Articles Posted in Professionals

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What are some alternatives to the H-1B visa?

So, you’ve applied for the H-1B visa, and by now you are well aware that the cap has been reached. You may be wondering what you will do if you are not selected in the lottery. Have no fear, we have you covered on your Plan B.

In this post, we breakdown the alternatives to the H-1B visa that allow foreign nationals to live and work in the United States.

1. The O-1 “Extraordinary Ability” Visa:

This visa type is for aliens of extraordinary ability in the sciences, education, business, athletics, motion picture, television, or arts industries who have received national and/or international acclaim in their field. An alien on an O-1 visa may live and work in the United States for a period of up to three years.

In order to be eligible for this visa type you must demonstrate that you are an alien of extraordinary ability in your field. Applicants must hold an advanced degree (at least a master’s) to demonstrate a high level of expertise in their field, and have received international or national acclaim in their fields as evidenced by awards and other international or national recognitions received. Individuals who are leading experts in their fields, and have written extensively in their fields, receiving notoriety for their publications are also great candidates for the O-1 visa. Membership in prestigious professional associations which require outstanding achievements from members are extremely helpful when applying for the H-1B visa, as well as evidence of scientific, scholarly, or business-related contributions that are considered of major significance in the field.

2.TN Visa for Mexican and Canadian Nationals

Under the North American Free Trade Agreement, Canadian and Mexican nationals may apply for a TN visa to live and work in the United States. To be eligible the TN visa applicant must work in a profession approved under the NAFTA program for a U.S. employer. Dependent spouses and unmarried children under the age of 21 can live in the United States under a derivative TD visa.

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Beginning April 30, 2018 until October 31, 2018, the California Service Center (CSC) and the U.S. Customs and Border Protection (CBP) at the Blaine, Washington, Port of Entry (POE) will implement a joint 6-month pilot program for the benefit of Canadian citizens seeking entry to the United States in L non-immigrant visa status pursuant to the North American Free Trade Agreement (NAFTA).

The L-1 Visa:

The L-1 visa designation allows a foreign company to transfer an executive or manager to an existing U.S. subsidiary or parent company of the foreign entity, or allows the foreign entity to send the executive or manager to the U.S. for the purpose of establishing an affiliated subsidiary or parent company of the foreign entity (L-1A). In addition, the foreign company can transfer an employee with specialized knowledge to the U.S. on an L-1B visa. To qualify, applicants must have worked abroad for the foreign employer for at least one year within the proceeding three years.

Under the NAFTA program, Canadians can apply to receive an L visa at the border and are not required to file an L visa application with USCIS or at a U.S. Consulate abroad. Up until this point, the application procedure involved same-day processing of an L application where the worker would file Form I-129 with supporting evidence at a Class A Port of Entry to the United States, or airport pre-clearance location, where the petition would be granted or denied at the port of entry.

Pilot Program

Under the new pilot program, petitioners may file an L petition on behalf of a Canadian citizen by first submitting Form, I-129, Petition for a Nonimmigrant Worker, and supporting evidence to the California Service Center, before the Canadian citizen seeks nonimmigrant L-1 admission to the United States through the Blaine Port of Entry. Petitioners should include a cover sheet annotated with “Canadian L” to ensure quick identification of the Form I-129 and for any correspondence thereafter, such as a response to a request for evidence (RFE).

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Today April 6, 2018 the U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B general bachelor’s cap has been reached for fiscal year 2019. In addition, USCIS received more than 20,000 petitions for the advanced degree exemption.

Sometime within the next week, USCIS will conduct a random computer-generated process, known as a ‘lottery,’ to select the petitions needed to fill the 65,000-bachelor’s cap. USCIS will first randomly select the petitions that will count toward the advanced degree exemption. Unselected advanced degree petitions will then be entered into the random lottery that will be conducted to fill the 65,000-bachelor’s cap. All unselected cap-subject petitions will be rejected and in turn CIS will return the H-1B packages containing filing fees and rejection notices. CIS has not yet provided any details concerning the date the lottery will be conducted. We suspect it will occur within the next week. In the meantime, cap exempt H-1B petitions will continue to be processed including H-1B worker extensions, petitions requesting a change to the terms of an H-1B workers’ employment, and petitions requesting concurrent work for an H-1B worker.

So, what’s next?

Petitions filed with regular processing

If your employer filed your petition with regular processing, you will not know whether your petition has been selected in the lottery until late April through mid-May. Petitions filed under regular processing that were selected in the lottery will receive hard copy ‘receipt notices’ from USCIS. These notices will only be received by the attorney on file and the employer. In previous years, we began to receive these receipt notices in late April.

