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Immigration Law News
For the first time since the EB-5 program was created almost 25 years ago, the maximum number of EB-5 immigrant visas which are available for Chinese applicants for fiscal Year 2014 has been reached, while sufficient numbers for all other countries remain to ensure compliance within the annual Fiscal Year 2014 allocation. A new allocation of about 10,000 visas will be available on October 1, 2014, which is the first day of Fiscal Year 2015. As a result, there will be virtually no impact on most China EB-5 visa applicants who complete processing within the next 6 to 8 months.
For more information refer to: http://www.aila.org/content/default.aspx?docid=49890Written by Ruby Powers on September 10, 2014 @ 3:31 pm
Filed under: Immigration Law
On September 9, U.S. Citizenship and Immigration Services (USCIS) issued a policy guidance in the USCIS Policy Manual to provide comprehensive guidance on the H-3 trainees nonimmigrant visa category. The new policy guidance consolidates previous guidance on the H-3 nonimmigrant visa category, to include guidance on the background, purpose, and legal authorities of the H-3 program. It also provides guidance on the H-3 program requirements, descriptions, and restrictions, and includes a list of forms and documents for the H-3 visa petition.
http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume2-PartJ.htmlWritten by Ruby Powers on September 10, 2014 @ 3:03 pm
Filed under: Immigration Law
Alternatives to H-1B Temporary Work Visa
The H-1B visa classification allows U.S. employers (petitioners) to petition to hire foreign nationals beneficiaries) to work temporarily in specialty occupations. The term “specialty occupation” means an occupation that requires: (1) theoretical and practical application of a body of highly specialized knowledge; and, (2) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum requirement for entry into the occupation in the United States.
H-1B visas are capped per fiscal year at 65,000 for persons who hold a Bachelor’s Degree plus 20,000 for persons who hold a U.S. earned advanced degree (a Master’s degree, Professional Degree, or a PHD). There are a total of 85,000 visas available each year for persons who are being sponsored for a new employment in H-1B status. The U.S. Citizenship and Immigration Service (USCIS) begins to accept H-1B CAP applications on April 1 of each year. The start date of approved H-1B CAP applications is October 1. According to the USCIS, there were 172,500 applications filed between April 1, 2014 and when the cap closed on April 7, 2014. The rest of the applications are usually placed in the lottery system. The USCIS begins to reject the applications not selected in the beginning of June.
This limited number of available visas often causes companies to lose the opportunity to employ skilled foreign nationals in the occupations for which there are no available and skilled U.S. workers.
The good news is that there are alternatives to H-1B work visa or status. Let us explore other available temporary work visas:
H-1Bs that are not counted against the CAP
The CAP only applies to new H-1B petitions. A person is not counted against the CAP if they have already been counted against the CAP within the past six (6) years. This means that the same person can apply for H-1B with a new employer and will not be counted against the CAP.
There is also a category of H-1B petitioners who are Cap-exempt. This category includes J-1 physicians who have obtained a waiver pursuant to the State 30 program or federal program. It also includes beneficiaries of employment offers at institutions of higher education, and petitioners who are a non-profit affiliated or related to an institution of higher education.
L-1 Intracompany Transferee Visa
This type of visa allows companies with offices both in U.S. and foreign countries to transfer foreign employee to temporary work in the U.S. in executive, managerial, or specialized knowledge positions. There are no annual limits for this type of visas.
This visa category allows Canadian and Mexican citizens to temporarily enter in the U.S. work in a professional position or a Business Consultant position.
E 1/E-2- Trade or Investor Visa
This category allows citizens of foreign countries that have a treaty commerce and navigation, or a bilateral investment treaty providing for non-immigrant entries with the U.S.
The E-3 visa classification is limited to Australian Professionals. The E-3 visa is a “specialty occupation” visa similar to the H-1B visa. Therefore to be eligible for the visa, the Australian citizen must possess a bachelor’s degree or higher (or its equivalent) in the specialty and the specialty occupation must require the degree. There is a 10,500 annual limit on the E-3 visa.
The O-1 classification is suited for individuals of extraordinary ability or achievement. O-1 beneficiaries in the sciences, arts, education, business, or athletics must have extraordinary ability “demonstrated by sustained national or international acclaim.” There is no annual limit for this classification.
Students who hold F-1 status and are completing their Optional Practical Training (OPT) can extend their training period for up to 17 months, if their field of study in Science, Technology, Engineering and Mathematics. The students must work for an employer who is registered for E-verify and must be enrolled in a major included in the STEM program list.
B-1 in lieu of H-1B
This classification allows employee of a foreign company to enter in the U.S. to work temporarily for a short time for the affiliate U.S. Company. The foreign employee must occupy a professional occupation (which requires at least the attainment of a Bachelor’s degree). Also, the foreign employee can only be paid by the foreign company and must comply with other B-1/B-2 requirements.
J-1 Trainee Visa
This classification allows exchange visitor who has a foreign degree or a professional certificate and at least one year of prior related experience to obtain training for up to 18 months with a U.S. company.
This classification allows a temporary worker invited by an organization to receive instruction and training in any field of endeavor that is not designated primarily to provide productive employment.
Some of the classifications explained above only offer temporary work/trainee status for a short period of time and may entail some restrictions with regards to change of status to another classification. One should consult with an immigration attorney to better lay out a strategy suitable for one’s specific situation.
Finally, there is always an opportunity to apply for H-1B status when the next fiscal year opens and new H-1B CAP slots become available.
Author: Claudine Umuhire Gasana, Associate Attorney at the Office of Ruby L. Powers
Disclaimer: The content of this article is provided for informational purposes only and it is not intended to provide or be taken as a legal advice.
