Labor Immigration Law

United States Labor Immigration Law News and Analysis

Travel Alert: Passport Validity Date May Affect Duration of Authorized Stay (I-94) Upon Entry into the U.S.

The summer has traditionally been a busy traveling season and as the summer start to approach and many of our clients and readers start making international travel plans, we see an increased flow of inquiries and consultations regarding travel and passport expiration dates.  Most often the question is, What should be the duration of the passport for purposes of (re)entering the U.S. after travel abroad?

At Least Six Months Passport Validity Required

As an initial matter, the Customs and Border Protection (“CBP”) requires that passports be valid for six months beyond the date the traveler will exit the U.S., however, the U.S. has signed agreements with a number of countries to waive this requirement.  When such an agreement is in place, the passport must be valid for the entire period of the visitor’s intended stay, but the additional six month validity period is not required.   Please read our article on the Six-Month Club for more information.

Passport Expiration Date Before Petition Expiration Date

The question then arises for travelers who are in the U.S. pursuant to a petition with a certain expiration date, such as H-1B, L-1, etc.  For example, H-1B petitions are normally issued with a validity of three (3) years and when an H-1B worker travels to the U.S., he or she would expect that upon entering the U.S., the CBP agent would provide a Form I-94 with expiration date equal to the H-1B expiration date plus ten (10) days.  However, if the passport has an expiration date which is before the H-1B petition expiration date, CBP, by regulation, should issue a Form I-94 card with expiration date equal to the passport expiration.

However, CBP is inconsistent in the application in this rule and they often disregard the earlier passport expiration date.  This, unfortunately, creates confusion among many travelers who seem to get arbitrary Form I-94 expiration dates during different travels.

By the way, CBP no longer issues paper I-94 cards upon entry into the U.S.   Effective May 2013,  the only evidence of status would be the passport stamp and status expiration date endorsement on the actual passport.   The I-94 card is electronic and can still be printed by going to https://i94.cbp.dhs.gov/.  In fact, we encourage our clients and readers to always try to print (on paper or save electronic copy for your records) their Form I-94 information any time they enter the U.S.

My I-94 Expiration Date Is The Same as My Passport Expiration and Earlier than My Petition Expiration — What Should I Do?

As discussed above, where the passport expiration date is before the petition (Form I-797) expiration date, CBP should issue Form I-94 (and endorse the passport) with expiration of status date equal to the passport expiration.  As a result, the foreign national is allowed to remain in the U.S. for a period which is shorter than the period they (and their employer) expected.   In such cases, it is important to understand the options for obtaining a Form I-94 with expiration date equal to the petition expiration.

Option 1 – Form I-94 “Correction” by CBP.  Normally, CBP allows travelers who have been issued erroneous Form I-94 cards to visit a CBP office (normally at international airports) and, after obtaining a new passport, to request that they be issued a corrected I-94 card.    This approach has worked for some of our clients in the past.  However, some CBP offices refuse to issue such corrections because, technically, the  initially issued Form I-94 had the proper expiration date.

Option 2 – Application for Extension of Status.  Alternatively, an application to extend status may be filed with U.S. Citizenship and Immigration Service (“USCIS”) to request that a new Form I-94 card be issued to match the Form I-797 petition expiration date.  This option must be pursued before the Form I-94 expiration date or the extension of status application may be denied.

Note that USCIS does not require that a passport has a validity for the entire period of requested extension of stay — all USCIS needs is a passport valid at the time of filing of the application to extend status.  8 C.F.R. § 214.1(a)(3). The passport does not have to be valid for the entire period of time requested in the extension of status application as the regulations only require that the individual “agree[s] to maintain the validity of his or her passport.”

Option 3 – Leave the U.S. and Reenter with a Renewed Passport.  Finally, the foreign national may leave the U.S. and after obtaining a new passport, travel back to the U.S.   If a U.S. visa has been issued on the passport that has expired, the foreign national should carry both the new passport and the expired passport containing the valid visa. There is no need to re-apply for a new visa unless the visa term has itself expired.

The best option would certainly depend on each individual case’s circumstances, especially whether or not the I-94 status validity date has already expired, and we certainly recommend careful analysis and review before selecting one of these options.

