
                                I) with professional skills
                                        (a) not normally associated with persons
                                                (i) employed in such a business
        b) (e.g., a petition
                i) for an accountant
                ii) filed by
                        A) an auto repair business or
                        B) restaurant).

Often, such petitions are filed
        a) by
                i) a relative or
                ii) family friend
        b) as an accommodation
                i) to the beneficiary.

Either
        a) the beneficiary will be employed
                i) in a lesser capacity or
        b) he or she will seek other employment
                i) immediately upon arrival.

The burden of proof falls on the petitioner
        a) to demonstrate the need
                i) for such an employee.

Unless you are satisfied that
        a) a legitimate need exists,

1) such a petition may be denied
2) because the petitioner has failed
        a) to demonstrate that
                i) the beneficiary will be employed
                        A) in a qualifying specialty occupation.

(5) Determining the Petitioner’s Ability to Pay the Required Wage.

This issue,
        a) like the preceding one,
        b) is most commonly associated
                i) with small enterprises
                        (a) which do not necessarily have the assets
                                (i) required to pay the salary
                                        (A) guaranteed in the petition.

Such a petition may be an accommodation
        a) to
                i) a relative or
                ii) friend
                        A) who will seek other employment or

1) there may be an agreement
        a) to work
                i) for lower wages.

It is not necessary that
        a) complete financial data be submitted
                i) with every H-1B petition.

However,

if
        a) in the discretion
                i) of the adjudicating officer
        b) the financial condition
                i) of the petitioner

            is so questionable
                i) as to call into question
                        (a) whether the petitioner really intends
                                (i) to employ the alien as claimed,

1) evidence of financial ability may be requested.

This is
        a) because the financial standing
                i) of the petitioner,
                ii) when taken in consideration
                        (a) with other factors,

            may be indication
                i) that the petition is
                        (a) an accommodation and
                        (b) not a valid job offer.

Other factors
        a) that may be examined

1) include, but are not limited to,
        a) the nature
                i) of the petitioner’s business,
        b) the relationship between
                i) the beneficiary and
                ii) the owners/officers
                        A) of the petitioning entity, and
        c) the petitioner’s immigration history.

(6) Effect of Beneficiary’s Intent to Remain Permanently.

For
        a) an H-1B or
        b) L
                i) nonimmigrant,

the fact that
        a) a labor certification,
        b) permanent visa petition or
        c) adjustment of status application

            has been filed

1) does not effect eligibility
        a) for nonimmigrant H-1B or L status. [See 8 CFR 214.2(h)(16).]

(7) Ability to Engage in the Occupation Immediately upon Entry.

This issue often arises
        a) in occupations
                i) where a state license is required.

If the beneficiary
        a) will require training or
        b) must take a licensing examination
                i) before commencing employment in a specialty occupation,

1) the petition may not be approved.
See Matter of St. Joseph’s Hospital, 14 I&N Dec. 202 (Reg. Comm. 1972).

(8) Extension of H-1B Status
        a) Based on a Pending
                i) Labor Certification Application or
                ii) Employment-Based (EB) Immigrant Petition. [Revised by 9/23/05; 5/30/08, AD08-06]


(A) Conditions for the Granting of an H-1B Extension of Stay Under AC21 §106(a).

Assuming
        a) the alien is otherwise qualified
                i) for an extension of H-1B status,

1) USCIS will grant an extension
        a) beyond the 6th year
2) if evidence is provided that:
        a) A labor certification is unexpired
                i) at the time of filing
                        A) of the Form I-129
                                I) H-1B extension petition; and
        b)         i) The labor certification was filed
                        A) with DOL or
                ii) the I-140 petition was filed
                        A) with USCIS
                        B) at least 365 days
                                I) prior to the date
                                        (a) the alien beneficiary will have exhausted 6 years
                                                (i) of H-1B status in the United States
                                        (b) pursuant to 214(g)(4); and
        c)         i) The extension and
                ii) the I-129 petition

                    are otherwise approvable.

An extension of stay
        a) under AC21 §106(a)

1) should not be granted
2) if,
        a) at the time
                i) the extension request is filed,
        b) the labor certification has expired
                i) by virtue of not having been
                        A) timely
                        B) filed
                                I) in support of an EB immigrant petition
                                II) during its validity period,
                                III) as specified by DOL.

(B) Cut off for Granting of an H-1B Extension of Stay Under AC21 §106(a).

USCIS will grant an extension of stay
        a) to such H-1B nonimmigrants
        b) in one-year increments
                
1) until a final decision is made
        a) to:
                (i) Deny the application for labor certification;
                (ii) If the labor certification is approved,
                        (a) to revoke the approved labor certification;
                (iii) Deny the EB immigrant petition; or
                (iv) Grant or deny the alien’s application
                        (a) for an immigrant visa or
                        (b) for adjustment of status.