Receiving a receipt notice is great news. It means that you have been selected in the lottery, but it does not mean that your application has been approved. Once selected, your application will undergo adjudication, which takes several months.

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H-1B Filing Season Opens Next Week

USCIS will begin accepting H-1B petitions that are subject to the FY 2019 cap on April 2, 2018. To make sure you are prepared click here for a running checklist of supporting documents typically included in a cap-subject petition. In addition please click here to read our H-1B guide. For filing assistance, and tips on increasing your chances of approval please contact our office for a consultation. Best of luck!

Power of Attorney No Longer Accepted

Beginning March 18, 2018, the United States Citizenship and Immigration Services (USCIS) will no longer accept power of attorney signatures on forms submitted to the agency.

Now, applicants and petitioners for immigration benefits will be required to provide a valid signature on forms submitted to the agency. This prohibition will apply to forms that are filed by a corporation or other legal entity, meaning that an authorized representative or agent of the corporation or entity must be prepared to provide a valid signature on all forms submitted to USCIS.

Individuals who will remain unaffected by this new policy change are minors who are younger than the age of 14, or individuals with qualifying disabilities. USCIS will no longer allow applicants or petitioners the opportunity to correct a faulty signature, and will instead reject a form submitted without a valid signature.

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Andrew, a real estate professional and Vice President of a large real estate firm headquartered in Asia, came to our office to discuss the possibility of filing for an EB-2 National Interest Waiver. To receive a national interest waiver, the applicant must demonstrate a high level of achievements and unique skills pertaining to their position to justify a waiver of the requirements of a job offer and labor certification filing.

The challenge in Andrew’s case was the absence of demonstrated achievements in the real estate business, and various non-disclosure agreements the client had signed restricting the documentation he could provide to demonstrate his exceptional ability in the industry, based on the high net worth projects he had worked on in the real estate industry. There were however other strengths that Andrew possessed that would qualify him for the national interest waiver. Andrew possessed a law degree from his home country, a master’s degree in taxation, a master’s degree in real estate from an ivy league university, and he was licensed to practice law in the United States. In addition to possessing these advanced degrees, two of which were received in the United States, Andrew’s career in the real estate sector spanned nearly 21 years.

The difficulty however remained in that Andrew did not have many documents to present to USCIS demonstrating his achievements as an entrepreneur and real estate investor, and the projects he was working on could not be disclosed based on the confidentiality agreements he had signed. Our experienced staff and attorneys decided that the best strategy in Andrew’s case was to highlight his education and vast experience in the industry having maintained high level positions in the industry, leading international real estate teams, heading overseas real estate and property management implementation strategies across various continents, and initiating/implementing domestic real estate acquisition projects totaling more than $4 billion in investment. We are happy to report that our strategy was successful and Andrew’s national interest waiver was recently approved. Here is how we did it.

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Tis the season to file for one of the most popular visa types: The H-1B visa. Filings for cap-subject petitions will begin to be accepted by USCIS beginning April 2nd and the filing period will end on April 6, 2018. As many of you know, the odds of being selected in the H-1B visa lottery are slim, but even those who are selected in the visa lottery have to overcome yet another hurdle, the Request for Evidence. Since President Trump issued the executive order “Buy American, Hire American,” the United States Citizenship and Immigration Services (USCIS) began scrutinizing the adjudication of H-1B visa applications more closely.

Our attorneys witnessed this phenomenon first hand. The volume of requests for evidence increased significantly and USCIS began to be more demanding in the types of documentation requested to qualify for the program.

For this reason, we advise our clients and readers to be very careful this H-1B season and be mindful of the challenges they may face as they proceed with the H-1B visa process.

Common Types of RFE’s and how to avoid them:

  • Level One Wage: Executive Order “Buy American, Hire American” directs the Department of State to ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries. USCIS has increasingly issued RFEs in which the employer is paying the H-1B worker a level 1 wage. This has prompted USCIS to question why someone with a specialty occupation would be paid the level 1 wage, a wage that is typically reserved for entry-level positions and individuals who only have a basic understanding of the occupation. Thus, it would not be appropriate for someone who has an intermediate to advanced understanding of the occupation to be paid a level 1 wage. Situations in which a level 1 wage is inappropriate also include cases where the worker will take on a complex set of job duties.