Consequences of Overstaying Form I-94 Expiration

It is very important to understand that any corrections of Form I-94 card, extensions of status applications or travel abroad be attempted before the Form I-94 expiration date, as issued and determined by CBP.  Overstay of the Form I-94 expiration date starts the period of unlawful presence which has severe consequences.

First, overstaying the end date of the authorized stay, as provided by the CBP officer at a port-of-entry and noted on the Form I-94 card would automatically void or cancel the visa stamp.   In addition, filing for an extension of status after I-94 expiration has a significant chance of denial.    We have been able to obtain successful “nunc pro tunc” (with retroactive date) status approvals, but not every situation may allow this kind of filing and successful approval.   Finally, overstaying the I-94 expiration by more than 180 days may trigger the 3-year ban of entering the U.S. (overstaying by more than one year may result in a 10-year ban).

Travel Preparations — Ensure Passport Has Sufficient Validity

We urge our readers and clients, especially those who plan to enter the U.S. on the basis of a USCIS-approved petition, to ensure that their passport has validity greater than the expiration date of their petition approval notice.    Also, we always recommend that when a traveler arrives into the U.S. and during border control, to verify his or her passport stamp (and later, their online Form I-94 card) expiration date, as noted by the CBP officer, and to address any questions or concern at that time with the CBP officer.    Addressing issued at a later time is usually complicated (and often, costly).

Conclusion

The status validity date stamp and endorsement in the passport is extremely important and it should be checked upon every entry into the U.S. and, ideally, while at the CBP agent station.   If you feel that you have not been issued status validity (and Form I-94) with a correct date, ask the CBP agent or ask to speak with a supervisor.  Foreign nationals should not assume that because they are entering on a visa and pursuant to a I-797 petition approval which has a certain expiration date, that the authorized period of stay in the U.S. on their passport/Form I-94 would be the same.

Our office has been able to successfully help many foreign nationals, in a variety of visa types, in either having their I-94 cards corrected or extended.  Please do not hesitate to contact us if we can be of any help.   Also, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

June 2015 Visa Bulletin – EB-2 India and China Continue to Advance Notably; EB-3 Philippines Another Major Retrogression

The U.S. State Department has just released the June 2015 Visa Bulletin which is the ninth Visa Bulletin for the FY2015 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the continued significant (5.5 months) forward movement in EB-2 India and the 12-month forward movement in EB-2 China.    EB-3 Philippines moves back again by two and a half years.

Summary of the June 2015 Visa Bulletin – Employment-Based (EB)

Below is a summary of the June 2015 Visa Bulletin with respect to the employment-based categories:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India moves forward significantly by five and a half (5.5) months to October 1, 2008.  EB-2 China moves forward by twelve (12) months to June 1, 2013.
  • EB-3 ROW and Mexico advance by six (6) weeks to February 15, 2015.   EB-3 Philippines retrogresses (again!) by over two and a half (2.5) years back to January 1, 2005.   EB-3 China moves forward by four (4) months to September 1, 2011 while EB-3 India  advances by only one (1) week to January 22, 2004.
  • The “other worker” categories for ROW and Mexico advance by six (6) weeks to February 15, 2015 while Philippines retrogresses (again) by two and a half (2.5) years back to January 1, 2005.   Other workers China moves forward by six (6) weeks to January 1, 2006 while India  advances by only one (1) week to January 22, 2004.
  • EB-5 China now has a cutoff date of May 1, 2013.

Summary of the June 2015 Visa Bulletin – Family-Based (FB)

Below is a summary of the June 2015 Visa Bulletin with respect to some family-based categories:

  • FB-1 ROW, China and India move forward by only two (2) weeks to September 1, 2007.   FB-1 Mexico moves forward by one (1) week to November 15, 1994 while FB-1 Philippines retrogresses by about five years to March 1, 2000.
  • FB-2A moves forward again, this month the forward movement is by one (1) month to October 1, 2013 for ROW, China, India and Philippines.  It remains unchanged at August 8, 2013  for Mexico.

Another EB-2 India Significant (but Slowing) Forward Movement

This month’s Visa Bulletin brings another significant forward movement in EB-2 India of five and a half months which is a bit less than last two months’ forward movements of about eight months.    Overall, EB-2 India has by about three years over the last few months so this is certain a good sign.      EB-2 India applicants with a priority date earlier than October 1, 2008 can now move forward with their applications (or expect approvals if they have already filed their I-485 applications).    However, it should be noted that the rate of forward movement is slowing down, suggesting that the Department of State may be trying to account for increasing demand in new filings and approvals in EB-2 India.

