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Today, May 4, 2015 USCIS announced that data entry for all H-1B cap-subject petitions has been completed for the 2016 fiscal year. USCIS is scheduled to begin returning all H-1B cap-subject petitions that were not selected in the computer-generated random lottery held early last month. Since USCIS received an unprecedented 233,000 cap-subject H-1B petitions (including master’s cap) we expect that it will take a few months for petitions that were not selected to be returned. USCIS has recommended that petitioners ask about the status of a submitted cap-subject petition only once the petitioner has received a receipt notice or until the unselected petition has been returned. USCIS will provide an announcement once all unselected petitions have been returned. Our office expects to receive the receipt notices for the remaining cap-subject petitions that have been selected in the lottery this week or the following week.

For more information please visit our website by clicking here.

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You have Questions, We have your Answers. Here are answers to 6 of our Frequently Asked Questions

In this blog we are answering 6 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 have my green card and I can file for citizenship in the near future but my marriage is not working and I am trying to figure out my options.

A: The first question our office would have for you is whether you have a conditional 2 year green card or a 10 year green card? If you have a conditional 2 year green card you must apply for the I-751 removal of conditions application in order to receive the 10 year green card. It is possible to file the I-751 application for removal of conditions, even if you are now separated and in the process of dissolving the marriage or if you are legally divorced. This is called seeking a waiver of the joint filing requirement for the I-751 removal of conditions application or what is typically referred to as the I-751 waiver. In order to do so, you will need to indicate on the I-751 Removal of Conditions Application that you are seeking a waiver of the joint filing requirement. To file for an I-751 Waiver you must be presently separated and in the process of dissolving your marriage or already be legally divorced. Filing for a waiver of the I-751 is very detail-oriented and a very time consuming process, given that the applicant needs to prepare a detailed personal statement providing a detailed timeline of the relationship from beginning to end, as well as detailed information regarding why the marriage broke down and the applicant’s plans for the future. In addition, the applicant must be prepared to provide documented evidence that the marriage was entered into in good faith and the relationship and marriage was bona fide. You should definitely seek the help of an accredited legal representative to assist you in order for your application to be successful.

If you already have the 10 year green card, you cannot apply for citizenship until at least 5 years have passed from the date of becoming a permanent resident. If you have any arrests or other criminal history you must consult with an attorney or accredited legal representative. We would be happy to assist.

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Today, April 28, 2015 the U.S. Department of Labor and Homeland Security announced two new rules governing the H-2B Visa Program. The first is a new interim final rule established for the purpose of reinstating and improving the H2B program and second, a final rule to establish the program’s prevailing wage methodology. These rules are designed to protect US workers allowing them to fairly apply to the same jobs being offered to H-2B workers. The rules are also designed so that employers can easily access temporary foreign workers at a time when American workers would be unavailable. The Department of Homeland Security will provide guidance for interim transition procedures that must be followed by US employers. Together, these rules will continue to support American businesses and the country’s economy as a whole bringing continuity and stability to the H-2B program by protecting workers via an improvement in prevailing wage methodology, working conditions, and benefits that must be offered to H-2B and US workers covered by these regulations.

These rules will include numerous provisions designed to expand recruitment of U.S. workers, include “real-time recruitment efforts,” require employers to recruit former US employees first before offering jobs to temporary foreign workers, and will establish a national electronic job registry.

For further information please continue to refer to our blog.

On April 13, 2015, USCIS has announced that it has reached the H-1B cap for fiscal year (FY) 2016. Nearly 233,000 H-1B petitions were received for this filing period, including petitions filed for the master’s cap, which is about 60,500 more in total than last year. Roughly, this year’s chances of being selected is about 36.5%.

As of our firm, about 18.4% of our cases were filed under master’s cap petitions and about 75% were filed in general bachelor’s cap, with remaining 6.6% being cap exempt petitions. 82.9% cases were filed with California Service Center and 17.1% were filed with Vermont Service Center.

USCIS has used a computer-generated random selection process to select enough petitions to meet the 65,000 general bachelor’s cap and the 20,000 master’s cap. USCIS conducted the selection process for the master’s cap petitions first. All un-selected advanced degree petitions then became part of the random selection process for the 65,000 limit.

