New Hires at Syed Law Firm, PLLC

Syed Law Firm is pleased to announce the addition of two new staff members:

 

Ysabelle Reyes- Law Clerk

Ysabelle supports clients pursuing U.S. employment-based visas and naturalization. Ysabelle also has experience in family-based immigration through her volunteer work at a local nonprofit that provides legal aid to low-income immigrant families. Prior to joining Syed Law, Ysabelle supported lead attorneys in complex cross-border aircraft financing transactions as a legal assistant at a boutique firm in Washington, D.C.

Ysabelle holds a bachelor’s degree in Management Economics from Ateneo de Manila University and a Paralegal Studies Certificate from Georgetown University. She also attended the University of the Philippines College of Law. She is currently a second-year law student at Harvard University and will be working remotely from Cambridge, MA.

 

 

 

 

 

 

Luciana Jhon- Legal Assistant

Luciana is a graduate from Florida International University where she pursued a major in Political Science and a minor in International Relations with a concentration on Latin American and National Security studies. Currently, she is also interning at the Washington Office on Latin America, a nonprofit research and advocacy organization working to advance human rights in the Americas.

Previously, Luciana worked at an immigration law firm in Miami handling cases relating to family-based adjustments, asylum and deportation. She also interned on Capitol Hill under the Congressional Hispanic Caucus Institute and worked as an undergraduate research assistant conducting regional research on Latin America and the Caribbean. Luciana hopes to continue to develop her skills and gain knowledge in public policy in order to positively impact underrepresented communities. In the future, she hopes to attend law school and work as an attorney for a non-profit organization.

President Trump, Senator Cotton, and Senator Perdue Introduce The Reforming American Immigration for a Strong Economy Act (RAISE Act)

President Trump, Senator Cotton, and Senator Perdue Introduce the RAISE Act 

Today, Senators Tom Cotton and David Perdue will join President Donald Trump at the White House to introduce The Reforming American Immigration for a Strong Economy Act (RAISE Act). The RAISE Act is aimed at creating a skills-based immigration system that seeks to make America more competitive, raise wages for American workers, and create jobs.  The intent is to give Americans “a raise.”

Watch live at 11:30 am EST August 2, 2017

https://click.mail.whitehouse.gov/?qs=ff97cb9f2efe519166ea15ef52970893e8dd193b629cc4658a71178ca5537b9dd629cb1b0af5f7307e81f38736a7ee9564d8501d63556430

https://www.whitehouse.gov/live/president-trump-makes-announcement-senator-tom-cotton-and-senator-david-perdue

 

 

 

Supreme Court Definition of “Bona-Fide” Causing Confusion

The Trump administration’s travel ban affecting citizens of six majority Muslim countries and refugees from anywhere has been allowed to go ahead in revised form, at least temporarily, by the U.S. Supreme Court, but the decision has not only caused confusion but has also provoked unrest, protests, and court actions, albeit in more muted form compared to what happened when the original travel ban was first announced. The Supreme Court is expected to hear oral arguments on the travel ban this fall.

The original ban affected all citizens from Iran, Libya, Somalia, Syria, Sudan and Yemen for 90 days and all refugees from anywhere for 120 days. The new temporary revised ban which went into effect at the end of June allows only citizens from these six countries and refugees who have a genuine “bona-fide” relationship with an American citizen or entity to enter the United States.

The problem is that the definition of the term “bona-fide” is unclear. The lack of clarity is already causing distress and confusion.

The “bona-fide” definition currently includes “close relatives” of U.S. residents or citizens, those who already have a job lined up, or those who will enroll in a course of study at a college or university. Refugees who arrived in the United States before July 6th were allowed to enter the country. Both definitions leave a lot to be desired.

Government officials contend that the definition of “close relatives” comes from the 1965 Immigration and Nationality Act. Opponents of the ban argue that the administration’s new definition of “bona-fide” relationships does not seem to be in step with the Act. Parents-in-law, for example, were not regarded as “close relatives” under the Act, but they are considered as “close relatives” under the travel ban. However, fiancés and fiancées are “close relatives” under both the Act and the travel ban.

Commentators say that the lack of clarity means that there is likely to be chaos again at the airports when travelers, immigrants and refugees arrive, as border agencies will be struggling to interpret the rules as they stand.

