Articles Posted in Employment-Based Categories

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U.S. Customs & Border Protection (CBP) recently released a NAFTA Reference Guide that is filled with useful information to assist TN visa applicants filing applications under the North American Free Trade Agreement (NAFTA). Specifically, the guide addresses the process for issuing TN visa approval for multiple employers.

To facilitate approval for multiple employers, CBP has advised that Canadian citizens;

 

  • Provide a letter of support signed by each employer on company letterhead;
  • For applicants who filed their applications at a land border: CBP will include all the approved TN employers on a single I-94 card. If additional I-94 cards are required, CBP will use the same I-94 number for each card;
  • Upon visa issuance, the TN applicant’s electronic I-94 system will be updated by CBP to reflect TN approval for all the employers;
  • For applicants who file their applications at a CBP airport office (where no paper-based I-94 form is issued): CBP will update its electronic I-94 system to reflect TN approval for all the employers.
  • Applicants who file applications for multiple employers at the same time only need to pay one filing fee—however, additional fees may be required for multiple I-94 records;
  • If an additional employer is added by the TN worker at a later date, then a second filing fee will apply.

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With the H-1B season quickly coming to a close, we are happy to announce that 83% of our clients were selected in this year’s master’s cap, while 56.67% of our clients were selected in the “general cap.” These estimates are above the national average. Of the petitions that were selected, the majority were filed with the California Service Center. Selections in this year’s lottery were made up until the very last minute. This fiscal year, USCIS received a total of 199,000 petitions, less than usual, and the computer-generated lottery was conducted on April 11, 2017 a bit later than usual given that the filing period opened on April 3, 2017. As in previous years, USCIS first began the selection process for the advanced degree exemption or “master’s cap,” and then proceeded with the selection process for the “general cap” to fill the 85,000-visa cap. During FY 2017, USCIS received over 236,000 petitions during the filing period which opened on April 1, 2016, and the computer-generated lottery was conducted on April 9, 2016.

USCIS has now completed data entry for all cap-subject petitions selected during fiscal year 2018. This means that USCIS will now begin the process of returning all H-1B cap-subject petitions that were not selected in this year’s lottery, along with their filing fees. While USCIS has indicated that they cannot provide a definite time frame as to when these unselected petitions will be returned, in previous years unselected petitions have traditionally been returned during mid-June to the end of June.

If you have not received a receipt notice in the mail notifying you of your selection, and your checks were not cashed by the Department of Homeland Security, between April 1st and May 3rd., unfortunately it is not likely that you were selected in this year’s lottery. For safe measure, applicants may wish to wait about a week or so to see if any late notices are received.

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Background

It was only several years ago that Antoine, a French native, set his eyes on achieving his lifelong dream of starting an aviation company in the state of California, providing flight services to foreign pilots in transit to or vacationing in the state of California. With over six years of experience in the European aviation industry, as a private and commercial pilot, Antoine certainly had amassed the skills and experience necessary to launch his company. On a visit to California, Antoine identified a niche in the market and decided that he would cater to the needs of foreign pilots flying through the Los Angeles County area. With the help of the Law Offices of Jacob Sapochnick, Antoine was able to turn his lifelong dreams into reality. Today, Antoine’s company Heading West is off the ground and on its way to becoming Southern California’s leading flight service company. So how did we do it?

About the Visa

Here at the Law Offices of Jacob Sapochnick, it is no secret that our clients are our biggest inspiration. After having spoken to Antoine about his new business venture, his qualifications, and other needs, we agreed that the best option for Antoine and his family, was to apply for an E-2 Treaty Investor Visa. Although the E-2 Treaty Investor Visa does not create a path to permanent residency, it is a great visa for foreign entrepreneurs who wish to enter the United States and carry out investment and trade activities. To qualify for the treaty investor visa, the investor must be from a qualifying treaty trader country, and must invest a substantial amount of capital to develop and direct the business operations of a new commercial enterprise, or invest in an existing U.S. business. Other requirements for the E-2 visa are as follows:

  • If the investor is a company, at least 50% of the owners in the qualifying company must maintain the nationality of a treaty trader country if they are not lawful permanent residents of the U.S. If these owners are in the U.S., they must be in E-1 or E-2 status.
  • The investment funds and the applicant must come from the same Treaty Country.
  • The business in which investment is being made must provide job opportunities or make a significant economic impact tin the United States. The business should not be established solely for the purpose of earning a living for the applicant and his or her family.
  • The investment must come from the investor. The money must be “at risk”. Thus, a loan that is secured by the assets of the business itself will not qualify i.e. if loans have been taken out, they must be secured or guaranteed by the investor personally, and not by the assets of the corporation.
  • The investment must be substantial, a standard which depends on the nature of the enterprise. Generally, investment funds or assets must be committed and irrevocable. The funds or assets must be deemed sufficient to ensure the success of operations.
  • The investment must be real and active and not passive; this means that a bank account, undeveloped land or stocks, or a not-for-profit organization will not be sufficient to be considered.
  • The enterprise must be a real, operating commercial enterprise or active entrepreneurial undertaking productive of some service or commodity.

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Image Courtesy of Gage Skidmore

USCIS has finally announced that the H-1B computer-generated lottery took place on April 11, 2017 to select the necessary petitions to meet the 65,000 visa cap for beneficiaries holding a U.S. bachelor’s degree or its equivalent, as well as the 20,000 visa cap for beneficiaries holding a U.S. master’s degree or higher. The announcement came a bit late this H-1B season, but you can now rest easy knowing that it has taken place.   On April 7th USCIS announced that they had received more than enough H-1B petitions necessary for fiscal year 2018. USCIS disclosed that they received 199,000 H-1B petitions this filing year.

Our office has already received 3 receipt notices for the “master’s” cap or advanced degree exemption, and 2 receipt notices for the “regular” cap as of April 20, 2017. 

USCIS will continue to mail receipt notices for selected petitions throughout the month of April and likely into early May.

If your petitioner has been monitoring their bank account closely and has noticed that the filing fees were charged to the account, that means that the H-1B petition was selected. Even if the filing fees have not yet been charged to your petitioner’s bank account, that does not mean that your H-1B petition was not selected. H-1B applicants must wait patiently to see if they were selected in this year’s lottery.

USCIS will not begin mailing out unselected H-1B petitions until around June through the month of July.

As a reminder, premium processing for H-1B petitions was suspended on March 3rd and will remain suspended for up to six months.

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Earlier this year, the final rule “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” amended the current regulation regarding the renewal meaning extension of some work permit/ Employment Authorization (EAD) card.

USCIS made it easier for some foreigners in the U.S. who have an Employment Authorized Document (EAD) card to continue to legally work in the country while their EAD cards are in the process of being renewed. If you qualify under the 3 criteria listed below, you will only have to show your expired EAD card and the receipt notice for the renewal confirming timely filing and these documents will be enough for I-9 verification purpose.

In days past, when an EAD card expired, the foreign worker had to immediately stop working even if he or she was in the process of renewing their EAD card. Unless and until the EAD application was approved by USCIS, the employee could not legally show up to work.  As you can you imagine, this caused a major headache to both the employers and employees, who had to stop working midstream on a project and could not resume working until USCIS had given its blessing.

This partially changed on January 17, 2017. USCIS issued a rule allowing some EAD holders who have timely filed an EAD renewal application to be automatically granted authorization to legally work in the U.S for up to 180 days after their EAD cards expire.

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Beginning April 3, 2017, the United States Citizenship and Immigration Services (USCIS) will temporarily suspend expedited processing of H-1B visas, a service previously available to H-1B petitioners known as premium processing. The reason: to reduce overall H-1B processing times and prioritize processing of H-1B extensions nearing the 240-day mark. Premium processing previously guaranteed a 15-day processing time, or refund of the $1,225 premium processing fee. Although premium processing did not increase a petition’s chances of being selected for an H-1B visa, it gave petitioners the benefit of waiting a shorter period and allowed selected petitioners the option of upgrading their application to premium processing after filing.

Petitioners will not have the option of paying for the premium processing service for a period of at least 6 months beginning April 3, 2017. The suspension will affect all H-1B petitions filed on or after April 3, 2017 including all petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption. Additionally, the suspension may affect petitions that are cap-exempt, but will not apply to other eligible nonimmigrant classifications filed with Form I-129.  While the premium processing service is suspended, petitioners may not file a request for premium processing (I-907) for an I-129 Petition for H-1B worker until USCIS has announced that it has resumed premium processing for H-1B petitions. Beginning April 3, 2017 if a petitioner submits a single check combining fees for premium processing and the Form I-129 USCIS will reject both applications (not just the request for premium processing). To avoid this DO NOT submit any premium processing requests on or after April 3, 2017.

