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Today's Date: December 10, 2013
 

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The Immigration Reform bill proposes Extensive Changes to Laws Governing Employment-Based Immigration, Temporary Immigration and other Visa Programs

After several months of negotiations, on April 17, 2013 a bipartisan group of eight U.S. senators, informally known as the “Gang of Eight, introduced long-awaited legislation for a sweeping overhaul of the nation’s immigration system. Senator Charles Schumer (D-NY) introduced the bipartisan immigration reform legislation, Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (“S. 744”), along with Sen. McCain, Sen. Durbin, Sen. Graham, Sen. Menendez, Sen. Rubio, Sen. Bennet and Sen. Flake. The Senate Judiciary Committee held hearings on the bill on April 19, 2013 and April 22–23, 2013. The bill will be “marked up” (meaning it will be debated and possibly amended and edited) in May 2013. The proponents of the bill hope to pass the bill by June 2013.

Most of the public attention has been drawn to one aspect of the 844-page bill — a legalization program for many of the nation’s estimated 11 million unauthorized immigrants.  The bill provisions tilt the current legal immigration system away from its predominant emphasis on family reunification towards meeting U.S. labor market needs.  While doing so, the bill would establish far greater flexibility for employers to access foreign workers if they are in need, for foreign workers to move within the labor market, and for a system to determine the number of workers admitted into the country.

Increased focus on Employment-based immigration

According to the New York Times analysis of the bill, the share of family-based immigration in the annual admission of lawful permanent residents (LPRs) would decrease from 75 to 50 percent. To that end, one of the most significant provisions is the creation of a new merit-based points system, through which 120,000 to 250,000 immigrants per year would be admitted.  (This merit-based points system would replace the diversity visa program).

S. 744 proposes to create two “merit-based” immigration systems. These systems will exist in parallel with the current employment and family-based systems, as amended by the bill. “Merit-based points track one” will set aside 120,000 immigrant or permanent resident visas annually (with a possible increase up to 250,000) for individuals who can demonstrate that they have sufficient points to qualify. Points will be awarded for factors such as education, achievement, employment, family in the United States, and length of residence. Half of the points-based visas will be for high-skilled workers and half will be for lesser-skilled workers. “Merit-based track two” will be a system for allocation of immigrant visas to clear out the backlog of long-pending employment-based and family-based cases filed prior to enactment.

Other major provisions of the bill with respect to employment-based immigration:

  • The bill will eliminate the per-country limits on employment-based immigration visas (green cards). This change will benefit nationals of India and China who are predominately affected by the per-country limit.
  • Regarding employment-based permanent legal immigration, there would be no caps on visas granted to individuals with extraordinary ability, outstanding researchers, multinational executives, and noncitizens with Ph.D. degrees or advanced degrees in science, technology, engineering, and math (STEM) from a U.S. university.
  • The spouses and children of employment-based immigrants would no longer be counted toward numerical caps.
  • Foreign nationals with master’s degrees in science, technology, engineering, or mathematics (STEM) will be exempt from labor certification.
  • The EB-5 Investor visa program will be permanently reauthorized, and other special programs for doctors and religious workers will also be reauthorized.

Changes proposed with respect to family sponsored immigration

  • Visas for spouses and minor children of LPRs would no longer be capped.
  • U.S. citizens could no longer sponsor their siblings, or their married children over 21.
  • Spouses and children of LPRs will be considered to be immediate relativesand will be eligible to immigrate immediately to the United States.
  • Will increase the per-country limits for family-based immigrantsfrom 7 % to 15 %.
  • A new temporary visa, the V visa, will allow families with approved immigrant petitions to come to the United States temporarily while awaiting final permanent residence processing.

Changes proposed for temporary workers visa programs

  • Increase in the H-1B annual visas cap starting in the 2015 fiscal year from 65,000 to 110,000 (and this could be adjusted to 180,000 over time based on the high skilled jobs demand index).
  • The 20,000 cap for holders of advanced degrees from U.S. universities will be replaced with a 25,000 cap for holders of advanced degrees in STEM fields from U.S. universities.
  • The bill also will impose new recruiting and non-displacement of U.S. workers requirements on all H-1B employers:
    • The Immigration and Nationality Act (“INA) will be amended as: An employer, prior to filing the H-1B petition (i) has advertised the job on an Internet website maintained by the Secretary of Labor for the purpose of such advertising; (ii) has offered the job to any United States worker who applies and is equally or better qualified for the job for which the nonimmigrant or nonimmigrants is or are sought; and (iii) if the employer is an H–1B-dependent employer, has taken good faith steps to recruit, in the United States using procedures that meet industry-wide standards and offering compensation that is at least as great as that required to be offered to H–1B nonimmigrants to the United States workers for the job for which the nonimmigrant or nonimmigrants is or are sought.
  • ​Large businesses (with over 50 employees) would be prohibited from having a workforce made up of over 50 percent H-1B workers, H-1B workers may not exceed 75% in 2015, 65% in 2016, and 50% after 2016. (The H-1B employee who is also an “intending immigrant” will not be counted in these calculations.  The intending immigrant is defined as an alien who intends to work and reside permanently in the United States, as evidenced by– (i) a pending or approved application for a labor certification, filed for such alien by a covered employer; or (ii) a pending or approved immigrant status petition filed for such alien.)
  • An H-1B-dependent employer will not be able to place, outsource, lease, or otherwise contract for the services or placement of an H–1B nonimmigrant employee.
  • For an employer that is not H-1B-dependent, that employer would have to pay a fee of $500 per outsourced worker.
  • H-4 spouses of H-1B nonimmigrants will be granted employment authorization if such spouse is a national of a foreign country that permits reciprocal employment and provides appropriate work permits.
  • Deference to Prior Approvals of H-1B and L-1. This means that an extension petition filed by the same employer for an employee should not be denied unless there was a material error with regard to the previous petition approval, or a substantial change in circumstances has taken place, or new material information has been discovered that adversely impacts the eligibility of the employer or the nonimmigrant, or in the Secretary’s discretion, such extension should not be approved.
  • H-1B workers would be given a 60-day grace period after H-1B employment is terminated. During this 60-day period the nonimmigrant shall retain H-1B status. 
  • H-1B status will continue for H-1B holders when the petition is pending to extend, change, or adjust their status.
  • Visa Revalidation within United States. This rule will apply to those applicants who qualify for a waiver of visa interview and therefore are eligible for renewing their status within the United States for an H, L or O and other qualified visa. 
  • A new fee of $500, “STEM  Education and Training fee” must be paid by the employer for a labor certification application.
  • The requirements for an approval of an L-1 petition for employment at a “new office” will be scrutinized thoroughly, and the approval period may be only for 12 months and the extension of the approval may only be granted if the employer submits adequate evidence of business plan, truthfulness of representations made in prior petition, evidence that the employer has been doing business at the new office through regular, systematic, and continuous basis.
  • An additional filing fee of $5,000 for an L petition for employers that employ 50 or more employees in the United States if more than 30 percent but less than 50 percent employees are on H-1B or L visas, or a filing fee of $ 10,000 for applicants that employ more than 50 percent employees are on H-1B and L visas.
  • Portability, or the ability to accept employment with a new employer upon the filing of a nonimmigrant petition, will be made available to O-1 nonimmigrants.
  • Will provide for E-3 visa eligibility based on Free Trade Agreements to a national of Ireland who has at least a high school education or its equivalent, or has, within 5 years, at least 2 years of work experience in an occupation which requires at least 2 years of training or experience (this is in contrast to the E-3 visa available for a national of Australia, which is reserved for individuals with bachelor’s or higher degree).
  • New E-5 visa for nationals of Republic of Korea to perform services in a specialty occupation.
  • E-4 visa for a national of a country, other than Chile, Singapore, or Australia, with which the United States has entered into a Free Trade Agreement.
  • W visa program, a new visa category, will be available to lesser-skilled foreign workers performing services or labor for a registered employer in a registered position, except computer occupations, and will be valid for three years, with extensions available in three-year periods.

