Articles Posted in Work Visas

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Now is the time to begin preparing for the upcoming H-1B visa lottery. USCIS will begin to accept H-1B cap-subject petitions for fiscal year 2019 beginning Monday, April 2, 2018. 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.

By law, a congressionally mandated cap exists which limits the issuance of H-1B visas to 65,000 per year. That is why the H-1B visa is commonly referred to as a ‘lottery’ visa.

Individuals (such as F-1 students) who hold advanced degrees (U.S. master’s or higher) are exempted from the 65,000 visa cap. Such applicant’s must demonstrate that they have obtained an American master’s degree or higher to be exempted from the cap, however only the first 20,000 petitions received by USCIS will benefit from this cap exemption. Initial H-1B petitions that are received by USCIS after that limit will count towards the regular 65,000 cap.

In order to qualify for an H-1B visa:

  • a foreign worker must possess both a theoretical or practical application of a body of highly specialized knowledge;
  • an employer-employee relationship must exist. Only a U.S. employer can petition the entry of a foreign employee by filing USCIS Form I-129 Petition for Non-immigrant Worker. An employer-employee relationship exists if the U.S. employer has the right to hire, pay, fire, supervise or control the work of the employee;
  • the foreign worker must possess a bachelor’s degree, its foreign equivalent, or relevant work experience. If the foreign worker does not have formal education, but has at least 12 years of relevant work experience related to the specialty occupation, they may still qualify for an H-1B visa;
  • the foreign worker must be employed in a specialty occupation related to their field of study. A specialty occupation is an occupation that requires a bachelor’s degree or its equivalent;
  • the foreign worker must be paid at least the prevailing wage for the specialty occupation in the area of intended employment;

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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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As you may know, Republicans and Democrats have been engaged in heated discussions regarding the future of DACA during the last few days, with Democrats threatening to send the country into a government shutdown if Republicans refused to resolve key issues regarding immigration. The debates came on the heels of the President’s deadline, giving members of Congress until March 5th to come with a plan to protect Dreamers from deportation.

The government shutdown however has been averted, but with no clear plan regarding what the Republican-led Congress plans to do to meet the President’s March 5th deadline to protect Dreamers from deportation.

On Monday, members of Congress voted to pass a measure to fund the federal government through February 8th following a brief three-day government shutdown, in which Democrats refused to vote in favor of a funding bill without Republican support for a bill that would shield Dreamers from deportation. Ultimately Democrats gave in with a majority voting for the measure largely after receiving assurances from Senate Majority Leader Mitch McConnell that an immigration bill would be brought before Congress to protect more than 700,000 Dreamers from deportation.

Although the federal government is now back in business, the fight for Dreamers and comprehensive immigration reform has just begun. Democratic Leader Chuck Schumer explained that in exchange for Democratic support of the funding bill, the Republican-led Congress has 16 days to work with Democrats to write a bill that would receive at least 60 votes in the Senate to survive, and prevent Dreamers from being at risk for deportation. At the same time Congress will have to vote on a long-term funding plan, which will not be easy given that immigration has been a hot button issue and Democrats have already shown their resistance.

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Since President Donald Trump was elected to the office of the Presidency, a lot has changed in immigration law. From the very beginning, President Trump set out to shatter the status quo with his infamous campaign slogan “Make America Great Again” and immigration was one of the targets. With the help of his campaign advisers and his larger than life personality, President Donald Trump, defeated his biggest political rival, the famed career politician Hillary Clinton. Throughout his campaign it became clear that the Donald Trump persona was not simply made for TV. Whether you agree with his policies or not, Donald Trump has proven that he is a force to be reckoned with.

As Americans headed to the polls on that fateful morning on November 8th there was a tinge of uncertainty in the air—even an odd sense of silence. For those that disagreed with President Trump’s policies, the choice was clear, but for those that had endured eight years under Barack Obama, an unfamiliar face in politics was the answer. Everyone knew Donald Trump as a wealthy real estate mogul with an affinity for the spotlight, but few knew what Donald Trump would be like as a politician, let alone President of the United States. Despite the criticism, Donald Trump became a national phenomenon, capturing the hearts and minds of the American people with his no nonsense approach to politics, and his appeal to a large and growing conservative base. From the very beginning of his presidency, Donald Trump set out to become one of the most unconventional Presidents of the modern era, using his preferred method of Tweeting to reach the American people. Although his administration is only a year old, it has been marred with scandals, dozens of firings, resignations, and abrupt departures.

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To our loyal readers and clients, we wish you and your families very safe and happy holidays. We would like to take this opportunity to thank you for your continued trust and loyalty in our office. Our clients continue to inspire us with their stories of hope, courage, and innovation. Although it is a very challenging time for immigration law due to our current political climate, we believe that our executive and legislative branches will work together to find a solution to pressing issues that have remain unresolved for so many years. We hope that in the new year, members of Congress will begin talks to pass comprehensive immigration reform, including legislation to protect Dreamers from deportation. Whatever happens in the new year, we will be here every step of the way to help you achieve your immigration goals. See you in the new year!

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Over the course of the last few weeks, our attorneys have uncovered a disturbing trend in the adjudication of H-1B petitions (both cap subject and cap-exempt) that were upgraded to premium processing service in late October through November.

