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It is that time a year where employers and foreign professionals are wondering what to do after USCIS has announced to have reached the quota of H-1B visas per fiscal year. This article discusses other options available to skilled foreign workers and U.S. employers who do not want to lose their skills.
On April 7, 2016 U.S. Citizenship and Immigration Services (USCIS) announced that it has received enough H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2017. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption, also known as the master’s cap.
USCIS received over 236,000 H-1B petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption. On April 9, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.
What other options are there?
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 Powers Law Group, P.C.
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.Written by Ruby Powers on April 26, 2016 @ 12:35 pm
Filed under: Immigration Law
By Board Certified Immigration Attorney Ruby L. Powers
In 2008, when I became a licensed attorney, I worked for a firm that did almost 100% waivers. I started my immigration law firm in 2009 and a large percentage of the firm’s business is family-based immigration, focusing on consular processing and waivers. We have an impressive approval rate. Here are some highlights:
- Out of nearly a hundred of our provisional waivers since March 2013, only 2 were denied and upon opportunity to refile one of them, it was approved.
- In just the last year, 22 of our waiver clients have become legal permanent residents so far.
- We have successfully completed waivers for clients from the following countries: Mexico, Philippines, El Salvador, Honduras, India, Nigeria, Lebanon, etc
- We have had a same-sex provisional waiver approved and approved at the consulate.
- We have worked with varied and difficult fact patterns and have been successful in establishing hardship for our clients.
- We have staff specifically dedicated to waivers and have created a database of shared knowledge and the combined experience that helps us navigate a variety of waivers.
- Because of technology, we are able to accommodate people who live in other states and other countries to help them through their waiver petitions. In many cases, we never meet our clients in person. But, we can also help those that are more traditional in their means of communication including those without internet or computers.
- Many of our attorneys and our staff speak Spanish and therefore can assist many people without having to work against a language barrier. In fact, we have at least six languages spoken at our office.
We receive most of our clients from either internet sources due to our great reviews or from happy successful clients who refer their friends.
We caution people not to go to “notaries” or people who merrily “fill out forms.” Even be weary of going to an attorney who doesn’t practice a lot of immigration law as they might not be able to adequately focus on the updates and changes in immigration law and processes to successfully serve your needs.
For example, if the person you trust for your waiver and consular processing doesn’t have enough knowledge and experience, then you could get stuck in your home country or be wasting your time and money on something you don’t qualify for. We have seen this happen over and over from our consultations and cases that eventually hire us to fix a mistake. Not always, can we fix the mistake.
Remember, the end goal for this process is legal permanent residency in which the person can apply for a social security number, develop credit history for economic mobility in the US, apply for a valid driver’s license, have work authorization and ability to travel internationally as well as accrue time toward naturalization or citizenship. Many clients thank us for guiding them through this process as they had been waiting for years to legalize and were afraid to finalize it.
While applying for a waiver may seem intimidating, consulting and retaining an experienced immigration attorney with a vast knowledge and years of experience is essential to having a positive outcome.
Written by Ruby Powers on April 26, 2016 @ 11:57 am
Filed under: Immigration Law
By Claudine Umuhire Gasana, Esq. with Powers Law Group, P.C.
April 12, 2016
In the midst of the economy downturn, employees are being laid off among them foreign professionals and managers who have held non-immigrant visas for a long time are now wondering what to do to remain in status in the U.S.
One available and “self- petition” option is the E-2 non-immigrant visa status.
An E-2 investor non-immigrant status is defined as “the investor’s placing of capital, including funds and other assets, at risk in the commercial sense with the objective of generating a profit.” While this definition might seem intimidating, it is important to remember that essentially the investment must be for the purpose of establishing a new business venture or purchasing a pre-existing business.
Five requirements must be met for an E-2 Investor Visa can be approved.
- As a treaty investor, the individual must be coming to the US to invest in a new or existing enterprise– A treaty investor needs to show 50% ownership in a new or established enterprise. A treaty investor must show that he/she is in process of investing or has invested funds in a bona fide enterprise. Most people think that you have to invest the entire capital before applying for the E-2 visa. This is not accurate, you have to show considerable efforts in investing before applying for the E-2 visa and also, show that you possess the rest of the capital is substantial and at risk (unsecured).
- The investment must not be marginal: Marginal means that investor must show potential of generating revenues and hiring U.S. workers. The investor must only overcome the presumption that he/she is not establishing an enterprise to solely sponsor his or her visa or pay him/her a salary.
