yasinpuertas

3 minutes ago, Boiler said:

you have not mentioned your Lawyer's thoughts, there are of course no Lawyers on here.

My lawyer says that it is unbelievable that they are basing the refusal (and misrepresentation, which is much more serious) on a simple "hard to believe" against hard, objective and independent evidence provided such as two employment letters, me being in the media and mentioned as "spokesperson" for the organization on it, my field of expertise and academic background, the fact that I already did this very same job for the petitioner before under H1B (because the basis for the refusal is not having qualifying experience for the job)... Unless voluntary unpaid work (only gratuity was provided to cover expenses) is not considered "qualifying job" (and last time I checked, the CFR does not mention salary as a requirement to consider work experience) my lawyer and I think we have a pretty solid case.

1 hour ago, CEE53147 said:

It is hard to believe you worked this length of time without pay.

It was voluntary work for a political party that fights for the rights of the poor in my region. I was a professor of Media at the time, so I had a salary anyways. This voluntary work I did was as a Chief of Press for the party, so it was pretty public (no way to hide it from the public as I appeared in the media as the spokesperson for the party). Most of the people I know in the party have been working for it even longer than me.

2 hours ago, Hypnos said:

I don't think this is a simple fix. 

 

In your position I would seek the assistance of an experienced immigration attorney. 

Well, I have already an attorney. My main concern now is how will this affect my current H1B renewal petition that is being processed now. It can take up to three months to be resolved and I really don't know if they can deny it based on the findings of the USCIS. I know that it is a NOIR and I still have a chance to demonstrate that the letter is real and the experience existed (I do have plenty of hard evidence, although no pay stubs or registered contract) and the evidence of the contrary is circumstantial at best, but still I fear the possibility that USCIS would keep insisting on the misrepresentation charges, as absurd they can be. I keep googling and I couldn't find a timeframe of events following this charges and if they would affect an ongoing renewal process at this early stage of the process. I guess I have time to challenge the findings, then if they are not sufficient they will issue a NOID and I can still appeal their decision, so it may be a long process before the charges can be "final", but in the meantime, would I receive my renewal? would I be able to get a stamp at a consulate after that? would I be able to re enter the US if I leave the country for a vacation period?... this is killing me! 

Hello everybody,

Well, after 16 months waiting on an answer from the USCIS, that was reviewing my case after the CO in Madrid returned it to the US, my petitioner finally got it in the mail.

Needless is to say that, thanks to my petitioner, I am aware of the situation. And boy, is this an important thing to have. See, for the FIRST time in this LONG process, the USCIS has the intention to revoke my case based on Misrepresentation of a factual fact related to qualifying work experience in the Labor Certification. 

Long story short, when I met the CO back in may 2016, I couldn't demonstrate that I worked for the employer that wrote me an employment letter back in 2005, in which it was stated that I worked for his organization from 2000 to 2005, 40 hours a week. The only proof he would accept are pay stubs or a contract officially registered with the Social Security Administration in Spain, both documents are impossible to obtain since the job I did for the organization was not paid (it is a non-profit organization with limited capability to hire) so it was voluntary work. Basically, I worked for the organization to gain experience, and for that I considered myself sufficiently paid at the time.

Now, of course, I had to work on another job to get a decent salary to support myself. But even then, I could prove that my "oficial" job was teaching exactly what I was doing as a voluntary job for the organization afore mentioned.

After several calls from the CO, not only to me, but to my direct supervisor at the time, the actual head of HR of the organization (with letters provided in letterhead and including the seal of the organization), and other members of the organization, the CO concluded that he had doubts regarding my ability to work two full time jobs at the same time. I overcame this issue (or that is what I thought) by demonstrating that only between February 2001 and august 2003 I was indeed working as a full time teacher, while the rest of the time, I was working part time, as a journalist and later as a teacher. More to say, I presented the CO with two documents, one of them being the Education Law in Spain, that states that a teacher has to work a maximum of 15 hours a week on a full time contract, and the other, an actual schedule from the School of Arts I worked with as a full time teacher, with the principal's signature and the seal of the school, stating that I did just work such 15 hours a week. This documents should've sufficed to make it clear that, not only I worked on the capacity and terms stated in the letters from the organization, but it was also possible to do so, under the light of such evidence. 