The new version of the ban states that siblings, parents, children, sons and daughters in law, parents in law, fiancés, and fiancées of legal U.S. residents and citizens will be allowed to enter the United States. Grandparents, grandchildren, brothers or sisters-in-law, cousins, aunts, uncles, nephews and nieces will not be considered “close relatives.”

Lawyers for Hawaii challenged the government’s definition of “close relatives” by asking a federal district court judge to clarify the Supreme Court ruling. The judge, however, declined to do so, stating that such clarifications should be obtained from the Supreme Court.

As for the refugees, there is doubt about the fate of those refugees who have already been accepted for travel to the U.S., but who could not meet the July 6th deadline.

According to the Trump administration, any citizen of one of the six affected countries or refugee is encouraged to contact consular officials in the country of origin. These consular officials will be given the authority to make decisions about the validity of entry, notwithstanding the ban, on a case by case basis.

Immigration Form I-485 Has Been Revised and Simplified

A new, easy-to-understand version of form I-485 “Application to Register Permanent Residence or Adjust Status” has just been released.

In some cases, applying for a US visa requires filling out not just the application form, but supplemental forms as well. Many of these forms aren’t necessarily that easy to follow, meaning mistakes can be made causing unnecessary delays to the application process. For this reason, the USCIS has decided to revise the I-485 form to make it easier to complete.  It has also revised Form I-485 Supplement A and Form I-485 Supplement J, which includes the form filling instructions for relevant applicants.

Who uses this form?

This form is designed for those living in the United States who wish to adjust their status, which, once completed satisfactorily, means they can become lawful permanent residents. Once lawful permanent residence status has been acquired, the next step is citizenship.

60 day grace period until August 25, 2017

USCIS is prepared to accept either the 01/17/17 or the 06/26/17 editions of Form I-485 and I-485 supplements A and J up until August 25, 2017.

What are the changes?

  • Clearer navigation to the various parts of the form.
  • The questions flow better and the new formatting makes it clearer to understand and follow.
  • Clearer instructions are provided that relate to an applicant’s unique situation.
  • The questions about biographic information (Form G-325A) have been included in the revised Form I-485, so it will no longer be necessary for applicants to complete a G-325A as well.
  • 27 different immigrant categories are included, which means applicants can more easily identify the immigrant category which applies to them.

There are some questions that have been added that help a USCIS officer more easily assess the applicant’s eligibility and acceptability.

It is expected that these updates will make the whole approval process faster and more efficient, as there will be fewer mistakes and requests for evidence.

What looks the same on the form?

Form I-485 and its instructions do not look the same as the original versions, but the actual process for filling in Form I-485 and Supplements A and J have not changed. Applicants must however still submit the paper applications to the location listed in the instructions on the form.

The First Meeting with an Attorney – The Consultation

Whatever the reason that you have decided to talk to an attorney, your first meeting is important because it sets the scene for any continuing communication and relationship. If you have never needed to use an attorney before, the description below should help to fill you in on what you can do to make the meeting proceed more smoothly and what sort of questions you should ask.

The first step comes before the consultation when you contact the attorney’s office by phone.  He or she will ask a few questions and arrange for a consultation.  Be sure to ask if there is any charge for the consultation at this point so you know whether you have to pay at the time of the visit.  Some attorneys charge and others don’t depending on their area of law.

You do not have to retain the attorney simply because you have had a consultation.  If you want to talk to another, that’s fine. It’s like getting a second opinion before an operation or advice about a medical procedure.

Preparation for the consultation

Before you go to the first meeting, make sure that you are prepared.  Jot down the key points that you want to make and a list of questions you want to ask.  Take a pen and notepad or an electronic equivalent if that suits you.  Dress as if you are going to a business meeting or seeing your bank manager. Be on time, and check that you have copies of any documents that you think you may need to show to the attorney—it’s best to have more documents than you think you need than too few.

At the meeting

The attorney will probably ask for brief details about your case or dispute and then proceed to ask questions and explain procedures.

When it comes to explaining your case or describing details about your situation, be honest.  The attorney is bound by the attorney-client privilege to not divulge anything you say unless you suggest that you may be about to commit a crime, which fact the attorney may then have to pass on to the police.  Attorneys are good at judging character and will have a good idea whether you are withholding information from them which is relevant to the case or being deliberately dishonest.

