2020 AILA Conference: Day 2, Session 2: Updates to PERM, EB-2 and EB-3 Self-Petitions

[Tsang Intro Splash]

Hi everyone, this is Joseph Tsang from Tsang & Associates, and today we’re back at day two of the AILA Conference 2020. This is the first time AILA is doing this virtual conference, and I’m super excited to bring that to you.

Now, as a quick disclaimer, I’m only reviewing the ones I’m attending, and the opinions shared in the video are mine only, even though I am an AILA member. The opinions I share are not attributed to AILA or even to the speakers. I am summarizing what the speakers are saying and sharing my two cents on the topic.

If you don’t know what AILA is, it is the American Immigration Lawyer Association, the largest immigration lawyers association in the United States. Hundreds of thousands of attorneys gather together around the world to discuss these topics every year at this conference, and I’m super excited to get started.

[0:45] Day two, session five. This session is all about EB-2 and EB-3, the PERM employment-based category. After watching the session, the speakers presenting this were phenomenal. You definitely want to download the full video from AILA Universit, and the speakers are over here [Bob White, Magaly R Cheng, Catherine L. Haight, Linda Rose] or directly contact them. They are amazing. There were so many key points I just want to highlight the key ones so everybody knows what’s going on in 2020 and then spend the bulk of the time talking about the self-petition part because I know that is the most crucial that most people have questions about.

[1:15] The first part is the wage determination. As you know, before you can file an EB-2 or EB-3 immigration case, you first need to get a wage determination about this foreigner that you’re trying to bring into the country, right? Is he going to be having a $30,000 salary or a $300,000 salary? And whatever comes back, you need to pay that amount and you need to prove that you’re able to pay that amount. So this wage determination is crucial. It’s key. Sometimes it can even take six months to get this wage determination.

The biggest news that has been dropped is that now this wage determination has a new algorithm. Before, you might be shooting for a Level Wage 1 or Level Wage 2, so you’re shooting for maybe $30,000, $40,000, $50,000, $60,000 salary, and that would be good enough for the company. The company can afford it, and you don’t have to pay them more. So you’re quite happy with this wage determination. As employers, as the company side, I totally understand that mentality. Talk to clients all the time.

Now, with the new algorithm in place, before the same position, same company, same job duties, same everything, it will go from Level Wage 1 and 2, and it may jump all the way to Level 4 or 5. And so the salary that’s required might bump up to $70,000, $80,000. And if the original wage Level 1 is $70,000, $80,000, it might go up to $125,000, $140,000, and that is very scary to a lot of employers and to a lot of people who need to file this petition because it can’t even get off the ground. Because if you can’t get a wage determination low enough, then you can’t go through the rest of the filing applications.

[2:45] All hope is not lost. You can file multiple wage determinations. You can tweak the formula, but it requires a lot more strategizing, a lot more brainstorming. Before, it was very simple. You put the two together, you file it out within the same day. Now it might take a couple of weeks to really strategize and explore all the different options. What are all the positions that you can possibly apply for and file all of those. It’s a lot more work on the lawyer’s team and a low more work on the employer’s team, but if you do it, you can still get past the wage determination problem. 

[3:16] The hurdle number two: the Department of Labor. Before you file the immigration paperwork with the government, you need to prove that you tried to hire for this position and nobody applied for it. Before, the audits and emphasis by the Department of Labor were solely focused on “Hey, did you do the right recruiting. If you didn’t, then we’re going to audit you, we’re going to do the recruiting. You let us know how many people applied” And so that’s the emphasis. 

But now we’re beginning to see that the Department of Labor is issuing audits with the same language as H-1B. Now, the Department of Labor is not only concerned with how you recruited, but why you are recruiting. In the past, that job duty was the sole responsibility of USCIS. Now, the Department of Labor somehow got a memo from USCIS, and now they’re issuing these audits with the same language as H-1B. They’re asking why is this person specialized? Why are you hiring this person as opposed to another individual? As opposed to just, “Hey, how did you hire? Why didn’t anybody else apply? Did you advertise it the right way?” Now you have to explain. Look at this organizational chart. This is who we need. This is why we need this person. This is how we hired, and everything comes together in a big package.

