USCIS Service Center Operations has informed AILA that Form I-907, Request for Premium Processing Service, must now be signed either by the petitioner (the employer) or by the attorney for the petitioner. The petitioner’s attorney may only sign the I-907 when the petitioner has filed a Power of Attorney with the USCIS Service Center where the I-907 is being filed authorizing the attorney to sign the I-907. A copy of the power of attorney and a G-28 must be attached to the I-907 when submitted. USCIS has not provided any information on the reasons for this processing change. AILA is seeking clarification on why USCIS has implemented this policy, and I will post that information when available.

From, AILA InfoNet Doc. No. 06121262 (posted Dec. 12, 2006).

USCIS Service Centers Operations has informed AILA that the Service Centers will accept an I-907 signed by an attorney or representative of the petitioner or applicant when the underlying filing contains a properly signed petition and G-28 signed by the petitioner or applicant. The rule that neither the beneficiary nor the beneficiary’s attorney or accredited representative can request premium processing remains in place. Thus, if the G-28 is from the beneficiary only, the attorney or accredited representative may not sign an I-907 requesting premium processing.

This issue arose when, in the past few days, Service Centers started rejecting I-907s signed by attorneys, declaring that an attorney signature can be accepted only if a Power of Attorney is attached. USCIS has now clarified that the Power of Attorney requirement is limited to those circumstances where an individual other than the petitioner or applicant is signing the petition or application as the petitioner or applicant. In that case, a Power of Attorney from the petitioner or applicant authorizing the other individual is required with respect to the petition or application. The attorney can directly sign the premium processing request form.

From, AILA InfoNet Doc. No. 06121367 (posted Dec. 13, 2006)

A Business Analyst position is often very difficult to classify under one of the NAFTA TN categories. Although there is no specific occupational category under NAFTA for a Business Analyst, these types of positions can involve tasks that may fall under one or more TN classifications. Eligibility will hinge on what the principle job duties are and the nature of those tasks.

For Business Analyst positions where the job duties are consultative in nature and limited to purely a passive, advisory role, then the position may fall under the Management Consultant TN category. Although this category is not occupational specific, it is not without restrictions. An applicant for TN status under this category can only provide advice and make recommendations. The applicant cannot be actively involved in the management of the company. Nor can the applicant actively implement any of his or her suggestions or recommendations. The advice and suggestions must be implemented by others at the company. While the Management Consultant classification is limited with respect to the type of service that may be provided by the TN professional, it is generally not restricted with respect to occupation. For example, a Business Analyst position involving information gathering, market analysis, business case creation, benchmarking, and economic modeling may not fall under any of the specific occupational TN categories such as Accountant or Economist, but may qualify under the Management Consultant category.

Where the job duties of a Business Analyst position go beyond a purely analysis and advisory role, and require active engagement and implementation of proposed solutions, then the Management Consultant TN category would not be the proper TN category for the position. In that situation, the applicant generally must seek a specific TN category that authorizes “active” work. The proposed job duties must also match those typically undertaken by professionals in that particular TN occupational filed. Many times Business Analyst positions involve significant IT work and can be classified under the Computer Systems Analyst TN category. Other times, they call for significant accounting duties and can be classifiable under the Accounting TN category. In some limited situations they may fall under the Economist TN category.

A Canadian Professional Seeking TN Status for a Business Analyst Position will need to find the right TN category for the job offer by examining whether the job is limited to a solely advisory role. If so, then the Management Consultant TN may be a good fit. Otherwise, the applicant will have to try a fit under one of the specific occupational TN classifications such as the Accounting or Economist TN categories. Because the Management Consultant category is often subject to heightened scrutiny, when a Canadian Professional’s prospective job qualifies for either the Management Consultant category or a specific occupational TN, it may be prudent to proceed under the latter category. Individuals with job offers as a Business Analyst should consult the Department of Labor’s Occupational Outlook Handbook to see if the duties involved in the prospective job can fall under one of these categories.

USCIS has just released a Memorandum providing guidance for non-immigrant workers seeking additional periods of admission beyond the H-1B visa six year maximum based on their applications for permanent residence. This memo clarifies that non-immigrant workers who previously exceeded the maximum six year period of H-1B visa status may take advantage of the AC21 H-1B visa extension provisions regardless of whether they currently hold H-1B visa status. Thus, a non-immigrant worker who changed status from H-1B to TN because of the six-year maximum restriction may change back to H-1B visa status and obtain additional periods of H-1B stay based on a qualifying pending or approved labor certification or immigrant worker petition.

Prior H-1B workers currently holding TN status who wish to submit a change of status petition back to H-1B visa status based on this new policy clarification should be able to do so without being subject to the H-1B visa cap. H-1B visa petitions submitted on behalf of individuals who were counted toward an H-1B cap within the past six years who have not left the U.S. for more than one year since obtaining H-1B status are exempt from the cap. See INA § 214 (g) (7).

For more information on this clarification in USCIS policy, see the attached Interoffice Memorandum by Michael Aytes, Associate Director, Domestic Operations, USCIS.

In general, only non-citizens who have permission to work from the Department of Homeland Security (“DHS”) can apply for a Social Security number. Once a Canadian professional has obtained an approval on an application for TN status, he or she may file for a Social Security number.