Ask about the attorney’s fee structure and whether there is a prepayment of a retainer that would need to be paid upfront should you decide to use the attorney’s services and he or she agrees to represent you.  A retainer is an initial amount that is billed against as the attorney works on your case.  A retainer is similar to adding a balance on a pre-paid calling card.  You pay for only the minutes you actually use.  If the amount is eventually exhausted it is usually expected that another payment will be made.  In some cases, e.g. personal injury law, the attorney may work on a contingency fee basis.  This means that there are no upfront legal fees and the fee will be paid if and when a compensation payment is made.  This may also be the case for other examples of litigation where you expect a payment if your case is won with the help of the attorney.

Find out how the attorney bills, whether it is upfront, at a regular date or at the end of the project.

What next?

The attorney will most likely advise you as to what you can do next and what you may need to send in to the attorney.  This may mean additional information or documents that are needed so that the attorney can understand the issues more clearly.  There may be other forms of evidence that the attorney would like to have made available or contact details of people who may be relevant to your case.  In many cases, time could be of the essence and the sooner you and the attorney act, the more likely that it will proceed to a satisfactory conclusion.

Make sure that you agree on how you will communicate after the consultation meeting, whether it is by phone, email or some other method and how often the communication should be.  It is sensible to keep communicating regularly anyway so that you know what is going on.

You need to feel comfortable with your attorney’s ability and attitude just like the attorney needs to feel that you are being as open and complete as possible about your case.  As has already been mentioned, you are not stuck with the attorney you have had a consultation with, but it doesn’t make sense to engage the services of more than one attorney at the same time on the same issue.

Some questions that should be asked at any consultation

  1. How long have you been practicing this field of law?
  2. What sort of cases have you had which are similar to mine?
  3.  What was the outcome in these cases?
  4. How long did it take to resolve some of these cases?
  5. What do you think my chances of resolving the case are?
  6. How do you charge for your services?
  7. How much do you think it might cost for the whole project?
  8. Do you need a retainer?
  9. What documents o further information do you need to help you assess the case?
  10. What should I do now, if anything and when should we contact each other again?

 

The No-Objection Pathway for a J-1 Visa Holder to Apply for a Home Residency Waiver

The following no-objection pathway applies to those exchange visitors who are in the United States lawfully on a J-1 visa. At present, unless the United States Citizenship and Immigration Service (USCIS) grants a waiver for a specified reason, J-1 exchange visitors must complete a two year period of residence in their own home country before changing their immigration status. This period of residence is called the 212(e) two-year foreign residence rule.

The barriers to this requirement can be waived under certain circumstances. These include:

  • obtaining a no-objection statement from your own home government;
  • proving that you face persecution of some kind if you had to return;
  • a federal agency showing interest in you staying in the U.S.;
  • if denial of a waiver would cause exceptional hardship to a child, or wife who was a legal U.S. citizen or resident.

The easiest of these four ways that a waiver might be granted is the first one, obtaining a no-objection statement from your home government. Such a statement is basically a formal way of saying that your government will not put any obstacle in your path if you wish to remain in the U.S.

Every country has different procedures that it uses to establish whether it is prepared to issue a no-objection statement, so it is important that if you decide to take this route that you find out exactly what your own home country’s government’s procedures actually are. Some countries, such as India, for instance, have a particularly bureaucratic and long-winded method to follow before a no-objection statement is released and some countries categorically refuse to issue any no-objection statement at all.

Also note that some categories of J-1 exchange visitor, such as foreign doctors who came to the U.S. to further their medical training, will not be granted a waiver by the USCIS.

How to go about applying for a waiver using the no-objection

There are two different U.S. federal agencies that have a say in granting you a home residency waiver. Both agencies must agree in turn. The first you have to deal with is the Department of State (DOS) and the final one is the USCIS. It is quite possible, although not likely that you will have your waiver application accepted by the DOS only to find that it is turned down by the USCIS. Once this happens, you cannot appeal. If you do decide that you would like to change your visa status you will have no alternative to completing the 2 years back at home.

The first step is as mentioned before you check out your home country’s government’s procedure for providing a no-objection statement carefully first. There may be things you have to do that can smooth the process out later on. Your own government may not wish to provide a no-objection statement, for instance, if you owe your government money, a criminal charge has been laid against you while you were outside the country or you have yet to complete military service.

