Articles Posted in Professionals

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The National Interest Waiver, a subcategory of the EB-2 employment based, second preference visa, is a great option for professionals who can demonstrate possession of an advanced degree or exceptional ability in their proposed field or endeavor. The National Interest Waiver is an extremely attractive choice for those who qualify because it allows applicants to self-petition for permanent residence without having to submit a Labor Certification Application (LCA) with the Department of Labor.

It is also an interesting choice because the professions that qualify for a National Interest Waiver are not defined by statute, however, to be successful applicants must demonstrate their exceptional ability and prove that their employment in the United States would be of benefit to the nation. Without the filing of a National Interest Waiver, applicants must have employment sponsorship and their employers must go through the lengthy PERM (Program Electronic Review Management) Labor Certification process.


Why is NIW an attractive choice over traditional Labor Certification?


Simply put the National Interest Waiver takes a lot less time and is much easier to file when compared to the traditional EB-2 visa requiring labor certification. Obtaining approval of a labor certification application is no easy task. It can take anywhere from 6 months to more than 1 year to obtain approval, depending on a variety of different factors.

The PERM process is also time consuming for both the U.S. employer and the applicant, making the National Interest Waiver option extremely advantageous. For instance, during the PERM process, the U.S. employer is required to undergo a series of recruitment activities to test the labor market before filing the labor certification application. As part of these activities, the employer must go through a recruitment process where the employer must prove that there is not a sufficient number of able, qualified, and willing applicants, whether U.S. citizens or permanent residents, to fill the position. The employer must also go through an advertising period for the position and wait a mandatory 30-day period after the last advertisement runs before the PERM application can be filed.

The National Interest Waiver does away with these arduous steps, and instead allows an applicant to request a waiver of the Labor Certification process, by demonstrating that his or her proposed endeavor is in the interest of the United States. The applicant does not need employment sponsorship but must demonstrate possession of an advanced degree (master’s or bachelor’s) or exceptional ability in their field or endeavor. Exceptional ability is defined as having a degree of expertise that is significantly above that ordinarily encountered in the profession. That means that you must be prepared to prove to USCIS that you are an expert in your field and have attained a level of mastery in your field and/or achievements such that that you are considered “exceptional.”

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Welcome back to Visalawyerblog! The Department of State recently released the visa bulletin for July 2021 outlining the availability of immigrant visa numbers for the upcoming month.

Remember to stay on the lookout for the next “Chats with Charlie” on the DOS YouTube Channel, a monthly series recently launched with the State Department and Charlie Oppenheim to discuss Visa Bulletin projections.


NOTE: Adjustment of Status Filing Charts July 2021


For Family-Sponsored Filings:

Per USCIS, applicants falling within the F2A category, may use the Final Action Dates Chart in the Department of State Visa Bulletin for July 2021. While there is a cutoff date on the Dates for Filing chart, the category is “current” on the Final Action Dates chart, allowing F2A applicants to rely on it.

All other family-sponsored preference categories (other than F2A) must use the Dates for Filing chart in the Department of State Visa Bulletin for July 2021.

For Employment-Based Preference Filings:

All applicants falling under employment-based preference categories, must use the Final Action Dates chart in the Department of State Visa Bulletin for July 2021.

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We kick off the start of a brand-new week with some important information for immigrant and nonimmigrant visa applicants residing in regions currently affected by the four geographic Presidential Proclamations still in place, for non-citizens in the Schengen countries, the United Kingdom, China, Iran, Brazil, South Africa, and India.

The Presidential Proclamations, collectively known as the COVID-19 Geographic Proclamations are as follows:

  • Presidential Proclamation 10143 (Schengen Area, United Kingdom, Ireland, Brazil and South Africa)
  • Presidential Proclamation 9984 (China)
  • Presidential Proclamation 9992 (Iran)
  • Presidential Proclamation 10199 (India)

*The Schengen countries include Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

The COVID-19 Proclamations were issued early on during the pandemic to help contain the rapid spread of the Coronavirus in the United States, by limiting the entry to the United States, of non-citizen travelers who were physically present in any of the impacted regions during the 14-day period, prior to their planned entry or attempted entry to the United States.