- The applicant must be in possession of funds that he or she will invest and the funds must be committed to the business– investor must demonstrate that the capital invested is irrevocably committed to the enterprise and subject to partial or total loss in the event that the entity fails. The funds you invest must also be your own. Donations are acceptable as long as you can provide evidence of total ownership and access to the funds. Additionally, the invested funds must be substantial in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise you are considering.
- The applicant must be able to demonstrate the source of the capital: it is very important to keep track of all the funds transferred in to the new business, keep all receipts and open the business account and use the same account in paying for expenses of the business. Tip: all expenses made (including attorney’s fees, accountant fees) for the purpose of establishing the new business entity count towards the capital invested.
- The applicant must be coming to the US to develop and direct the enterprise.
It is important to gather important documentation that can prove the previous points. The following list provides a great starting point for anyone thinking of applying for an E-2 Investor visa.
- Evidence of possession and control of investment funds: bank records, financial statements, loans, savings, promissory notes.
- Evidence of remittance of funds to the U.S.: canceled checks, bank drafts, transfers, exchange permits, receipts.
- Evidence of establishment of business in the U.S.: articles of incorporation, partnership agreements, organization and staffing charts, shares, titles, contracts, receipts licenses, leases.
- Evidence of investors’ nationality: passports, articles of incorporation of parent company, stock exchange listings.
- Evidence of investment in the U.S.: titles, receipts, contracts, loans, bank statements.
- Evidence of the substantiality of the investment: contracts, work orders, financial statements, audits, corporate tax returns.
- Evidence that the enterprise is not marginal: payroll records, payroll tax forms, personal tax returns or other evidence of personal income and assets.
- Evidence that the enterprise is a real, operating business: annual reports, catalogs, sales literature, news articles, liability insurance records, permits (inspection permits, etc.).
- Evidence of the qualifications of the prospective employee: resume, diplomas, certificates.
Additionally, it is imperative to remember that not everyone can apply to an E-2 visa. The countries found in this list are the only ones approved to apply for an E-2 visa.
Finally, E-2 visa status application can be filed through USCIS California Service Center for a change of status applications or at U.S. Consulate abroad.
Author: Claudine Umuhire Gasana, Esq.Written by Ruby Powers on April 12, 2016 @ 12:39 pm
Filed under: Immigration Law
The Expected Expansion of the Provisional Waiver (I-601A)
By Board Certified Immigration Attorney Ruby L. Powers
November 4, 2015
The Provisional Waiver (I-601A) process currently allows certain people who are present in the United States to request from U.S. Citizenship and Immigration Services (USCIS) a provisional waiver for certain unlawful presence grounds of inadmissibility prior to departing from the United States for consular processing of their immigrant visas—rather than applying for a waiver abroad after the immigrant visa interview using the Form I-601, Waiver of Grounds of Inadmissibility. The Department of Homeland Security (DHS) proposes to expand eligibility for provisional waivers to include aliens in all statutorily eligible immigrant visa categories, including family-sponsored immigrants, employment-based immigrants, certain special immigrants, and Diversity Visa program selectees, together with their derivative spouses and children. It also proposes expanding who may be considered a qualifying relative for purpose of the extreme hardship determination to include legal permanent resident spouses and parents. This has a far reaching scope and is a refreshing positive change in light of deadlocked reform and executive actions being held in litigation all year.
Before the existing and more limited provisional waiver rule was implemented in March 4, 2013, many families had to be separated for 4 to 18 months to complete a legal permanent residency process via consular processing due to an illegal entry or other grounds of inadmissibility. Before the provisional waiver, clients might have been able to stay in Mexico only 4 months due to the generous pilot program in Cd. Juarez, Mexico or in some cases wait 18 months in Honduras or longer, if an appeal was sought and in other countries there were inconsistent waiting times. Obviously, there were hesitations for families to proceed with this process for legalization.
Then the idea of the Provisional Waiver was formulated as a way to allow certain family members to apply for the waiver in the U.S., and prevent waiting and separation times abroad. The concept was proposed in January 2012 and initially opened for Federal Register comment period on January 9, 2012 and again April 2, 2012. The rule was announced January 3, 2013 and began 60 days later, on March 4, 2013.
After the Provisional Waiver program began, the Law Office of Ruby L. Powers has been able to help countless families gain legal permanent residency for family members who only need to remain out of the country for 2 to 4 weeks, sometimes for less time, to complete their consular processing. From fiscal years 2013 to 2015, 74,439 waivers were filed and of those 44,198 waivers were approved and 18,773 waivers were denied. It was such a success that the DHS would like to expand it to people in all statutorily eligible immigrant visa categories and expand the qualifying member for the waiver to spouses and citizens of legal permanent residents as well.
