Visa Lawyer Blog

Articles Posted in Immigration Entrepreneurship

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The U.S. Department of State (DOS) recently released the June Visa Bulletin. The Chief of Visa Control and Reporting Division, Charles Oppenheim has provided new insights and developments pertaining to the June 2016 Visa Bulletin. Cutoff dates listed below form part of the final action (FA) chart of the Visa Bulletin. Currently, USCIS has advised adjustment of status family-sponsored and employment-based applicants to refer to cutoff dates that appear on the final action chart for the month of June, and not the date of filing chart.

Employment-Based, First Preference (EB-1)

Demand for the EB-1 category remains at a very high level. DOS has said that should demand continue to remain at the same rate, some form of “corrective action” would be necessary before the close of the fiscal year to regulate worldwide visa numbers. This may require the establishment of a cutoff date or other form of regulation.

India Employment-Based, Second Preference (EB-2)

Demand for the EB-2 category is also very high. Due to increasing demand, there will no longer be unused numbers available in excess of the normal EB-2 per-country limit. EB-2 Worldwide and EB-2 India demand is expected to increase. The high level of demand for visa numbers in the EB-2 India Category and lack of excess numbers from EB-2 worldwide has caused the EB-2 India final action date to retrogress to October 1, 2004 for the month of June.The DOS expects that the EB-2 India cutoff date will advance slowly for the rest of the fiscal year, at a pace similar to the EB-3 advancement.

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On May 04, 2016 the Department of Homeland Security published a proposed rule in the Federal Register, announcing that filing fees for many USCIS petitions and applications are expected to increase for U.S. employers and foreign nationals. The proposed regulation stipulates that filing fees may be adjusted for certain immigration and naturalization benefit requests by USCIS. The increase in filing fees was considered after USCIS conducted a comprehensive review of its fees and found that the current fees do not cover the cost of services provided by USCIS. According to USCIS, in an effort to fully recover costs and maintain adequate services, “an adjustment to the fee schedule will be necessary”. According to the regulation, fees for most employment-based petitions and applications would be raised by an average of 21%, though other types of petitions may experience a higher increase in filing fees.

According to DHS, the higher fees will more accurately reflect the current cost of processing immigration applications and petition. A portion of the increased fees would provide additional funding for refugee and citizenship programs as well as system support for interagency immigration status verification databases.  The increase in filing fees will not take effect until the federal government approves the regulation, which is expected to take several months following the close of the 60-day comment period on July 5, 2016.

According to the new fee schedule under consideration, employment-based petitions would be the most impacted by the increase in filing fees. The filing fee for Form I-129, Petition for a Nonimmigrant Worker, would increase by 42% to a fee of $460, from the current rate of $325.  Similarly, the filing fee for Form I-140, Immigrant Petition for Alien Worker, would increase by 21% to a fee of $700, from the current rate of $580. The complete fee schedule under consideration has been provided below for your reference.

The EB-5 Immigrant Investor Visa Program is expected to be the most heavily affected by the new fee schedule. The filing fee for Form I-924, Application for Regional Center Under the Immigrant Investor Pilot Program, would increase by a rate of 186% requiring Regional Centers seeking designation under the program to pay a filing fee of $17,795 instead of the current rate of $6,230. In addition, Regional Centers would be required to pay a $3,035 annual fee to certify their continued eligibility for the designation. Currently, there is no fee in place for annual certification. The filing fee for the I-526 Immigrant Petition by Alien Entrepreneur, an application associated with the EB-5 visa program, would also increase to a rate of $3,675, a 145% increase up from the current rate of $1,500. The filing fee for an investor’s petition to remove conditions on residence would remain unchanged under these new regulations.

