Articles Posted in Employment Based Petitions

16F211BF-4FDC-4D41-8FF7-55867BAB7DB9I first met Suman Kanuganti two years ago, back then he was working for another company but contemplating opening his own high-tech startup company and becoming an entrepreneur.

In advising him on his ambitious pursuits, I recommended that he follow his plans and dreams confidently and full-heartedly. Shortly afterwards, Suman quit his previous job and started to focus on his new company, Aira, based here in San Diego. Through the assistance of my immigration law firm, he received his H-1B visa so that he could continue focusing on his amazing work at Aira in developing assistive technology and services for the blind and visually impaired.

His work at Aira continues at a rapid and productive pace, poising the company well for future growth and success. In just two years, Suman, as Co-Founder & CEO, has transformed his startup into the leading developer of remote technology that is bringing immediate access to information and assistance to those with vision loss. This is greatly enhancing the mobility, independence and productivity of blind people in a wide range daily activities – from navigating busy streets and airports, to reading printed material, recognizing faces, catching the bus or Uber, functioning efficiently in the office or classroom, experiencing cultural and sporting events, and literally traveling the globe.

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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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On March 31, 2017, the United States Citizenship and Immigration Services (USCIS) issued a new policy memorandum providing new guidance relating to the adjudication of H-1B petitions for computer programmers. The new memorandum will supersede and replace the policy memorandum that had been in place since the year 2000, which previously governed adjudication procedures for H-1B computer related occupations.

The new memorandum seeks to update the outdated provisions of the 2000 memorandum because the policies set out in that memorandum no longer reflect the current policies of the agency. The main purpose for rescinding the 2000 memorandum is not to change the H-1B application process for employers who seek to employ foreign workers in computer related occupations, rather the new memorandum clarifies the proper adjudication procedures for computer related occupations at all service centers.

Why the Change?

The Occupational Outlook Handbook is a handbook published by the Department of Labor’s Bureau of Labor Statistics which includes information relating to the training and education required for various employment positions. The OOH is of particular importance for H-1B petitioners and practicing attorneys, because USCIS consults the OOH as a guide to inform their decision regarding the general qualifications necessary for a particular occupation, and whether the occupation is to be considered a “specialty occupation.” The OOH however does not on its own establish whether a position is a “specialty occupation,” rather adjudicating officers focus on the position itself and the job duties and qualifications of the beneficiary, to determine whether the position is to be considered a specialty occupation.

The main problem with the 2000 policy memorandum was that it relied on an outdated OOH description of the position of “computer programmer,” creating inconsistencies that are no longer followed by adjudicating officers today.

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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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