Creation of INVEST Visa Programs

  • An INVEST visa program will be available for qualified entrepreneurs who plan to start their own companies in the United States and who can show that at least $100,000 has been invested by a qualified venture capitalist, a qualified super-angel investor, a qualified  government entity, a qualified community development financial institution, or such other type of entity or set of investors, as determined by the Secretary, or such new business has generated no fewer than three jobs and $250,000 in revenue. The visa will be valid for three years and an extension will be granted if the entrepreneur meets certain job creation and revenue requirements.
  • A green card will be available for an INVEST visa entrepreneur if he/she meet certain job creation, at least 5 jobs, and revenue requirements, at least $ 750,000, and other criteria.

The Judiciary Committee of the Senate has already made a first amendment to the bill, and there will be a number of other amendments and changes as the bill moves through Congress. We will continue to inform our clients about the proposed changes as soon as such changes are announced.

Law Offices of Rakesh Mehrotra will keep you abreast of these changes when they are actually implemented and we are available to help you navigate your way through U.S. immigration.

 

(Newsletter Vol. XXIII, no. 06, April 24, 2013, Issue No. 2 )


April 11, 2013, the U.S. State Department released the upcoming visa bulletin for the month of May. According to the May Visa Bulletin, the priority date cut-offs for Employment-Based Third Preference (EB-3) sub-category for professionals and skilled workers will move by more than seven months for China-mainland born and more than four months for most other countries. However, for India it will move slightly by two weeks, to December 22, 2002. The priority date cut-off for EB-2 sub-category for professionals holding advanced degrees or with exceptional ability will move by two weeks for China, to May 15, 2008, and will remain unchanged for India, September 1, 2004. These allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by April 9th.

Visa Bulletin for May 2013 

Employment- Based

All Chargeability Areas Except Those Listed

CHINA- mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 15MAY08 01SEP04 C C
3rd 01DEC07 01DEC07 22DEC02 01DEC07 15SEP06
Other Workers 01DEC07 01SEP03 22DEC02 01DEC07 15SEP06
4th C C C C C
Certain Religious Workers C C C C C

5th
Targeted
EmploymentAreas/
Regional Centers and Pilot Programs

C C C C C

(Newsletter Vol. XXIII, no. 05, April 10, 2013, Issue No. 1)

Mr. Mehrotra speaking at the workshop at George Mason University 
Last month, Rakesh Mehrotra, Managing Attorney and Founder of the Law Offices of Rakesh Mehrotra, spoke at a workshop for international students and scholars at George Mason University, Fairfax, VA. His presentation covered immigration as well as employment based visa options for international students and scholars in the private sector, including H-1B and other temporary work visas and employment-based permanent residency in the U.S. 
At the workshop, participants were able to ask various types of questions about immigration law and policies. The audience also included senior officials from the Office of International Programs and Services of George Mason University, namely the Associate Director for Immigration Compliance Ms. Christina Lehnertz, and International Faculty and Scholar Advisor Ms. Noelle Deola. 
George Mason University is widely known as a top-tier university in the United States and has a high international reputation. The university attracts the best and brightest students and scholars from across the U.S. and countries around the world. We are well known to organizations, companies and individuals across the United States, and locally in the greater Washington area and Commonwealth of Virginia. Our attorneys have been speakers at various business and community forums.  
Our  Our firm provides legal services on all aspects of U.S. Immigration & Nationality Law in all fifty states. Our lawyers specialize in business and professional immigration matters including E/H/L/O visas, permanent residence through Labor Certifications, Multinational Executives/Managers, National Interest Waivers and other complex immigration cases. Our clients range from individuals and small businesses to large corporations. We keep pace with rapidly changing immigration laws by constantly monitoring and analyzing the latest developments at different government agencies and the U.S. Congress. We successfully manage an extensive number of cases for larger corporate clients. We provide employers and employees with the latest and the most appropriate immigration advice, customized to their individual needs. We pride ourselves in providing each client with successful results by considering all appropriate options and offering innovative strategies. We take personal pride in the quality of our work, our attention to detail and efficient handling of cases.