Now, without further notice or concerns from the CO, my case was sent for review and revocation, to the USCIS, on the grounds of "not being able to establish the required experience", which in my world doesn't mean that I "lied intentionally" (willful misrepresentation) but merely "not being able to prove to the CO's satisfaction", which is somewhat subjective and discretional, but still within his power of course. 

After 16 months the USCIS responds with a NOIR, but, in this case, throws in the mix the "misrepresentation of a material fact" accusation. I'm in the process to refute this accusation with further proof, but I'm really concern about this facts;

1.- The USCIS doesn't include in the NOIR key evidence sent to the CO regarding his "doubts", like the schedule and the piece of Education Law that refutes with hard evidence, his claim that a Spanish Citizen cannot work two full time jobs at the same time. Nor the fact that I was not working as a full time teacher during the whole period of time I claim to be working full time for the qualifying job, neither that the teaching position I held, also qualifies as experience on the field (although not exactly the same duties, but teaching them to others at post-secondary education level). 

2.- I am currently in the US with an H1B visa obtain through another employer and recently applied for a renewal. I don't know if, the NOIR cannot be rebutted, not only will my Labor be revoked, but I will be either denied my H1B visa renewal or be removed from the US, or not let through the border in case I leave the country for a vacation period. I understand misrepresentation of a material fact can have serious consequences for life, so I am extremely anxious right now, as my future depends on my ability to demonstrate that, even though it was not a "regular" job, I did not lie about it, and there is hard objective and independent evidence to prove that.

So if somebody can shed light about what are the possible consequences of this NOIR, they would be greatly appreciated.

I'm wondering if I can travel to the US as a visitor until the matter is resolved. If my employer can reapply on my behalf and submit a new I-140 to expedite the process or even pay for a premium processing at USCIS (the process now it's expected to be delayed for up to one year) or if, after a possible hard denial I would be ever able to be hired as a non-immigrant like I was before for other employers that might be not willing to sponsor an immigration visa but a non-immigrant one. Those are my concerns now.

Boiler, they DID pay for their lawyer but not for the immigration fees since I'm bringing my whole family (we are five). He did not pay for the medical check up or the cost of the documents (birth certificate, criminal records...) for the same reason. He pays for MY plane ticket when I'm able to obtain a visa.

I'm retaining a lawyer for the USCIS process to represent me and my family, but my employer has a lawyer ALSO. I just wanted to make sure what are MY options regardless of what my employer's are, and that further action do not hurt ME or MY FAMILY (not the employer). Meaning, I want to be able to visit the USA in the future or be able to work for another employer if this process do not ends positively, and every single action taken needs to be done with BOTH interest in mind (mine and my employer's), so that is why I hired a lawyer for myself now that I have been refused. See, this already made me and my family be OUT of the ESTA program, so this is negatively affecting us already.

Yes, that is something that crossed my mind too, back in the day when the priority date was taking so long. Now, if I'm able to reapply in the same category, the lawyer says I don't have to wait bur for the USCIS to process the new I-140

My employer is a nation-wide Houston based company that is in dire need of my services. That is why they are paying for the cost of the Labor Cert. I paid for the immigration fees for me and my family. Now I'm retaining a lawyer for the consular process since I would have to do a series of actions to defend my case.

My lawyer says we could keep trying at consular level to ask for a review of the case, since he is certain that the decision made was a very narrow (at the very least) interpretation of the law and that the USCIS will most likely reaffirm the case (since there is no "new evidence" but if you may "a lack of hard evidence" other than the one required by the Code of Federal Regulations). If the consular post is not willing (or able) to review the case, we could reapply and the employer says they are willing to pay for premium processing so I can be at consular post for a new interview sooner.

Hope this clarify.

Update.

Case was returned to USCIS with a recommendation for revocation. The CO says in the refusal letter that I failed to establish the experience required to qualify and, therefore, exists evidence that wasn't available to USCIS at the time of the approval of my I-140 that may be material to such approval.

Now,

1. I don’t know if reapplying would be wiser than waiting for the USCIS to reaffirm or issue a NOIR. Maybe this could be a faster way to get the paperwork straight back to the embassy now that we know what was the problem, how to overcome it and (maybe) with an AO in hand to make our case before the CO. I know that I would have to pay for the immigration fees again but, Do you guys think it makes sense?

