Articles Posted in Highly Skilled Workers

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Welcome back to Visalawyerblog! In this post, we share with you an exciting new update from the United States Citizenship and Immigration Services (USCIS) that will provide relief to those who have received a Request for Evidence, Notice of Intent to Deny (NOID), or such similar request.


USCIS RFE/NOID Flexibility Continued for Responses to Agency Requests


USCIS has announced that it will continue its flexibility policy giving applicants and petitioners more time to respond to Requests for Evidence during the COVID-19 pandemic and such related requests.

Today, Thursday December 30, 2021, USCIS made the announcement stating it will continue to give applicants who have received a request for evidence, notice of intent to deny, or such a related document, an additional 60 calendar days after the response deadline indicated on the notice or request, to submit a response to a request or notice, provided the request or notice was issued by USCIS between March 1, 2020 through March 26, 2022. 

This is great news because it will allow applicants and petitioners more time to gather documents that are hard to obtain during the COVID-10 pandemic.


What documents qualify for this flexibility in responding?


Applicants who receive any of the below mentioned documents dated between March 1, 2020 and March 26, 2022 can take advantage of the additional 60 calendar days to respond to the request or notice:

  • Requests for Evidence;
  • Continuations to Request Evidence (N-14);
  • Notices of Intent to Deny;
  • Notices of Intent to Revoke;
  • Notices of Intent to Rescind;
  • Notices of Intent to Terminate regional investment centers; and
  • Motions to Reopen an N-400 pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.

In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings, if:

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Did you participate in the H-1B electronic registration for Fiscal Year 2022? If so, we have some exciting news for you.

In this post we share with you some exciting news for individuals who submitted H-1B registrations for the fiscal year 2022 H-1B cap. On Friday, November 19, 2021, USCIS issued a news alert informing the public that they have selected additional H-1B registrations to reach the fiscal year (FY) 2022 H-1B numerical allocations, including the advanced degree exemption to reach the mandated cap for the H-1B program.

As our readers may recall, USCIS conducted a second lottery on July 28, 2021, making this the third lottery conducted to meet the Congressionally mandated FY 2022 cap.

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We are happy to deliver some amazing news for H-4, E, and L dependent spouses! On November 12, 2021, following a settlement agreement known as Shergill v. Mayorkas, the United States Citizenship, and Immigration Services (USCIS) issued a new Policy Memorandum (Policy Alert PA-2021-25) outlining that the agency will automatically allow for employment authorization for dependent E, L, and certain H-4 spouses of principal visa holders, without requiring spouses to file I-765 application for employment authorization to be eligible to work in the United States.

The new Policy Memorandum also rescinds the agency’s previous 2002 Memorandum which did not allow dependent spouses in E, L and certain H-4 visa holders to automatically qualify for work authorization in the United States.

Following this new settlement, E, L, and certain H-4 spouses will be able to work just by having their valid visas, and they will not need to file any separate applications nor need an employment authorization card (work permit) to lawfully work in the United States.

While some doubt initially arose regarding whether E dependent spouses would qualify for automatic employment authorization, USCIS has now explicitly confirmed that it will indeed consider E and L dependent spouses to be employment authorized incident to their valid E or L nonimmigrant status.

The new November 12, 2021, Policy Memorandum outlines the following:

  • Certain H-4, E, or L dependent spouses to qualify for an automatic extension of their existing employment authorization and accompanying employment authorization document (EAD) if they properly filed an application to renew their H-4, E or L-based EAD before the document expires and they have an unexpired Form I-94 evidencing their status as an H-4, E, or L nonimmigrant;
  • The automatic extension of the EAD will continue until the earlier of: end date on Form I-94 evidencing valid status the approval or denial of the EAD renewal application, or 180 days from the date of expiration of the prior EAD document; Form I-94, evidencing unexpired nonimmigrant status (H-4, E or L), Form I797C receipt for a timely – filed EAD renewal application stating “Class requested as “(a)(17),” “(a)(18) or ((c)(26)”, and the facially expired EAD issued under the same category);

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In this blog post we share amazing news with our readers regarding the settlement of a recent class-action lawsuit filed against the U.S. Department of Homeland Security. The agreement reached under the settlement will immediately allow for automatic renewals of employment authorization for: L-2 spouses of L-1 nonimmigrants and qualifying H-4 dependent spouses who (a) properly file an application to renew their H-4 based employment authorization document before expiration (b) have an unexpired Form I-94 showing their status as an H-4 nonimmigrant and (c) who will continue to have H-4 status beyond the expiration date of their employment authorization document. Shergill v. Mayorkas, No. 21-1296 (W.D. Wash.)


What does this new settlement mean?