Overview 

The U.S. government has proposed
to attract the world’s best and brightest entrepreneurs to start the next great
companies in the United States. On November 28, 2012 U.S. Citizenship and
Immigration Services (USCIS), the Federal agency responsible for administering
visa programs, announced new resource for immigrant entrepreneurs, the
Entrepreneur Pathways, an online resource center which gives immigrant
entrepreneurs an intuitive way to navigate opportunities to start and grow a
business in the United States. Immigrant entrepreneurs have always made
extraordinary contributions to US economic growth and competitiveness, creating
jobs and new businesses all across the country. Immigrants started 25 percent
of the highest-growth companies in America, including iconic success stories
like Intel, Google, Yahoo, and eBay, which together employ an estimated 220,000
people within the United States. Entrepreneur Pathways explains, in plain
English, which existing visa categories might be available to that entrepreneur
under current law, and what evidence would be necessary to demonstrate
eligibility. Imagine that an entrepreneur from another country participates in
a start-up mentorship program in the United States, raises a first round of
funding from investors, and wants to stay here to grow the company and hire
more people.
 

Earlier the USCIS had started
a new initiative to harness industry expertise from the public and private
sectors that will increase the job creation potential of employment-based and
high-skilled visa categories. Called ‘Entrepreneurs in Residence (EIR)’, the
initiative builds upon a series of policy, operational, and outreach efforts
within the framework of existing immigration laws. This program supports the
White House and Department of Homeland Security’s (DHS’) efforts in growing the
U.S. economy and creating American jobs. The USCIS EIR initiative consists of a
tactical team comprised of outside experts working alongside USCIS staff.  The team developed and deployed a training
workshop for USCIS immigration officers focusing on the business realities of
early-stage companies, trained a team of specialized immigration officers to
handle entrepreneur and start-up cases, and ensured that the adjudication
process incorporates new types of evidence relevant to startup enterprises.

The US government is also
considering to create a “start-up visa” designed specifically for immigrant
entrepreneurs, as part of its vision for a 21st century immigration system.

A General Guide to Non-Immigrant and
Immigrant Visa Options for Entrepreneurs and foreign-born founders of Startup
Companies

Where
to begin?

If you are a foreign
entrepreneur and you want to start or run a business in the United States, you
must first obtain authorization from USCIS through the immigrant or
nonimmigrant visa process to live and work here. It is important to determine
upfront which visa classification works best for you. Not every classification
that USCIS administers will allow you to work in the United States. Most
nonimmigrant visa petitions are issued for a specific type of activity with a
specific employer.  When considering
which option may apply best to your situation and your desired activities in
the United States, it is important to plan ahead and keep in mind that there
may be a variety of options available to you.

There are number of visas for
foreign entrepreneurs to explore or start a new business in the United States.
If you are new to the immigration process, we recommend that you consult with
an immigration attorney.

Visa categories you might
qualify:

F-1
/ OPT Optional Practical Training

You may be eligible for
Optional Practical Training (OPT) if you are an F-1 student in the United
States and you seek to start a business that is directly related to your major
area of study.

Maximum
possible work authorization: An F-1 student may be authorized for up to 12
months of OPT, and become eligible for another 12 months of OPT when he or she
seeks another post-secondary degree.  An
F-1 student with a qualified Science, Technology, Engineering or Mathematics
(STEM) degree may apply for a 17-month extension of post-completion OPT. 

H-1B
Specialty Occupation

You may be eligible for an
H-1B visa if you are planning to work for the business you start in the United
States in an occupation that normally requires a bachelor’s degree or higher in
a related field of study (e.g., engineers, scientists, business professionals or
mathematicians), and you have at least a bachelor’s degree or equivalent in a
field related to the position.

Initial
period of stay in the United States: Up to 3 years. Extensions possible in up
to 3 year increments. Maximum period of stay generally 6 years (extensions
beyond 6 years may be possible).

B-1
Business Visitor

You may be eligible for a
B-1 visa if you are coming to the United States as a business visitor in order
to secure funding or office space, negotiate a contract, or attend certain
business meetings in connection with opening a new business in this country.
With this visa you can participate in business activities of a commercial or
professional nature in the United States, including, but not limited to:

      
Consulting with business associates

      
Traveling for a scientific, educational,
professional or business convention, or a conference on specific dates

      
Settling an estate

      
Negotiating a contract

      
Participating in short-term training

      
Transiting through the United States: certain
persons may transit the United States with a B-1 visa

Initial
period of stay in the United States: Generally up to 6 month. Extensions  possible.

O-1A
Extraordinary Ability and Achievement

You may be eligible for an
O-1A visa if you have extraordinary ability in the sciences, arts, education,
business or athletics, which can be demonstrated by sustained acclaim and
recognition, and you will be coming to the United States to start a business in
your field. Extraordinary ability means you have a level of expertise
indicating you are one of the small percentage of people who have risen to the
very top of your field.

Initial
period of stay in the United States: Up to 3 years. May extend or renew the
period of stay in 1 year increments as necessary to complete or further the
event or activity.

L-1
Intracompany Transferee

You may be eligible for an
L-1 visa for “intracompany transferees” if you are an executive, manager, or a
worker with specialized knowledge who has worked abroad for a qualifying
organization (including an affiliate, parent, subsidiary or branch of your
foreign employer) for at least one year within the 3 years preceding the filing
of your L-1 petition (or in some cases your admission to the United States) and
the organization seeks to transfer you to the United States to open a
qualifying new office in one of the capacities listed above.

Initial
period of stay in the United States: Up to 3 years (1 year for new office
petitions). Extensions possible in up to 2 year increments. Maximum period of
stay: 7 years for managers and executives; 5 years for specialized knowledge
workers.