2. If reapplying could be an option, Can I try the “professionals” category instead of the “Skilled workers”. Because in this category, a bachelor’s degree is mandatory, but experience is not. The other requirement is “be a member of the profession” which I could demonstrate as I am a member of the National Professional Association of the Press and the Federation of International Press (http://www.ipf-fip.org) since 2001.

3. Do you guys think premium processing would be available? I now it would be around $1500, Do you guys believe is worth it?

4. If the visa is not reaffirmed and finally we cannot (for some strange reason) overcome the refusal by the USCIS, Do you think I can still apply for a non-immigrant visa in the future?. It is just that I don’t know how much time would be necessary to wait until the requirement to demonstrate the intention not to immigrate can be overcame.

Thank you all

Yasin

Well, let me explain:

I did work for an organization between the years 2000 and 2005 as a PR specialist in Spain. This is the experience I used to comply with the requirements of the Labor Certification. I worked between 2001 and 2003 as a full time teacher of media arts and communication at a local community college, to get a decent salary. I did both at the same time for two years. Since you can teach full time at community college for only 18 hours a week, I could do both at the same time.

Then in 2004 I entered the USA under a J1 visa to participate in a visiting teacher program in Texas. In 2008, my sponsor agreed to fill a petition for an H1B for a change of status sine I was granted a waiver that would let me stay in the USA longer (the J1 visa requires the beneficiary to return to home country for at least two years before applying for a new one after three years witch are non renewable). Once obtained the H1B, another company (not my primary beneficiary which was a School District) that needed a PR specialist was interested in my services (I actually helped them with a couple of things before as a favor and the boss liked my style of doing things) filled another I-94 for joint sponsor with him. At that time, yes, I worked for both the School District and the company. The company started the process for a EB3 visa, since he wanted to have me full time (not to be shared with the School District) which is fine by me, as I'm not primary a teacher, but a PR specialist with a bachelors degree on the field. I leaved the USA due to family matters and chose to do the "consular processing" instead of AOS.

Now the CO asked me about this "second I-94" stating that my employer actually filled it for me to be legally working for him, as well as for the School District at the same time. I provided the document right away.

What do you think?

Well, let me explain:

I did work for an organization between the years 2000 and 2005 as a PR specialist in Spain. This is the experience I used to comply with the requirements of the Labor Certification. I worked between 2001 and 2003 as a full time teacher of media arts and communication at a local community college, to get a decent salary. I did both at the same time for two years. Since you can teach full time at community college for only 18 hours a week, I could do both at the same time.

Then in 2004 I entered the USA under a J1 visa to participate in a visiting teacher program in Texas. In 2008, my sponsor agreed to fill a petition for an H1B for a change of status sine I was granted a waiver that would let me stay in the USA longer (the J1 visa requires the beneficiary to return to home country for at least two years before applying for a new one after three years witch are non renewable). Once obtained the H1B, another company (not my primary beneficiary which was a School District) that needed a PR specialist was interested in my services (I actually helped them with a couple of things before as a favor and the boss liked my style of doing things) filled another I-94 for joint sponsor with him. At that time, yes, I worked for both the School District and the company. The company started the process for a EB3 visa, since he wanted to have me full time (not to be shared with the School District) which is fine by me, as I'm not primary a teacher, but a PR specialist with a bachelors degree on the field. I leaved the USA due to family matters and chose to do the "consular processing" instead of AOS.

Now the CO asked me about this "second I-94" stating that my employer actually filled it for me to be legally working for him, as well as for the School District at the same time. I provided the document right away.

What do you think?

Update!

Now they've sent us our passports back without the visa. The letter accompanying the visa says that they need to perform further processing and that they will contact us when they are ready to make a decision on my case. My case was placed in AP again and my family is stuck at ready.