The second step is to complete an online J-visa waiver application and send it to the DOS. This is form DS-3036 and must be completed electronically as it contains a unique bar code without which your application for a waiver will be rejected. You fill it in online, print it off, and then send it off in the mail to the DOS together with a check or other payment and supporting documentation. On receipt of the form, the DOS generates a case number, which is basically a formal confirmation that your application is in the pipeline.

The third step is to complete a “Statement of Reason,” print it off and send it t the DOS. You cannot complete this step until the DOS has received your DS-3035 and issued you with a case number. The “Statement of Reason” is found on the same DOS website as the J-visa waiver application form. You don’t need to say anything particularly elaborate here. Just stick to the truth and keep it relatively short and simple.

The fourth step is to request a no-objection statement from your home country’s government. You will already have found out how to d this. It will probably mean filling in forms that your own country issues, paying a fee and also providing the DS case number you have already received. Depending on your citizenship, this procedure may vary somewhat. Once the statement has been issued by the relevant ministry or department in your own country it will be sent directly, most likely via your own country’s embassy, to the DOS Waiver Review Division. You are not allowed to obtain it yourself and send it on to the DOS.

What comes next?

Once the no-objection statement has been received by the DOS, they will take a few weeks (typically between 4 and 9) to make a decision about whether they approve of your reason for applying for a waiver. If they recommend your waiver application they will then send this n t the USCIS and send you a copy at the same time. While they are reviewing your waiver application, you are able to track progress using your case number and the DOS website.

The USCIS is the final decision maker in the waiver application process. However, they do not usually spend much time reviewing a recommendation by the DOS and in most cases will approve the application and grant you an I-612 waiver approval. As has been already mentioned, if approval is denied, you cannot appeal the decision although you may be able to apply all over again if you think you fit another category in the home residency requirement waiver list.

Act on your immigration status as soon as you have a copy of the DSOS’s recommendation

Note that as soon as you are sent a copy of a DOS waiver recommendation, you will need to think about your immigration status. You can start applying for a change of status as soon as you get the recommendation copy. The USCIS will still make a decision about the waiver first and then if the waiver is granted act on the change of status you apply for.

As in all cases of U.S. immigration applications, it is best to seek out an experienced immigration lawyer to provide you with detailed information and help in processing your home residency waiver.

Supreme Court temporarily upholds Travel Ban for Certain People From 6 Muslim-Majority Countries

On June 26, 2017, the Supreme Court decided to hear the Travel Ban cases when the Court reconvenes this fall.  In the meantime, the Court will allow the administration to implement parts of President Trump’s second executive order, which bans the entry of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen from the United States and suspends the admission of all refugees for 120 days.

The Court ruled that the government can only enforce the travel ban against foreign nationals who do not have “a credible claim of a bona fide relationship with a person or entity in the United States.”

A demonstrator holds a placard during a march against U.S. President Donald Trump and his temporary ban on refugees and nationals from seven Muslim-majority countries from entering the United States, in London, Britain, February 4, 2017. REUTERS/Neil Hall - RTX2ZLPP

A demonstrator holds a placard during a march against U.S. President Donald Trump and his temporary ban on refugees and nationals from seven Muslim-majority countries from entering the United States, in London, Britain, February 4, 2017. Photo by Neil Hall/Reuters

The controversial travel ban has been the subject of litigation in federal courts in both Maryland and Hawaii.  The lower courts had imposed a stay on the travel ban, effectively halting its implementation.  This recent decision from SCOTUS has allowed parts of the ban originally imposed in March to take effect immediately.  The justices narrowed the scope of lower court rulings that had completely blocked key parts of the ban that Trump had said was needed to prevent terrorism attacks.

There is no doubt this standard will create confusion and that, despite the narrowness of the Court’s decision, the administration will attempt to go further than permitted by the Court.  However, the American Immigration Council (AIC) has stated that it, along with attorneys and advocates around the nation, will carefully monitor the implementation and prepare to respond to any government overreach.

The AIC has just posted an explainer of who is and isn’t likely impacted by the Supreme Court’s decision this morning.  Please read and share.

It is important to note that the Supreme Court has not reinstated the original travel ban in totality, rather it has simply narrowed the stays that remain in effect due to prior lower court decisions.  Green card holders from the 6 Muslim countries are not affected.