To comply with these Proclamations, U.S. Embassies and Consulates worldwide have been unable to issue nonimmigrant and immigrant visas to those who have been physically present in any of the above mentioned 33 covered countries. But all of that has recently changed thanks to new National Interest Exception designations made by the Secretary of State for certain types of travelers.

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Welcome back to Visalawyerblog! In this post we bring you some breaking news about what you can expect to see from the Biden administration with respect to immigration in the coming days.

Tomorrow January 29th President Biden is expected to issue several important executive orders and memorandums aimed at reversing former President Trump’s damaging policies on immigration.

It is rumored that as part of these new orders, the President will be rescinding Proclamations 10014 and 10052.

As you may recall, Proclamation 10014 established a 60-day ban on the issuance of visas worldwide for a wide variety of immigrants including those who (1) were outside of the United States as of April 23rd and (2) who did not have a valid immigrant visa or official travel document as of that date.

Prior to its expiration, the President signed Proclamation 10052 to extend enforcement of Proclamation 10014 and expanded the categories of immigrants affected.


Overview of Proclamation 10014


When Proclamation 10014 was first issued on April 22, 2020, it rocked the world of immigration because of the wide variety of immigrants that were swept up in its grasp.

Among those impacted were the following classes of immigrants applying for a visa at a United States Consulate or Embassy abroad from April 23, 2020 to the present:

  • Spouses and children of green card holders (US citizens were not affected) applying at the consulate
  • Parents of US citizens applying at the consulate
  • Brothers and sisters of US citizens applying at the consulate
  • Sons and daughters (meaning over 21 years old) of US citizens applying at the consulate (children under 21 years old of US citizens were not affected)
  • Sons and daughters (meaning over 21 years old) of green card holders applying at the consulate
  • EB1A extraordinary abilities and their family applying at the consulate
  • PERM EB3, PERM EB2, NIW employment based and their family applying at the consulate
  • EB4 religious workers immigrants applying at the consulate
  • H1B and H4 dependents applying at the consulate
  • L1 and L2 applying at the consulate
  • J1 applying at the consulate  

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The nation awoke with a new President of the United States, and although President Joe Biden has been in office for less than one day, his administration is already planning sweeping immigration reforms and policy changes that will unfold throughout the coming months.

This is just the start of President Biden’s plan to reverse the numerous damaging policies and executive orders passed by the Trump administration during the past four years.

This morning, the White House issued a press release outlining President Biden’s commitment to modernize the U.S. immigration system by way of a legislative bill that will be introduced before Congress in a matter of days.

The new bill, the U.S. Citizenship Act of 2021, proposes to overhaul the current immigration system to more effectively manage and secure our country’s border.

According to the Biden administration, the purpose of the bill is to “restore humanity and American values to our immigration system….” providing “hardworking people who enrich our communities every day and who have lived here for years, in some cases for decades, an opportunity to earn citizenship.”

The bill will prioritize family reunification, address root causes of mass migration from Central America, and among other things ensure that the United States remains a refuge for those fleeing persecution.

Most importantly is the bill’s commitment to create a path to citizenship for eligible undocumented immigrants, including Dreamers and essential workers who have been on the frontline of the COVID-19 pandemic.

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Welcome back to Visalawyerblog! In today’s post, we discuss a newly released final rule announced by the United States Citizenship and Immigration Services (USCIS) on January 7, 2021.

The new rule entitled “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions,” will modify the H-1B cap selection process, amend current lottery procedures, and prioritize wages to ensure H-1B visas are awarded only to the most highly skilled foreign workers according to a new wage level selection process.

