Articles Posted in Employment based visa

8688401969_a2967b67a3_z
Today April 7, 2016 the U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B general bachelor’s cap has been reached for fiscal year 2017. In addition, USCIS received more than 20,000 petitions for the advanced degree exemption. Some time within the next week, USCIS will conduct a random computer-generated process, known as a ‘lottery,’ to select the petitions needed to fill the 65,000 bachelor’s cap. USCIS will first randomly select the petitions that will count toward the advanced degree exemption. Unselected advanced degree petitions will then be entered into the random lottery that will be conducted to fill the 65,000 bachelor’s cap. All unselected cap-subject petitions will be rejected and in turn CIS will return the H-1B packages containing filing fees and rejection notices. CIS has not yet provided any details concerning the date the lottery will be conducted. We suspect it will occur within the next week. In the meantime, cap exempt H-1B petitions will continue to be processed including H-1B worker extensions, petitions requesting a change to the terms of an H-1B workers’ employment, and petitions requesting concurrent work for an H-1B worker.

So, what’s next?

Petitions filed with premium processing

5166666608_0d8c344375_z
The Employment and Training Administration’s (ETA)’s Office of Foreign Labor Certification (OFLC) will be hosting a public webinar on April 7, 2016 which will provide filing tips, discuss common errors associated with H-2B wage surveys, and provide assistance to employers interested in submission of H-2B wage surveys. The webinar will teach employers how to determine the prevailing wage (PWD) for positions to be occupied by H-2B non-agricultural workers. The OFLC hopes that the webinar will help employers, attorneys, and surveyors avoid common errors that typically appear on prevailing wage determination applications for the H-2B foreign worker visa program.

The webinar will:

  • Address common errors with documenting and displaying survey results and their solutions;

12932796_10154066179788766_5585631026523143913_n
On behalf of our law firm we would like to extend our best wishes to everyone applying for an H-1B visa this season. The H-1B visa is limited. Every year thousands of employers file these visas on behalf of foreign workers to fill specialty occupations.

The issuance of H-1B visas is limited to 65,000 per year. Individuals holding advanced degrees from the United States (master’s degree or higher) have a greater opportunity of being selected, however only the first 20,000 petitions received for individuals holding advanced degrees will  be exempted from the cap. Petitions received in excess of 20,000 will count toward the regular Bachelor’s cap.

Today, April 1st, is the first day that USCIS will begin accepting applications for H-1B professional worker visas.

16541844787_fb5fd7f877_z
It is a busy time of the year for the Law Offices of Jacob J. Sapochnick, as we begin to box up and ship out the hundreds of H-1B petitions that will count toward the cap for fiscal year 2016. Tomorrow marks the very first day that H-1B petitions will begin to be accepted by USCIS. If your H-1B petition will not be received by USCIS on the very first day of the H-1B filing season (April 1st) do not fret. USCIS will continue to accept H-1B petitions through the first five business days of the filing season until the cap has been met. Receipt of your H-1B petition on April 1st does not guarantee that your application will be chosen in the randomized lottery. In fact, we have had clients file at the very last minute who have ended up being chosen in the cap. During the next few days, USCIS will carefully monitor the amount of H-1B petitions that are received and make an announcement once the cap has been met. Once the announcement has been made, no more petitions will be accepted for the lottery. Petitions received in excess of the cap will be rejected by USCIS. Employers will know that their H-1B petition has been chosen in the lottery if they receive a ‘notice of receipt’ in the weeks following the randomized selection process. Last year, receipt notices for H-1B petitions, filed without premium processing, started coming into our office in late April, while rejection notices did not appear until mid to late June. Petitioners may opt for premium processing to expedite the notification process. Although it is very easy to get lost in the chaos of H-1B season, it is important not to lose sight of what’s important this filing season.

