Visa Lawyer Blog

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Many immigrants rallied all across the U.S. today in anticipation of the immigration bill to be unveiled by the Senate that is to deal with many immigration issues. At a rally in Washington, D.C. outside the U.S. Capitol, many thousands of immigrants and their supporters who gathered under a hot sun Wednesday to show support for proposals that would grant a pathway to citizenship for the nation’s 11 million illegal immigrants.

Organizers of the Rally for Citizenship hope they can press Congress to help. The rally featured speeches from immigration rights advocates, labor leaders, faith organizations and members of Congress working on immigration legislation. Many other rallies were organized across the country. Among them:

• In Atlanta, more than 1,000 people gathered at the Georgia Capitol, calling for an end to deportation.

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For the first time since 2008, U.S. Citizenship and Immigration Services (USCIS) has reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption.

Yesterday, on April 8, 2013, it was announced that USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption.

On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

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Just announced by USCIS, no more H1B visas for this year. U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. After today, USCIS will not accept H-1B petitions subject to the FY 2014 cap or the advanced degree exemption.

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2014 cap-subject petitions received through April 5, 2013. The agency will conduct the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process.

Also, USCIS is currently not providing the total number of petitions received, as they continue to accept filings today. USCIS will continue to accept and process petitions that are otherwise exempt from the cap.

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Most attorneys that had H1B Visas to prepare worked most of last weekend to get the files ready. The goal was to file by April 1, 2013, Monday. According to a recent update by the American Immigration Lawyers Association, the 2 Service Centers were not prepared at all for the volumes.

The California Service Center has advised AILA Liaison that it “processed and accepted mail all day” on Monday, April 1, 2013. For deliveries to the VSC, members are reporting that they are receiving confirmation of Tuesday delivery for petitions sent to the VSC (Vermont Service Center) for Monday delivery.

According to information provided by FedEx, both the CSC and the VSC experienced delivery and processing delays during the day on Monday, April 1, 2013 (are we surprised?). AILA Liaison is attempting to get further information from USCIS HQ and the service centers involved.

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Recently, the House and Senate are coming closer to reaching a deal on the sticking issues that have held up comprehensive immigration reform. In particular, the Senate has finally reached an agreement on how to handle the issue regarding visas for low skill laborers. Senator Schumer, Democrat of New York, convened a conference call on Friday night with Thomas J. Donohue, the president of the U.S. Chamber of Commerce, and Richard L. Trumka, the president of the A.F.L.-C.I.O., the nation’s main federation of labor unions, in which they agreed in principle on a guest worker program for low-skilled, year-round temporary workers.

Pay for guest workers was the last major sticking point on a broad immigration package, and one that had stalled the eight senators just before the break. The eight senators still need to sign off on the agreement between the business and labor groups, the person with knowledge of the talks said.

The accord between the influential business and labor groups all but assured that the bipartisan group of senators would introduce their broad immigration legislation in the next few weeks. Their bill, which they have been meeting about several times a week since the November election, would provide a path to citizenship for the 11 million illegal immigrants already in the country. It would also take steps to secure the nation’s borders

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We are all waiting for Immigration Reform. The proposals are very promising, and most of us can not wait. But Changing our country’s Immigration system, may come with a price. Obviously, we can not help everybody. It seems that while the focus is on Skilled Workers, the concern is that certain family categories may be affected as part of the Reform.

“Green cards are economic engines for the country,” Lindsay Graham, R-S.C., a member of the so-called Senate Gang of Eight working on immigration reform, recently told the Associated Press. “This is not a family court we’re dealing with here. We’re dealing about an economic need.”

Under Sen. Graham’s proposal, he would do away with petitions for brothers and sisters of US citizens (F4) and adult children (F1 and 3). Only family petitions for spouses and minor children would remain (IR and F2A). He said that he wants to focus on getting more skilled workers into the US and reserve family petitions only for spouses and minor children — not for siblings or adult children.

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There is less than one week left before the first day of H1B filing madness. Our office is super busy with cases to complete before the deadline. One question that comes up often is the H1B exemption for affiliation with or relation to an institution of higher education. Here is an update to an article from the previosu season. Until further guidance is issued, USCIS is temporarily applying interim procedures to H-1B non-profit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education.

During this interim period USCIS will give deference to prior determinations made since June 6, 2006, that a non-profit entity is related to or affiliated with an institution of higher education – absent any significant change in circumstances or clear error in the prior adjudication – and, therefore, exempt from the H-1B statutory cap. However, the burden remains on the petitioner to show that its organization previously received approvals of its request for H-1B cap exemption as a non-profit entity that is related to or affiliated with an institution of higher education.

Petitioners may satisfy this burden by providing USCIS with evidence such as a copy of the previously approved cap-exempt petition (i.e. Form I-129 and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, and any documentation that was submitted in support of the claimed cap exemption. Furthermore, USCIS suggests that petitioners include a statement attesting that their organization was approved as cap-exempt since June 6, 2006.

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Great update provided by AILA regarding TN Visa Admissions for Canadian Applicants. The fundamental and most valuable benefit to Canadians under NAFTA is the speed with which applications can be processed at the Port of Entry. You can arrive to the Border, present the application, pay the filing fee, and walk away with a record of admission (I-94) to evidence your newly acquired status. Unlike remote service center processing, this procedure also provides a rare opportunity to explain your application by having the chance to try to address the adjudicator’s concerns right on the spot. NAFTA frequently gives us this rare opportunity.

The North American Free Trade Agreement (NAFTA) allows certain Canadian and Mexican professionals to qualify for TN nonimmigrant classification in order to provide professional services in the United States.

A citizen of Canada may apply for TN classification concurrently with an application for admission at a U.S. Class A port-of-entry, at a U.S. airport handling international traffic, or at a U.S. pre-clearance/pre-flight station. It is not necessary for a citizen of Canada to first apply for a TN visa at a U.S. consulate outside the United States.

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I just saw this notice from USCIS and wanted to share with our readers:

U.S. Citizenship and Immigration Services (USCIS) announced today that it will begin accepting H-1B petitions subject to the Fiscal Year (FY) 2014 cap on Monday, April 1, 2013. Cases will be considered accepted on the date that USCIS receives a properly filed petition for which the correct fee has been submitted; not the date that the petition is postmarked.

The cap (the numerical limitation on H-1B petitions) for FY 2014 is 65,000. In addition, the first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degree or higher are exempt from the fiscal year cap of 65,000.

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We have received an amazing response to our last H1B Self Employment Article and we wanted to follow up with a few more tips as the H1B filing date is just around the corner.

So the bottom line, USCIS regulations require that H-1B classification be accorded a foreign national who will perform services in a specialty occupation. USCIS will not approve an H-1B petition for “speculative employment.” So, to avoid RFEs (Request for Evidence) on these issues for new and smaller company typically formed by a sole investor, it is important to prepare H-1Bs with sufficient financial and other information to show the legitimacy of the company and the need for the H-1B worker. I often include,a copy of the office bank accounts, wire transfers of money deposited in corporate bank accounts, business plans, contracts with U.S. clients, etc.

H1B as the Owner

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