The Social Security Agency (“SSA”) recommends that TN workers and other non-immigrant workers should wait at least ten (10) days after obtaining work authorization before applying for a social security number. For TN workers, this would be from the date of the issuance of the I-94 (border applications) or the date on the approval notice of Form I-797 (filing I-129 petition through VSC). This allows adequate time to pass for the TN worker’s status to be added to database systems.

How to Apply for Social Security Number:

To apply for a Social Security number, a TN worker generally should bring the following materials to a local Social Security office:

A completed Application For a Social Security Card (Form SS-5);

The original I-94, Arrival/Departure Record.

An original birth certificate. If an original birth certificate is unavailable, a passport may be presented to prove age.

Starting TN Assignment despite Lack of Social Security number.

When non-immigrant workers, including TN professionals, apply for Social Security numbers, SSA must verify the documents submitted in support of the Social Security number application directly with DHS. Most applications are verified immediately, but there can be delays.

Nevertheless, a TN worker may start work in the U.S. while the Social Security number application is being processed. In this situation, the TN employer should obtain from the TN worker the following information as complete as possible: The worker’s full name, address, date of birth, place of birth, father’s full name, mother’s full maiden name, gender and the date he or she applied for a Social Security number. The TN worker may also obtain a letter from SSA evidencing that he or she has filed for a Social Security number.

Employers Filing W-2s with the Social Security Agency for Workers without Social Security numbers.

Employers Filing by Paper: If the TN worker applied for a card but has not yet received the number in time for filing, the employer should enter “Applied For” in Box d of Form W-2.

Employers Filing Electronically: If the TN worker has applied for a card but has not yet received the number in time for filing, the employer should enter all zeros (000-00-0000) in the field for the Social Security number.

When the employer receives the TN worker’s Social Security number, the employer must file Form W-2c (Corrected Wage and Tax Statement), to reflect the TN worker’s proper Social Security number.

References:

Social Security Numbers For Noncitizens, (SSA Publication No. 05-10096).

Foreign Workers and Social Security Numbers (SSA Publication No. 05-10107).

Employer W-2 Reporting Instructions & Information, Social Security Online, available at http://www.socialsecurity.gov/employer/erii2b.htm (last visited Jan. 15, 2007).

Instructions for Forms W-2 and W-3 (2006), Internal Revenue Service, available at http://www.irs.gov/instructions/iw2w3/index.html (last visited Jan. 15, 2007).

The H-1B visa program permits the temporary employment of foreign workers in specialty occupations such as scientists, engineers, or computer programmers. A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and a bachelor’s degree or the equivalent in the specific specialty. Congress has established an annual fiscal year limitation of 65,000 on the number of available H-1B visas, commonly referred to as the “H-1B cap.”

The upcoming H-1B visa fiscal year (2008) runs from October 1, 2007 through September 30, 2008. USCIS will accept H-1B visa petitions for FY 2008 starting on April 1, 2007. You may recall that the FY 2007 cap was reached on May 26, 2007. This year we expect the H-1B cap may be reached even earlier due to the increased demand from cases that did not make the FY 2007 cap. In order to beat the rush for the limited number of H-1B visa numbers available, prospective H-1B workers should start preparing a packet of the basic documents needed for an initial H-1B petition.

Basic Steps for H-1B Visa:

There are three basic steps for an employer and prospective H-1B visa worker to take in order to obtain an H-1B visa.

Step One: An employer must file a Labor Condition Application (“LCA”), Form ETA 9035E, with the Department of Labor. By completing and signing the LCA, the employer agrees to several attestations regarding an employer’s responsibilities, including the wages, working conditions, and benefits to be provided to the H-1B visa worker.

Step Two: Once the DOL has certified the LCA, the employer must file the LCA along with a petition for H-1B status, Form I-129 with supplemental forms, with the U.S. Citizenship and Immigration Services (USCIS) center. USCIS will accept H-1B visa petitions for FY 2008 starting on April 1, 2007.

Step Three: If the applicant is outside the U.S., when the petition is approved, a copy of the approved petition is sent to the U.S. consulate designated on the petition and the H-1B visa worker can then go to the consulate to make his or her nonimmigrant visa application.

Documentation Generally Needed for I-129 Petition:

The following list provides the general documentation required in support of an I-129 petition (Step Two) for H-1B status.

 Valid passport: unless exempt, an applicant generally should have a valid passport with an expiration date of at least April 2010 for petitions seeking the Oct. 1, 2007 start date and three years of H-1B status.

 If already in the U.S.: Copies of current Visa, I-797, I-94, I-20, or EAD.

 Copies of Degrees, Transcripts, Diplomas, Certificates.

 Academic/Experience Evaluation – if necessary, e.g., to prove possession of the equivalent of a U.S. bachelor’s degree.

 Evidence of Name Change - if necessary, e.g., where name on degrees is different from current legal name.

Dear Brian,

I'd like to put forth a scenario and solicit your opinion.

The individual, a Cdn citizen and living in Canada, is on her 9th year of H1B based on a still pending LC. Can she move to another employer and work for the new employer on a TN status?

(Resigning from the former employer would cancel out the existing H1B and the pending LC since the employer would no longer continue the sponsorship)

What if she has an approved I-140 and waiting endlessly for PD to become current for consular adjudication, and now, decides to abandon everything and move to another employer on TN?

Do you foresee issues moving to TN status since this individual had previously shown immigrant intent? Any other issues since prior US employment may have to be declared while applying for TN at a land POE?

Thank you.

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Dimple2001