 Effective immediately, the Shergill settlement will make it a lot easier for L-2 and H-4 dependent spouses to continue working in the United States without having to apply for a renewal of their employment authorization and without interruptions to their employment. As many are already aware, the processing of I-765 employment authorization applications is currently subject to extreme delays due to the pandemic and burdens on USCIS offices. This new settlement will prevent L-2 and certain H-4 dependent spouses from being stuck in these backlogs. Not to mention L-2 and certain H-4 spouses will no longer have to pay the required $410 filing fee to renew their employment authorization. Following this new settlement, L-2 spouses and certain H-4 spouses will be able to work just by having their valid H-4 and L-2 visas, and they will not need to file any separate applications nor need an employment authorization card (work permit) to work in the United States.


Guidelines for Dependent Spouses under the Settlement Agreement


Under the terms of the Shergill settlement agreement, as it relates to L-2 dependent spouses, USCIS will now interpret 8 CFR § 274a.13(d) to recognize that employment authorization for such spouses is now linked (incident) to their visa status. USCIS will also allow up to 180-day automatic employment authorization extensions when the applicant has already had the H-4 or L-2 status extension granted either through USCIS or through travel.

Automatic Renewals of Employment Authorization for applications that already have valid H-4 status

  • Pursuant to the settlement agreement, USCIS is now interpreting the law so that H-4 nonimmigrants who have timely filed their I-765 EAD renewal applications and continue to have H-4 status beyond the expiration date of their EAD, qualify for the automatic extension based on their (c)(26) EAD.
  • This automatic extension will terminate on the earlier of: the end date of the H-4 status, adjudication of the EAD renewal application, or 180 days from the previous card’s expiration date.

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A new House reconciliation bill adds new language that could open a path to permanent residency for highly skilled immigrants without waiting for their priority date to become current.

The new bill, known as H.R. 5376 “the Build Back Better Act,” is the latest initiative backed by the Biden administration to strengthen the middle class and enhance economic ingenuity.  Interestingly, the bill provides a framework that would improve and reform our immigration system with particular benefits for highly skilled immigrants.

If passed section 60003 of the reconciliation bill would exempt an alien (and the spouse and children of such alien) from the numerical limitations described in the employment-based immigration section of the Immigration and Nationality Act, and allow the alien and any follow-to-join dependents to adjust their status to permanent residence provided such alien submits or has submitted an application for adjustment of status and . . . is the beneficiary of an approved petition . . . that bears a priority date that is more than 2 years before the date the alien requests a waiver of the numerical limitations; and pays a supplemental fee of $5,000.” (Emphasis added.)

If passed these legislative measures would be extremely beneficial to highly skilled workers because it would allow employees in the visa backlogs to file for adjustment of status without waiting for a priority date to become available. Following this proposal, once a labor certification application would be approved by the Department of Labor, an employee could be eligible to file his or her I-485 adjustment of status application concurrently with his or her I-140 petition for alien worker and apply for temporary work authorization while the applications would remain pending with USCIS.

The House reconciliation bill would also allow family-based immigrants inside the United States to gain permanent residence outside the numerical limits if their priority date is “more than 2 years before” and the individual pays a $2,500 supplement fee. EB-5 category (immigrant investor) applicants would need to pony up a $50,000 supplement fee. The provisions to pay a supplemental fee to receive a green card outside the numerical limits would expire on September 30, 2031.

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You have all heard the news. A new House bill has been introduced that if passed would provide a pathway to citizenship for millions of undocumented immigrants living in the United States without legal status. But what exactly does the bill include? In this blog post we share with you the highlights of the America’s Children Act of 2021 also known as H.R. 4331.


Bill Highlights


Among the highlights of America’s Children Act of 2021 the bill:

  • Provides a pathway to permanent residency for individuals who were brought to the United States at a young age, TPS recipients, individuals under DED status, and essential workers, who have maintained continuous physical presence in the United States since their entry, and/or have graduated from an institution of higher education;
  • Establishes protections for Diversity Visa lottery winners who could not come to the United States from 2017 to present due to COVID-19 related delays;
  • Creates special provisions to recapture unused visas and provides a waiver of numerical limitations for beneficiaries of approved immigrant visa petitions currently waiting for their priority dates to become current

Who would benefit?


The main section of the bill would provide a pathway to citizenship for people in DACA (Deferred Action for Childhood Arrivals) status and also people who may not have qualified for DACA. Individuals in Temporary Protected Status and those who received Deferred Enforced Departure would also be eligible. Qualifications differ among these groups and many more changes are expected however the key provisions have been mentioned above. To obtain permanent residence, individuals cannot be disqualified based on grounds of ineligibility and must complete “security and law enforcement background checks” and a medical examination.