West Facade of the Supreme Court Building

The White House argues that this executive order, like the previous version the president signed in January, is necessary to protect national security.  The initial version caused chaos at airports across the country until it was blocked by a federal judge in Washington, prompting the administration to craft a revised version that omitted references to religion and specifically exempted green card holders.  But that order, too, was challenged by lawsuits, and was blocked by lower courts before it ever went into effect.

The recent decision will enforce the travel ban against those who do not have any “bona-fide” relationship with either a person or an entity in the United States. This means potential travelers will need to be able to prove they have a bona fide reason for being allowed into the country which could be family connections, job commitments or educational reasons.  Lack of such evidence will make successful visa applications nearly impossible.

This is not as harsh as the President’s original executive order, which would have blocked any new visas for 90 days for all travelers from 6 countries with a Muslim majority population, while at the same time suspending the U.S. refugee program for 120 days.  Those who originally challenged this decision believed that such a ban would have a negative impact on anyone who has good reason to be in the United States, which includes those with work commitments, family ties, and courses of study.

The current situation for refugees

Refugees are to face a similar ban, which means anyone applying for refugee status will be denied entry into the United States unless they have suitable connections in the country which fall into the same categories as a traveler.  This ban is in force for 120 days.

Who is happy with this change and who is not?

President Trump sees the ruling by the Supreme Court as a win on his part.  He sees his role as Commander in Chief of the country is to ensure that America is safe from those who may want to do it harm.  Some Justices in the Supreme Court supported his controversial and much opposed original March ban.

Justice Clarence Thomas agreed with the Supreme Court’s decision, and wrote a three-page opinion stating that the stay should have been fully granted, and noting that officials who are delegated the responsibility to decide who has a genuine “bona fide relationship” with either a person or organization in the country will have a difficult decision to make.

However, the American Civil Liberty Union’s Immigrants’ Rights Project director, Omar Jadwat, considers the travel ban unconstitutional.  The Court of Appeals for the Fourth Circuit looked at the travel ban to see if it contradicted the Constitution by using religion as a way to discriminate.  The challengers were led by the International Refugee Assistance Project which is a nonprofit organization.

The Supreme Court will look at other elements of the original travel ban and whether they are unconstitutional as early as October this year.  This could affect travel arrangements for at least some of those who have been exempted from the ban by the recent decision by the Supreme Court.

Authority of Law by James Earle Frasier

Analysis

As a practical matter, there is little – if anything – the 6 countries can do with regards to providing background information that will satisfy this administration.

For non-immigrant visas, the current scheme will prove problematic since substantial family ties in the U.S. can sometimes be viewed as a risk factor by counselor officials.  This can be a factor in denying those visa applications.

It is likely that the travel ban will expand, either officially or unofficially, to other predominantly Muslim countries.

It must be noted that the ban is temporary for 90 days until a more permanent regulation is set up.  It also appears that there would be more litigation to come and an array of policies that will complicate things further after the 90 days pass.  Forcing those nations to set a system to confirm for U.S. consulates the identity of visa applicants and provide background checks.

Some of the countries subject to the travel ban might be forced to issue travel documents and accept their citizens with deportation orders before a visa can be issued.   It is unlikely that those countries, including Iran, will change course to comply with these policies anytime soon, further causing delays in visas.

Additional Resources

The partial stay will impact people in our community and around the world.  Here are some resources that have been developed/updated in the last 24 hours (the first 2 by Muslim Advocates and Penn State Law’s Center for Immigrants’ Rights Clinic), and could be shared with individuals who have questions about the impact of the ruling on travel. Any person from the six designated countries should consult with an immigration attorney before travel.

https://pennstatelaw.psu.edu/sites/default/files/pictures/faculty/Muslim%20Ban%202.0%20Timeline%20UPDATE%206.26.17.pdf

 

Post-Election Immigration Page: As a reminder, Penn State Law’s Center for Immigrants’ Rights hosts a page that is updated regularly and includes accurate but easy-to-digest summaries and fact sheets about each of the Executive Orders and other immigration policies post-election.  It also includes Powerpoints from many of its presentations to varied audiences including but not limited to Postdocs, graduate students, the school district, and the municipality.

