Articles Posted in Work Visas

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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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Happy Monday! Welcome back to Visalawyerblog. We start off the week with some interesting immigration updates.


USCIS Updates – ASC and Interview Appointments Scheduled on January 19th and 20th will be Rescheduled


In anticipation of the Presidential inauguration on January 20, 2021, the United States Citizenship and Immigration Services (USCIS) has announced the temporary suspension of in-person services at all field offices, asylum offices, and application support centers (ASC biometrics offices) on January 19th and January 20th to ensure the safety of employees and individuals with appointments on these dates.

Accordingly, for individuals who had appointments on these dates (either for biometrics or for an interview) USCIS will be rescheduling these appointments and sending notices with the new appointment dates.

Please keep a look out for these notices in the mail within the next few weeks.


Nationals Eligible to Participate in the H-2A and H-2B Visa Program

In other news, last week the Department of Homeland Security released the list of countries eligible to participate in the H-2A and H-2B visa programs in the Federal Register.

The H-2A and H-2B visa programs allow U.S. employers to bring foreign nationals to the United States to fill temporary agricultural and nonagricultural jobs.

Typically, USCIS approves H-2A and H-2B petitions only for nationals of countries that the secretary of Homeland Security has designated as eligible to participate in the programs.

However, USCIS may approve H-2A and H-2B petitions, including those that were pending as of the date of the Federal Register notice, for nationals of countries not on the list on a case-by-case basis only if doing so is determined to be in the interest of the United States based on the evidence submitted.

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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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Welcome back to Visalawyerblog! On behalf of our Law Office we wish you and your families a very Happy New Year. We are hopeful that the new year will bring more positive developments and new possibilities for immigrants around the world with the upcoming change in administration.

In today’s blog post we bring you more updates regarding President Trump’s recent decision to extend Presidential Proclamations 10014 and 10052 until March 31, 2021.

Following the unveiling of the new Proclamation, the Department of State issued their own announcement notifying the public that Proclamations 10014 and 10052 will continue to be enforced through March 31, 2021 in compliance with the directive.

As you know P.P. 10014 suspends the entry to the United States of certain immigrant visa applicants, while P.P. 10052 suspends the entry to the United States of certain nonimmigrant visa applicants who present a risk to the U.S. labor market during the economic recovery following the novel coronavirus outbreak.

As a result, with certain limited exceptions, immigrant visa (green card) interviews are suspended at the Consular level (as opposed to within the US) until March 31, 2020 for the following groups of people:

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Welcome back to Visalawyerblog! Happy New Year to all of our readers. We hope that you had a relaxing holiday with your loved ones. We look forward to providing you with the latest updates on immigration as we soon enter the Biden administration on January 20th.

Although Biden’s inauguration looms on the horizon, the Trump administration continues to make last minute efforts to derail the issuance of visa applications for thousands of green card applicants residing abroad.

On New Year’s Eve, President Trump signed a new proclamation extending the enforcement of his previously issued April 22nd Proclamation 10014 entitled, “Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak,” as well as Proclamation 10052 issued on June 22, 2020.

The new proclamation extends the enforcement of these previously issued Proclamations until March 31, 2021. 


P.P. 10014 Overview

As you may recall the April 22nd Proclamation (10014) imposed a 60-day ban on the issuance of visas at U.S. Consulates and Embassies abroad and limited the entry of certain classes of aliens beginning April 23, 2020 and terminating on June 22, 2020.

Pursuant to P.P. 10014, the entry of the following aliens was suspended and limited until June 22, 2020:

  • Aliens outside of the United States on the effective date of the Proclamation (April 23)
  • Aliens without an immigrant visa that was valid on the effective date of the Proclamation (April 23rd) and
  • Aliens who did not have an official travel document other than a visa on the effective date of the proclamation (April 23rd) or issued on any date thereafter that permitted him or her to travel to the United States and seek entry or admission

The order did not apply to the following classes of aliens:

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Can a social media influencer and OnlyFans model with a large online following qualify for the O-1B visa, as an individual of extraordinary ability in the arts or entertainment?

In this blog post, we share with you how our office was able to do just that despite several challenges presented to us by USCIS, in which the adjudicating officer downplayed our client’s achievements, and unnecessarily applied a narrow interpretation of the standard “fashion model” to our client who did not fit the traditional mold of a “fashion model.”