The very same day I was given my passports back, the CO called me to ask more questions about my experience and requested proof that I could work two full time jobs at the same time, which was the case for two and a half years out of the five years I was working for the organization (I was hired as a full time teacher of media also, so for two years I did both at the same time). I explained that, as a teacher, we only have to teach 18 hours a week, so you can actually do other stuff and most people (that are not principally teachers but teach as a side job to get a decent salary) do, moreover when you want to continue pursuing experience on the field of your choosing (like me) but you cannot find a decent job just yet. I offered him an official document with the schedule I had as a teacher so he could use it as proof that I didn't have to dedicate much time to teaching even though I was hired as a full time teacher. He said this "would help". Then he requested an I-94 form filled by my employer in 2008, when I was still in the USA under an H1B visa, stating that I was hired before by him, doing the same thing I'm intending to do now as a permanent resident. He said "I cannot find it anywhere, Are you sure he actually filed the petition?". I said yes, and he requested proof of that also (a copy of the I-94).

I provided all the documents requested and was waiting on a positive outcome as per our conversation on the phone, but instead, our passports came back and AP was given again.

One odd fact: since June the second (the day of the phone call) the case wasn't updated on the system. I provided documents by email on the 3rd and sent a courier package with them on the 6th, but not updates. I requested an update on my case through email, and was answered by the consulate stating that the officer is still working on my case and that they will contact me if they need something or an update occur. But still, after al this, the case was not updated. We have no clue on what's going on, but have a very bad feeling about al of this now.

OK so EB3 and nothing to do with Australia, I remember Eb3 years ago was retrogressed 6 years, now it is a few months, seems a very long time for such a petition to be outstanding.

The most important thing is that there is an Employer and Lawyer involved, what do they say?

EB3 means an Employer has petitioned you to work for them. comments about minimum wage and could always teach seem odd in the context of an Employer willing to petition and wait so long.

The Employer is desperate because he has a PR and Marketing department that needs a bilingual skilled supervisor, and even though I have meetings with them over the Internet and make some work from here, he needs me there to start a new project creating a tv show for his company. He waited because he says he is not going to invest that amount of money without having the right person on board.

Of course 8 years is a lot of time, but that is how much it took for the process to finish, nothing to do with me but a rescheduling of the visa interview due to my wife's last pregnancy, last year.

The lawyer says it would be ok now that the documents are produced and the phone call was made. He believes there is nothing else needed to prove the experience was real.

I sincerely hope so (be over soon). Anyways, do you have an answer to the question? (Whether or not you think the documents provided and the call would be sufficient proof) I mean, maybe the conversation would be beneficial for others if we can shed light to the "process" itself. I really wasn't aware of the importance of this document, after the labor certification is granted. I'm not saying is not, I'm just saying that it didn't seem to me for the reasons stated in my last post. I thought the CO was going to do other kind of background check not done before, and since the consular processing takes a great deal of time, you can imagine how difficult it would be for him to double check employment letters obtained many years ago. And, again, I did not have trouble but my situation is far from the majority of cases, where could find an uncooperative ex-boss, a missing or even dead one, a disappeared company... Many situations can make it impossible for the CO to establish the authenticity of an employment letter obtained a long time ago.

Thank you for taking the time to answer to my post. I guess you are right and I have to let the process finish. It took 8 long years for me to be where I am now, so a few more days shouldn't be difficult for me. Of course I'm a little nervous, since I have three kids, and make it there in time for their schooling (August) is an important issue for us.

Dear jan22,

Sorry if I extend my answer now, since I believe it will be beneficial for others in the same or similar situation. With your answer I'm guessing we can start a very interesting debate here. Thank you in advance for all your input.

Maybe, since I am not an immigration attorney I don't fully understand what the DOL's responsibilities are and how do they perform their background checks to issue a Labor Certification under the PERM. As far as I could learn from what I've been reading, the DOL takes very seriously their job, and obtaining a Labor Certification is no "piece of cake". But maybe you are right, the most difficult and complex part of the labor certification is not the beneficiary's end but the petitioner's. Said that, there is a clear statement in immigration law that determines the requirements for an EB-3a visa (Skilled workers) that we should demonstrate "at least 2 years of job experience or training". As the instructions to fill out the form I-140 states:

The requirement, though, can be easily met with an "employment letter" signed by the "direct supervisor", as it can be inferred from the DOL website's instructions to apply for a Labor Certificate:

• Copies of the foreign worker’s educational degrees and transcripts, and letters from previous employers confirming the worker’s experience.

