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The Department of State has issued an alert announcing that as of June 26, 2015 all visa issuing US embassies and consulates are now able to continue visa processing. Staff at US consulates and embassies were able to work over the weekend and resolve backlogs which are expected to be eliminated this week.

As you may recall between the time period of June 9, 2015 to June 19, 2014, 335,000 visas were unable to be printed due to clearance and technological issues. Of those 335,000 visas, approximately 300,000 have now been printed.

Consulates and embassies worldwide are now scheduling visa interviews and issuing non-immigrant and immigrant visas.

All overseas posts have reopened appointment slots and have established additional capacity in order to accommodate appointments that were rescheduled.

Most applicants who were scheduled for an interview at consulates abroad between June 9 and June 19 had submitted their applications prior to June 9. These interviews have gone ahead as scheduled.

Further information:

  • Urgent applications have been expedited for emergency travel and will continue to be expedited on a case by case basis
  • H-2 applications will be prioritized and all pending H-2 visas are expected to be issued by the middle of the week
  • Consulates are still experiencing problems with online immigrant visa application forms however are making efforts to correct these issues
  • Domestic passport operations are functioning with some delays
  • Overseas passport applications are being processed with delays. Emergency passports may be issued in urgent cases

Questions? Please contact our office. 

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What are the most challenging questions for couples at a STOKES/Fraud Interview?

By Attorney Marie Puertollano, Esq.

What happens when a US Citizen Spouse and the intending immigrant spouse fail an interview pending an application for permanent residence?

Normally couples who have failed to provide sufficient documentation to an immigration officer, for the purpose of establishing their bona fide marriage—in other words that the marriage between both parties was entered in good faith and NOT to obtain an immigration benefit—may receive an appointment for a second interview also known as the STOKES or fraud interview. In some cases however a couple may be scheduled for a STOKES or fraud interview the very first time around. There are multiple reasons a couple may be scheduled for a STOKES/fraud interview. Couples should note that the burden of proof always rests on the couple. So what happens at this fraud interview? During the STOKES/fraud interview the couple is separated in different rooms and interrogated by an immigration officer. The officer will first interrogate one of the parties in a separate room. Then, the officer will question the other party asking the same exact questions.

Fraud interviews are lengthy and very complex. Officers ask very detailed questions that are challenging even for couples who have been together for many years. Our attorneys have successfully represented couples at hundreds of fraud interviews. Here are the most challenging questions that almost all couples are unprepared to answer despite having been together for many years. It is important that if a question is unclear or if the context of the question is unclear that the party ask the immigration officer for clarification.

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Presently, attorneys Jacob Sapochnick, Esq., Ekaterina Powell, Esq., and Yingfei Zhou, Esq. from our office are in attendance at the 2015 American Immigration Lawyers Association (AILA) Conference on Immigration Law taking place in Washington, DC. Together, they have had the privilege of being present for an open forum where officials from the Department of State and the National Visa Center provided valuable information in regards to modernization of PERM, improvements in visa processing at the National Visa Center, technical issues experienced at U.S. Consulates abroad, H-1B fee announcements, and more!

Technical issues experienced at U.S. Consulates worldwide

1. In regards to technical issues causing delays in visa issuance at U.S. Consulates worldwide, visa issuance is currently frozen. No visas are currently being issued at any U.S. Consulates worldwide. U.S. Consulates are rescheduling appointments for visas that were affected by the technical issues. The DOS is working to repair the hardware, however it will not be until next week when all issues will be resolved. Due to this, there will be a backlog for visa issuance and it will take longer to schedule a consular appointment for a visa.

2. If a visa applicant was affected by the technical issues at a U.S. Consulate abroad and they need to retrieve their passport urgently, they will be able to retrieve their passport, however, in doing so, applicants will forfeit the visa fees they have paid, and will be issued a 221(g) visa denial letter. If applicants are still interested in receiving a visa, they must re-apply and re-pay any visa fees. Applicants who are re-applying must note on future applications that their visa was denied due to a technical glitch. Applicants from visa waiver countries who are concerned that the visa denial will automatically result in an ESTA denial can rest assured. ESTA submissions will not be denied based on the technical glitch. DOS has responded that the technical issues will not affect future visa applications. Continue reading

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You have Questions, We have your Answers. Here are answers to 5 of your Frequently Asked Questions

In this blog we are answering 5 of your frequently asked questions in detail. Please remember that every case and every story is different and unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance on your immigration journey. For any further questions please visit our website or call our office for a free legal consultation. We thank you for your continued trust in our law office.

Q: I am visiting the United States as a tourist from a non-visa waiver country. My duration of stay will expire in approximately 1 month. Is it possible for me to extend my stay in the United States?