Through a detailed presentation of additional evidence, we advocated for our client and explained that although our client did not neatly fit into the traditional category of “fashion model,” she did in fact satisfy at least three of the eight criteria for O-1B, based on her extraordinary achievement as a social media influencer and model, prominence, recognition, and her lead/critical role as founder of her own successful web platform.

Here, we will share with you how we were able to overcome such challenges and ultimately obtain an approval for our client.


The Rise of Social Media Influencers

Before the social media boom, fashion models were considered the primary vehicle by which companies promoted and advertised commercial products for global audiences. For those seeking success in today’s modeling landscape, social media platforms like Instagram, TikTok, Facebook, YouTube, and Only Fans provided fertile ground for a new type of “model” to emerge – the social media influencer and “instafamous” model.

While such influencers do not fit the traditional “model” prototype, they have taken an unconventional approach to developing their social media presence, and leveraging their online presence in such a way that has enabled them to achieve and sustain an extraordinary level of achievement and recognition within their respective industries. Such influencers have been able to amass millions of followers and achieve an extraordinary level of achievement by inking lucrative brand deals, partnerships, and collaborations with some of the world’s largest companies.

There can be no doubt that the rise of the social media influencer marketing has revolutionized the way that companies do business. That is because the industry has recognized that influencers can engage and connect with their large audiences in a way that cannot be replicated through traditional media figures.

For instance, influencers build relationships with their audiences through sharing their opinions and personal stories, thereby establishing a sense of credibility and authenticity that differentiates them from most conventional models.

Those influencers that have achieved a high level of achievement in their field, by way of sustained national or international acclaim, and a degree of recognition that is substantially above that ordinarily encountered in the field, may qualify for the O-1B visa to live and work in the United States in the area of extraordinary ability.

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Welcome back to Visalaywerblog! We kick off the start of a brand new week with the release of a very interesting Question and Answer session recently published by the Department of State.

This Question and Answer session took place on December 11, 2020, by and between the Department of State and the American Immigration Lawyers Association (AILA)’s Department Liaison Committee.

The Question and Answer session addressed a broad range of visa-related questions including burning questions regarding the phased reopening of Consulates and Embassies worldwide, national interest exception procedures, expansion of visa interview waivers, information regarding visa cancellations, MRV validity, the treatment of IV applications with approved I-601A Provisional Waivers, expired immigrant visas, pandemic related delays in obtaining documents for Consular related requests, and much more.

We have rounded up the most interesting questions and responses in this post. To read the government’s complete responses to questions asked, please click here.


Phased Reopening of Routine Visa Services


Q: It is AILA’s understanding that consular posts will reopen in phases based on the following Diplomacy Strong Framework included in Appendix A.

Please confirm:

  • Are the phases and priorities listed in Appendix A still accurate, or have there been any modifications to the Diplomacy Strong framework?
  • Are the phases in Diplomacy Strong standard across posts or are they merely guidelines within which posts have some flexibility in terms of setting priorities?
  • Please confirm whether a post will always be at the same phase for both IV and NIV processing, or whether it may be at a certain phase for IV processing and a different phase for NIV processing (e.g., If Sydney is at phase 3 for IV services, must it also be at phase 3 for NIV services?).
  • While we see references to Diplomacy Strong on a variety of post websites, it is not clear what phase the post is operating under. Would DOS advise posts to share their current operating phase on their websites in order to better inform the public of what they are prioritizing?

A: Although phased reopening of routine visa services originally corresponded with phases of Diplomacy Strong, posts were instructed on November 12 that they are no longer obligated to be in a specific Diplomacy Strong phase before providing additional categories of visa services.

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Welcome back to Visalaywerblog! In this blog post we share with you an interesting new piece of legislation that will have a profound impact on the visa quota system for family-based and employment sponsored immigration.

The Fairness for High Skilled Immigrants Act (S. 386) was unanimously passed by the U.S. Senate on December 2, 2020 and sent back to the House of Representatives for approval.

At its core, the bill seeks to eliminate per-country numerical limitations for employment-based immigrants and increase per-country numerical limitations for family-sponsored immigrants.

Previously, the House of Representatives had passed its own version of the bill, but it has since been amended substantially by the Senate.

Amendments were added to Sections 8 and 9 of the bill. These changes are in addition to those amendments previously introduced by Senator Grassley on H-1B visas, Senator Perdue creating a set aside for Schedule A health care professionals and their family members, and Senator Durbin’s amendments which include a delayed effective date of the bill, transition periods for EB-2 and EB-3 immigrants, early adjustment filing provisions, and an age out protection for children.