As previously reported on our blog, the United States Citizenship and Immigration Services (USCIS) has been aggressively issuing requests for evidence across the board for all H-1B petitions regardless of occupation and regardless of whether the beneficiary is seeking an H-1B visa for the first time, or an extension of their status. This drastic change was prompted in part by the enforcement of the President’s executive order “Buy American, Hire” in which the President called on the service to “ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” The result was that USCIS began to issue requests for evidence focusing on the beneficiary’s wage level, questioning the petitioner regarding why the beneficiary was being paid the entry level wage, instead of a higher wage if the beneficiary’s occupation was to be considered complex.

Premium Processing Upgrades

To add insult to injury, as of late, USCIS has been issuing a huge wave of denials for H-1B cases that were recently upgraded to premium processing. In the past, it was commonplace for H-1B petitions to be upgraded to premium processing, even where a response to a request for evidence was under review by USCIS. This fiscal year, however, was a bit different than previous years, because premium processing was suspended for all H-1B petitions on April 3rd. Premium processing finally re-opened for cap-subject petitions on September 18, 2017, and for all H-1B petitions on October 3, 2017.

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11176275396_fdf69cfd1e_zOn Monday, December 4, 2017, the United States Supreme Court issued an order allowing enforcement of the President’s latest travel ban in its entirety, pending legal challenges in lower courts. In its brief order, the Court signaled its desire for the appellate court to address any challenges to the travel ban, swiftly. Justices Ruth Bader Ginsburg and Sotomayor were the only justices who would have blocked the latest travel ban from going into effect.

The court’s order means that the Trump administration may enforce all of the provisions of the President’s latest travel ban, until the federal courts hand down rulings on the constitutionality of the ban. As you may recall, non-US citizens affected by travel ban 3.0 include nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia.

The travel ban DOES NOT affect lawful permanent residents of the United States (green card holders), foreign nationals granted asylum, refugees admitted to the United States, or dual nationals traveling on a passport from a non-designated country.

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According to an internal memorandum, Immigration and Customs Enforcement (ICE) has plans to conduct a targeted enforcement operation at a national food service chain within the coming weeks. An ICE official spoke with The Daily Beast, on condition of anonymity, telling the news organization that ICE plans to conduct this operation to discourage American employers from exploiting undocumented workers by paying them low wages. Officials told the news organization that the operation will be targeting multiple locations across the United States, and that employers will likely be charged with federal offenses including harboring illegal aliens.

This move is the Trump administration’s latest attempt to deter illegal immigration through worksite enforcement actions, described by the administration as targeted operations to prosecute individuals who employ undocumented immigrants. If all goes to plan, the operation will be primarily focused on prosecuting owners of franchises who illegally employ undocumented immigrants. Sources with knowledge of the investigation have said that a preliminary investigation has already been conducted and that targets have already been chosen.

The food industry has and continues to be an industry that employs thousands of undocumented workers due to the unskilled nature of the work, and the fact that employers are able to cut costs by paying undocumented workers very low salaries. According to a 2008 Pew report, at least 10 percent of the hospitality industry is supported by the labor of undocumented immigrants. Last year, Eater reported that over 20% of all cooks working in restaurant kitchens could be undocumented. Noelle Stewart, communications manager for Define American, said that undocumented immigrants make up a crucial part of our economy in that, “they cultivate our produce; they cook our food,” she says, “the food industry wouldn’t be possible in the way it is without them.”

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The Trump administration has taken its first step toward dismantling the International Entrepreneur Rule, an Obama era program that would have given thousands of foreign entrepreneurs the opportunity to travel to the United States for a 30-month period, for the purpose of starting or scaling their start-up business enterprise in the United States.

On November 17, 2017, the Trump administration sent a notice to the Office of Management and Budget (OMB) to officially end the International Entrepreneur Rule. This notice appeared on the website of the Office of Information and Regulatory Affairs as early as Friday. At this time, the Trump administration is finalizing a draft to officially rescind the rule. Once the administration has finished reviewing the draft, it will be published in the Federal Register. It is expected that the draft to rescind the rule will be published within the next week.

After publication, a public notice and comment period will follow, as required by the Administrative Procedure Act, a process by which the government invites the public to comment on a proposed version of a government rule published in the Federal Register. Once the comment period has ended, the government responds to comments, considers feedback, and decides whether such feedback will have any influence on their decision to rescind the rule.

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As previously reported, on October 8, 2017, the United States announced the suspension of all non-immigrant visa services across U.S. Embassies and Consulates in Turkey “until further notice,” following news that a U.S. embassy official was placed under arrest without explanation and without access to counsel. This included the suspension of the issuance of: B-2 visas for temporary tourism or medical reasons, B-1 visas for temporary business visitors, F-1 student visas, E-1 treaty trader visas, E-2 treaty trader visas, and other non-immigrant visa types.

Since October 8, 2017 until just recently, no new non-immigrant visa applications were being processed in Turkey until the U.S. government could receive assurances form the Turkish government that embassy staff officials would not be detained or placed under arrest without cause, or access to counsel.

On November 6, 2017, the Department of Homeland Security and the United States Embassy in Ankara, Turkey, announced that the United States has received sufficient assurances from the Government of Turkey that employees under the diplomatic mission are not under investigation, that local staff of U.S. embassies and consulates will not be detained or arrested in connection with their official duties, and finally that the U.S. government will be notified in advance if the Turkish government plans to arrest or detain any local staff at U.S. embassies in Turkey. The announcement however provides that the United States “continues to have serious concerns about the existing cases against arrested local employees” of the Mission in Turkey and of “. . . the cases against U.S. citizens who have been arrested under [a] state of emergency.”

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