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As you gear up for a chance to win one of the 65,000 coveted H-1B visas that will be up for grabs beginning April 1, 2017 through April 7, 2017, we bring you our top frequently asked questions—H-1B edition—to help you make the most of your H-1B filing. As always, to determine whether you qualify for an H-1B visa, please contact our office to schedule a free first time consultation.

When will USCIS begin to accept H-1B petitions for fiscal year 2018?

USCIS will begin to accept petitions for fiscal year 2018 beginning on April 1, 2017 and from then on will continue to accept H-1B petitions during the first five business days through April 7, 2017 until USCIS has received more than enough petitions necessary to fill the regular cap. An H-1B petition may be filed no more than six months before the employment start date requested for the beneficiary.

How long is the H-1B visa valid for?

The H-1B visa is issued for a three-year period that can be extended for an additional three years. Spouses of H-1B workers may live and work in the United States on an H-4 visa, for as long as the H-1B worker remains in lawful H-1B status.

What happens after USCIS receives the necessary petitions to meet the regular cap?

Once USCIS has received more than enough petitions necessary to meet the regular cap, USCIS will conduct a computer-generated lottery to select the petitions needed to meet the cap.  When the cap has been reached, USCIS will make an announcement (usually made on April 7th) indicating that the cap has been reached and that they will proceed with the selection process to fill the 65,000 cap by a randomized lottery system.

Last H-1B season, USCIS announced that the cap was reached within the first 5 business days of the H-1B filing period.

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The H-1B visa is one of the most coveted visas in the United States for several reasons. One of the biggest perks of the H-1B visa is that it is granted for a period of three years, and can be extended for an additional three years. Recipients of the H-1B visa can also bring their dependents to live with them in the United States on an H-4 visa. The H-1B visa is also a popular option because it gives workers the flexibility of accepting and entering new employment, made possible by the portability provision of the H-1B program (8 U.S.C. § 1184(n)). The portability provision allows an H-1B worker to change jobs without having to risk falling “out of status.” Recently, USCIS also improved its portability provision with the passage of a new law that will give H-1B workers who have been laid off a 60-day grace period to transfer to a new employer. But perhaps the greatest upside to the H-1B visa however, is that it is one of the few visas that allows a nonimmigrant to apply for permanent residency as a beneficiary of an immigrant visa petition, without the immigrant petition having any negative affect on their H-1B status. This privilege is recognized in the law and is known as “dual intent.” Foreign nationals holding a “dual intent” visa such as an H-1B visa are allowed to file a green card petition, while continuing employment under the terms of their visa, and may also travel on their visa without seeking permission from USCIS.

In this sense, the H-1B visa is one of the few visas that opens a direct path to permanent residency. Other popular employment visas such as the E-2 treaty investor visa do not create a direct path to permanent residency and are not considered “dual intent” visas.

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As many of you know the H-1B visa lottery for fiscal year 2018 is fast approaching. As usual, the competition will be fierce, as hundreds of thousands of highly skilled professionals prepare to file their H-1B visa petitions beginning April 1st through the April 7th deadline. While filing by April 1st (the first day that applications are accepted) certainly gives applicants greater peace of mind, filing before the April 7th deadline does not necessarily increase an individual’s chances of being selected in the lottery. Throughout the years, our office has seen the selection of many petitions that were filed on or close to the April 7th deadline.  With that being said, we expect the competition this year to be even more intense, that is why we want to give you our top tips about what you should be doing NOW to prepare for H-1B season and increase your chances for success.

First some statistics on fiscal year 2017:

  • For fiscal year 2017, USCIS received over 236,000 H-1B petitions, which included petitions counting toward the general cap and advanced degree exemption; approximately 3,000 more petitions when compared to H-1B petitions received for fiscal year 2016. This trend is likely to continue, giving you all the more reason to prepare for the H-1B season early on.
  • For fiscal year 2017, the H-1B cap was reached within the first 5 business days of the H-1B filing period (April 1 to April 7). We expect this trend to continue as in previous years. During fiscal year 2017, USCIS received more than 20,000 petitions for the advanced degree exemption. This number will undoubtedly increase for fiscal year 2018.
  • For fiscal year 2017, USCIS conducted the randomized computer-generated lottery on April 9, 2016 beginning the selection process for the 20,000 available visas counting toward the advanced degree exemption first. Then, unselected advanced degree petitions were given a second chance of being selected by being placed in the lottery toward the general 65,000 cap.  Individuals holding an advanced degree from the United States thus have two shots at being selected for the lottery.

