Visa Lawyer Blog

Articles Posted in H1B Visas

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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.

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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.

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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.

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Today, on February 24, 2015, USCIS announced that effective May 26, 2015 it will extend eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants to allow them to accept employment in the U.S.

Finalizing the H-4 work authorization was an important step toward implementation of the President’s executive action initiatives announced in November 2014 for a purpose to modernize and improve our immigration system.

Not all H-4 holders will benefit from the employment authorization. Under the new regulation, eligible individuals include H-4 dependents whose H-1B spouses:

  • Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

In other words, only those H-4 dependents whose H-1B spouses are in the process of obtaining a green card through employment will be able to benefit from work authorization.

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By Marie Puertollano, Esq.

Our firm has started to work on H1B visa applications for our clients. We want to be sure none of our clients miss the April 1st deadline. April 1 is the date when H-1B can be filed at the earliest. Only 65,000 visas are available for applicants with a Bachelor’s Degree and 20,000 for applicants with a Master’s degree. Last year, USCIS had received too many applications by April 11. Since the economy is improving, we expect that the H-1B cap will be reached very fast.

Once you apply on April 1, if your case is approved, you can start working on H-1B status as of October 1, 2015.

If you think you qualify for H-1B, here are some steps to follow for a successful H-1B application:

  • First you must have a H-1B petitioner:

You cannot petition yourself for a H-1B, unless you own your own company. A company must petition you, which will include providing their EIN number, signing the different forms and issuing the checks made payable to the U.S Department of Homeland Security. Once the H-1B is approved, the petitioner must abide by the conditions described in the H-1B application and do the proper recordkeeping.

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imagePresident Obama closed off the year by announcing his highly anticipated executive action on November 20, 2014 which will go into effect early this year, but the executive action was only one of many important initiatives that occurred in 2014.

2014 was a big year for immigrants for several reasons:

  • AB 60 California Driver’s License Applicants: Beginning January 01, 2015 undocumented immigrants can start the process of obtaining their driver’s licenses under AB 60 at their local DMV field office
  • Executive Action: Beginning February 2015, eligible applicants can apply for the expanded DACA program which shields undocumented individuals from deportation who were brought to the United States illegally as children, our office will be providing you with further updates early this year
  • Beginning May 2015 eligible parents of U.S. Citizens and lawful permanent residents can apply for deferred action thereby protecting them for deportation and allowing millions of parents to be eligible for employment authorization

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President Obama’s executive action announced on November 20, 2014 fell short in many ways than one for many people residing in the United States—both legally and illegally. Though a marginalized few have been allowed to come out of the shadows, some of the world’s best and brightest have been completely ignored by the executive action altogether. The United States would be quite a different place without our hard working immigrant population and without our foreign born innovators, movers, and shakers.

Obama’s announcement on November 20th notably left out any indication that the creation of a more expedient and efficient system would be considered— through which highly skilled and highly capable foreign workers would be able to more easily attain permanent residency and visas. Industry leaders in areas such as the Silicon Valley, seeking to employ such highly skilled and highly capable foreign workers for their startup companies, have expressed their concerns, forming groups such as FWD.us, albeit with the knowledge that Congress must act in order for an all-encompassing solution to be reached.

Though Obama’s speech shed little light on the topic, a memorandum released by the U.S. Department of Homeland Security following the speech is much more informative. The memorandum announces that inventors, researchers, and founders of start-up enterprises who do not qualify for a national interest waiver, but who have been awarded what is considered ‘substantial’ financing by a U.S. investor OR who ‘hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research’ can attain parole authority under section 212(d)(5) of the INA,6 on a case-by-case basis after being assessed by the DHS. Possessing parole in this situation would authorize extraordinary inventors, researchers, or start-up entrepreneurs to temporarily conduct their research or development of innovative ideas or their business while in the United States.

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The 27th AILA (American Immigration Lawyer Association) California Chapter Conference was held between the 13th and 15th of November 2014 at San Jose, California. Attorney Yingei Zhou, Esq. was in attendance on behalf of our law firm. The conference concentrated on several trending topics such as status of comprehensive immigration reform, consular processing and updates with border posts in Mexico and Canada, driver’s licenses for undocumented workers, unaccompanied alien children (UAC), H-1B/L-1A/O-1/EB-1 adjudications, federal litigation, and advanced family immigration issues, as well as staple subjects like evidentiary issues in removal proceedings and PERM applications.

This article provides you several important updates from the conference addressed at the conference, especially the government open forums with AILA practitioners, USCIS representatives, CBP officers, and San Francisco Asylum officers.

In the following weeks, we will post more articles to address the trends on each specific visa applications and immigration proceedings discussed in the conference.

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By Yingfei Zhou, Esq.

In July 2014, we updated our readers regarding newly released guidance by USCIS, on adjudication of H-1B petitions for nursing occupations. In the guidance, USCIS acknowledged that the nursing industry has changed and that the private sector is increasingly showing a preference for more highly educated nurses. Although it seems that USCIS has shown its willingness to entertain H-1Bs for nurses, the adjudicatory standards remain high. In our practice, we have found that USCIS adjudicators set very high standards in adjudicating H-1B petitions, arguably higher than what the regulations require, for certain occupations, including nursing.

For Registered Nurses, the key to filing a successful H-1B petition is to differentiate the duties of a nursing position that requires at least a bachelor’s degree in Nursing. USCIS relies on the OOH, as an authoritative source for outlining both the educational requirements, and duties for H-1B specialty occupation cases. The OOH has listed a number of areas in which a nurse may focus: addiction nurses, cardiovascular nurses, critical care nurses, etc. and states that “depending on the facts of the case, some of these Registered Nurse positions may qualify as specialty occupations.” In other words, positions that focus on a particular area, or a particular population, are more likely to be classified as ‘specialty occupations’ than a more general practice nurse.

For Advance Practice Registered Nurses (APRN), USCIS has previously recognized that positions requiring APRN certification will generally be considered specialty occupations due to the advanced level of education and training required for this certification.

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Start-up entrepreneurs who wish to come to the U.S. to open a business have several immigration options. It is important that you understand the requirements, benefits, and downsides of each and choose the one that best fits your situation.

B-1 Business Visa

A B-1 business visa is a non-immigrant visa issued to those who wish to enter the United States for a business purposes. You are eligible to apply for a B-1 visa if you want to consult with a business associates, participate in a required medical clerkship without any remuneration, embark on independent research which does not benefit any U.S. institution, or participate in educational, professional scientific or business conventions, seminars, or conferences.

The validity period for this visa will differ depending on your country of origin. If you are seeking entry into the U.S. for business reasons for the first time, you may be allowed to stay in the U.S. for a period of time long enough to enable you conduct your business. However, the maximum period of stay allowed per visit is 6 months. But you can also apply for another six-month extension if you needed. A B-1 visa can be used for multiple entries in so far as it has not expired.

There are certain tasks that you are and are not allowed to do while in the U.S. on a B-1 visa. If you are in the U.S. with a B-1 visa, you are allowed to negotiate business, discuss planned purchases or investment, solicit sales or investment, attend and participate fully in meetings, conduct business research, and interview and hire staff. You are not allowed to look for employment, run a business in the U.S., or to take part in sporting and entertainment events as a professional.

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