Contact us for specific analysis of your case at:
Law Office of Ruby L. Powers, P.C., 5225 Katy Freeway, Suite 202, Houston, TX 77007
Tel: (713) 589-2085
 Immigration and Nationality Act (INA) 214(i)(1) and 8 C.F.R 214.2(h)(4)(ii)Written by Ruby Powers on September 10, 2014 @ 2:52 pm
Filed under: Immigration Law
WASHINGTON (AP) — President Barack Obama is facing potential rifts with members of his own party in tough re-election contests as he barrels toward a fall fight with Republicans over his ability to change immigration policies.
If Obama takes the broadest action under consideration — removing the threat of deportation for millions of people in this country illegally — the short-term risks appear greatest for Senate Democrats in conservative-leaning states. Weeks before the November vote, they could find themselves on the hot seat for their views not only on immigration but also on Obama’s use of his presidential powers.
Wary of what could be coming, some of those lawmakers have said Obama should act with caution.
“This is an issue that I believe should be addressed legislatively and not through executive order,” said Sen. Kay Hagan, D-N.C., one of the top targets for Republicans trying to retake control of the Senate.
Sen. Mark Pryor, D-Ark., another vulnerable incumbent, said in a statement that he also is “frustrated with the partisanship in Washington. But that doesn’t give the president carte blanche authority to sidestep Congress when he doesn’t get his way.”
Such statements have immigration advocates on edge.
A coalition of advocacy groups, in a letter to congressional Democrats on Friday, said immigrant families should not have to wait until after the November elections for relief. The organizations said any attempts by Democrats to delay or dilute administrative changes “will be viewed as a betrayal of Latino and immigrant communities with serious and lasting consequences.”
The letter was released because of advocates’ concerns that leading Senate Democrats may be shifting their positions because of political considerations after previously urging Obama to act.
A spokesman for Sen. Chuck Schumer, D-N.Y., declined to say Friday whether Schumer still believes Obama should act by October, as Schumer had said before. A spokesman for Sen. Dick Durbin of Illinois, the second-ranking Democrat, said the timing of executive action on immigration was up to Obama. Senate Majority Leader Harry Reid’s spokesman had no comment on timing.
Still, Obama looks determined to move forward on his own despite the political risks for Democrats.
He is irritated by House Republicans’ inaction on immigration legislation passed last year by the Senate. The crisis over unaccompanied minors arriving in South Texas does not appear to have deterred him, and the slowdown of arrivals at the border may be shifting the issue away from the spotlight anyway.
The exact contours of Obama’s plans remain unclear.
Advocates and lawmakers who have talked with administration officials anticipate that he could expand a program that granted work permits and deferred deportation to more than 700,000 immigrants brought illegally to the U.S. as kids. It could be extended to include parents of those children, as well as parents of U.S. citizens, or potentially others — groups that could add up to perhaps 5 million people.
During a news conference this month, Obama was not specific on his immigration plans. He did say that in the absence of congressional action and in order to address the crisis involving unaccompanied youths, he had to shift resources on his own and exercise prosecutorial discretion.
“I promise you the American people don’t want me just standing around twiddling my thumbs and waiting for Congress to get something done,” Obama said.
Some GOP leaders worry that opposition to a comprehensive overhaul will harm their party in the 2016 presidential race, where Latino turnout is higher than in midterm elections. Hispanics are a fast-growing sector of the presidential electorate and backed Obama overwhelmingly in 2012.
But Republicans also see a nearer-term chance to translate Obama’s potential executive actions into electoral success in November. Republicans need to win a net of six seats in order to take control of the Senate for the remainder of Obama’s term. The GOP already is all but assured of maintaining control of the House.
As Republicans meet with voters in their districts during the summer break, lawmakers have raised alarms about the scope of Obama’s potential plans. In some cases, they are hearing clamors for impeachment in return.
“It is up to Congress to actually go back and restrain this guy,” one voter told GOP Rep. Andy Harris of Maryland at a town hall meeting on the Eastern Shore. Harris had warned that Obama could expand an existing deportation relief program to 4 million or 5 million more people, “competing with Americans for work.”
Republicans have tagged Obama as an “imperial president” who goes around Congress rather than working with lawmakers, and House Republicans have moved to sue him over it. The prospect of the president making a unilateral move on a contentious issue such as immigration has Republican consultants salivating.
“President Obama’s executive amnesty would inject adrenaline into an electorate already eager to send him a message of disapproval,” said Brad Dayspring, communications director for the National Republican Senatorial Committee.
Also problematic for Obama: His apparent plans to act on his own authority come after years of saying that he did not have the legal justification to proceed without Congress.
“If, in fact, I could solve all these problems without passing them through Congress, I would do so. But we’re also a nation of laws,” he said in November. A heckler had interrupted a speech he was giving in San Francisco, prodding him to halt deportations, which have reached record highs on Obama’s watch.
Since then the White House has apparently concluded otherwise.
Democratic pollsters argue that any executive action by Obama could give a political boost to Democrats, not just from newly energized Latino voters but from an electorate at large that would welcome any action from gridlocked Washington.
“Voters are so sick of the do-nothing Congress they don’t mind if there’s an imperial president,” said Democratic pollster Celinda Lake. “They would just like someone to get something done about something.”
Pace reported from Edgartown, Massachusetts. Follow Pace atWritten by Ruby Powers on August 18, 2014 @ 10:09 am and Werner at
Filed under: Immigration Law
If your previous period of deferred action expires before you receive a renewal of deferred action under DACA, you will accrue unlawful presence and will not be authorized to work for any time between the periods of deferred action. For this reason, USCIS encourages you to submit your request for renewal 120 days before your current period of deferred action under DACA expires.Written by Ruby Powers on February 20, 2014 @ 2:53 pm
Filed under: Deportation, education, immigration bill, Immigration Law, Immigration Trends, Legislative Reform