What does the December 2020 version of this bill look like?

Among its major provisions are the following.

Green card reforms:

  • The bill would phase out employment-based per county limits on green cards: The main purpose of the legislation is to treat all employment-based immigrant visa applicants on a first-come, first-served basis without regard to birthplace. Under current law, immigrants from no single birthplace can receive more than 7% of the total number of immigrant visas or green cards issued in a year unless they would otherwise go unused. The effect of this provision is that while Indians are half the skilled employer-sponsored applicants, they receive just 10 percent of those green cards and—as a result—are nearly 90 percent of the backlogged applicants.
  • The bill would provide for an 11-year phase out period: The bill’s green card changes would take effect on October 1, 2022. For the EB-2 and EB-3 categories for non-executive level employees of U.S. businesses, the bill guarantees immigrants which are not from the top two origin countries (India and China) a certain percentage of the green cards for 9 years: year 1 (30%), year 2 (25%), year 3 (20%), year 4 (15%), years 5 and 6 (10%), and years 7 through 9 (5%). No more than 25 percent of these “reserved” green cards can go to immigrants from any single country. No more than 85 percent of the other “unreserved” green cards can go to a single country (India). In addition, a minimum of 5.75% of all EB-2 or EB-3 green cards will go to immigrants from these non-top 2 countries for 9 years prioritizing spouses and minor children of immigrants already in the United States and immigrants awaiting visas abroad.

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Welcome back to Visalawyerblog! In this blog post, we celebrate a client’s recent success story and share with you how our office was able to successfully obtain an O-1A visa approval for a jiu jitsu athlete of extraordinary ability.

First, let’s go over the O-1A visa process for individuals of extraordinary ability.

The O-1A is a perfect fit for those who can demonstrate a sustained level of national or international acclaim, as well as recognition for achievements received in their field of expertise. An O-1A applicant must demonstrate that he or she is one of a small percentage of individuals who has risen to the very top of his or her field, and that he or she will work in an area of extraordinary ability.

It is important to note that an O-1A applicant may not self-petition for their visa. A valid employer-employee relationship must exist, and the employer must petition for the applicant’s visa by filing Form I-129 with USCIS. Alternatively, a U.S. agent may file as a petitioner for an O-1 beneficiary if they are the actual employer of the beneficiary, the representative of both the employer or beneficiary, or authorized by the employer to act in place of the employer as its agent.

In general, three of eight criteria must be satisfied to successfully obtain an O-1A visa.

These criteria are as follows:

(1) Documentation of the alien’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

(2) Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

(3) Published material in professional or major trade publications or major media about the alien, relating to the alien’s work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation;

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Happy Monday! Welcome back to Visalawyerblog. We kick off the start of a brand new week with very exciting news.

We are happy to report that on October 1, 2020, Congress passed H.R. 8337, an appropriations bill that will expand the availability of premium processing service provided by the United States Citizenship and Immigration Services (USCIS) to a larger pool of applicants for immigration benefits.

The legislation calls for expansion of premium processing to most employment-based immigration applications and potentially all USCIS benefits. This move could prove enormously beneficial especially during the Coronavirus pandemic to help move cases along more quickly than ever before. Applicants who request an employment authorization document (EAD) for example can seek premium processing service along with their applications, allowing for EADs to be issued within 15 calendar days.

During this pandemic, the processing of EAD applications has slowed significantly with most taking at least 7 months or longer to be issued. This new legislation will dramatically improve processing times for those that are willing to pay for premium processing service.

Before H.R. 8337, USCIS allowed certain employment-based petitioners to request premium processing service for E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ (blanket L-1), O-1, O-2, P-1, P-2, P-3, Q-1, R-1, TN-1 and TN-2 applications for a fee of $1,440 with guaranteed processing of applications within 15 calendar days. For immigrant petitions, premium processing was available, with certain exceptions, for the employment-based first, second and third preferences (EB-1, EB-2 and EB-3).


What types of petitions will benefit from the expansion of premium processing service?

The new legislation will now allow premium processing service for:

(A) employment-based nonimmigrant petitions and associated applications for dependents of the beneficiaries of such petitions;

(B) employment-based immigrant petitions filed by or on behalf of aliens described in paragraph (1), (2), or (3) of section 203(b); [the first three employment-based preferences]

(C) applications to change or extend nonimmigrant status;

(D) applications for employment authorization; and

(E) any other immigration benefit type that the Secretary deems appropriate for premium processing.


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