[4:27] So, if you are not familiar with how to deal with H-1Bs, that is going to be a big problem. And this is a time to level up. A lot of law firms only do EB-2, EB-3. They might not do H-1B. Or if you’re H-1B, you might not do the EB-2, EB-3. A lot of firms also do both, but they don’t really specialize in dealing with H-1Bs. Right now is a call for everybody to really jump on the H-1B bandwagon and really specialize in it because that type of technique on how to overcome those problems is going to spill over into all the other categories. Because now the Department of Labor is going to be borrowing from the H-1B and really demanding it. So, the expertise from the H-1B lawyers, you really need to tap into that.

Also, shameless plug for AILA. If you’re in HR watching this and you’re doing everything for your company, and then you get audited from the Department of Labor, it’s really time to hire an attorney and preferably hire an AILA attorney. They should know what to do.

[5:20] Alright, so those were some of the two golden nuggets on the biggest updates that we’re seeing this year. Now moving on to the biggest question: Can you self-petition? What if your company is owned by your relatives? Or what if you own part of the company? Or what if you own the entire company? Can you own company or family’s company or friend’s company petition for you to get a green card? And the answer is a resounding maybe. It’s not a no. So, if you’ve been told for sure you can’t do it, then that’s incompetence. If you’ve been told yes, then somebody’s trying to trick you. The answer is maybe. And in this session, they really dive deep on how to deal with a company that’s owned by your family, that’s owned by yourself, and how to get this approved.

We went through case law, and there’s a lot of different factors. Personally, at this firm, we do a lot of self-petitions in the H1 aspect, in the PERM aspect, in the O1 aspect. And you are going to be challenged. And the main challenge is, is this a bona fide relationship between employer and employee? Is this the real relationship between employer and employee? If you are being hired, are you able to be fired? If you own the company, if your family owns the company, if nepotism can kick in and you cannot get fired for any reason, no matter what you do, well, then that’s not a real employer-employee relationship.

[6:40] And USCIS is going to examine a ton of different factors. How many shares do you own? Are you sitting on the board? Are you an executive at this company? Why are you applying to this company and not other companies? Why is this company hiring you? Why are you the best candidate? Did somehow they tweak the process so that you turned out to be the best candidate for this position? And is this company set up just based on your background? So, they’re going to examine a lot of things. They’re going to have a lot of questions. You are on a triple red flag here. But that doesn’t mean it’s not possible.

And this makes perfect sense, right? If the company needs a particular position, and they’re doing all sorts of advertisements, and nobody seems to be applying or qualified, and suddenly you show up and you own the company or your family owns the company, they’re gonna scrutinize. How did you advertise? What is this position? If anything is off in a little bit of a way, USCIS is definitely going to challenge it. But if you advertise on all the normal channels, LinkedIn, ZipRecruiter, and you get tons of applications, and all those applications do not meet this particular requirement because it is just so hard to have this particular skill set, and your skill set isn’t unique to the company, it’s just needed for this particular position, and other companies similar to your company also need that position, but this skill set is just so rare, but it happens that you have it because you founded the company and you know you need it and you obtained it, well then, if it all makes sense, it could work. It takes a lot of strategizing. It might not even take one year. It might take a couple of years to formulate a good plan, an executable plan. But it is doable.

[8:18] And that is just the start. It’s not enough to show that the company needs you and they tried to recruit and they can’t find anybody other than you. They need to also show that they can fire you if they want to. USCIS is going to dive into the bylaws, the ownership structure, who has Class A shares, the voting rights, the super voting rights. How many shares do you own? Who are the board members? Who are you reporting to? And if you’re not doing a good job, are they going to be able to fire you? When, on what conditions are they going to fire you? Did you ever get a pay cut? All of these ideas are super important when you prepare a self-petition because you really need to explain and show the government there is a separation. You are not the employer. You are the employee. You are here to do a good job, to make the company great and turn and make America great.

[8:59] And that’s a wrap for all of Day Two. This was such a good session. Please go download it. A huge shoutout to AILA University again. They’ve been doing an amazing job. Hats off to them. Alright, if you guys have any questions, feel free to let us know.

Typically, at the end of each AILA session, all the attorneys will stay together. They will ask each other questions, they’ll talk to the speakers, they’ll exchange notes. But since this year’s AILA conference is held virtually, we’re not actually meeting and discussing. So, if you have any questions about any particular topics that we covered in this video, please leave a comment below, let us know, email us, call us. We’ll be happy to discuss some of these nuances with you. It’s an extremely exciting time. And thank you for joining.

Take care. Bye-bye.