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Changes to the bankruptcy application process: what you need to know
The use of this definition for purposes of determining the application of this new fee does not extend or authorize its application beyond Public Law and the H-1B rules and regulations. For the purposes of Public Law , all employees, whether full-time or part-time, will count towards the calculation of whether an employer is subject to the new fee. When calculating the percentage of employees in H-1B or L-1 status, all employees in the United States, regardless of whether they are paid through a U.
If either an initial petition for H-1B classification or an H-1B petition requesting a change of employer is filed before the revised Form I is published, the adjudicator wil review any explanation or supporting evidence to determine whether the fee required by Public Law applies to the petition, as explained in the following chart:. If the fee applies but was not collected or if the adjudicator cannot determine whether the fee applies, the adjudicator should issue an RFE to the petitioner soliciting the additional fee or a statement or other evidence that the fee does not apply.
The RFE should also cover any other deficiencies in the filing.
An RFE issued to address only the new fee, should provide the petitioner with a maximum of 30 days to respond to the RFE. If the RFE addresses other deficiencies that would normally allow for more time to respond, then the RFE may provide more than 30 days. After the revised Form I is implemented, an H-1B petition subject to the additional fee that is submitted without the fee will be rejected.
Rejected filings do not retain a filing date. If, after the revised form is implemented, an adjudicator encounters an H-1B petition that was receipted without the additional fee and determines that the fee was required, the adjudicator should issue a NOID soliciting the additional fee.
Whenever possible, the notice should cover any other deficiencies in the filing. The adjudicator should follow local procedures to refer to the Center fraud Detection Office CFDO any petition where there is information or documentation to substantiate that the petitioner has inaccurately presented material facts in the petition and supporting documentation to avoid paying the additional fee.
Next Document. Previous Document Next Document The following terms relate directly to the H-1B temporary worker classification. Adjudicators should be familiar with these terms. Some of the terms have been used in other contexts under prior law.
An alien may qualify for a specialty occupation by virtue of formal education, experience, or a combination of both. While there are no published precedent decisions on this subject, service centers where virtuall y all such cases are filed may find prior non-published appellate orders as useful guidance and training material.
For statistical purposes, this category is referred to internally as H-1B1.
As currently applied, this term originates in section a 15 H i relating solely to fashion models. Case law which relates to this term relates to the earlier definition and should not be applied to new cases.
Fashion models are described in 8 CFR For statistical purposes, this category is referred to internally as H-1B3. The term is used to distinguish these H-1B cases from other H-1B cases.
It should be noted that unlike the other H-1B cases, the DOD Researchers do not require a labor condition application.
Beneficiaries of such cases must otherwise meet the education and experience qualifications described for a specialty occupation. For statistical purposes, this category is referred to internally as H-1B2. Physicians in the H-1B classification are limited to those described in section j 2 of the Act.
A petition for an alien physician coming to the United States to teach or conduct research or both at or for a public or nonprofit private educational or research institution or agency, in which no patient care will be performed except that which is incidental to the physician's teaching and research may be adjudicated like a petition for an alien coming to perform services in a specialty occupation.
If no patient care is involved, neither a license or authorization from the state needs to be submitted. A petition for an alien physician involved in direct patient care must be accompanied by the following:.
Many times Canadian MD's can get reciprocal U. Even so, they must still take the FLEX to become eligible for H-1B classification if they intend to perform direct patient care. Other details about LCA requirements are described in section n. An LCA may be valid for a period up to three years. The LCA, which may be a photocopy of the original, must be valid for the period of time requested for the petition.
The dates of intended employment cannot extend outside the dates on the LCA. Multiple unnamed beneficiaries may be included on the LCA, however the petitioner must reference, by file number, all previously approved petitions that used the same LCA. Furthermore, once a slot on the LCA has been used for a specific alien, that slot cannot be used for another alien even if the original alien leave s the job permanently before the LCA has expired.
If the alien will be performing the same duties at another location for the same employer a single LCA can be filed if:.
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In addition, the form is used to collect certain statistical data regarding the education, training and occupations of H-1B beneficiaries. The regulations at 8 CFR The regulations and instructions for Form I provide precise, detailed instructions on what types of documentation must be submitted in support of a petition.
Review all required documents carefully to determine if they meet, qualitatively, the requirements of the regulations and forms instructions.
The following table indicates where these requirements can be fou nd for each type of H-1B petition:. If the State in which an alien H-1B will work requires a license in order to engage in professional activities, then the alien beneficiary must have that license before an H-1B petition may be approved.
The petitioner must provide a certified copy of the alien's valid State license, certification, or registration to practice the profession. A temporary license or State authorization for unlicenced persons to perform professional activities under the supervision of a licensed professional must be examined on a case-by-case basis to determine if the beneficiary can be considered to be employed in a professional capacity.