To help ease your anxiety this H-1B season we are providing you with our last minute filing tips:

  1. Employer’s Financial Obligations: Employers must be prepared to pay their workers at least the Prevailing Wage based on the employee’s occupation and actual place of employment. Employer’s must understand their obligation to honor this financial commitment during the time the employee is working for the employer in H-1B status. Failure to do so can have serious consequences for the employer;

61320634_2e4c8e752c_z

Every year USCIS receives and adjudicates approximately 6 million applications from foreign nationals seeking to immigrate to the United States, and U.S. companies seeking to employ foreign workers temporarily.  According to the Department of Homeland Security’s Office of Immigration Statistics, “an estimated 13.1 million lawful permanent residents (LPRs) were living in the United States on January 1, 2013.” Of these permanent residents, more than half–8.8 million–were eligible to apply for naturalization. Additionally, the United States issues approximately 700,000 temporary non-immigrant work visas for a variety of temporary workers including: highly skilled foreign workers employed in specialty occupations in the STEM fields, fashion models, internationally acclaimed athletes and entertainers, aliens of extraordinary ability, religious workers, intra-company transferees, treaty traders/investors, foreign media workers, and agricultural and seasonal workers.

The reason the issuance of temporary worker visas is so low, when compared to the issuance of permanent resident cards, is because most of the temporary foreign worker visa programs are subject to a congressional cap, that limits the amount of non-immigrants that can be admitted per fiscal year. Additionally, certain temporary nonimmigrant worker visa classifications are granted for a specified period of time, although in most cases at least one extension may be granted. The cap applies primarily to the H nonimmigrant worker classifications, and non-minister religious workers. The H visa category accounts for approximately 54% of all visas issued for temporary workers. That is why the H visas are the most talked about visas among politicians when discussing immigration reform. The cap does not apply to treaty traders/investors, aliens of extraordinary ability, intra-company transferees, NAFTA professionals (Canada and Mexico), and foreign media workers. In comparison to developed countries, the United States admits a relatively low number of temporary foreign workers. Foreign workers are typically admitted either to fill labor shortages in the American job market, or because of their exceptional, or highly technical skills, as is the case for the H-1B visa classification.  Only highly skilled foreign nationals, aliens of extraordinary ability, aliens holding advanced degrees, high capital investors, nurses and physical therapists, doctors in undeserved area, and recipients of national interest waivers, have the unique opportunity to obtain permanent residence based on employment.

The mammoth task of meaningful immigration reform will not be easy and it will not happen overnight. The presidential nominees have failed to outline a clear strategy to overhaul our immigration system. None of the presidential candidates have addressed the most contentious areas of immigration policy that must be revised, in order to repair our broken immigration system.

Continue reading

5086531784_ed4e1a8a69_z
For this blog we are answering 5 questions we have recently received through our social media platforms and our website. Please remember that every case is different and every immigration journey is unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance while you embark on your immigration journey. If you have any further questions, please call our office for a free legal consultation. We serve international clients and domestic clients in all 50 states. We thank you for your continued trust and interest in our law office.

Change of Status B-2 to F-1

Q: I need advice regarding my change of status. I am currently in the United States on a B-2 tourist visa. I have filed a change of status application to change my status to F-1 student. My B-2 duration of stay will expire today and my change of status application to F-1 student is still pending with USCIS. I informed my school that I will be postponing my classes and was notified that I need to file a new I-20 and provide some missing information. I have time to make adjustments to my application but I would like to know the steps to correct any missing information. I also wanted to know if I need to leave the United States immediately since my F-1 application is still pending. Please assist.

7468447528_3aaed1a0bd_bH-1B season is now in full swing. H-1B petitions will begin to be accepted by USCIS on April 1, 2016 for the 2017 fiscal year. Each year, foreign workers in specialty occupations compete for one of 65,000 H-1B visas allocated each fiscal year. Foreign workers with a U.S. Master’s degree or higher are exempt from the 65,000 congressionally mandated visa cap, however only the first 20,000 petitions received by USCIS may qualify for this cap exemption. Any petitions received after the 20,000 cap-exempt petitions have been allocated will count toward the regular cap. USCIS expects to receive more than 65,000 petitions during the first five business days of the application period. Once the H-1B cap has been reached, USCIS will notify the public, and begin selecting the H-1B petitions necessary to meet the cap through a randomized computer-generated lottery system. H-1B petitions that are not selected through this system will be rejected, along with any petitions received once the visa cap has closed. Duplicate H-1B petitions that are filed on behalf of a foreign worker by the same employer in the same fiscal year will also be rejected. 8 CFR § 214.2(h)(2)(i)(G) explicitly states that “an employer may not file, in the same fiscal year, more than one H1B petition on behalf of the same alien if the alien is subject to the numerical limitations of section 214(g)(1)(A). Filing more than one H-1B petition on behalf of the same alien in the same fiscal year will result in the denial or revocation of all such petitions.” Multiple H-1B petitions filed on behalf of the same alien by different employers during the same fiscal year is permitted although approval of such petitions is discretionary. According to USCIS, petitioners may be asked to demonstrate that a ‘legitimate business need’ exists in filing more than than one H-1B petition for the same alien. In such circumstances a request for evidence, notice of intent to deny, or notice of intent to revoke may result. This is true of both cap-subject and cap-exempt petitions filed by different employers for the same alien.