USCIS will soon start depositing filing fees for the 85,000 selected petitions and returning all un-selected petitions with their filing fees, unless the petition is found to be a duplicate filing. To find out the lottery result earlier, petitioners may periodically check their bank record to see if their checks for filing fees are cashed.

On April 27, 2015, USCIS will begin premium processing for cap-subject H-1B petitions requesting premium processing, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher.

Today, April 7, 2015, USCIS announced that it has reached the H-1B cap for FY2016. Before running the lottery, USCIS will complete initial intake for all filings received during the filing period.

Initial intake/review will sort out multiple or duplicate H-1B petitions filed by an employer for one employer.  Regulations require USCIS to deny or revoke those multiple or duplicative petitions that an employer files for the same H-1B worker, and they will not return or refund the filing fees.

USCIS will first randomly select 20,000 petitions from the U.S. Master’s cap petitions that will be processed. All unselected advanced degree petitions will become part of the random selection process for the 65,000 general limit. Rejected petitions will be returned to the attorney or employer along with the filing fees (except for multiple or duplicative filings by an employer for an employee). Due to the high number of petitions, USCIS is not yet able to announce when it will conduct the random selection process.

After the visa lottery is complete, USCIS will inform all the selected petition holders with their case number for case status tracking purposes within one week.

For those who filed for premium processing, please note that premium processing does not increase the change of being selected in the lottery, but may enable earlier notification of whether the petition was accepted or rejected. According to USCIS, FY2016 H-1B premium processing review will begin on May 11 or so. That’s to say, for those premium processing petitions that won the visa lottery, they should be able to hear back from USCIS by the end of May. Petitions filed without premium processing may take several months to process, but normally should be processed before October 1, 2015.

We encourage H-1B applicants to subscribe to the USCIS H-1B Cap Season email updates located on the H-1B Fiscal Year (FY) 2016 Cap Season Web page: http://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2016-cap-season or keep following up with our blog updates for further FY2016 H-1B announcement.

 

Today, U.S. Citizenship and Immigration Services (USCIS) has reached the congressionally mandated H-1B cap for fiscal year (FY) 2016. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption.

USCIS will use a computer-generated process, also known as the lottery, to randomly select the petitions needed to meet the caps of 65,000 visas for the general category and 20,000 for the advanced degree exemption.

USCIS will first randomly select petitions for the advanced degree exemption. All unselected advanced degree petitions will become part of the random selection process for the 65,000 general limit. The agency will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings.

Before running the lottery, USCIS will complete initial intake for all filings received during the filing period, which ended April 7. Due to the high number of petitions, USCIS is not yet able to announce the date it will conduct the random selection process.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted toward the congressionally mandated FY 2016 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.

We encourage H-1B applicants to subscribe to the H-1B Cap Season email updates located on the H-1B Fiscal Year (FY) 2016 Cap Season Web page.

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If a petitioner filed an FY16 H-1B cap petition in a timely manner for the fiscal year 2016 and has received notification from the delivery service used suggesting that there may be a delay or damage to the package, the petitioner may file a second H-1B petition.

The second H-1B petition must contain the following: a new fee payment, an explanation as to why a second petition is being filed with supporting evidence (such as the notice from the delivery service), and a request to withdraw the first petition.

If a second petition is sent without these items, it will considered a duplicate filing. USCIS would like to remind employers that it will deny or revoke petitions that are filed in the multiple or duplicate by an employer in the same fiscal year for the same H-1B employee, and they will not refund the filing fees.

However, if the FY16 cap is met within the first five business days of April, any petitions received by USCIS after April 7, 2015 will be rejected, including those that are second H-1B petitions filed due to a delivery service mishandling, as mentioned above.

If the petitioner submits a second H-1B petition and withdraws the first, USCIS will return the withdrawn petition to the petitioner and will not adjudicate this petition regardless of whether it has been receipted already.

For the latest developments, please continue to check our blog.

By Lupe Lopez

It was 1984 and I was meeting a friend at the Immigration office in San Francisco.  My friend was running late and asked that I wait for her in the courtroom.  She gave me the number of the room and as I walked into the courtroom I saw a small, thin, older woman crying – throwing herself down on her knees begging the judge to not deport her son.  “We have been here since he was 4 months old.  We don’t even know anyone in Germany.”  She cried and told him that they were alone and didn’t have anyone else but each other.  The judge looked empathetic but he said his hands were tied.  The young man of 19 had committed a crime that made him deportable.  The judge said to her “if only your son had become a citizen.  You both had plenty of time.”  The young man was taken away and the older woman had to be carried out of the courtroom screaming and crying for her son.