A: Yes, it is possible to extend your duration of stay if you plan to remain in the United States for purposes of tourism, leisure, or medical treatment. In order to extend your duration of stay you must file Form I-539. The process can be confusing for some, we recommend that all applicants seek counsel from an accredited legal representative or attorney to guarantee success.  In order to extend your duration of stay, you must be able to provide documentation proving that they have strong ties home including but not limited to: proof of employment, proof of academic enrollment, deed of property ownership, proof of financial obligations, etc. You must also be prepared to provide documented evidence supporting the fact that your stay will be for temporary purposes of tourism and/or leisure including a detailed personal statement establishing the fact that you will be in the United States for a temporary period of time, and will be returning back to your home country at the conclusion of your trip. Lastly, you must provide evidence that you have the sufficient finances to support yourself in the United States. The more evidence you can provide to support your claims, the better chances of your application being approved.

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If you are a long time client of our office, the first person you have been greeted by is our client relations specialist, Jessica Kalb. Jessica Kalb was born and raised in Mexico City. Ms. Kalb has been working for the Law Offices of Jacob Sapochnick for more than 5 years, and finds a great deal of pleasure in assisting people by being the first contact in the office. She came to San Diego many years ago and decided to settle in this beautiful city. From assisting clients with their many immigration questions, to answering phones, and comforting our clients, Ms. Kalb is a valuable member of our team. In her free time, Ms. Kalb likes to exercise, cook, travel, and spend time with her friends. We are proud to have her as a part of our team. To read more about Ms. Kalb please click here. 

For legal questions please contact our office. 

On Friday, May 22, 2015 USCIS announced that it would be temporarily suspending premium processing for all H-1B Extension of Stay Petitions beginning May 26, 2015 to July 27, 2015 due to the high volume of anticipated applications for employment authorization under the H-4 final rule. During this time period, petitioners may NOT file Form I-907 to Request Premium Processing Service for a Form I-129, Petition for Nonimmigrant Worker, requesting an extension of stay for the H1B nonimmigrant.  This temporary suspension will allow USCIS to implement the new regulation ‘Employment Authorization final rule’ for certain H-4 spouses which became effective on May 26, 2015. The suspension of premium processing applications for H-1B Extensions will allow USCIS to process applications for H-4 spouses in a timely manner and will help USCIS adjudicate applications for employment authorization filed by H-4 nonimmigrants.

All premium processing requests for H-1B extension of stay petitions that were filed prior to May 26, 2015 will proceed as normal.

USCIS will refund premium processing fees for H-1B extension of stay petitions filed prior to May 26, 2015 if USCIS did not take action within the required 15 calendar day period.

Premium processing requests for Form I-129 H-1B cap subject and cap exempt petitions will remain unaffected so long as the petition is 1) requesting a change of nonimmigrant status or 2) consular notification.

Premium processing requests for Form I-129 H-1B petitions filed on behalf of individuals who were already granted H-1B nonimmigrant status will remain unaffected so long as the petition is requesting 1) consular notification or 2) an amendment of a previously approved petition that does not include a request for an extension of stay. All Form I-129 H-1B1 petitions will also remain unaffected.

NOTE: Petitioners can request expedited processing of their H-1B extension of stay petitions during this temporary period of premium processing suspension. It is up to the discretion of USCIS whether an expedite request will be approved. In order for an expedite request to be approved, petitioners must demonstrate that 1 or more expedite criteria have been met.

Have questions? Feel free to contact our office for more information.

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On November 20, 2014 President Barack Obama announced a series of executive actions on immigration designed to repair our country’s broken immigration system.

Among its provisions, the executive actions on immigration outline plans to: strengthen border security, expand I-601A provisional waiver eligibility, modernize visa backlogs, expand eligibility for parole in place, improve parole procedures for researchers, inventors, and foreign entrepreneurs, revise removal proceedings–making criminals and those who pose a threat to our nation’s national security a priority for deportation, expand the existing DACA (Deferred Action for Childhood Arrivals) program to include a broader population of undocumented aliens (with no prior criminal history) who have continuously resided in the United States since January 1, 2010.  The expanded DACA program, under the new policy, would last a period of 3 years, rather than the 2 year period, granted under initial DACA.

In addition to expanding DACA, Obama also proposed a new program known as DAPA (Deferred Action for Parents of U.S. Citizens and Lawful Permanent Residents) extending eligibility of deferred action to eligible parents of US Citizen or LPR children born on or before the date of the President’s announcement on November 20, 2014. To read the complete DAPA eligibility requirements please click here.

These provisions were scheduled to go into effect on February 18th of this year, however, on February 15th a temporary injunction filed by Judge Hanen along with 26 states put these initiatives on hold. Following the filing of the temporary injunction, the Department of Justice filed an appeal in defense of Obama’s executive actions and an emergency motion for stayrequesting the executive actions to go forward despite the temporary injunction.

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USCIS released guidance on May 22, 2015 to clarify Administrative Appeal Office (AAO)’s precedent decision on April 9, 2015 on Matter of Simeio Solutions, LLC that all employers must file amended H-1B petitions when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker’s worksite location.

When Must File an Amended Petition

In Matter of Simeio, AAO ruled than a material change occurs when an H-1B employee moves to a new location outside the geographic area of the LCA that was originally filed for the employee’s H-1B petition. Whenever there is a material change, an amended H-1B petition is required. Employers whose H-1B employees changed locations before or after this April 9 ruling to outside of the geographic area covered by the previous LCA are now all required to file amended H-1B petitions.