This was provided in my case, in 2008, when the labor certificate petition was filled by my employer. It was a letter in which the "super boss" states that I worked for the organization as "Chief of Press" between the years 2000 and 2005, full time under a "mercantil" contract (self-employed and hired for my services). The CO, with the letter in hand, could ask me about this specific experience, and how could I demonstrate that the letter was real with some questions, but the only "concern" he raised at that time was that I was going to be paid "right above the poverty line", which I found odd, since there are no poverty guidelines for a labor case (as far as I know), I wasn't going to be paid "under" the poverty line and the wages offered where right on the wage range DOL's requirements. I'm also, and worked as, a teacher in Texas and in Spain, and I'm fully certified in both countries, should I need to go back to teaching, I could do it without becoming a Public Charge. If that was the "problem", he could even ask for an Affidavit of Support, which he never did.

After the interview, I was given the 212(g) slip for "further processing". I wasn't instructed to send any extra documents at that point. I was just sent home, passports retained for the whole family and a "good feeling" that everything was going to be OK, just some extra Administrative Processing needed to put everything in order. Since the Ds-260 was filled more than one year before the interview, it was "reopened" for us to update any information that changed and "close" it for the CO to finish processing (I assumed that was the reason why we couldn't be approved on the spot). But two weeks later we received a 212(g) refusal letter, with specific documents to be provided. The CO requested an official transcript of my Social Security records (most of the jobs are listed there, but not the ones performed under training, underpaid "stipend" jobs for non-profit organizations and such), evidence of experience with the political party which was used to get the Labor Certificate (with payment stubs if available) and an updated resume starting in 1999.

Well, since everything that was said in the letter was true, and I'm still living in the same city, and the organization still exists, I did not have much trouble getting another letter, from the Human Resources person in charge (the Secretary of Organization) stating the salary I was paid, the duties performed, the hours worked, the relationship with the organization and the dates between I worked for them. They signed and sealed it for me. They even stated that, since it is a non-profit organization, no "salary" could be paid, but a "stipend" to cover expenses and that it was paid in cash, so no "payment stubs" could be produced. The CO received the documents and called the person that signed the ORIGINAL document (not the person in charge of HR, who already knew all the details because he had to write and sign a letter for me, RECENTLY). It was a little bit awkward, since the person that signed the letter, many years ago, now is a very busy and important political figure, and he wasn't expecting the call, at all. Luckily, as I said, everything stated was the truth, he knows me, and he could remember (on his personal mobile phone out of the blue) some of the details that the CO was asking for. He was surprised, as he was asked about my salary and such, which I don't know in the USA, but here in Spain is actually CONFIDENTIAL. He didn't have my permission to disclose, but luckily, he understood that it was something important for me and he made the decision to answer without turning down the interview with the CO. I did not know they were going to call him, I never gave them his phone number (much less his PERSONAL mobile phone) to contact him (I don't even call him to his cell unless something REALLY important happens), so that's why I was so embarrassed when he called ME to tell me all about the call with the CO. I guess the CO tried to "catch a lie" by calling someone different than the one signing the papers, just to make sure he "knows me" and, more or less, can answer properly to some of the questions. For sure he can not be expecting a "full and detailed" answer from someone that is not my direct supervisor, about a period of time that goes back 16 years.

But lets, for the sake of the argument consider two situations that would make this "double check" absurd:

1.- This is done by the CO, as a "two-part process" because I came back to Spain waiting for my Visa to be approved instead of staying in the US where I was living under a non-immigrant visa. I could still be under my H1-B visa working in the USA and avoid the "Consular Processing". Guess what, with an Adjustment of Status, no Consular Officer in Spain would have to perform his part in this so-called "two-part" process. So with the Labor Certificate, I would be approved on the spot, no further investigation in my home country needed.

2.- Not everybody has a good relationship with their bosses from the past (they could be not willing to help you now, after 16 years). Not everybody have access to them after 16 years. Not everybody can get a detailed letter with wages, hours and duties after 16 years. People die, or move far away... Is it really expected from you to prove, 16 years later, that the letter you already turned in years ago is not a phony employment letter?. Because, and bear with me on this, is not the same, asking for further proof around the time you submit the letter for your Labor Certificate, than after several years, when you finally are scheduled for the interview at the Embassy. It is not even close the same thing. As I said, I'm lucky, and thank God for it, but I'm thinking now about a lot of other people that would never be able to overcome this problem should it be arose by the CO.