Chances of selection

The chances of being selected in the lottery for fiscal year 2017 ran at roughly 65% for foreign workers holding a U.S. advanced degree, and roughly 35% for foreign workers holding a bachelor’s degree or equivalent. Compare this to the chances of being selected in the lottery during fiscal year 2016 which ran at 60% for U.S. advanced degree holders, and 30% for bachelor’s degree holders or the equivalent. We expect the percentage of selection to continue to increase for U.S. advanced degree holders and foreign workers holding bachelor’s degree or equivalent, by roughly 5% according to recent statistics. This of course will depend on the demand for the H-1B visa for fiscal year 2018.

Office Stats

For fiscal year 2017, 35%  of H-1B cap-subject petitions that were filed by our office were selected in the H-1B randomized lottery that took place early April 2016. 13% of those petitions were filed with premium processing, while 22% were filed with regular processing. In total our office filed 55 H-1B Petitions: 15 advanced degree petitions and 40 bachelor’s cap or equivalent petitions. Of these, 46 were filed with regular processing and 15 with premium processing. The majority of these petitions were filed with the California Service Center. Of selected petitions for fiscal year 2017, the top specialty occupations included: Applications Developer, Market Research Analyst, and Software Engineer.

H-1B Overview

As in previous years H-1B petitions for fiscal year 2018 will begin to be accepted by USCIS on April 1, 2017 up until April 7, 2017. Foreign workers in specialty occupations and their employers will compete for one of the coveted 65,000 H-1B visas available each fiscal year. The H-1B visa program is limited to a 65,000 congressionally mandated visa cap. Foreign workers holding a U.S. Master’s degree or higher are exempt from the 65,000 cap, however only the first 20,000 advanced degree petitions received by USCIS will qualify for the cap exemption. In addition, certain foreign workers such as foreign workers who have been offered employment under U.S. Chile or U.S. Singapore free trade agreements, and foreign workers in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam are exempt from the cap, according to the Consolidated Natural Resource Act of 2008 (CNRA). Advanced degree petitions received after the 20,000 spots have been allocated will count toward the regular cap along with foreign workers holding bachelor’s degrees (or equivalent including work experience in lieu of formal education). USCIS will receive more than the 65,000 petitions for the H-1B visa program during the first five business days that the application period is open, from April 1st to April 7th. When the cap has been reached, USCIS will make an announcement, in recent years this announcement has been made on April 7th and begin the selection process to fill the 65,000 cap through a randomized lottery system. Petitions that are not selected will be rejected along with their filing fees. Duplicate H-1B petitioners during the same fiscal year, are not allowed, and may be subject to sanctions. Employers may not file an H-1B petition on behalf of an employee more than 6 months before the employee’s intended start date. Once an H-1B visa worker has been selected and approved, the foreign worker may begin employment on October 1st of that fiscal  year. The H-1B visa is issued for a three-year period that can be extended for an additional three years.

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On December 27, 2016 in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) the USCIS Administrative Appeals Office (AAO) handed down a groundbreaking decision which has changed the analytical framework for determining eligibility of national interest waivers. This new decision will affect foreign nationals who are pursuing a green card based on employment in the EB-2 category, and who are eligible for a “national interest waiver.”

The national interest waiver is a discretionary waiver of the job offer and labor certification requirement made possible by subparagraph (A) of section 203(b)(2) of the Immigration and Nationality Act. This section of the INA states that the Secretary may, when it deems it to be in the national interest of the United States, “waive the requirements of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.”  In addition to meeting a three-prong test of eligibility, to obtain a national interest waiver, the foreign national must be a member of a profession holding advanced degrees or their equivalent or prove that “because of their exceptional ability in the sciences, arts, or business they will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.”

Without this discretionary waiver, EB-2 applications must be accompanied by a labor certification and their employer must go through the process of advertising the position to prove to immigration that there are no other applicants who are qualified, willing, and able to fill the position that the foreign national is expected to fill. Employers must also meet prevailing wage requirements as established by law. Establishing the national interest waiver in other words made it easier for qualifying foreign nationals in the EB-2 category to skip the job offer and labor certification requirement, streamlining their path to permanent residency.

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