EB-5
Immigrant Investor

Immigrant Investor Program,
EB-5, was created by Congress in 1990 to stimulate the U.S. economy through job
creation and capital investment by foreign investors. Under a pilot immigration
program first enacted in 1992 and regularly reauthorized since, certain EB-5
visas also are set aside for investors in Regional Centers designated by USCIS
based on proposals for promoting economic growth. All EB-5 investors must
invest in a new commercial enterprise. Commercial enterprise means any
for-profit activity formed for the ongoing conduct of lawful business
including, but not limited to:

  •      A sole proprietorship
  • Partnership (whether limited or general)
  • Holding company
  • Joint venture
  • Corporation
  • Business trust or other entity, which may be
    publicly or privately owned

This definition includes a
commercial enterprise consisting of a holding company and its wholly owned
subsidiaries, provided that each such subsidiary is engaged in a for-profit
activity formed for the ongoing conduct of a lawful business.

Note: This definition does
not include noncommercial activity such as owning and operating a personal
residence.

Job
Creation Requirements

Create or preserve at least
10 full-time jobs for qualifying U.S. workers within two years (or under
certain circumstances, within a reasonable time after the two-year period) of
the immigrant investor’s admission to the United States as a Conditional
Permanent Resident.

A qualified employee is a U.S. citizen, permanent resident or other
immigrant authorized to work in the United States. The individual may be a
conditional resident, an asylee, a refugee, or a person residing in the United
States under suspension of deportation. This definition does not include the
immigrant investor; his or her spouse, sons, or daughters; or any foreign
national in any nonimmigrant status (such as an H-1B visa holder) or who is not
authorized to work in the United States.

Capital
Investment Requirements

Capital means cash,
equipment, inventory, other tangible property, cash equivalents and
indebtedness secured by assets owned by the alien entrepreneur, provided that
the alien entrepreneur is personally and primarily liable and that the assets
of the new commercial enterprise upon which the petition is based are not used
to secure any of the indebtedness. All capital shall be valued at fair-market
value in United States dollars.

Required minimum investments
are:

  • General: The minimum qualifying investment in
    the United States is $1 million.
  • Targeted Employment Area (High Unemployment
    or Rural Area). The minimum qualifying investment either within a
    high-unemployment area or rural area in the United States is $500,000.

A targeted employment area
is an area that, at the time of investment, is a rural area or an area
experiencing unemployment of at least 150 percent of the national average rate.

A rural area is any area
outside a metropolitan statistical area (as designated by the Office of
Management and Budget) or outside the boundary of any city or town having a
population of 20,000 or more according to the decennial census.

TN
NAFTA Professionals

The North American Free
Trade Agreement (NAFTA) created special economic and trade relationships for
the United States, Canada and Mexico. The TN nonimmigrant classification
permits qualified Canadian and Mexican citizens to seek temporary entry into
the United States to engage in business activities at a professional level.

Among the types of
professionals who are eligible to seek admission as TN nonimmigrants are
accountants, engineers, lawyers, pharmacists, scientists, and teachers.

Initial
Period of Stay, up to 3 years, and extensions possible.

E-2
Treaty Investor

You may be eligible for an
E-2 visa if you invest a substantial amount of money in a new or existing U.S.
business, and are from a country that has a treaty of commerce and navigation
with the United States or a country designated by Congress as eligible for
participation in the E-2 nonimmigrant visa program. For a list of treaty
countries, visit the Department of State.

Initial
period of stay in the United States: Up to 2 years.  May extend or renew the period of stay in 2
year increments indefinitely.

Business
Visitor under Visa Waiver Program

The Visa Waiver Program
(VWP) enables nationals of 35 participating countries to travel to the United
States for tourism or business for stays of 90 days or less without obtaining a
visa. Nationals of VWP countries must meet eligibility requirements to travel
without a visa on the VWP

Give us a call if you would like to discuss
one of these visa options which may be available to you, your business partners
or employees. 

Vol. XXIII, no.06, April 24, 2013, Issue no 2

USCIS used computer-generated random selection process to select cap-subject H-1B petitions since it received more petitions than the H-1B numerical cap for the FY 2014 

April 8, 2013, WASHINGTON— For the first time since 2008, USCIS reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period. USCIS also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. 

On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with the filing fees, unless it is found to be a duplicate filing.  The agency conducted the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected were part of the random selection process for the 65,000 limit. Additionally, USCIS has temporarily adjusted its premium processing practice. To facilitate the prioritized data entry of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases on April 15, 2013. Because of this change, the fifteen days premium processing timeline will kick in only on April 15, 2013.   

Since  the accepted cap-subject petitions were selected randomly, it is unpredictable to ascertain whether a petition was accepted for the quota. Because of the lottery process and the time required to enter the data about the H-1B petitions, it is expected to take a couple more days or even a few weeks to receive the actual receipt notice from USCIS. 


Rakesh Mehrotra spoke at a workshop for international students and scholars at George Mason University
Mr. Mehrotra speaking at the workshop at George Mason University 
Last month, Rakesh Mehrotra, Managing Attorney and Founder of the Law Offices of Rakesh Mehrotra, spoke at a workshop for international students and scholars at George Mason University, Fairfax, VA. His presentation covered immigration as well as employment based visa options for international students and scholars in the private sector, including H-1B and other temporary work visas and employment-based permanent residency in the U.S. 
At the workshop, participants were able to ask various types of questions about immigration law and policies. The audience included senior officials from the Office of International Programs and Services of George Mason University, namely the Associate Director for Immigration Compliance Ms. Christina Lehnertz, and International Faculty and Scholar Advisor Ms. Noelle Deola. 
George Mason University is widely known as a top-tier university in the United States and has a high international reputation. The university attracts the best and brightest students and scholars from across the U.S. and countries around the world. We are well known to organizations, companies and individuals across the United States, and locally in the greater Washington area and Commonwealth of Virginia. Our attorneys have been speakers at various business and community forums.  
Our  Our firm provides legal services on all aspects of U.S. Immigration & Nationality Law in all fifty states. Our lawyers specialize in business and professional immigration matters including E/H/L/O visas, permanent residence through Labor Certifications, Multinational Executives/Managers, National Interest Waivers and other complex immigration cases. Our clients range from individuals and small businesses to large corporations. We keep pace with rapidly changing immigration laws by constantly monitoring and analyzing the latest developments at different government agencies and the U.S. Congress. We successfully manage an extensive number of cases for larger corporate clients. We provide employers and employees with the latest and the most appropriate immigration advice, customized to their individual needs. We pride ourselves in providing each client with successful results by considering all appropriate options and offering innovative strategies. We take personal pride in the quality of our work, our attention to detail and efficient handling of cases. 