Right now I'm not leaping to any assumptions, and I know it will take at least one week for the CO to take action and I actually not only understand but fully support that the CO take the time he needs to process all the visas. This keeps us all safe and avoid undesirable people from entering the USA and give immigrants a bad name. I was just wondering how much proof would he need, as in saying, would you guys think he would be satisfied with the documents provided? I mean, Did I produced enough evidence for him to be satisfied?

Thanks for taking the time to read.

Yasin

New update today. Still in Ready. I'm reading that the only thing the CO can do if he is not convinced that the employment letter AND the phone call with the super boss are sufficient proof for previous employment is send the case back to the USCIS to reconsider. It looks like this is very unlikely (how much proof would he need? and Is it really THAT important to have extremely hard evidence of my previous experience on the same job?), but if it should happen, anyone knows about how much time does it take for USCIS to make a decision and let me overcome the problem with, I don't know, a list of witnesses (coworkers) that can declare I was actually working full time at the company 16 years ago?

Little frustrated, sorry.

Yasin

Any updates / change of status ?

Any updates on your status? I'm in a similar situation. Thanks.

Today the CO called the president of the party on his personal phone (the super boss, he was actually the major of Melilla and now he is a member of the parliament) to ask him about the relationship I had with the party 16 years ago!. Thank God I am still with the party, working as a Secretary of Communication and he remembered that I started as Chief of the Press in the year 2000. He didn't remember the hours I worked a week or the salary I was given but he could answer most of the questions. He actually told the CO that he shouldn't call the president of the party to ask questions about a worker. He called me after the conversation to tell me all about it, it was a little bit embarrassing that he actually had to expend time with the CO in the phone being such a busy person, but luckily he did and I thanked him for it.

Thoughts?

PS. I'm still in the "Ready" status as for today, but status updated.

Yes, they normally include the email you sent and any response to it to your file. They. Red to open your file for that and, therefore, the update date changes. Most probably you'll need to submit more documents unless your status changes from AP to "READY", which means the CO is ready to make a decision based on the documents he needed.

Hi all,

So here's the deal. My petitioner applied for a Labor Certification in order to have me, a PR and Marketing expert, working for their company in Texas. The Labor was granted just by sending a signed letter from a previous employer stating that I had worked for them doing the very same thing between the years 2000 and 2005, prior to the submission of the petition for the Labor Cert.

After EIGHT long years (yes, I said 8!) I was finally in front of the CO at the Embassy in Madrid. He was kind, polite and nice but at the end we (my whole family of three kids and wife) were given the 212(g) slip for "further processing". No more info at that point.

After one week we received a letter at home saying that I should send an updated resume since 1999 till today, a "Vida Laboral" (is an official document were you have all the registry of work if paid the Social Security for it) and proof of employment (pay stubs if available) for that particular company that signed the very document I sent years ago to the USCIS to get the Labor.

Well, I sent all the documents required, but no pay stubs or official registration for that particular job exists since I WAS UNDERPAID in cash. The company is a Non Profit political organization (politics party in Spain) and do not pay a "salary" but a "stipend" for those working as "volunteers" 40 hours a week doing certain jobs as taking care of the media and PR. We sent another letter signed by the maximum responsible person in the party, stating that I actually worked as Chief of Press for the party between the years 2000 and 2005, a list of duties performed, hours worked and money paid, specifically received in cash.

My question is, isn't this a little bit weird that the CO wants to investigate about a requirement already met with the people that is supposed to grant the Labor Certification? Isn't it sufficient to demonstrate that I actually already have the Labor Cert without entering in the details on how was it granted? Because I'm not sure if he is concerned about something that is not "his concern" (there is another entire agency that takes care of the Labor Certification and they already did their job years ago).

Soooo, thoughts?

Thanks

Hi everyone,

I just wanted to say hello and thank you for the initiative. I myself applied for an E3 immigrant visa and was placed under AP after interview, so you can guess how stressful is been for my family this situation. Hope I can help with my experience.

Cheers