A similar "catch 22" scenario exists where a State requires an applicant for a license to present a social security number that is valid for employment but the alien cannot obtain a social security numbe r until he or she has been granted H-1 B status. Paragraph d 3 added Under such circumstances, adjudicators should verify that that the alien beneficiary is fully qualified to receive the State or local license, meaning that all educational, training, experience, and other substantive requirements must be met at the time of filing the petition.
The petitioner must demonstrate that the alien beneficiary has in fact filed an application for such State or local license in accordance with the requirements of the State or local jurisdiction in advance of being granted employment authorization in the U.
Adjudicators are instructed to approve the petition for a one-year validity period, provided that the sole reason why the alien beneficiary does not possess such license is that the appropriate licensing authority will not grant such license to an alien absent evidence that the alien has been granted H-1 B status. Approval of such a petition does not constitute authorization by USCIS for the alien to engage in any activities requiring such licensure.
Any petition that requests an extension of stay beyond the one-year validity period on behalf an alien who has been granted H-1 B status under this pr ovisional measure must show that the alien has obtained the requisite license. If the alien has not obtained the license at the time the petition and extension are filed, such petition will be denied. Follow the general adjudicative procedures described in Chapter 10 of this manual. If you are satisfied that the LCA and all other required documents are present and the petition is approvable, endorse the approval block.
Adjudicators field manual chapter 22 bankruptcy
If the occupation is one which requires a license, the validity period for the approval cannot exceed the validity period of the license. The beginning date for a petition should be the date requested by the petitioner or the approval date, whichever is later. Approval may be no more than six months earlier than the date of need. If a beneficiary has been in the U.
If the alien is present in the United States and requires a change of status, follow procedures described in Chapter If the alien is present in the United States and requires an extension of stay, follow procedures described in Chapter If action is completed in a local office on an emergent basis, the file must be returned to the appropriate service center for storage.
Because of severe numerical limitations, Headquarters, Adjudications must be contacted to obtain authorization before approving an H-1B2 petition for a DOD project alien.
Adversary Proceeding in Bankruptcy
Prepare a notice of denial, also on Form I Advise the petitioner of the right of appeal to the Administrative Appeals Office. Retain the file, in accordance with local procedures, until the appeal period expires or the appeal is received. If the beneficiary requires a visa, the duplicate of the approved petition, with the supporting documents, shall be sent to the appropriate consul.
When advance notice of approval via fax or cable is directed to a consul, the petitioner shall be instructed promptly to have the beneficiary contact the consul. The petition, before being mailed, shall be stamped "Approval previously forwarded". When the beneficiary does not require a visa, the duplicate petition without supporting documents shall be forwarded to the appropriate port of entry.
Although the definition of specialty occupation is included in the statute itself and the regulations are specific regarding the criteria for determining what qualifies as a specialty occupation, approval or denial often comes down to a judgment call by the adjudicating officer.
However, it is important to note that occupations are rapidly evolving an d job titles themselves are often meaningless. It is important not to be so influenced by a single factor, such as the job title or salary, that other indicators are overlooked. One of the most common situations an adjudicator will encounter is an H-1B petition filed for an alien in specialty occupation where the alien lacks a U. Adjudicators should be thoroughly familiar with 8 CFR Three years of professional experience may be used to substitute for each year of college-level training.
The regulations for deciding equivalency are very specific and must be closely followed. Foreign educational credentials, licenses and other forms of documentation are easier to evaluate than experience.
The petitioner may establish from an authoritative source or from transcripts, certificates, or other such school records that the alien has college-level education. College-level training may have been acquired at a college or university or other academic institution which grants a degree, diploma, or certificate, such as a technical college. Specialized training may have been acquired through an apprenticeship program, employee-sponsored training courses, vocational training schools, or other commercial training facilities.
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The starting and ending dates of all training in the field must be shown. Training certificates and an outline or summary of the curriculum should be submitted. Membership in a professional association, per se , is insufficient evidence of equivalency.
An association which grants certification or registration in the profession should have an accrediting body which has standards for the profession, and which issues an official document to applicants verifying that they have been awarded professional credentials in the profession.
In suspect cases, overseas experience can be verified by the overseas DHS office see Chapter Such investigations should not be routinely requested, but can be used when all other avenues have been explored and there is still serious doubt about claimed experience.
USCIS does not require the alien to be enrolled in a program for college credit at the university in order to accept the evaluation of such an expert.
The evaluation may be done in the official's name as an individual, or as an authorized representative of the college or university.
Any such evaluation should be given considerable weight in determining eligibility. Results of recognized college-level equivalency examinations or special credit programs, such as the College Level Examination Program CLEP , or Program on Noncollegiate Sponsored Instruction PONSI must be translated into college credits by an authoritative source in the particular program or by an authorized official from an accredited college or university, such as the registrar, in order for the results to be applied towards the degree requirement.
There are a number of outside organizations which evaluate educational credentials to determine degree equivalency. Some organizations may also provide an opinion on the equivalency of experience to education.