H-1B petitioners (employers) may request premium processing at the same time that the H-1B petition is filed by signing and completing Form I-907 and including the corresponding fee. Alternatively, petitioners may request premium processing once CIS notifies the petitioner whether the petition has been accepted or rejected. USCIS will not begin premium processing for H-1B cap petitions until May 16, 2016. If you are an American employer who is interested in filing an H-1B petition for a foreign worker, you must act quickly. Filing an H-1B petition is a very complicated and long process. For one if you have never sponsored a foreign worker, you will be required to register your FEIN with the Department of Labor before filing the H-1B petition. Secondly, if the foreign worker you wish to hire received their foreign degree abroad, they must obtain an academic evaluation from an accredited evaluation service. If the foreign worker you wish to hire does not have formal education, but has extensive experience in the specialty occupation, they will need to obtain work experience letters from individuals who can attest to their experience. Thirdly, once an employer has registered their FEIN with the Department of Labor, they will be required to file a Labor Condition Application with the Department of Labor and include the certified LCA with the H-1B petition. Certification of the LCA takes time. The LCA is an attestation made by the employer that they will pay the foreign worker at least the actual or prevailing wage for the occupation, whichever is higher, based on the physical location where the foreign worker will be employed. Once properly submitted to the DOL, the LCA alone takes approximately 2 weeks to be certified by the LCA. This means that in order to meet the April 1st priority date of filing, employers have a very limited period of time to decide whether they will file an H-1B petition for a foreign worker for the upcoming fiscal year. When in doubt it is best not to rush the process.

Last year, our office filed approximately seventy-six H-1B petitions for fiscal year 2016. Approximately 75% of these petitions were filed for the regular Bachelor’s cap, while only 18% of these petitions were filed for individuals holding U.S. Master’s degrees or higher. Approximately 82% of these petitions were filed with the California Service Center, while only 17% of these petitions were filed with the Vermont Service Center. The top H-1B specialty occupations, filed for fiscal year 2016 included: software engineer, technical writer, general manager, market research analyst, business specialist, budget analyst, and graphic designer.

5162244018_51c361d054_z

The new replacement rule affecting the Optional Practical Training (OPT) program for F-1 students with degrees in science, technology, engineering, or mathematics (STEM), has been posted and is now available for inspection in the federal register. The new replacement rule will replace the previous 2008 rule and become effective beginning May 10, 2016.

The new rule authorizes F-1 STEM students pursuing a 12-month Optional Practical Training program in the United States to extend their ‘OPT’ status for a 24-month period. The 24-month extension replaces the 17-month STEM OPT extension previously available to STEM students. The 17-month STEM OPT extension will continue to be effective until May 9, 2016. The new 24-month extension applies only to F-1 STEM OPT students attending accredited United States institutions, whose employers participate in the U.S. Citizenship and Immigration Services E-verify program. Only students in a valid period of post-completion OPT may file for a STEM OPT extension. The 24-month extension, coupled with the 12-month period given with initial post-completion OPT, will give STEM students a period of 36 total months of practical training in their field. Amendments that come with the new rule include additional oversight and improvement of the program requiring formal mentoring and training plans by employers, a new STEM definition and Classification of Instructional Program Categories, provisions on previously obtained STEM degrees, Accreditation and Employer Visits, and OPT compliance. In addition, new provisions have been introduced relating to wage and protections for STEM OPT students and safeguards for American workers as described below.