Newsletter Vol. XXIII, no. 04, March 14, 2013, Issue No. 1 


1. Sequestration May Affect USCIS and Department of Labor Processing  Times 


The “sequester” or “sequestration” refers to budget cuts to particular categories of federal spending that took effect March 1, 2013. The cuts were established by the Budget Control Act of 2011. The area of federal spending most affected by sequestration is called discretionary spending, which includes defense and non-defense elements. Discretionary spending represented approximately 36% of federal outlays in 2012. The Washington Post article explained the possible effects sequestration may have on immigration system.  
How USCIS Processing may be affected by Sequestration 
Last month, the Under Secretary of Management of The Department of Homeland Security (DHS) issued a memo regarding sequestrationBecause of sequestration, the DHS budget will be decreased and agencies within the DHS will be impacted. Agencies such as Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) will be hardest hit. Therefore there will be fewer agents, airport screeners and border agents on duty, and these staffing decreases will likely affect processing times for immigration applications. While USCIS will lose some funding, most of its budget is derived from the fees it receives from processing various types of applications and services, so USCIS might not be impacted as greatly as ICE or CBP. However, a large scale cuts for other related agencies will likely affect USCIS operations to some degree. 
How the Department of Labor may be affected by Sequestration  
Typically, employers submitting LCAs to the Department of Labor (DOL) can expect a response within seven working days, unless there are obvious inaccuracies. However, there could be a potential delay in LCA processing (a pre-requisite for H-1B petitions), Prevailing Wage Determinations, and PERM Processing timelines due to decreased staff at the Office of Foreign Labor Certification at DOL. Recently there was technical glitch on the iCERT online Portal System and the issue has been left unresolved for two days. This delay might be due to the seriousness of the technical glitch, but it may also be a result of the staff shortage.
Conclusion

We expect that the actual effects of sequestration may be less severe that it has been previously discussed publicly. However, it is important to keep in mind that there could be possible delays in all immigration processing due to sequestration.


2. USCIS Published a New Version of the Form I-9, Employment Eligibility Verification and also     Revised the Handbook for Employers for Completing the Form I-9  

On March 8, 2013, USCIS published a new Form I-9, Employment Eligibility Verification. The form is available for immediate use by employers. Employers who need to make necessary updates to their business processes to allow for use of the new Form I-9 may continue to use other previously accepted revisions (Rev.02/02/09)N and (Rev. 08/07/09)Y until May 7, 2013. After May 7, 2013, all employers must use the revised Form I-9 for each new employee hired in the United States. The revised Form I-9 has several new features, including new fields and a new format to reduce errors. The instructions to the form also more clearly describe the information employees and employers must provide in each section. English and Spanish versions of the new form are available online at www.uscis.gov and I-9 Central. 
On March 11, 2013, USCIS also revised the handbook for employers, “Handbook for Employers, Guidance for Completing the Form I-9 (M-274)”. This handbook has been updated to include information about the revised Form I-9. The name of the Handbook has also changed slightly.  The word “Guidance” has replaced “Instructions”, helpful new images have been added to illustrate how employees and employers can complete Section 1-3 of the new form, and it provides updated guidance on recording changes of name and other identity information. 



Vol. XXIII, no.03, February 15, 2013, Issue no 1


1. In his his first State of the Union address after re-election President Obama 

called on Congress to send him a comprehensive immigration reform bill “in the next few months”


Picture: U.S. House of Representiative 


February 13, 2013: At the invitation of House Speaker John Boehner, President Barack Obama delivered the 92nd State of the Union Address at the Capitol on Tuesday, February 12, 2013. In addition to members of the U.S. House of Representatives and the U.S. Senate, attendees included the President’s Cabinet, the Joint Chiefs of Staff, the Chief Justice and Justices of the U.S. Supreme Court, and the U.S. Diplomatic Corps.


In this first State of the Union address after his re-election, President Obama called on Congress to send him an immigration reform bill “in the next few months”. “We know what needs to be done”, President Obama said in his address. He applauded the efforts of bipartisan groups in both chambers of Congress to draft a comprehensive immigration bill. “Now let’s get this done. Send me a comprehensive immigration bill in the next few months and I will sign it right away”, President Obama said. The Obama administration has devoted increased attention to immigration reform in his second term in office. Last month in Las Vegas, President Obama spoke about creating a fair and effective immigration system. 

“Leaders from the business, labor, law enforcement, and faith communities, they all agree that the time has come to pass comprehensive immigration reform”, he said in his address. President Obama said, “Real reform means establishing a responsible pathway to earned citizenship, a path that includes passing a background check, paying taxes and a meaningful penalty, learning English, and going to the back of the line behind the folks trying to come here legally”. He further explained, “And real reform means fixing the legal immigration system to cut waiting periods and attract the highly skilled entrepreneurs and engineers that will help create jobs and grow our economy”.  


President Obama’s proposal for immigration reform has four parts. First, continue to strengthen our borders. Second, crack down on companies that hire undocumented workers. Third, hold undocumented immigrants accountable before they can earn their citizenship; this means requiring undocumented workers to pay their taxes and a penalty, move to the back of the line, learn English, and pass background checks. Fourth, streamline the legal immigration system for families, workers, and employers. Please see The fact sheet about President Obama’s proposals. For more information, see here



2. Plan early to meet Fiscal Year 2014 H-1B numerical cap  

Our Law Offices suggest H-1B petitioners keep in mind that USCIS will begin accepting H-1B petitions on April 1, 2013 for the Fiscal Year (FY) 2014 H-1B  quota cases. If the petition is approved the H-1B beneficiary can start working on October 1, 2013 or earlier if he/she is eligible for H-1B cap-gap. It is very important to start the H-1B sponsorship process as soon as possible to make sure all the petitions are timely filed. 