According to USCIS this new rule will only affect H-1B cap-subject petitions. It will be enforced against both the H-1B regular cap and the H-1B advanced degree exemption beginning March 9, 2021 (its effective date).

The final rule is scheduled to be published on January 8, 2021, however an advance copy has already been posted in the Federal Register for review.

Click here to view the advance copy.


When does the final rule become effective?


The final rule will become effective 60 days after its date of publication in the Federal Register (falling on March 9, 2021).


What are some of the highlights of this new rule?


The USCIS final rule creates a wage-based selection process for H-1B registrations, instead of a randomized computer generated process which is currently in place.


Ranking by Wage Level


DHS will amend regulations governing the process by which USCIS selects H-1B registrations for the filing of H-1B cap-subject petitions by generally first selecting registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level indicated on the petition, where the proffered wage equals or exceeds the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I.

The proffered wage is the wage that the employer intends to pay the beneficiary.

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A brand-new bill called the H-1B and L-1 Visa Reform Act of 2020 (S. 3770) sponsored by Republican Senator Chuck Grassley has recently surfaced. As you might have already guessed, the bill seeks to make changes to the current H-1B and L visa programs to reduce fraud and abuse within the H-1B and L visa programs, provide protections for American workers, and enforce stricter requirements for the recruitment of foreign workers. The H-1B visa program is aggressively targeted in this new piece of legislation.


Proposed Changes to the H-1B visa program


First, as it relates to the H-1B visa worker program, the bill proposes changes to existing wage requirements.

The law would require employers to pay the highest wage from three categories:

1) the locally determined prevailing wage level for the occupational classification in the area of employment

2) the median average wage for all workers in the occupational classification in the area of employment; or

3) the median wage for skill level 2 in the occupational classification found in the most recent OES survey.

Second, the bill would make changes to current law and require U.S. employers seeking to hire H-1B workers to publish job postings on a website established by the Department of Labor. After filing the labor condition application, the employer would be required to post the job on the website for at least 30 calendar days. The job posting would have to include a detailed description of the position, including the wages and other terms and conditions of employment, minimum education, training, experience, and other requirements for the position, as well as the process for applying for the position.

Third, all H-1B employers would be required to prove that they have tried to recruit American workers for jobs offered to H-1B workers. Under current law, only H-1B dependent employers (those with more than 50 full time employees of which at least 15% are H-1B employees) are required to recruit American workers for H-1B positions. This would be a drastic change in the law creating additional burdens for U.S. employers seeking to hire foreign workers with specialized skills.

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The House of Representatives has introduced a new bill called the HEROES Act, (Health and Economic Recovery Omnibus Emergency Solutions Act), that provides short term financial relief during this health crisis. In this post, we discuss who would be covered under the HEROES Act and what type of relief would be provided by the Act.

To become law, the HEROES Act will need to be approved by the Senate and signed by the President. The President has openly voiced his opposition for the bill because the bill authorizes federal funds for undocumented immigrants. The bill will likely receive push back in the Republican controlled Senate or at the very least be subject to significant changes. Nonetheless if the bill fails, it will at least provide a foundation upon which Congress can reach a compromise.


What is it?


The HEROES Act is a $3 trillion bill that would provide stimulus checks to individuals who did not previously qualify for stimulus checks under the CARES Act (Coronavirus Aid, Relief, and Economic Security), such as undocumented immigrants.


Relief for Undocumented Individuals


The HEROES Act would provide temporary relief from deportation for undocumented immigrants working in essential fields such as health care workers and allow them to apply for employment authorization throughout the period of the pandemic. In addition, unlike the CARES Act, undocumented immigrants and their families would be eligible to receive stimulus checks. The HEROES Act would allow direct payments to be issued in the amount of – $1,200 for an individual, $2,400 for joint filers, and $1,200 for up to three dependents. The HEROES Act would also authorize undocumented immigrants to be eligible for the first round of stimulus checks sent out in April. The Act also proposes additional health care benefits for immigrants who are eligible for Medicaid and would require immigration authorities to release people from immigration detention where possible.