I have never forgotten that courtroom scene.  In 1984 I never dreamed that someday I would be working with Immigration lawyers or in an immigration law firm.  But, since I started working in the field of immigration, there has not been a month that goes by that I have not heard this same scenario in one form or another.  Parents become legal permanent residents and then for any of a multitude of reasons, never become U.S. Citizens; leaving their children to make the decision themselves as to whether or not they want to become citizens.  They never imagine that one day their child can be in the wrong place at the wrong time, or simply that their child may never get into trouble with the law.

In truth, it is hard to have empathy for people who commit a crime.  But we have seen many sad stories of young men or women who have simply been in the wrong place; or perhaps they are out with a friend who cares little if someone else is mistakenly involved in their mess.  Many young people think that older adults are overly cautious and are not apt to take their advice.  It is for these young people that I feel the worst.  It is important that we educate and motivate as many permanent residents as possible to become U.S. Citizens.  It is equally important for adult permanent residents to become citizens, especially, if they have young children or teenagers.  The sad stories, like the one below, of families being permanently separated are endless.

Andy was brought to the U.S. when he was 2 years old.  Andy’s mother said she was not smart enough to learn English, so she never even tried.  Andy went to college and graduated with an engineering degree.  Neither he nor his mother ever sought to become U.S. Citizens. Eventually, Andy got married and had a beautiful baby daughter.  He and his wife were young, happy, and living their American dream.

One day Andy’s friends invited him for some food and drinks.  He doesn’t remember how many drinks he had, but he felt fine when he got into his car.  The rain had started pouring down from the sky and the visibility on the highway was not very good.  All of a sudden, Andy was cut off by another car.  To avoid a collision, he swerved into another lane but because of the rain he lost control of the vehicle.  After everything came to a stop, Andy was seriously injured and the young girl in the other vehicle died on impact.   Andy was hospitalized for several weeks and was then transported to the city jail to await his trial.  Andy’s blood had been taken and it showed that Andy was driving under the influence.  The young woman’s father was relentless, hiring the best attorneys to put Andy away.  Because there was a death involved, the prosecution was seeking a harsh penalty.

Andy spent two years in prison.  After prison, he was deported.  He now lives in Tijuana, Baja California, Mexico.  His wife and little girl visit on weekends.  She tried living in Mexico, but the daily trips were too much for his wife.  Andy feels broken and bitter.  How could this happen.  His life was destroyed.  Imagine how he feels knowing that had he taken the time to become a U.S. citizen, he would be with his family.  Imagine how his mother feels.

The obvious moral to this story is:  Don’t drink and drive – ever!  But there are other important points to make here.  First, it doesn’t matter that you are a good person who never gets into trouble.  In our office, we have heard too many stories of good people who have been deported because they happened to be in the wrong place at the wrong time.  Second, the fact that you have lawful permanent residence doesn’t mean that you can’t lose it.  There are many types of crimes for which a person can be convicted; and it could make the person deportable.  Third, if you are a legal permanent resident and you have children under the age of 18, you should do the most loving and responsible thing for your children and become a U.S. Citizen.  Don’t do this when they are in trouble and it’s too late.  Do it now!  There are thousands of families that have been separated because their loved one just didn’t take the time to become a U.S. Citizen.

The U.S. Citizenship and Immigration Service (USCIS) has tried to make it easier for many people to become naturalized citizens.  At www.uscis.gov , there is a wealth of information; all at your fingertips.  They don’t tell you everything; so, if you have ANY criminal or immigration type issues, then you should seek the advice of an attorney.  If you have ever been arrested, detained, convicted, or had any immigration issue, speak with one of our attorneys.  What may seem simple and easy can quickly turn into something totally unexpected.  Not everyone should file for citizenship; but, everyone should at least investigate to see if they are eligible for citizenship.

Applying for Citizenship through Naturalization

The USCIS states that “Naturalization is the process by which U.S. citizenship is granted to a foreign citizen or national after he or she fulfills the requirements established by Congress in the Immigration and Nationality Act (INA).”