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It is a busy time of the year for the Law Offices of Jacob J. Sapochnick, as we begin to box up and ship out the hundreds of H-1B petitions that will count toward the cap for fiscal year 2016. Tomorrow marks the very first day that H-1B petitions will begin to be accepted by USCIS. If your H-1B petition will not be received by USCIS on the very first day of the H-1B filing season (April 1st) do not fret. USCIS will continue to accept H-1B petitions through the first five business days of the filing season until the cap has been met. Receipt of your H-1B petition on April 1st does not guarantee that your application will be chosen in the randomized lottery. In fact, we have had clients file at the very last minute who have ended up being chosen in the cap. During the next few days, USCIS will carefully monitor the amount of H-1B petitions that are received and make an announcement once the cap has been met. Once the announcement has been made, no more petitions will be accepted for the lottery. Petitions received in excess of the cap will be rejected by USCIS. Employers will know that their H-1B petition has been chosen in the lottery if they receive a ‘notice of receipt’ in the weeks following the randomized selection process. Last year, receipt notices for H-1B petitions, filed without premium processing, started coming into our office in late April, while rejection notices did not appear until mid to late June. Petitioners may opt for premium processing to expedite the notification process. Although it is very easy to get lost in the chaos of H-1B season, it is important not to lose sight of what’s important this filing season.

To help ease your anxiety this H-1B season we are providing you with our last minute filing tips:

  1. Employer’s Financial Obligations: Employers must be prepared to pay their workers at least the Prevailing Wage based on the employee’s occupation and actual place of employment. Employer’s must understand their obligation to honor this financial commitment during the time the employee is working for the employer in H-1B status. Failure to do so can have serious consequences for the employer;
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Last week, the Senate held a hearing scrutinizing the temporary H-1B skilled worker program, the second hearing of its kind within just one year. At issue was the protection of American jobs and dissatisfaction with the program among conservatives in the Senate, who believe the program has caused job displacement at the expense of thousands of Americans. Beyond their own political convictions, Republican Senators eyeing the White House, have also scrutinized the H-1B visa program, in order to appease voters who, maintain a hard line stance on immigration.

During the hearing, the Senate Judiciary panel considered testimony questioning the integrity of the H-1B visa program. Many witnesses accused their employers of violating the conditions of the program, alleging that their employers sought to replace American workers with foreign workers by utilizing the H-1B visa program to pay those workers lower wages. This accusation is troublesome for various reasons. Firstly, it is well known that the H-1B visa program requires an employer to hire a foreign worker in a specialty occupation only when the employer cannot obtain the necessary skills and abilities to perform the specialty occupation within the American workforce. H-1B workers must possess distinguished merit and ability, and demonstrate their qualifications through the attainment of a bachelor’s degree or its equivalent, in the intended field of employment. Secondly, the H-1B visa program contains provisions which are specifically designed to protect similarly employed American workers from any adverse affects suffered from the employment of temporary foreign workers. Consequently, there are also provisions which aim to protect H-1B nonimmigrant workers from H-1B violations. One of those provisions includes the requirement that American employers pay temporary H-1B workers at least the ‘prevailing wage,’ the average wage paid to similarly employed workers (experience and qualifications) in a specific occupation in the area of intended employment. This would mean that any employer seeking to use the H-1B visa program for the purposes of obtaining ‘cheap foreign labor’ or to replace American workers would be violating the conditions of the H-1B visa program altogether.

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For this series, we bring you our top tips for filing a successful E-2 visa petition. The E-2 treaty investor visa is a non-immigrant visa that allows foreign entrepreneurs from treaty nations to enter the United States and carry out investment and trade activities. Investment activities may include either the creation of a new business venture or purchase of a pre-existing business. The investment must be significantly proportional to the total investment, that is, usually more than half the total value of the enterprise or, if a new business, an amount normally considered necessary to establish the business. The E-2 ‘investor visa’ is available to an applicant who invests a substantial amount of his own money into a U.S. business, which he can control and direct. Foreign nationals from treaty countries who have made a substantial investment in the United States may qualify for E-2 Treaty Investor status. There is no set minimum level of investment, which may qualify for E-2 status, however the lower the investment the less likely one is to qualify. Therefore, the level of investment must be such that it is sufficient to justify presence of the treaty national in the United States. For the E-2 visa petition, the United States business entity serves as the petitioner of the visa petition, while the Beneficiary serves as the investor.