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In this post, we bring you information regarding the major provisions of the Immigration Innovation Act of 2018 affecting H-1B workers and employment-based immigrants. The Immigration Innovation Act of 2018 is a piece of legislation that was recently introduced before Congress by Republican Senators Orrin Hatch and Jeff Flake on January 25, 2018.

Much of the legislation centers around the H-1B visa worker program.

The major provisions of the Immigration Innovation Act currently being proposed in Congress are as follows:

Increases the number of H-1B visas available. Section 101 of the legislation would raise the current 65,000 H-1B statutory visa cap to 85,000 with 20,000 of those visas to be set aside for applicants possessing a U.S. Master’s and above. This provision includes a market escalator up to 195,000 and de-escalator that is based on prior fiscal years, but not lower than the statutory base. 

Exemption for U.S. Masters. Section 101 includes a provision that creates an unlimited number of exemptions for individuals with a U.S. Master’s degree or above if the U.S. employer attests that it will begin green card processing for the beneficiary within one year.

H-1B Prioritization. Per Section 101, the H-1B visa lottery would be prioritized as follows in fiscal years where enough petitions have been received within the first 5 business days of the filing period of reaching the cap:

  • Individuals with a U.S. Master’s, or higher who are subject to the numerical limitations
  • Individuals who have earned a doctoral degree outside of the U.S.
  • Individuals who have earned a U.S. Bachelor’s degree or higher in a STEM field and
  • Other petitions

Penalties for Failure to Withdraw. Section 101 proposes monetary penalties and debarment for employers who have 5 or more cap-subject petitions approved in a fiscal year, where the visa holder works in the U.S. less than 25% during the first year of approval. In cases involving higher volume users where at least 20 H-1B petitions have been approved in a fiscal year the employer may not avoid penalties even if they withdraw a percentage of approved petitions.

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On Friday December 1st, a federal judge for the U.S. District Court for the District of Columbia, issued a ruling in the lawsuit, National Venture Capital Association, et.al. v. Duke, et. al, in favor of the National Venture Capital Association, an association that brought the lawsuit to challenge the government’s delay of the international entrepreneur rule. Earlier this year, the Trump administration had postponed enforcement of the international entrepreneur rule and said that it was very likely that the Obama era rule would ultimately be rescinded. The Plaintiffs in the lawsuit argued that the Department of Homeland Security unlawfully delayed enforcement of the international entrepreneur rule by circumventing the notice-and-comment rule making procedure mandated by the Administrative Procedure Act.

As you may remember the international entrepreneur rule was first published in the Federal Register on January 17, 2017. Following its publication, a notice-and-comment period was expected to begin 30 days later. The government however failed to announce such a comment period, and instead, on July 13, 2017, just days before the rule was set to go into effect, the Department of Homeland Security issued a press release indicating that implementation of the rule would be delayed until March 14, 2018, at which time the government would seek comments from the public on its plan to rescind the rule.

Federal Judge James Boasberg dealt a blow to the Trump administration in his Friday ruling, in which he agreed with the National Venture Capital Association, and ordered the Department of Homeland Security to rescind its delay of the international entrepreneur rule. The court agreed that the government bypassed the procedures of the Administrative Procedure Act to block the rule from going into effect as expected on July 17, 2017.

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Happy Thanksgiving from the Law Offices of Jacob J. Sapochnick. We give thanks to our clients for their continued trust in our office. It is our pleasure to serve you.

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Unsurprisingly, this week we learned that the Trump administration is taking further steps to toughen the process of applying for an H-1B visa extension/renewal request, and that of other highly sought-after non-immigrant work visa types filed using Form I-129 Petition for Nonimmigrant Worker such as the H, O, P, L, and R work visas. The news comes as part of the President’s ongoing plan to prioritize the employment of American workers over foreign workers, outlined in the President’s Executive Order “Buy American, Hire American.”

On October 23, 2017, the United States Citizenship and Immigration Services (USCIS) announced that the agency will be updating its adjudication policy “to ensure petitioners meet the burden of proof for a non-immigrant worker extension petition.” The change in policy specifically provides that USCIS officers will “apply the same level of scrutiny to both initial petitions and extension requests” for the H-1B visa as well as other nonimmigrant visa types.

Per USCIS, this policy will now apply to “nearly all non-immigrant classifications filed using Form I-129 Petition for Nonimmigrant Worker.” This means that all nonimmigrant worker visa renewal requests, made using Form I-129, will be subject to the same level of scrutiny that was applied during the foreign worker’s initial non-immigrant work visa request.

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