 

 

Source:

http://www.npr.org/sections/thetwo-way/2017/06/26/533934989/supreme-court-will-hear-cases-on-president-trumps-travel-ban?utm_source=npr_newsletter&utm_medium=email&utm_content=20170626&utm_campaign=breakingnews&utm_term=nprnews

http://www.reuters.com/article/us-usa-court-immigration-idUSKBN19H1OR

American Immigration Council Releases Fact Sheet on Foreign-born STEM Workers in the United States

The American Immigration Council recently released Foreign-born STEM Workers in the United States, a fact sheet that describes the role that foreign-born workers play in the country’s STEM (science, technology, engineering, and math) workforce.

The importance of foreign-born workers in STEM occupations cannot be overstated. STEM workers are essential to the U.S. economy in terms of productivity and innovation. As of 2015, the foreign-born comprised one-fifth to one-quarter of the STEM workforce, depending on what occupations are included within the definition of STEM. Notably, the total number of foreign-born STEM workers in the U.S. workforce has increased dramatically since 1990, both in absolute numbers and as a share of the total workforce. This is true at the national and state levels. Additionally, foreign-born workers make up an increasing share of STEM workers in all occupational categories.

To view the fact sheet in its entirety, see:

Vetting Procedure for U.S. Visa Applicants to Include Social Media Sites

Vetting Procedure for U.S. Visa Applicants to Include Social Media Sites

On May 24, 2017, the Department of State started using a new questionnaire for U.S. visa applicants that will ask for information on their social media.  Only certain applicants that pose a “threat profile” are impacted.  What remains uncertain is what applicants or application profiles will trigger the enhanced screening.  The DOS states that consular officers may opt for enhanced measures to “resolve an applicant’s identity” or to “vet for terrorism or other national security related visa ineligibilities” when the officer “determines that the circumstances of a visa applicant, a review of the visa application, or responses in a visa interview indicate a need for greater scrutiny.”

The questionnaire will request social media platforms, handles, and email addresses used during the last five years, and biographical data from the last fifteen years.  The proposed screening protocols are significant because they are designed to mine considerably more data than current protocols.  Some of the information is already collected on visa applications, but for shorter periods.

Among the data the DOS desires to collect is:

  • Travel history during the last fifteen y ears, including source of funding for travel;
  • Employment history during the last fifteen years;
  • Phone numbers and email addresses used during the last five years;
  • Names and dates of birth for all siblings;
  • Names and dates of births for all current and former spouses, or civil or domestic partners; and
  • Social media platforms and identifiers, also known as handles, used during the last five years.

These new vetting measures were approved by the Office of Management and Budget in response to President Donald Trump’s plan to strengthen national security.

Applicants will be asked to provide the additional information in cases where the State Department determines a need to confirm the applicant’s identity, or to conduct a more rigorous vetting in connection with national security issues that could make the applicant ineligible for a visa.

The questionnaire is voluntary and failure to provide information will not mean that an application will be denied, but it may delay the visa application process.

The inclusion of social media in the vetting process comes amidst the rulings of the Fourth and Ninth Circuit Courts of Appeals refusing to reinstate President Donald Trump’s travel ban on people from six Muslim-majority countries.

 

 

Sources:

 

The H-1B Visa and the Employment based Green Card: Explaining the Difference

Among the various ways in which foreign nationals can enter and legally work in the United States are two similar but distinct pathways.  First, there is the H-1B non-immigrant visa, and second is the employment based green card or immigrant visa.  Some aspects of the two programs are similar and even overlap, but there are other features that are radically different.  Whether you are a business that is interested in employing a qualified foreign professional, or you are a professional who is seeking to explore options for employment in the United States, this article will answer your questions regarding the two programs.

There is often some confusion among employers and employees alike regarding the criteria for the two programs, which unfortunately can sometimes result in failing to utilize them.  Part of the motivation to write this article is the fact that most H-1B petitions must be filed in the first week of April 2017, which is coming up soon.  The other reason is to provide a clear and concise explanation to employers and employees so that they can utilize the program that best suits them and not shy away from them because they have not understood the programs fully.