2.  FY 2014 H-1B Cap and Cap Amounts 

Last year, USCIS received a sufficient number of H-1B petitions to reach the statutory cap for FY 2013 on June 11, 2012. After the numerical cap is reached, USCIS will reject petitions subject to the H-1B. The current annual cap on the H-1B category is 65,000, and out this up to 6,800 visas are set aside each fiscal year for the H-1B1 program under the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B specialty occupation workers for the next fiscal year.

There is a high likelihood that the FY 2014 H-1B quota might be reached much earlier than last year. It should be noted that in the past the numerical quota was reached in a short period of time, sometimes within a week.


Therefore, it is better to plan everything in advance so that all H-1B petition will be filed in a timely manner. 


Most importantly, USCIS will continue to accept H-1B petitions that are not subject to annual numerical limitations, (e.g. H-1B amended petitions, H-1B extensions for individuals who have already been counted against the cap within the last six years, etc.), DOD petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2014.


Please note the following tips to ensure that your petition is filed timely: 


– Get all supporting documents ready (letters of support, end-client letter, necessary fees, etc.).


– Before filing the H-B petition the employer has to receive a certified Labor Condition Application (LCA) from the Department of Labor (DOL). It typically takes about seven business days for the DOL to certify an LCA, so the LCA should also be filed as soon as possible.

 

– Evidence of Beneficiary’s Educational Qualifications:  

  • A copy of beneficiary’s final transcripts.
  • Petition has to include evidence of the beneficiary’s educational degree at the time of filing.  If all of the requirements for the degree have been met, but the degree has not yet been awarded, the following alternate evidence may be submitted:
    •  A copy of the beneficiary’s transcript and letter from the Registrar confirming that all of the degree requirements have been met (if the educational institution does not have a Registrar, such letter must be signed by the person in charge of the educational records where the degree will be awarded).
  • If you are indicating that the beneficiary is qualified based on a combination of education and experience, we would have to include substantiating evidence to show that.
  • If the beneficiary has a foreign academic degree and professional experience letters then we may need to obtain a credential evaluation, a process that can also take a few days.

Aug 28 2013

We have learned from immigration applicants and petitioners that there is a new telephone scam targeted to defaud them. USCIS also reported about these scams targeting USCIS applicants and petitioners. Scammers are using a technique called “Caller ID spoofing” to display a misleading or inaccurate phone number in a recipient’s Caller ID. The scammer poses as a USCIS official and requests personal information (such as Social Security number, passport number, or A-number), identifies supposed issues in the recipient’s immigration records, and asks for payment to correct these records.
If you or your family members receive a call like that, we advise you to say “No, thank you” and hang up immediately. 
As per its policy and immigration law USCIS never asks for any form of payment or personal information over the phone. Do not fall victim to telephone scammers posing as USCIS personnel or other government officials or some other scams which seek payment or your personal information. We encourage you to protect your personal information and not to provide details about your immigration application in any public area or online. 
If you have been a victim of this telephone scam, please report it to the Federal Trade Commission (follow the link here), or report it to an appropriate state authority (to find out an appropriate authority in your state, follow the link here). USCIS lists some of the most common scams, follow the link here.  
If you have a question about your immigration record, please call our Law Offices at 703-230-6800, or the National Customer Service Center at 1-800-375-5283 or make an InfoPass appointment by visiting our website at http://infopass.uscis.gov/ 

Aug 28 2013

Under the U.S.
immigration law there are number of opportunities to
immigrate or temporarily work, or temporarily visit and stay in the United States. LA Times reported a news that an online gamer is also
eligible to receive U.S. visa as pro athlete
. Online game League
of Legends star Danny ‘Shiphtur’ Le of Canada is the first to be granted such a
visa normally awarded to internationally recognized athlete. Like stars on
sports teams, Le needed the visa to live and practice with his Riverside squad.
With a generation of children having grown up playing video games, the decision
by the U.S. Citizenship and Immigration Services has been widely perceived as
elevating America’s newest professional sport to the same class as old-school
stalwarts. And in a worldwide competition in which the winning team can take
home $1 million in prizes, the ability to sign the best players — whether from
Canada or South Korea or Russia — was seen as a must-have for U.S squads.


If you are a pro athlete
and seeking to work and stay in the U.S. now there will be a  possiblity
to seek a visa as an internationally recognized athlete.
 

Sep 18 2013

1.      What is the earliest start date
of a Cap-subject H-1B?

Answer(A): The earliest start
date for Cap-subject H-1B for fiscal year 2014 will be October 1, 2013 but the
employment could start later. The U.S. federal government’s fiscal year begins
on 1 October of the previous calendar year and ends on 30 September of the year
with which it is numbered.

Steps you need to take if your H-1B is approved and you are
outside the U.S.?

a.       How soon one can apply for an H-1B visa?

A: After USCIS approves the
Petition for a Nonimmigrant Worker (Form I-129), you can apply for an H-1B visa
90 days in advance at a U.S. Consulate.

Since it is September already,
now one would be able to apply for the H-1B visa at the appropriate U.S.
Consulate if an H-1B petition was approved for him.

Wait times for visa interview
appointments vary by location, season, and visa category, so you should apply
for your visa early. (Review the interview wait time for the location where
you will apply)

b.      Which
U.S. Consulate should I apply for the visa ?

A: When the H-1B petition was
filed on your behalf you made a choice about the U.S. Consulate you will go to
for your visa. Therefore you would have to apply for the visa at that Consulate
and schedule for a visa interview there.