If you have been a lawful permanent resident for at least 5 years, or 3 years if you obtained your permanent residence through a U.S. citizen spouse, then you may be eligible.  There are several requirements to fulfill that may include time in country, time in residence, selective service enrollment, compliance with federal tax rules, fulfillment of child support payments, and a number of other things.

You may also qualify if you are in the military and you meet all the eligibility requirements.  Also, if you are the spouse of a member serving in the U.S. armed forces and will be stationed overseas with that military member, you may be eligible for expedited naturalization.  This is also true for spouses of U.S. Citizens working abroad for certain U.S. organizations.

Children under the age of 18 who are lawful permanent residents, become U.S. Citizens when their parents are able to naturalize prior to the child’s 18th birthday.  If you are a lawful permanent resident with young children, this is the best gift you can give your children.

There are many paths to naturalization. Some children of U.S. citizens may derive citizenship through their parents.  For example, if you have a parent (or an adoptive parent) who became a U.S. citizen prior to your birth, you may qualify for derived citizenship.  Many service members living abroad have parented children who may qualify if they have the proper documentation and the parent legitimated the child.

The only way, to find out if you qualify for citizenship, is to ask or to investigate.  If you are a parent of young children, don’t wait to become a U.S. Citizen.  Do it now!  Do you think you can’t lose your green card?  Do you believe that your children who are green card holders will always be safe?  If you truly want to raise your children in the United States and keep your family from being separated, then you should apply for naturalization, now.  Doing so, will not only bring you peace of mind, but other benefits only available to U.S. Citizens.

Call us today and ask us how you can become a U.S. Citizen.

 

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On March 4, 2015, the federal district court in the Northern District of Florida ruled in Perez v. Perez that the Department of Labor (DOL) lacks authority under the Immigration and Nationality Act (INA) to issue regulations in the H-2B program. This decision vacated and permanently enjoined DOL from enforcing the 2008 H-2B regulations. DOL was forced to immediately discontinue processing applications for temporary labor certification and can no longer accept or process requests for prevailing wage determinations or applications for labor certification.

On March 5, 2015, US Citizenship and Immigration Services (USCIS) announced that it is also temporarily suspending their adjudication of Form I-129 H-2B Petitions for Temporary Non-Agricultural Workers as these petitions require temporary labor certifications as issued by DOL. The government is considering the options to continue processing these petitions following the March 4 court decision. USCIS will continue to adjudicate H-2B petitions on Guam if those petitions are accompanied by temporary labor certifications issued by the Guam Department of Labor.

On March 6, 2015, USCIS suspended premium processing on all H-2B petitions until further notice. USCIS will issue a refund on all petitions filed using the premium processing service that were not acted upon by the agency within the 15 calendar day period.

On March 13, 2015, DOL and the Department of Homeland Security (DHS) announced that they intend to issue a joint interim final rule (IFR) by April 30, 2015. Both agencies recognize that hardship has resulted from the district court’s decision and are moving as quickly as possible to issue new regulations in consistency with the court decision. The agencies are being mindful of other court decisions that have invalidated past sub regulatory actions in the H-2B and other related programs, which includes the issuance of guidance in the absence of rulemaking. The DOL also seeks to obtain relief from the court decision in the case that processing can continue until the IFR is promulgated.

On March 16, 2015, The DOL filed an unopposed motion to stay the court order. DHS resumed adjudicating H-2B petitions on March 17, 2015, but continues to suspend premium processing until further notice.

For the latest developments, please continue to check our blog.

By Lupe Lopez

Inez made the dangerous journey from Guatemala to the border in Tijuana.  She believed that she had been lucky.  She was able to make it to Tijuana without incident.  When she arrived in Tijuana she kept to herself just as she had been warned.  Within a few days, Inez was in San Diego happily working in a small restaurant meeting new people every day.  There she met her first love.  Ernesto worked for his uncle, the owner of the restaurant. Over the next few months, Ernesto and Inez became romantically involved.  One night, Ernesto told Inez that they would be going to see a friend at a hotel.  When they arrived at the hotel, they both went to the friend’s room and knocked on the door.  When there was no answer, Ernesto pulled out the key and told Inez his friend had given him the key just in case.  Inez didn’t think anything of this and went into the hotel room with Ernesto.