Tip #1 Ensure that your business entity has been properly set-up

If you do not know how to properly set-up your business entity, you should consult with and retain a licensed attorney to properly set-up the business entity for you. Proper set-up of a business entity, entails much more than filing the company’s Articles of Incorporation, Bylaws, and applying for a Federal Employment Identification Number (EIN) with the IRS. It is for this reason that many applicants are more comfortable retaining a licensed attorney for the E visa process. Our office handles this aspect of the application as part of the E visa preparation package.

Why is this important?

Proper set-up of the business entity ensures that the entity is a bona fide business enterprise that is real, active, and producing goods or services for profit. Improper set up may cause the denial of a petition and increases the company’s liability.

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mayaFor this month’s staff spotlight, we invite you to learn more about Paralegal, Maya Elkain.

Ms. Elkain began her journey with the Law Offices of Jacob J. Sapochnick in 2014 as an intern. She quickly learned the ins and outs of employment based immigration law and was offered a position. Today, she assists attorneys with the preparation of H-1B applications, E-2 investor visas, L-1A visas, O visas, National Interest waivers, provisional waivers of unlawful presence, and much more. Ms. Elkain specializes in employment-based immigration and investor petitions. With her assistance, our law office has been able to receive affirmative decisions in numerous cases.

“The best part of my job is having the opportunity to make a difference and actually help our clients succeed in their immigration process. It is the most rewarding feeling.”

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What is the H-1B Visa? The H-1B visa is a work visa that is awarded on a lottery basis. The H-1B visa program allows American companies and/or qualifying organizations to employ foreign workers to fill specialty occupations temporarily. The foreign worker must posses a combination of education, specialized training, and/or experience that is equivalent to training acquired by the attainment of a U.S. bachelor’s or higher. The H-1B program was first enacted by Congress with the intention of helping American employers seek out distinguished foreign workers, possessing the skills and abilities necessary to perform the duties of the specialty occupation. The H-1B program has remained popular because it has allowed American employers to remain competitive and provides highly skilled foreign workers a path to permanent residence.

The provisions of the H-1B visa program allow qualified foreign workers to attain temporary employment having met specific requirements. H-1B visa recipients typically work in the STEM fields as scientists, engineers, computer programmers, software developers, business analysts, etc. although fashion models are also classified under the H-1B category.

USCIS will begin to accept H-1B cap-subject petitions for fiscal year 2017 beginning April 1, 2016. April 7, 2016 is the absolute deadline to file an H-1B cap-subject petition. Please note: employers cannot file an H-1B petition for an employee more than 6 months before the employee’s intended start date. If accepted, H-1B visa workers can begin employment by October 1st. The H-1B visa is issued for up to three years but may be extended for another three years.

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On Thursday, December 31, 2015 the Department of Homeland Security published a new proposed rule affecting highly skilled immigrant and non-immigrant workers alike. The proposed rule, introduced in last week’s federal register, aims to improve the ability of American employers to hire and retain highly skilled workers waiting to receive their employment-based lawful permanent residence in the visa bulletin backlogs. Additionally, the proposed rule aims to enhance opportunities for such workers allowing them to be more easily promoted, to accept lateral positions with their current employers, change employers, and pursue other employment. While the proposed rule is not groundbreaking, it does address important challenges employers and their highly skilled workers have faced as the law stands today and makes recommendations for such relief. The proposed rule will be open for comment until February 29, 2016.