The Department of State has
developed the Petition Information Management Service (PIMS) to provide a
method for consular officers to rapidly confirm that individuals requesting an
H, L, O, P, Q, or R nonimmigrant visa were, in fact, the beneficiary of a
corresponding petition approved by USCIS. PIMS allows consular officers to
access and confirm USCIS petition approval data and supporting documents
online; thereby speeding up the issuance of nonimmigrant visas while reducing
costs and heightening security.

Prior to arriving at the consulate,
call ahead to schedule an appointment and inquire as to whether the case
information is located in PIMS. U.S. Consulate contacts are available at 
http://www.usembassy.gov/.

However you would check each Consulate
about scheduling the visa appointment, for example for India, one can schedule
interview online at 
http://cdn.ustraveldocs.com/in/ or
may call their number.

In case you would not be able to
schedule a visa interview at your pre-selected Consulate, then you can schedule
an appointment at any U.S. Consulate since the information in PIMS will be
available electronically to all consulates and embassies.

c.       What
are the steps for applying for an H-1B visa?

Following are some of the steps
you would need to take:

Complete The Online Visa
Application, Form DS-160

You must: 1) complete the online
visa application and 2) print the application form confirmation page to bring
to your interview.

Photo

You will upload your photo while
completing the online Form DS-160. Your photo must be in the format explained
in the Photograph Requirements.

Schedule an Interview

You would need to schedule an
appointment for your visa interview. You will need to provide the receipt
number that is printed on your approved Petition for a Nonimmigrant Worker,
Form I-129 to schedule an interview.

Prepare for your Interview

Fees – Pay the non-refundable
visa application fee. (See, Current visa fees for Department of State government
services select Fees)

When your visa is approved, you
may also pay a visa issuance reciprocity fee, if applicable to your
nationality.

Gather Required
Documentation

Gather and prepare the following
required documents before your visa interview:

– Passport valid for travel
to the U. S. – Your passport must be valid for at least six months beyond your
period of stay in the U. S. (unless exempt by country-specific agreements). If
more than one person is included in your passport, each person who needs a visa
must submit a separate application.

– Nonimmigrant Visa
Application, Form DS-160 confirmation page

– Application fee payment
receipt, if you are required to pay before your interview

– Photo – You will upload your
photo while completing the online Form DS-160. If the photo upload fails, you
must bring one printed photo in the format explained in the Photograph
Requirements.

– Receipt Number/Notice for your
approved H-1B petition.

Attend your Visa Interview

During your visa interview, a
consular officer will determine whether you are qualified to receive a visa.

After your visa interview, your
application may require further administrative processing. You will be informed
by the consular officer if further processing is necessary for your
application.

When the visa is approved, you
may pay a visa issuance fee if applicable to your nationality, and will be
informed how your passport with visa will be returned to you. Review the visa
processing time, to learn how soon your passport with visa will generally be
ready for pick-up or delivery by the courier.

Spouse and Children

Your spouse, and unmarried and
minor children may also apply for the derivative visa category to accompany or
join you. U.S. embassies and consulates will adjudicate visa applications that
are based on a same-sex marriage in the same way that they will adjudicate
applications for opposite gender spouses.

Please reference the specific
guidance on the visa category for which you are applying for more details on
documentation required for derivative spouses. You must be able to show that
you will be able to financially support your family in the United States. 

Visa Denial and
Ineligibility

Review Visa Denials for detailed
information about visa ineligibilities and denials and contact  your employer
about the issues.

I was refused a visa, may I
reapply?

Yes, but first contact your
employer.

Misrepresentation or Fraud

Attempting to obtain a visa by
the willful misrepresentation of a material fact, or fraud, may result in the
permanent refusal of a visa or denial of entry into the United States.

2.      What you need to know regarding the immigration
processing at the U.S. – Port of Entry?

A.     Once
your visa is approved you would be able to travel to the U.S. 10 days prior to
your  H-1B employment so long as an H-1B visa was approved with the
earlier start date than your H-1B start date at the discretion of Consular
Officer.

At the port of entry, a Customs
and Border Protection (CBP) officer will stamp your passport. This admission
stamp will show the date of admission, class of admission, and the date that
the traveler’s class of admission expires. You will also receive on arrival a
flyer alerting you to go to www.CBP.gov/I94 to check your admission record
information. At this time make sure that your classification (either H-1B or
H-4) and the end-date is correct.

Once your enter the U.S., you should print out I-94 entry
records
 through the CBP website in multiple copies. You would
need this I-94 copy for driver’s license, social security card, and for I-9
verification. For more info, please
visit the websit
e
. 

 

3.      How late can I start my H-1B
employment?

A: If the employee is simply changing from some other status
to H-1B employment with the company while already present in the U.S.,
employment must begin within 60 days of approval of the H-1B.

Before you start your job you would need a U.S. Social Security
Number, otherwise you would have to apply for a Social Security Number and it
might take two weeks or more to receive the actual Social Security Card.more to
receive the actual Social Security Card.

4.      What do you need to do on first
day of employment?

A.     Your employer will provide you a copy
of the approved Labor Condition Application (LCA) if they have not done so
already.

In addition to giving you the LCA copy, your employer will give
you a Form I-9, Employment Eligibility Verification, which is used for
verifying the identity and employment authorization of individuals hired for
employment in the United States. On the form, you will complete first part,
Section 1, and attest to your employment authorization. You must present your
employer with acceptable documents evidencing identity and employment
authorization.

5.      How to maintain H-1B status?

A: You will remain in H-IB status for the duration of the H-IB
period granted on your     I-94, or on the approval notice if a
change of status was granted, provided that you at all times during this period
are “performing services for an authorized H-lB employer”.

6.      When does an amended petition
have to be filed?

A.     Any changes in job locations, job title or
substantial changes in job duties and/or responsibilities
 and reduction of salary and benefits from
prior H-1B will require a LCA and H-1B petition to amend the employment
conditions.

7.      What are the consequences of out
of visa status?

A: You will be considered “out of H-1B status” if you stop
performing services for  your employer, regardless of the period noted in
the H-1B approval notice or I-94.