Low-Risk Detainees


The HEROES Act would require Immigration and Customs Enforcement (ICE) to evaluate the files of detained immigrants and release those who are not subject to mandatory detention, and those who do not pose a risk to national security. In the alternative the HEROES Act would encourage ICE to pursue low-cost alternatives to detention for low-risk immigrants such as requiring detainees to wear ankle bracelet monitors.

The bill would also require detention facilities to provide detainees with free and unlimited soap, as well as phone and video call accessibility to communicate with family and legal representatives.


Expedited Processing for Foreign Medical Workers


The HEROES Act would require expedited visa and green card processing for foreign medical workers seeking to practice medicine, conduct medical research, or pursue education or training to combat COVID-19. Consulates and Embassies worldwide would also be required to prioritize visa interviews for these workers, granting emergency appointments in person or teleconference appointments. Foreign doctors who have completed residency programs in the United States would be eligible to receive permanent residence on an expedited basis. Medical professionals in H-1B status would be eligible to transfer between hospital systems without having to apply for a new visa. In addition, medical students would be eligible to transfer rotations within their host institution and would be compensated for their work throughout the pandemic. In addition, such students could work outside of their approved program so long as their work relates to fighting COVID-19.

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On May 7th just days after the President signed his controversial April 22nd executive order limiting the immigration of certain aliens to the United States for 60 days, Republican senators rallied together to urge the President to pass more immigration restrictions—this time targeting nonimmigrant foreign workers.

Republican Senators Tom Cotton of Arkansas, Ted Cruz of Texas, Chuck Grassley of Iowa, and Josh Hawley of Missouri fired off an impassioned plea to the President asking him to suspend all new guest worker visas for a period of 60 days, and certain categories of new guest worker visas for at least the next year until unemployment levels have returned to normal.

In their letter, the Senators justified their request stating that, “the United States admits more than one million nonimmigrant guest workers every year, and there is no reason to admit most such workers when our unemployment is so high.” The letter continued “given the extreme lack of available jobs for American job-seekers as portions of our economic begin to reopen, it defies common sense to admit additional foreign guest workers to compete for such limited employment.”

The Senators praised the President for passing the April 22nd proclamation but said that more needs to be done because guest worker programs “remain a serious threat to the U.S. labor market’s recovery.”

The Senators said that exceptions to the 60-day suspension should be rare and limited to time-sensitive industries such as agriculture and issued only on a case-by-case basis when the employer can demonstrate that they have been unable to find Americans to take the jobs.

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We are pleased to report the introduction of a brand-new Senate bill called the Healthcare Workforce Resilience Act, sponsored by Senators David Perdue, Todd Young, Dick Durbin, and Chris Coons. The purpose of the bill is to increase the number of health care workers available to meet the demand of the COVID 19 pandemic.

If passed, the Healthcare Workforce Resilience Act, would allow nurses and physicians with approved immigrant visas the ability to adjust their status, so that they can help our nation fight the coronavirus and have a durable immigration status.

As you know, there are currently thousands of nurses and doctors stuck overseas waiting in line for green cards to become available, despite a grave need for their services during this public health crisis. What’s worse is that many of these workers already have approved immigrant petitions but are prevented from serving our communities due to the long visa backlogs.

The bill would authorize the U.S. Citizenship and Immigration Services (USCIS) to “recapture” up to 25,000 immigrant visas for nurses and 15,000 immigrant visas for physicians. USCIS would also recapture immigrant visas for the families of these medical professionals.

These recaptured visas would be drawn from the pool of unused employment-based visas that Congress has previously authorized. These visas would be issued in order of priority date and would not be subject to the country caps. To facilitate timely action, premium processing would be applied to qualifying petitions and applications. Furthermore, the bill would direct the Department of Homeland Security and Department of State to prioritize visa appointments for fully qualified nurses and physicians to enter the United States as fast as possible.

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