On November 20, 2014, DHS Secretary Jeh Johnson issued a memorandum, “Expansion of the Provisional Waiver Program,” directing U.S. Citizenship and Immigration Services (USCIS) to amend its regulations to expand access to the provisional waiver program, to provide additional guidance on the definition of “extreme hardship,” and to “consider criteria by which a presumption of extreme hardship may be determined to exist.”
Currently DHS is proposing to expand eligibility for provisional waivers to include as qualifying relatives, who can establish extreme hardship, an LPR spouse or parent, not just to U.S. citizen spouses or parents, as it currently stands. This would be in the interests of encouraging eligible aliens to complete the visa process abroad, promoting family unity, and improving administrative efficiency. The expansion of the provisional waiver program would be a welcome change. The hardships suffered by preference category families, who face the same lengthy separation from loved ones when they seek legal permanent resident status, are as equally compelling as those suffered by immediate relatives. Opening up the provisional waiver process to these individuals will offer more measurable benefits to USCIS and DOS, will further facilitate legal immigration by encouraging a more sizable group to come out of the shadows, and comports with USCIS’s goal of alleviating unnecessary familial hardships. On July 22, 2015, the Federal Register opened a 60-day public comment period on the expansion of the provisional waiver which ended September 21, 2015. As we see, the previous provisional waiver had two comment periods and took a year of discussion that was noted to the public. In this case, the expansion was noted nearly a year ago on November 20, 2014 and we greatly hope the rule will be in place in early 2016.
Additionally, the new rule may have a more concise definition of extreme hardship, the standard one must meet for a successful provisional waiver. This will allow legal practitioners to save their clients time and money by telling them what specific type of evidence is required to prove extreme hardship and accordingly streamline the process and shorten the processing times for cases filed meeting the new guidelines. Currently there are only a few cases that hold guidance and a large room for discretion which can cause varying results in the applications and outcomes.
If you may know someone who could benefit from this expanded provisional waiver, although it is not a rule yet, it is helpful to have a consultation with a qualified immigration attorney. Ideally, learn if the attorney and their firm have extensive experience with waivers. It is important to plan in advance in case freedom of information act requests, FBI background checks, and collection of other documents are necessary. Additionally, in many cases certain processes would need to be started with requisite wait times before the waiver process may begin. In some cases, preparation, research and strategy take time. Once this rule is in effect, many people will be searching for help to see how it could benefit them.
Furthermore, we would like to warn you and others about the use of people who practice law without a license. In Texas, people often called ‘notarios’ frequently persuade people needing immigration legal services that the process is simple and an attorney is not needed. In the process, they are acting illegally by providing legal advice without a license and many times put people in difficult situations that are hard to correct.
The Law Office of Ruby L. Powers has had continued success with waiver and provisional waivers reuniting families from many countries. I regularly speak locally and nationwide on the topic of waivers and am regularly consulted by other attorneys on problem cases. We have a team with many years of immigration, consular processing, and waiver experience specific to this article’s topic. We pride ourselves in quality service and helping guide clients through the arduous process to a reunification, peace of mind, greater financial and emotional stability and an improved life in the United States.Written by Ruby Powers on November 4, 2015 @ 2:14 pm
Filed under: citizenship, Consular Processing, Deportation, I-601 Waivers, I-601A Waivers, Immigration Law, Immigration Trends, pathway to citizenship
As of October 2015, DOS began issuing a visa bulletin with dual charts for each immigrant visa category. First chart reflects “Application Final Action Date” and the second chart reflects “Dates For Filing.” Applicants ought to refer to the second chart, for the date when an application for adjustment of status or NVC process may be filed; while the first chart refers to the date when a visa will actually become current and issued. This was usually done for diversity lottery visas. Advantages for being able to file an application for example a year before the visa is actually available, lies in the fact that applicants would be able to obtain work permit while they are waiting for the green card visa availability.
This new visa bulletin dynamic has caused issues/chaos and lawsuits are pending and now Government agencies are giving different policies related to its implementation. In fact, USCIS has announced that, approximately one week after DOS releases the Visa Bulletin each month; it will post an announcement on its website to inform adjustment of status applicants whether they can rely on the “filing dates” chart or the “final action dates” chart in the Visa Bulletin to determine when they can file their applications. In its announcement, USCIS states: “Unless otherwise stated on our website, the Application Final Action Date chart will be used to determine when individuals may file their adjustment of status applications.” This means that the benefits accorded by the dual charts visa bulletins might not be granted if the USCIS visa bulletin shows different charts. Read more at: http://www.uscis.gov/visabulletininfo
Immigration Attorney at Law Office of Ruby L. PowersWritten by Ruby Powers on October 20, 2015 @ 12:21 pm
Filed under: Immigration Law