If you are considered out of status, so will all of your
derivative family members, regardless of the expiration date of their H-4 approval
notices or I-94s.

Once on “out of status” you
should not remain “out of status” in the United States for more than 10 days
grace period to leave the U.S. You will be subjected to the unlawful presence
rule if you remain out of status for more than 180 days and will be excluded
from the United States for a period of three years or more.   

 

Jan 8 2014

It is always a best practice to file an H-1B or any other extension petitions well in advance before the expiry date of previous extension or the I-94 expiration date. The usual processing time for the USCIS-Vermont Service Center or California Service Center is 2 months based on their website, and in cases for which an RFE is issued will take another 2 months or longer to get an approval or denial based on the RFE response. 

Recently in an unpublished decision in Invica Trupcevic, A096155870 (BIA Nov 7, 2013) handed down by the Board of Immigration Appeals (BIA), it upheld the denial of the respondent’s application for adjustment of status (Form I-485) on grounds that the respondent had failed to maintain lawful status for more than 180 days. The Board found that the filing of an application to extend H-1B nonimmigrant status did not confer lawful status under Section 245(k) of the Immigration and Nationality Act, and the government’s delay in adjudicating the application did not qualify for the regulatory exception for “technical violations resulting from inaction of the Service.” BIA referred to a USCIS policy guide which states that the period during which a timely filed [extension of stay] or [change of status] an application is pending continues the alien’s period of authorized stay in the United States (allowing the alien to avoid accruing unlawful presence), but does not extend the alien’s period ‘authorized status’In other words, only the actual government approval of the request extends lawful status, whereas denial of the extension request causes the original expiration of status to stand [and] the renders the subsequent status unlawful. (USCIS Adjudicator’s Field Manual also states that when any extension of status request is “ultimately approved, the period during which the [extension request] had been pending would be considered, in retrospect, a period in which the alien was in a lawful nonimmigrant status…”).

BIA illustrated the fact that the aliens can be “lawfully present” in the United States (i.e., in a “period of stay authorized by the Attorney General”) even though their “lawful status” has expired. Therefore the pendency of extension petitions provides a right to be “legally present even though their “lawful status” has expired, however, the pending extension petition does not give “lawful status” except by retrospect when the extension petition is approved. [emphasis supplied] 

This has been USCIS policy as well as the practice and has been consistent, therefore it is a best practice to seek an extension well in advance rather than waiting for the last weeks or months to the expiry date of previous extension or the I-94 expiration date.

Nov 20 2013

 

Conditions
in a foreign national’s home country such as civil unrest or a severe
environmental disaster may impede their ability to return home as
originally planned or may create temporary financial difficulties for them and
their family. These extreme situations may also may affect their ability to
maintain lawful immigration status while in the United States. During these
special situations, USCIS has made provisions for temporary relief measures to
eligible foreign nationals. Recently, USCIS provided for immigration
relief measures for Filipino Nationals Impacted by Typhoon Haiyan and for
nationals from Central American countries affected by extreme flooding.

 

Because
of these temorary measures, the foreign nationals impacted by such extreme
situations may be eligible to benefit from the following immigration
relief measures:

  • Change or
    extension of nonimmigrant status for an individual currently in the United
    States, even when the request is filed after the authorized period of
    admission has expired;
  • Extension
    of certain grants of parole made by USCIS;
  • Extension
    of certain grants of advance parole, and expedited processing of advance
    parole requests;
  • Expedited
    adjudication and approval, where possible, of requests for off-campus
    employment authorization for F-1 students experiencing severe economic
    hardship;
  • Expedited
    processing of immigrant petitions for immediate relatives of U.S. citizens
    and lawful permanent residents (LPRs);
  • Expedited
    adjudication of employment authorization applications, where appropriate;
    and
  • Assistance
    to LPRs stranded overseas without immigration or travel documents, such as
    Permanent Resident Cards (Green Cards). USCIS and the Department of State
    will coordinate on these matters when the LPR is stranded in a place that
    has no local USCIS office.
  • Fee
    Waiver: affected nationals may request waiver of the fees for certain
    forms by filing a Request for Fee Waiver, Form I-912 (or a written
    request).
  • Employment
    Authorization for Students: if you are an academic student, you may need
    to work off-campus if a disaster has affected your ability to support
    yourself. The disaster may occur in the United States and prevent you from
    working on-campus or the disaster may occur overseas and affect your
    economic support. If you can demonstrate that you are from an affected
    country or region and you have been recommended for such employment by the
    Designated School Official (DSO), you may be eligible to receive
    employment authorization when filing the I-765, Application for Employment
    Authorization.
  • Document
    Replacement: if you have lost your USCIS-issued documents through no fault
    of your own, you may show your need for replacing the documents.

Besides temporary immigration relief measures, the
Secretary of Department of Homeland Security (DHS) has designated number of
foreign countries for Temporary Protected Status (TPS) due to conditions
in the country that temporarily prevent the country’s nationals from returning
safely, or in certain circumstances, where the country is unable to handle the
return of its nationals adequately.  USCIS may grant TPS to eligible
nationals of certain countries (or parts of countries), who are already in the
United States, or eligible individuals without nationality who last resided in
the designated country may also be granted TPS. Currently, El
Salvador, Haiti, Honduras, Nicaragua, Somania, Sudan, South Sudan and Syria
 has
been 
designated as TPS country. During the TPS designated
period, individuals who are TPS beneficiaries or who are found preliminarily
eligible for TPS upon initial review of their cases (prima facie eligible) are
not removable from the United States, can obtain an employment authorization
document (EAD), may be granted travel authorization, may apply for nonimmigrant
status, file for adjustment of status based on an immigrant petition, apply for
any other immigration benefit or protection for which they may be eligible.
Once granted TPS, an individual also cannot be detained by DHS on the basis of
his or her immigration status in the United States. 

 

Give us a call if you or anyone you know may
have been affected by these hardships and need legal support. Our Law Offices
can offer a pro bono legal services for eligible individuals.

 
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