You may remember that on November 20, 2014 the President highlighted, as part of his executive actions on immigration, that the employment-based immigration system needed to be amended to modernize, improve, and clarify immigrant and nonimmigrant visa programs in order to create more jobs, foster innovation at home, retain a highly skilled workforce that would allow the United States to compete with other countries, and to stimulate the American economy overall.  In order to modernize the employment based immigration system, USCIS would be required to work with the Department of State to modernize and simplify the immigrant visa allocation process. Part of this process would require the Department of State to make reasoned projections of employment-based immigrant visa availability on the visa bulletin, that could be relied upon by employers and their highly skilled workers.

Presently, immigrant workers from India and China are experiencing extraordinary delays in the employment-based queue for permanent residence, while other highly skilled workers are forced to wait over a five-year period to receive company sponsorship and lawful permanent residence. Furthermore, such workers are forced to remain on temporary employment-sponsored visas in the United States while waiting for an immigrant visa to become available to them. This puts the immigrant worker in a predicament giving the employer the upper hand, while restricting the employee from seeking advancement and discouraging new employment, since this would require the employer to file a new petition and incur the expensive fees required for filing. Highly skilled works facing extortionate delays in the visa backlogs have experienced hindered employer/employee career advancement and job mobility. The new rules will provide limited relief in this area.

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katie

It is our pleasure to introduce our readers to our esteemed Paralegal and Case Manager Katie Foley who has worked at the Law Offices of Jacob J. Sapochnick since 2010. Ms. Foley, originally from Santa Cruz, California holds a Bachelor’s Degree in Liberal Studies from Cal State East Bay and her paralegal certificate from San Diego Miramar College. Throughout her career, Katie Foley has assisted our attorneys with various different types of immigration petitions including family-based petitions, employment based petitions (H-1B, E-2 etc.), deferred action, marriage visas, I-751 petitions, fiancé visas, consular processing, naturalization, temporary visas (B-1/B-2, J-1, F-1 etc), deportation and removal cases.  She has successfully processed hundreds of applications and in the process has formed long standing relationships with our clients. In her role as case manager, she assists our legal assistants with their case loads and provides direction as needed. Ms. Foley is an outstanding member of our firm for her impressive attention to detail, her understanding of the law, and the extensive guidance she provides our clients to ensure every case has a successful outcome. She provides all of our client’s strong personal support and comprehensive step-by-step instructions for each immigration process. If you are an international or out of state client, not to worry, Ms. Foley has perfected an easy online case processing system to assist clients with their immigration concerns no matter where they reside. In her free time, she enjoys lap swimming, barbecues, and gardening. To read more about Ms. Foley please click here.

For immigration questions please call our office. Your Immigration is our Passion.

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The December visa bulletin was recently released by the DOS on November 9, 2015. For the month of December CIS has announced that family based applicants must use the ‘date of filing’ chart to determine when their adjustment of status applications may be filed. This means that for family based preference categories, there are presently immigrant visas available and demand has not yet been met for the fiscal year. Employment based applicants must refer to the ‘final action date’ chart as a basis for applying for adjustment of status. This means that presently there is more demand than immigrant visas available for employment based categories. For the month of December, filing dates have remained unchanged. The impact of the dual chart system will not be felt until CIS requests visa numbers from the DOS in April 2016 for adjustment of status filings based on the October Visa Bulletin. In this post we will discuss new announcements that have appeared on the December visa bulletin and projections for EB-2 India, EB-2 and EB-3 China, F-2A, and F-2B. These projections are based on guidance provided by the Chief of the Visa Control and Reporting Division, Charles Oppenheim. While they do not guarantee actual immigrant visa availability, these projections are helpful reference points.

Replacement of Foreign Affairs Manual (FAM) and New Visa Waiting List

The December visa bulletin has announced that the Foreign Affairs Manual (FAM) used internally by the Department of States will be replaced with 9 FAM-e beginning November 18, 2015. Public release of the new FAM has not yet been announced.

Additionally, a ‘Visa Waiting List’ will be released beginning with the January Visa Bulletin which will provide applicants information on the National Visa Center waiting list starting November 1, 2015.

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