Don’t forget the April 2017 deadline for H-1B applications! You must be ready

Employers who have their eyes set on new workers or need to file an H-1B petition for current workers will need to have their paperwork finalized and ready for submission well before the April deadline.  Filing is only permitted between April 3rd and April 7th and that is for 2018 entry.  In recent years the cap of 65,000 is filled very quickly.  USCIS is expected to keep the filing open until the closing date and then use a random lottery to select those petitions that go on to the processing and adjudication stage.

The H-1B Employment Visa

H1BThe basic criteria for a H-1B employees is detailed in guidance issued by the U.S. Citizenship and Immigration Services (USCIS):[1]

  • Requirement 1 – You must have an employer-employee relationship with the petitioning U.S. employer.
  • Requirement 2 – Your job must qualify as a specialty occupation by meeting certain specified criteria.
  • Requirement 3 – Your job must be in a specialty occupation related to your field of study.
  • Requirement 4 – You must be paid at least the actual or prevailing wage for your occupation, whichever is higher.
  • Requirement 5 – An H-1B visa number must be available at the time of filing the petition, unless the petition is exempt from numerical limits.

An H-1B visa holder is allowed to also pursue a permanent residence application while in valid H status.  The H-1B visa is what is known as a “dual-intent” visa because it is one of the few temporary visas that can be held while a person applies for permanent residency.  This is in contrast to some other visa categories, such as the B-1/B-2 visitor visa, which does not allow a person to enter the United States with the intent of becoming a permanent resident.

Who can apply for the H-1B visa?

The applicant must be a well-qualified person who has been offered a job in the United States for a term of three years or less at the outset.  If the visa is granted, it can be extended for a further three years if the employer still requires the visa holder’s services at that stage.

The types of jobs that can qualify for an H-1B visa are quite broad and include those in the following fields:  sciences and mathematics, information technology, engineering, architecture, medicine, business and accounting, theology and the arts, education, the law, and other fields.

The H-1B annual lottery

Each year, there is a cap on the number of people who may be granted am H-1B visa.  In the last few years, the cap was immediately met on the first day. The cap at present is 65,000 a year, although this might change with the incoming Trump administration. The actual number of H-1B visas issued each year tends to be a lot higher than 65,000, as people who work at universities, non-profit research centers and government research centers are not included in the cap.  In addition, the first 20,000 applicants who already hold U.S. master’s degrees or higher are also not subject to the cap.

To participate in the H-1B visa lottery, applications must be submitted during the first week of April for employment start dates in the following October.  An employer must obtain approval of what is known as the Labor Condition Application, or LCA, from the Department of Labor (DOL).   This verifies that the employer is offering the H-1B worker during the period of authorized employment wages that are at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or the prevailing wage level for the occupational classification in the area of employment, whichever is greater, based on the best information available as of the time of filing the application.

Processing times

As long as there is sufficient preparation time before the April 2017 filing deadline, H-1B applications can be submitted and processed in a matter of weeks.  This is much quicker and less time consuming than a traditional employment based green card application.  Once the employer and employee agree that they would like to pursue an H-1B visa application, the attorney needs some time to complete the LCA electronic filing.  The approval of the LCA can take 10-15 days, though it can happen sooner.  Then the attorney prepares and files the I-129 form with the H petition supporting documents.  Applicants requesting expedited processing by USCIS can pay an extra fee for “premium processing” and receive a two-week processing turn around.  Therefore, the H-1B application can be prepared, filed and approved fairly quickly.  This is in contrast to the employment based green card application, which can take months in preparation, filing and approval.

Identify potential candidates as soon as possible

Sometimes, overseas candidates who have obtained US degrees might be given positions. They will be to start with on Optional Practical Training (OPT), but when this relatively short period is over and the employers still wants to retain the person’s services H-1B sponsorship will be required.

The Labor Condition Application (LCA) is the most important document, as this must get Department of Labor Approval (DOL) before the petition for the H-1B visa can be filed. You have to allow more than the 7 business days allocated for the approval as this time of the year is busy resulting in likely delays. There might be more applications than usual with the possibility of reforms imposed on the H-1B category by the present Trump Administration in the years to come.

There can be delays if the USCIS is not satisfied

USCIS can submit Requests for Evidence (RFEs) if it is not satisfied with the contents of an application.  These cause delays that most employers cannot afford if they want to get their staffing right for the next year. There are important issues like the job description, job category, where the job is located and what duties are involved in the position that the petitioner has to get correct.

