Page 43 - The Indian EYE 100121

ImmIGRATION OCTOBER 01, 2021 | The Indian Eye 43

tion, necessarily be relevant senting a well-document- description of the training that can be included with properly address the RFEs,
to the validity of a job offer ed and plausible argument received or the experience the RFE response. Even if particularly because a de-
made to the beneficiary. that the employer would be of the alien”, one can argue the employee is unsuccess- nial of an EB-3 I-140 can
able to pay the proffered that letters from supervisors ful, however, and the for- potentially even jeopardize
dEtERMINING wage as set forth on the la- are primary, rather than mer employer’s policy pre- the underlying EB-2 I-140.
ABILIty to PAy bor certification. secondary evidence. Letters vents it from issuing a more Because many employ-
whEN thERE Is A from trainers or employers detailed letter, copies of the ment-based second and
FINANCIAL Loss woRK must be authored by a per- emails or letter from the third preference green card
Because 8 C.F.R. § ExPERIENCE son, such as a supervisor or former employer can serve backlogs, employers should
204.5(g)(2) requires the With respect to estab- a human resources profes- as proof that an experience also evaluate whether the
employer to be able to lishing that the beneficiary sional, and are rarely signed letter is unavailable. job has drastically changed
demonstrate its ability to has qualifying experience, by a corporation itself. 8 Other RFEs question since the filing of the orig-
pay from the date when the 8 C.F.R. § 204.5(g)(1) in- C.F.R. § 204.5(l)(3)(ii)(A) the content, rather than the inal labor certification be-
labor certification is filed structs that evidence be does not specify who must format, of the experience fore beneficiaries file a

to the date when the ben- provided “in the form of author an experience letter. letters. For example, if the downgrade and concurrent
eficiary obtains permanent letter(s) from current or Indeed, the fact that Form requirements in the labor adjustment. As outlined in
residence, the employer former employer(s) … and ETA-9089 requests the con- certification state that candi- our previous blog, howev-
must put forth evidence, shall include … a specific tact information for an em- dates must have experience er, employers may still rely
at the time of filing and/ description of the duties ployee’s supervisor during in a certain industry, such as on the old labor certifica-
or in response to a request performed.” In general, the period of experience IT or finance, USCIS may tion if the job duties remain
for evidence, establishing an experience letter is pre- suggests that a supervisor reject experience letters largely the same and the
its ability to pay for the en- pared by a supervisor who and not human resources that do not specifically men- beneficiary is merely using
tire period. However, due has direct knowledge of du- or some other officer with- tion the field of experience. updated tools or technolo-
to unforeseen intervening ties performed by the ben- in a company may actually Petitioners should follow a gies. Cases involving a slight
factors, the employer may eficiary, but sometimes a be the preferred source of a similar process to respond change in the job are thank-
report a loss for some part former employer may have letter from an employer. to these RFEs, and ask the fully not being questioned
of this period. For example, a policy of provides letters Even if USCIS does employee to attempt to ob- by USCIS at this time.
many petitioners may have that include only the start not accept that letters from tain new experience letters. (The information procid-
suffered financially in 2020 and end date of the em- supervisors are primary evi- If more detailed letters are ed in this blog is for informa-
due to distruptions caused ployment, the job title, and dence, a petitioning employ- not available, publicly avail- tion purposes, and should not
by the COVID-19 pan- a very brief description of er can argue that primary able information about the be viewed as a substitute for
demic. In these instances, the duties. When the bene- evidence is unavailable be- former employer, such as legal advice)
the USCIS may argue that ficiary cannot obtain a more cause the former employer website printouts, can be *Sung-Min Baik gradu-
the employer has failed to detailed letter from the em- has a policy of not provid- submitted with the RFE re- ated with a JD from George
maintain its ability to pay as ployer itself, a separate affi- ing detailed experience let- sponse to demonstrate that Mason University School of
required by the regulation, davit from a supervisor may ters. When responding to the company operates with- Law in 2014, is an Associate
but the then Immigration provide a more complete an RFE that question’s the in a certain industry and so at Cyrus D. Mehta & Part-
and Naturalization Service description of the actual du- beneficiary’s work experi- the beneficiary gained the ners PLLC.
took a broad approach and ties performed by the bene- ence, the petitioning em- necessary experience. ** Kaitlyn Box gradu-
indicated that the import- ficiary that comports more ployer should instruct the Many of these RFEs ated with a JD from Penn
ant question is whether the closely with the description beneficiary to reach out the emanate when an EB-3 State Law in 2020, is an As-
loss would preclude the of the beneficiary’s expe- the former empoyer(s) and I-140 petition is upgraded sociate at Cyrus D. Mehta
employer from establish- rience in Section K of the request a new, detailed ex- to premium processing, and & Partners PLLC.
ing that she [petitioning ETA 9080 labor certifca- perience letter that includes are issued even when the (This blog is for information
employer] will be able to tion. However, the USCIS all the necessary compo- prior EB-2 was approved purposes, and should not be
meet the conditions of the sometimes asserts that the nents. Ideally, the beneficia- based on the same sup- relied upon as a substitute for
certification in the ‘Job Of- petitioning employer must ry will be able to obtain an porting evidence. There- legal advice).
fer.’” Matter of Sonegawa, first establish “the non-exis- updated experience letter fore, care must be taken to
12 I&N Dec. 612, 615 (Reg. tence or other unavailabili- _________________________________________________________________________________________________
Comm. 1967). To answer ty” of an expereince letter Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing
this question, the Board an- from the former employer Partner of Cyrus D. Mehta & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s
alyzed the factors that led before submitting an affi- Administrative Litigation Task Force; AILA’s EB-5 Committee; former chair of AILA’s Ethics
the employer to report a davit from a supervisor for Committee; special counsel on immigration matters to the Departmental Disciplinary Committee,
substantially lower income consideration. Appellate Division, First Department, New York; member of the ABA Commission on Immigra-
in one year and accepted Because 8 C.F.R. § tion; board member of Volunteers for Legal Services and board member of New York Immigration
evidence indicating that the 204.5(l)(3)(ii)(A) states Coalition. Mr. Mehta is the former chair of the Board of Trustees of the American Immigration
employer’s business was only that “[a]ny require- Council and former chair of the Committee on Immigration and Nationality Law of the New
likely to grow and report ments of training or expe- York City Bar Association. He is a frequent speaker and writer on various immigration-related
profits. Id. 614-15. Ac- rience for skilled workers, issues, including on ethics, and is also an adjunct professor of law at Brooklyn Law School, where
cordingly, reporting a loss professionals, or other he teaches a course entitled Immigration and Work. Mr. Mehta received the AILA 2018 Edith
for one year would not au- workers must be supported Lowenstein Memorial Award for advancing the practice of immigration law and the AILA 2011
Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation
tomatically prevent an em- by letters from trainers or in the immigration field. He has also received two AILA Presidential Commendations in 2010
ployer from establishing its employers giving the name, and 2016. Mr. Mehta is ranked among the most highly regarded lawyers in North America by
ability to pay, but attention address, and title of the Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and
needs to be devoted to pre- trainer or employer, and a Chambers Global 2019 in immigration law, among other rankings.

www.TheIndianEYE .com