While waiting for the supposed friend, Ernesto began trying to get intimate with Inez.  She refused and told him that she was not ready for this.  He insisted.  She continued to refuse.  Inez was surprised when the man she had trusted became violent.  Ernesto began beating her, then proceeded to rape her.  He warned her that if she called the police, he would kill her.  Meanwhile, a guest in the next room heard all the commotion and had contacted the police.  Inez was crying and trying to get dressed when the police knocked on the door.

After being rescued by the police, Inez’s ordeal was not over.  Because she was in the country illegally, she was turned over to the Immigration and Customs Enforcement.  She was held for several days while she was interviewed and processed.  It turns out that Inez was not Ernesto’s first victim.  The police needed Inez to testify as a witness.  She had to stay in the country.  For this, Inez was given a “U visa.”

Inez was the victim of a crime where she suffered mental and physical abuse.  In addition, she was helpful to law enforcement in the investigation of the crime.  This made her eligible for the U Visa.  Victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or to government officials in the investigation or prosecution of criminal activity may be eligible for a U visa.  The U visa is a nonimmigrant visa created by Congress to allow law enforcement agencies the ability to investigate and prosecute criminals while still protecting the victims of the crimes.  The U visa provides nonimmigrant status to eligible victims.  The may remain, temporarily,  in the United States while assisting law enforcement.

The U.S. Citizenship and Immigration Service states that you may be eligible for a U nonimmigrant visa if:

  • You are the victim of qualifying criminal activity.
  • You have suffered substantial physical or mental abuse as a result of having been a victim of criminal activity.
  • You have information about the criminal activity. If you are under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may possess the information about the crime on your behalf (see glossary for definition of ‘next friend’).
  • You were helpful, are helpful, or are likely to be helpful to law enforcement in the investigation or prosecution of the crime. If you are under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may assist law enforcement on your behalf.
  • The crime occurred in the United States or violated U.S. laws.
  • You are admissible to the United States. If you are not admissible, you may apply for a waiver on a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant.

Of course, no one person wishes to be a victim of a crime; especially, when you are in a country that is foreign to you.  But if you have been a victim, it is important to know that there is a form of protection.  Victims of certain crimes may apply for U nonimmigrant status (U Visa).  On the USCIS website at USCIS.gov, you may find a list of crimes that qualify for a U Visa.  These crimes include abduction, abusive sexual contact, blackmail, domestic violence, extortion, involuntary servitude, kidnapping, torture, stalking, and many other crimes.

Victims of Crimes may also file for Family Members

Persons who have been approved for U nonimmigrant status may also apply for certain immediate relatives based on their approved application.  If the victim of the crime, as the principal applicant, is over the age of 21, they may apply for their spouse and children.  If the principal applicant is under the age of 21, they may petition on behalf of their spouse, children, parents, and unmarried siblings under the age of 18.

Applying for the U Visa

Many times, the law enforcement agency, itself, will provide the necessary paperwork for the application of a U visa.  This isn’t always the case.  The Law Offices of Jacob Sapochnick can be of assistance to you with this type of a visa.  Our offices will work with you and the government agency to obtain the documents required for the application.  There is no statute of limitations for the U visa; however, if the case has been closed for longer than five years, it may be difficult for you to obtain the required evidence and certification from the proper agency.  The USCIS also has many resources available for victims of crime.

To apply (petition) for a U nonimmigrant status, you will be required to submit (www.USCIS.gov):

It is also possible to apply for U nonimmigrant status from abroad (outside the United States).  The process is different from that listed above.  When your petition is approved, you must go through the U.S. Consular processing to enter the United States.

Petitions are reviewed on a “case-by-case” basis.  The crime itself and the impact it has had on the person will be reviewed.  Not all petitions are approved.  If approved, you may be eligible to file for permanent residency after having been physically present in the United States for at least three years.  You must be able to prove that you fulfilled all other requirements.  U Nonimmigrant status petitions and related forms are filed with the USCIS.  There is a filing fee that may be waived if there is a financial hardship.

Persons and their family members who have been in U Status for at least three years may also be eligible for permanent residency after three years.  To get further information on obtaining residency as the holder of a U visa, give us a call or if you have been a victim of a crime and are interested in obtaining a U visa contact our office and we will set up a free consultation.