 

The Employment Based Green Card

GCWhile the H-1B visa generally authorizes the employee to work for the sponsoring employer for up to 6 years, the employer may also petition for permanent residence for the employee.

Obtaining a green card through employment is a longer and more intense process than the H-1B process.  However, obtaining a green card is ultimately more rewarding as it allows the holder and any dependent family members to live permanently in the United States.  Further, permanent residents can generally apply for U.S. citizenship after 5 years of living in the U.S. as permanent residents.

As with the H-1B visa, the first step is taken by a U.S. employer who must submit what is called “Labor Certification” with the Department of Labor.  Information supplied must be able to confirm, with suitable evidence, that there is a lack of availability of a U.S. citizen or permanent resident for the position.   This is the key difference from the H-1B visa, where there is no requirement to demonstrate that qualified U.S. workers are unavailable.  Further, there is no specified time of the year when employment based green card applications must be filed as is the case with the majority of the H-1B petitions that must be filed in the first week of April.  Further, the quota limitations that may prevent some H-1B applicants from even being accepted are not an obstacle to work based green card applications.   But for green cards there are annual caps on employment based visa categories, resulting in significant waiting lists for certain nationalities.

Advertisements in Newspaper or Professional Journals

The U.S. employer must generally place an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and most likely to bring responses from able, willing, qualified, and available U.S. workers.  This is not a requirement for an H-1B visa and can make the employment based green card more difficult to obtain.

Recruitment Report

The U.S. employer must also prepare a recruitment report signed by the employer or the employer’s representative describing the recruitment steps undertaken and the results achieved, the number of hires, and, if applicable, the number of U.S. workers rejected, categorized by the lawful job related reasons for such rejections. The DOL Certifying Officer, after reviewing the employer’s recruitment report, may request the U.S. workers’ resumes or applications, sorted by the reasons the workers were rejected.

Can be working for another employer on H-1B

If the employee is already in the U.S. on an H-1B visa, the petitioning employer does not necessarily need to be the same employer as the H-1B employer.  It can be another employer who wishes to employ that person after they obtain their green card.  After the Labor Certification is approved by the DOL, the same employer files an I-140 immigrant petition.  The person applying for the green card will have to wait for visa availability and will need to fill in a form to change their visa status if they are already living in the United States, or go through consular processing in their home country.

Green card annual number restrictions by country

There is a fixed quota of green cards issued every year which depends partly on the country and partly on the category of employment.  Currently, the annual number of green cards issued is 145,000.  Countries such as India and China are subject to long backlogs due to the huge number of applicants that belong to these countries.  In comparison, applicants from less populated countries have a shorter wait period to obtain a permanent resident visa.

Green card employment categories

There are five different green card categories and the number of green cards allocated to each category is also fixed as follows:

  • EB1: 28.6% of quota: Priority workers. There are three sub-groups: 1. Foreign nationals with extraordinary ability in sciences, arts, education, business, or athletics; 2. Foreign nationals that are outstanding professors or researchers with at least three years’ experience in teaching or research and who are recognized internationally; 3. Foreign nationals that are managers and executives subject to international transfer to the United States.
  • EB2: 28.6% of quota: Professionals holding advanced degrees (Ph.D., master’s degree, or at least five years of progressive post-baccalaureate experience) or persons of exceptional ability in sciences, arts, or business;
  • EB3: 28.6% of quota: Skilled workers, professionals, and other workers not in the above two categories;
  • EB4: 7.1% of quota: Special immigrants (e.g. religious workers, those working or previously working for the U.S. government or as U.S. Armed Forces translators);
  • EB5: 7.1% of quota: Immigrant investors who are prepared to invest a minimum of $U.S. 1 million into an approved business in the U.S. and employ at least 10 workers. (these minimum investment thresholds are slated to change shortly.)

As has been already mentioned, both the H-1B visa and the employment based green card application processes are lengthy and involve significant information and documentation to be provided. Confusing the process, or presenting insufficient or incorrect information can derail, prolong, or even lead to rejection of the applications.  It can help significantly if you have the assistance of an experienced U.S. immigration attorney to advise and assist you with each step of the visa process.

[1] https://www.uscis.gov/eir/visa-guide/h-1b-specialty-occupation/understanding-h-1b-requirements

EXPERTS IN IMMIGRATION LAW