MurthyDotCom : Glossary O-S

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O-1 visa - nonimmigrant visa classification for individuals of extraordinary ability in sciences, arts, education, business, or athletics. The O-2 visa is designed for support personnel of the O-1 visa holder and O-3 is the dependent classification for spouses and children.

O*NET - created in 1995 to convert the information of the detailed Dictionary of Occupational Titles (DOT) into a simpler and more user-friendly format. Effective March 28, 2005, PERM regulations require the use of the O*Net classification, rather than the DOT, to determine industry-norm for education, training, and experience in particular occupations. The O*Net system uses five job zones for Special Vocational Preparation (SVP) classification that are published on www.flcdatacenter.com.

Optional Practical Training (also, OPT) - type of authorized student employment. Curricular Practical Training (CPT) is another type. May be available during annual vacations, during the school year (generally after the first full academic year) and after completion of the study program. OPT must be authorized by the school and an Employment Authorization Document (EAD) must be obtained from the USCIS before the individual begins the employment.

Out of Status - an imprecise term used loosely to describe a variety of very different situations in which a foreign national has failed to maintain valid nonimmigrant status, including overstay, entry without inspection, as well as the status of an H1B worker who has lost his or her job.

Overstay - the act of remaining in the United States past the expiration date on one's I-94 card. For an F-1 or J-1 visa holder with an I-94 card marked D/S, an overstay occurs at the expiration of that program, including any practical training. An individual with D/S marked on the I-94 card does not begin to accrue unlawful presence until an official determination is made by the USCIS that s/he is no longer in status.

Parole - an accommodation for special circumstances as opposed to Admission. Most common is Advance Parole. There are also other types of parole. Some examples are (1) being paroled into the United States to appear at an immigration hearing; (2) humanitarian parole, which can be granted on a case-by-case basis in truly urgent humanitarian circumstances, usually applied for when one is still in the home country. When paroled into the U.S., one is given an I-94 card with an expiration date, but is not given a particular nonimmigrant status. Rather, her/his status is parolee. Despite the date listed on the I-94 card, I-485 applicants with Advance Parole are allowed to remain in the U.S. in a period of authorized stay for the duration of the application process.

Parolee - one who has been paroled into the U.S. (See also, Parole.)

Passport - a travel document issued by one's country of citizenship. It can be used for identification purposes as well as for visa applications or entry to other countries.

PERM - (Program Electronic Review Management System) (See also, labor certification) - as of March 28, 2005, all labor certifications are filed under the PERM system of rules and regulations. PERM is an attestation and audit-based system designed to streamline the process for obtaining an alien employment certification (labor certification). PERM requires the employer to engage in set recruitment efforts in advance of filing the labor certification, to attest to the fact that the employer has been unable to find an able, willing, and qualified U.S. worker for that position, and that the employer maintain documentation of the recruitment and its results for five years.

Petition - the paperwork itself or the act of submitting the formal request filed by a person or a company on behalf of someone else. In contrast, an application is filed on one's own behalf. A petition type can either be nonimmigrant (temporary) or immigrant (permanent). Petitions for nonimmigrant workers are filed on Form I-129. The most common immigrant petitions are the I-130 for FB and the I-140 for EB. There are also other special types of petition forms for certain situations. Note: There are some situations where a person can also self-petition (file a petition for him/herself). These include the NIW and Extraordinary Ability (EB1) immigrant petitions, as well as special situations such as battered spouse petitions.

Petitioner - the individual or organization filing a formal request or petition to benefit another person. Examples of more specific terminology are “petitioning employer” or “petitioning relative.”

Portability - regulatory provisions established by AC21 permitting increased job mobility in both nonimmigrant and immigrant cases. For example, an H1B holder may begin work for a new H1B employer as soon as the new H1B petition is filed with the USCIS and an individual whose
I-485 application has been pending for at least 180 days may move to a position that is the "same or similar" to the one that was originally sponsored, even with a different employer, without having to restart the green card process.