The ‘Cap Gap’ provision previously available to F-1 STEM OPT students in 2008 remains in place. This provision allows students with a timely filed H-1B petition requesting a change of status, the benefit of automatically extending their F-1 status and employment authorization until October 1 of the H-1B visa fiscal year for which the student has applied. The Cap-Gap was created with intention of avoiding any disruption students might experience in their careers and personal life as a result of temporary gaps in their status.

Continue reading

8149521772_6fcf418645_c

Last week, the Senate held a hearing scrutinizing the temporary H-1B skilled worker program, the second hearing of its kind within just one year. At issue was the protection of American jobs and dissatisfaction with the program among conservatives in the Senate, who believe the program has caused job displacement at the expense of thousands of Americans. Beyond their own political convictions, Republican Senators eyeing the White House, have also scrutinized the H-1B visa program, in order to appease voters who, maintain a hard line stance on immigration.

During the hearing, the Senate Judiciary panel considered testimony questioning the integrity of the H-1B visa program. Many witnesses accused their employers of violating the conditions of the program, alleging that their employers sought to replace American workers with foreign workers by utilizing the H-1B visa program to pay those workers lower wages. This accusation is troublesome for various reasons. Firstly, it is well known that the H-1B visa program requires an employer to hire a foreign worker in a specialty occupation only when the employer cannot obtain the necessary skills and abilities to perform the specialty occupation within the American workforce. H-1B workers must possess distinguished merit and ability, and demonstrate their qualifications through the attainment of a bachelor’s degree or its equivalent, in the intended field of employment. Secondly, the H-1B visa program contains provisions which are specifically designed to protect similarly employed American workers from any adverse affects suffered from the employment of temporary foreign workers. Consequently, there are also provisions which aim to protect H-1B nonimmigrant workers from H-1B violations. One of those provisions includes the requirement that American employers pay temporary H-1B workers at least the ‘prevailing wage,’ the average wage paid to similarly employed workers (experience and qualifications) in a specific occupation in the area of intended employment. This would mean that any employer seeking to use the H-1B visa program for the purposes of obtaining ‘cheap foreign labor’ or to replace American workers would be violating the conditions of the H-1B visa program altogether.

Continue reading

3261953789_cc710caaa5_o

The U.S. Citizenship and Immigration Services (USCIS) has released an updated policy manual addressing the policies and procedures associated with adjustment of status to lawful permanent residence under section 245a of the Immigration and Nationality Act. The policies set forth in the newly updated policy manual are effective beginning February 25, 2016.

Adjustment of status is the process by which an eligible foreign national may adjust their status to lawful permanent resident, based on a qualifying family relationship or employer-employee relationship. Additionally, special categories of green card applicants exist covering self-petitioning Amerasian, Widow(ers) seeking lawful permanent residence under the Violence Against Women Act (VAWA), refugees, asylees, certain U visa holders, humanitarian visa holders, and eligible diversity visa program immigrants. In order to file an adjustment of status application from within the United States the Beneficiary must 1) be living in the United States lawfully and 2) have been inspected, lawfully admitted, or paroled into the United States, (except in cases of 245i).

Foreign nationals living in the United States, who qualify for adjustment of status to lawful permanent residence, may file their adjustment of status application with USCIS, without having to travel abroad to obtain an immigrant visa through a procedure known as consular processing. Foreign nationals residing abroad, who qualify for adjustment of status, must apply for an immigrant visa at a United States Embassy or Consulate abroad. Consular processing is different from adjustment of status from within the United States in various ways. Adjustment of status within the United States is a much faster process, however the main drawback is that applicants cannot travel internationally once their application has been filed with USCIS, until they are issued an advance parole document by USCIS authorizing such travel. In order to obtain an advance parole document, the green card applicant must file Form I-131 with USCIS. The advance parole document is typically issued within 90 days of filing of Form I-131. One of the main benefits of applying for an immigrant visa abroad through consular processing, is that the individual does not have any travel restrictions. It is for this reason that businesspersons and other individuals opt for consular processing instead of adjustment of status despite living in the United States.

Continue reading