A decision
        a) to
                i) certify,
                ii) deny or
                iii) revoke
                        A) an application
                                I) for labor certification

1) is made
        a) by one of the Department of Labor’s certifying officers.

If the application is
        a) denied or
        b) revoked,

1) the employer is advised
        a) that there is a period of time
                i) within which the decision may be appealed
                        (a) to the Board of Alien Labor Certification Appeals (BALCA):
                        
        a. For denied Form ETA-750
                i) labor certification applications
                ii) filed prior to March 28, 2005,

                1) the employer must file an appeal
                        (a) within 90 days.
        b. For denied or revoked Form ETA-9089
                i) labor certification applications,

                1) the employer must file an appeal
                        (a) within 30 days.

If the employer does not file an appeal
        a) within the required timeframe,

1) the denial becomes the final decision
        a) of the Secretary of Labor.

USCIS will not consider a DOL decision
        a) to be final
        
1) until either
        a) the time for appeal has run and
        b) no appeal has been filed or,
2) if an appeal is taken,
        a) the date
                i) a decision is issued by BALCA.

Therefore,

the labor certification will still be considered “pending”

1) while the denial or revocation
        a) of the labor certification application

    may be appealed, or
2) while the appeal is
        a) actually
        b) pending,
        c) for the purposes of determining
                i) if an H-1B nonimmigrant is eligible
                        (a) for extension of stay.

(C) Combined pre and post 6th year extension requests.

USCIS will grant,
        a) in certain instances,
        b) extensions
                i) that request
                        (a) time
                                (i) remaining towards the 6-year maximum
                                        (A) under 214(g)(4) and
                        (b) additional time
                                (i) allowed under AC21 §106(a).

7th year extension requests
        a) under AC21 §106(a)

1) may be made in a petition
        a) that also contains a request
                i) for an extension of stay
                        (a) that reaches the maximum 6 year limit.

USCIS adjudicators should
        a) first
        b) determine the amount
                i) of H-1B extension time
                        (a) that may be granted
                                (i) to reach the 6 year limitation of stay,
        c) then
                i) determine if
                        (a) the labor certification or
                        (b) I-140 petition

                           was filed
                                (i) at least 365 days
                                (ii) by the conclusion
                                        (A) of the 6 year limitation of stay.

If so,

1) then the one year AC21 106(a) extension may be granted.

However,

in no case

1) can an extension be granted
        a) for more than a three year period of time.

If the alien beneficiary would
        a) no longer
        a) be in H-1B status
        b) at the time that
                i) 365 days
                        (a) from the filing of
                                I) the labor certification application or
                                II) immigrant petition

                   has run,

1) then the extension of stay request cannot be granted.

(D) Documentation
        a) for Form ETA-750 Labor Certifications Filed Pre-PERM and Still Pending, and
        b) for Form ETA-9089s filed in PERM.

USCIS will accept the following documents
        a) as evidence
        b) that
                i) an application
                        (a) for labor certification
                        (b) filed on behalf of the H-1B beneficiary

                   is still pending, or
                   has been certified and
                   is still valid:

If the labor certification is a Form ETA-750
        a) that is still pending
                i) with DOL,

1) a screen-print
        a) from the DOL Public Disclosure System (PDS)
                i) [http://pds.pbls.doleta.gov/]
        b) that shows that
                i) the status
                        (a) of the labor certification application

                   is In Process or
                   is
                        A) actively
                        B) On Appeal
                                (i) that includes
                                        (A) the name
                                                (I) of the petitioning employer,
                                        (B) the date
                                                (I) that the Form ETA-750 was filed,
                                        (C) the name
                                                (I) of the alien beneficiary, and
                                        (D) the case number
                                                (I) assigned to the pending Form ETA-750; or

If the labor certification application was certified
        a) on or before July 16, 2007,

1) a complete copy of
        a) the Form ETA-750 or
        b) Form ETA-9089
                i) which shows the date of certification and
2) a copy of
        a) the Form I-140 petition receipt notice
                i) for the petition
                        (a) filed on behalf of the H-1B beneficiary; or

If the labor certification application was certified
        a) after July 16, 2007,

1) a complete copy of
        a) the Form ETA-750 or
        b) Form ETA-9089
                i) which shows
                        (a) the date
                                (i) of certification and
                        (b) the date
                                (i) upon which the labor certification will expire,
        c) along with a copy of
                i) the Form I-140 petition receipt notice
                        (a) for the petition
                                (i) filed on behalf of the H-1B beneficiary, if any.

If an applicant
        a) for extension of stay cannot present a screen print
                i) from the PDS,

1) he or she may present a letter
        a) from DOL
        b) issued
                i) within the previous 60 days
                        (a) prior to the filing
                                (i) of the extension petition instead.

The DOL letter must
        a) explain
                i) why the PDS screen print is unavailable and
        b) verify
                i) that an application
                        (a) for a labor certification

                    is pending.


* 관리자님에 의해서 게시물 복사되었습니다 (2016-05-11 17:52)


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