Preconceived Intent - determination that an individual has entered the United States in a manner not consistent with his or her visa. One is prohibited from entering the U.S. for a purpose other than that permitted under the visa, i.e. entering on a B-1 visa in order to file a change of status to F-1 or an I-485 application, rather than go through consular processing. A finding of preconceived intent can render an individual inadmissible under INA 212(a)(6)(c) (fraud / misrepresentation). The U.S. Department of State applies a 30- or 60-day rule in evaluating intent. If a foreign national takes action contrary to the intent of that visa (i.e. applies for change of status or begins employment) within 30 days of entry, there is a presumption of misrepresentation at the time of entry. If the action occurs between 30 days and 60 days of entry to the U.S., that presumption is rebuttable, and if the action occurs 60 days after entry to the U.S., there is no presumption, although the government has the discretion to raise the intent issue.

Prevailing Wage - the average wage for similarly-employed workers in a specific geographic location. For H1Bs, the employer is required to pay the greater of the prevailing wage or the actual wage paid to other workers in similar jobs at the company. For labor certification, the employer-offered wage must be at least equal to the prevailing wage rate, as determined by the State Workforce Agency (SWA). The SWA relies primarily on its online wage library in making the prevailing wage determination (PWD). However, an employer may submit an alternative wage that meets the requirements of U.S. Department of Labor (DOL) regulations, and request that the alternative be the prevailing wage.

Prima Facie - legally sufficient to establish a fact or a case unless disproved

Private Bill - bill that restricts applicability, usually to only one or a very small group of individuals. If it is passed, it becomes a private law.

Port of Entry (POE) - the location in the U.S., where one applies for entry and shows his/her documents to the CBP Inspector. It can be at an airport, sea port, or a land border.

Priority Date (PD) - <see DOS Visa Bulletin on MurthyDotCom> date that sets one's place in the queue for a permanent residency case in a category subject to a quota. In a case that requires labor certification (LC), the priority date is the officially acknowledged date that the case was filed with the U.S. Department of Labor. For an employment-based case not requiring the LC, or for a family-based case (other than Immediate Relatives), the PD is the date the petition was filed with the USCIS. The law provides a quota or limit on the number of people who can receive the permanent residency status in a given year in the various categories. Note: Monthly, the U.S. Department of State publishes the Visa Bulletin, containing a chart that indicates the waiting period, if any, to file the final stage of the application (AOS or CP). A "C" on the Visa Bulletin indicates that the numbers are all current in that specific category and that there is no waiting period for filing. If the numbers are backlogged, as indicated on the Visa Bulletin, there will be a date mentioned from which one may determine when s/he is able to file the papers for his/her AOS or CP. One may file the AOS application if the priority date is BEFORE the date indicated on the Visa Bulletin chart.

Public Charge - one who is dependent upon government assistance. Public charge is one of the grounds for inadmissibility.

Public Law - a public bill or joint resolution that is enacted into law. Public laws have general applicability.

PWD - prevailing wage determination (See prevailing wage.)

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Reduction in Recruitment (RIR) - formerly, this was one of two types of labor certification (LC). For the RIR the employer advertised prior to filing the LC application. It was also necessary to show a shortage of qualified workers in the local area. A case that was denied as RIR would then be processed as a regular LC case.

Reentry Permit - a document issued for the purpose of maintaining one's LPR status, despite a lengthy trip abroad. If an LPR is going abroad for up to two years, it is possible to apply for this permit while still in the U.S. and use it when returning to facilitate reentry. Without a reentry permit, a trip abroad of over six months can lead to problems at reentry and one may be called upon to prove continuous U.S. residence. Note: While a Reentry Permit can help to maintain the LPR status, the long trip abroad can still result in a longer wait to qualify for U.S. citizenship. For maintaining residence for naturalization purposes, there is another type of application that can be filed only in limited circumstances.