Exceptions apply if 1) your H-1B employee is moving to a new job location within the same metropolitan statistical area (MSA) or area of intended employment, 2) it is a short term placement for up to 30 days and in some cases 60 days where the employee is still based at the original location, 3) the employee is only going to a non-worksite location, such as participating in conferences, seminars, or occasional travels for short periods.

If the amended H-1B petition is denied, but the original petition is still valid, USCIS allows the H-1B employee to return to the worksite covered a prior H-1B petition that remains valid.

Employers may file another amended H-1B petition while an amended H-1B petition is pending as long as every amended petition meets the requirements for the H-1B classification and any requests for extensions of stay. If the H-1B employee’s status expires while successive amended petitions are pending, the denial of any petition or request to amend or extend status will result in the denial of all successive requests to amend or extend status.

August 19 is the Deadline for Pre-May 21 Relocations

Employers who have not filed amended H-1B petitions for those employees must file no later than August 19, 2015. For those employers who have not yet filed amended H-1B petitions for workplace location changes that occurred after the ruling but before May 21, 2015 will also have until August 19, 2015 to file an amended petition. For moves to a new geographic location after May 21, 2015, the employer must obtain a new LCA from the Department of Labor and file an amended H-1B petition before relocating the H-1B employee.

Failure to file by the deadline will result in both the employer and H-1B employee being out of compliance and subject to adverse action.

Once the employer files the amended petition, the H-1B employee can immediately begin to work at the new location. You do not have to wait for a final decision on the amended petition for your H-1B employee to start work at the new location.

Tips for Employers

This ruling affects a lot on the employers in the consulting industry, where frequent employee relocations are necessary. Those employers must be especially careful in tracking their H-1B employees’ planned moves and make sure a new LCA and amended H-1B petition are filed before August 19, 2015 for pre-May 21 relocations and before they start work at a new location for post-May 21 relocations.

If you have any questions about H-1B worksite changes, please feel free to contact out firm for a consultation.

 

 

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After more than 10 years of practicing immigration law the Law Offices of Jacob J. Sapochnick is excited to announce the release of attorney Jacob Sapochnick’s new e-book called ‘My American Job’ now available on Amazon for purchase. An immigrant himself, attorney Jacob Sapochnick first came to the United States on a student visa while studying for his masters in International Law in San Diego, California. Attorney Jacob Sapochnick’s e-book, ‘My American Job’ aims to assist foreign born workers navigate the complicated process of immigrating to the United States and having a shot at the American Dream. Attorney Jacob Sapochnick provides guidance having firsthand knowledge of the process himself. In his book, he explains the indispensable resources foreign born persons have at their disposal, namely showing foreigners how to use the power of the internet and social media to gain access to American employers and instructing foreign born persons on how to obtain working visas and permanent residence through the employment based sections of our country’s immigration laws. ‘My American Job’ was created with you in mind. In his book, attorney Jacob J. Sapochnick, Esq. teaches foreigners how they can stand out, how they can access the open American market, and how to successfully apply for an employment based visa.

My American Job is a guide advising and preparing foreigners  physically, mentally and financially, to maximize their chances for long term job success, overcome misconceptions and objections U.S. employers have about hiring foreign workers, navigate the job application and interview processes, land the job they want including how to leverage social media sites, using LinkedIn, Facebook, Twitter, and Google Plus for job searching, how to adapt to U.S. business customs, ideas, etiquette, protocol, and more.

For more information on purchasing the e-book feel free to click the image above. For legal advice please contact our office.

14124480404_0dc3f97e69_zBy Ekaterina Powell, Esq.

For many years, it has been unsettled in the law and practice whether a change in H-1B employee’s job location is considered to be a “material change” in the terms of employment, requiring filing of an H-1B amendment petition.

Prior Guidance

According to USCIS unofficial guidance (Letter from Efren Hernandez, Director Business and Trade Branch of USCIS, to Lynn Shotwell, Am. Council on Intl’s Pers., Inc., dated October 23, 2003), an amended H-1B petition was not required if the only change was in the location of employment and if the Labor Condition Application (LCA) was filed for the new job location prior to the employee’s move.

Despite that, we have heard reports of recent USCIS site visits to the places of H-1B beneficiaries’ employment, which resulted in the revocation of H-1B approvals if USCIS could not find the employee at the job location stated on the H-1B petition despite a valid LCA filed prior to the employee’s move.

This uncertainly was troubling as USCIS refused to issue any further clarifications or policy changes.

Precedent AAO Decision – H-1B Amendment Required

On April 9, 2015, Administrative Appeals Office (AAO) has issued a decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) that finally put an end to the uncertainty surrounding the change in employees’ job location. The decision has been designated as a precedent and will be followed by USCIS in the H-1B adjudications and will be used by the consular officers during visa interviews.

In this precedent decision, the AAO revoked H-1B approval, finding there was a material change in beneficiary’s employment due to relocation to areas not covered by the original LCA and that an amended or new H-1B petition was required.

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