Pathway to Citizenship for Dreamers


Under the committee print released by the House Judiciary Committee, certain aliens would be eligible to adjust their status to permanent residence within the United States, by paying a supplemental fee of $1,500 and passing criminal checks. To be eligible, an alien would have to show that he or she:

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Can you receive a green card under the EB-2 classification (National Interest Waiver) as the developer of an innovative application that improves the health and wellness of chronically ill U.S. Citizens?

In this blog post, we share with you how our office was able to do just that despite initial challenges that were presented in our client’s case and previous unsuccessful filings in other visa classifications, where the adjudicating officer refused to recognize the applicant’s extraordinary ability in the field of health and business development despite a plethora of documentary evidence of his unique skills.


An Overview: What are the EB-2 NIW Requirements?

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Did you participate in the H-1B electronic registration for Fiscal Year 2022? If so, we have some exciting news for you.

This morning, July 29, 2021, USCIS announced via its official website that the agency has conducted a second randomized lottery to select additional registrations to reach the Congressionally mandated Fiscal Year 2022 numerical allocations for the H-1B visa program.


When did the second lottery take place?


On July 28, 2021, USCIS selected from previously submitted electronic FY 2022 registrations, using a randomized process, to meet the necessary visa quota numbers.


How will you know if you were selected?


Petitioners with selected registrations will have their myUSCIS accounts updated to include a selection notice, which includes details of when and where to file. If you submitted your electronic registration with the assistance of an attorney, you must contact your legal representative/case manager to determine whether you were selected in the July 28 lottery.


If I was selected in the second lottery, when can I submit my paper application by mail?


Only petitioners who were selected in the second lottery will be able to file a paper application with USCIS on behalf of the alien worker, beginning August 2, 2021, through November 3, 2021. Petitioner’s must include a printed copy of the applicable registration selection notice with the FY 2022 H-1B cap-subject petition. No online filing system is currently available. Petitioners should ensure that they send their paper application to the correct service center within the filing period indicated on the registration selection notice.

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We are extremely excited to report that USCIS has received enough electronic registrations during the H-1B initial registration period to reach the mandated numerical cap for fiscal year 2022, including for the advanced degree exemption (also known as the master’s cap), and has now selected all registrations eligible to participate in the H-1B visa program.

The H-1B initial electronic registration period came to an end on March 25, 2021, at which time USCIS began the process of randomly selecting from eligible registrations to fill the H-1B cap, including for the advanced degree exemption.

USCIS has now selected those registrations that will move forward and file a paper application with USCIS.

All those who were selected have received a notification of their selection in their myUSCIS online account. Selections in the myUSCIS portal will indicate that the petitioner is eligible to file an H-1B cap-subject petition for the beneficiary that was named in the applicable selected registration.

On behalf of our law office, we extend our congratulations to all those who were selected to move forward with the filing of their petitions.


What happens next?


Now that you have overcome this obstacle, you may be asking yourself, what’s next? Sadly, getting selected in the H-1B visa lottery is just the first step in obtaining an H-1B visa. The second step requires the petitioner to demonstrate the beneficiary’s eligibility for the H-1B visa by filing Form I-129 with USCIS and obtaining approval.

USCIS has announced that all petitioners who have been properly selected in the visa lottery for fiscal year 2022, may file an H-1B cap-subject petition with USCIS, including petitions eligible for the advanced degree exemption, starting today April 1, 2021. Only filings that are based on a valid, selected registration will be accepted by USCIS for FY 2022, and only for beneficiaries named in the selected registration notice.

Those who were not selected must wait to apply again next year.

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Happy Friday! In this blog post, we bring you the latest immigration updates including exciting information about the H-1B cap season for FY 2022 now in full swing, USCIS Flexibility to RFEs/NOIDs and other agency requests, and the Department of State’s update regarding the 2018 Public Charge rule.


H-1B Cap FY 2022 News


The H-1B cap season is now upon us. On March 9, 2021, USCIS opened the mandatory H-1B electronic registration system, in preparation for selection of visas under the H-1B cap for fiscal year 2022. Last year, USCIS introduced a brand-new electronic registration process for the H-1B cap, including the advanced degree exemption. The electronic registration system has been implemented to streamline the application process. Gone are the days when all petitioners were required to submit a paper application by mail for a chance of being selected.

Now the electronic registration process requires prospective H-1B petitioners, seeking authorization to employ H-1B workers subject to the cap, to complete an electronic registration on the USCIS website that asks for basic information about the prospective petitioner and each requested worker.

Only those who submit an electronic registration have a chance of being selected to participate in the H-1B visa lottery. Additionally, only those with a selected registration are invited to submit a paper application by mail to establish eligibility for an H-1B visa.

Yesterday, March 25, 2021, the electronic registration period officially closed. USCIS will now go through the process of randomly selecting from eligible registrations to fill the H-1B cap.

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