Refugee - by legal definition, one who is unable or unwilling to return to the home country due to persecution, past persecution, or a well-founded fear of future persecution, based upon race, religion, nationality, political opinion, or membership in a particular social group. While often used to define one who flees his or her country, this is the definition under international convention / treaties. One may apply for refugee status from abroad to be admitted to the United States in that status, or, if in the U.S., one would apply for Asylum. In order to qualify for Asylum, one must meet the definition of refugee. (See also, Asylum.)

Refugee Travel Document - authorization that can be used instead of a passport by a refugee or asylee. One who has fled the home country may not have obtained a passport before leaving and it may be impossible or impractical to obtain one later, since the application would need to be made to the government of the persecuting country. In lieu of the passport, it is possible to apply to the U.S. government for the refugee travel document. A United Nations travel document may be another possibility.

Removal - formerly referred to as deportation. The Illegal Immigration and Immigrant Responsibility Act of 1996 (IIRIRA) introduced "removal" instead of the former term. Deportation and removal are still frequently used interchangeably, despite the significant legal differences between the two terms. Under IIRIRA, persons seeking admission to the United States, or persons who were admitted but are removable (i.e. overstay, or for certain criminal convictions) are placed in removal proceedings. Removal proceedings are conducted by immigration judges under the auspices of the Executive Office for Immigration Review (EOIR).

Request for Evidence (RFE) - a notice from USCIS requesting more information or clarification with respect to an application or petition that was filed.

Retrogression - the movement of the availability of priority dates backward in time, so that a case that is current one month is not current the next. The U.S. Department of State (DOS) visa bulletin lists the priority dates for which visa numbers are available on a month-to-month basis. If an individual's priority date is on or before the date listed in the visa bulletin for the category in which s/he is eligible to pursue permanent residence through either the I-485 or consular processing for an immigrant visa during that month.

SEVIS (Student and Exchange Visitor Information System) - is an internet-based system used by the Department of Homeland Security (DHS) to record all significant events in the educational careers of international students while they are in the United States. Designated school officials (DSOs), consular officers of the U.S. Department of State, and officials of the DHS have access to the database. SEVIS collects information such as biographical data, academic status, dates of entry, employment, completion of studies, transfers and other information and significant events that transpire during the course of an international student's academic career.

State Workforce Agency (SWA) - division of the U.S. Department of Labor with jurisdiction over a specific state. An H2B labor certification is filed with the local SWA. For PERM labor certifications, a Prevailing Wage Determination (PWD) must be requested from the SWA and a job order must be placed with the SWA.

Status - controlled by the I-94 card and given by the CBP officer at the port of entry when one arrives in the United States. One's status can also be changed or extended, in appropriate circumstances, by the USCIS from within the U.S. The terms visa and status are sometimes used interchangeably but the two concepts are very different, a visa controls one's ability to enter the United States, while one's status controls his/her ability to remain inside the U.S. Note: There are many nonimmigrant visa statuses, from A through V, and there are also lawful permanent resident (LPR) status, conditional permanent resident status, asylee or refugee status, temporary protected status, etc. See About Visas and Statuses for more detail.

Successor-in-Interest - a person or entity assuming the rights and responsibilities of another. For example, if a corporate merger creates a new entity, that new company may be a successor-in-interest. If a company is sponsoring employees, such as for the H1B or the green card, the successor employer is required to assume all immigration-related responsibilities / liabilities, even if it does not assume all corporate responsibilities. Note: The determination of whether a company is a successor-in-interest can have a significant impact upon an individual's current nonimmigrant status and ability to continue the green card process. If one's company is about to undergo a corporate restructuring of some kind, be it a simple name change or a merger / acquisition, an attorney should be consulted regarding all potential immigration ramifications of the change.

SWA - See State Workforce Agency.

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Posted Feb 01, 2005