The Department of State had indicated that EB-2 India may move forward by four to six months per Visa Bulletin over the summer months  so we expect the forward movement in EB-2 India over the next few months to be similarly moderate.

EB-2 China Advances Significantly; EB-3 China Moderate Forward Movement

EB-2 China continues to advance this month.  This month’s forward movement of 12 months, combined with last month’s movement of fourteen months, are among the more significant movements in EB-2 China for some time.   EB-3 China also advances this month (after a significant retrogression two months ago) by four months.    We had noted in our earlier Visa Bulletin alerts that the demand in EB-3 China is expected to rise with the forward date movement and it now seems that the Department of State is trying to moderate the demand by retrogressing (two months ago) and then advancing gradually (last two months) the cutoff dates.

EB-5 China Cutoff Date

Based on significant demand in the EB-5 category from Chinese nationals, the Department of State had introduced a cutoff date for EB-5 China in the last month’s Visa Bulletin.   EB-5 China remains unchanged this month at May 1, 2013.   Further retrogression is also possible (not immediately expected) based on the number of demand from Chinese nationals in this category (which demand has been very strong recently).

EB-3 Philippines (Another) Major Retrogression

Unfortunately for many EB-3 Philippines applicants, the EB-3 category moves back by another two and a half years this month, in addition to last month’s retrogression by over seven years.  This is a significant retrogression caused by high demand in this category and the Department of State has indicated that additional retrogression may be needed as well.

It is important to note that EB-3/OW Philippines applicants who have a cutoff date which is current now and who would no longer be current as of June 1st to consider filing their I-485s immediately (if they are in the US) or take other steps to take advantage of the current priority date.   EB-3/OW Philippines candidates who have a priority date between July 1, 2007 and January 1, 2005 will be affected — please contact us for a consultation and analysis of your personal case situation.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the June 2015 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.

Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I-485 applications.    We are also happy to provide a free quote for preparing and filing your I-485 application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the June 2015 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

Green Card Holder and “I-327 Advised” Passport Notation – What To Do?

Lawful Permanent Residents (LPRs) who travel frequently outside of the U.S. and spend extended periods of time at a time (during a single trip or through pattern of shorter but frequent trips abroad) are often questioned at the Customs and Border Protection (CBP) U.S. port of entry about their residence and intention to remain a U.S. permanent resident.     What happens at the CBP port of entry has major implications on the ability to retain one’s green card and continue to travel freely outside of the United States as a green card holder.

Border Scrutiny on the Rise

A significant (and seemingly growing) portion of our reentry permit practice group’s first-time callers are green card holders (who do not have a reentry permit) who have been questioned at the CBP port of entry during their recent entry into the U.S.    Often such CBP interactions are unpleasant, really long and very stressful to the subject green card holder.   During this secondary CBP port of entry inspection and questioning, border officers often ask questions trying to understand the period of time spent by the green card holder outside of the U.S., in addition to the reasons for such trips and maintenance of current and future ties to the U.S.   In other words, the CBP officer is trying to establish whether the green card holder has abandoned their U.S. permanent residency.

As a result of this kind of secondary inspection, a green card holder who has spent extended period of time outside of the U.S. or has demonstrated a pattern of frequent (but not so long) travels abroad may come with a verbal or written warning that they should consider obtaining a reentry permit document – or “I-327 Advised” notation in their passport.

What is the “I-327 Advised” Passport Notation?

“I-327″ is the official form number of the reentry permit document.    When a reentry permit (which looks a little bit like a U.S. passport booklet) is issued, its official document name is “I-327.”   This is why when a CBP officer recommends a reentry permit, after observation that a green card holder is spending too much time outside of the U.S., they would write “I-327 Advised” in the passport.

The purpose of this notation is to reflect a warning that CBP has determined that the green card holder may be spending too much time outside of the U.S. and that the actual green card may be put in danger.   The notation is a recommendation by CBP to the foreign national to obtain a reentry permit in order to avoid risking their green card validity.

I Received “I-327 Advised” Notation – What Should I Do?

We recommend that you consider obtaining a reentry permit as soon as possible.  Depending on the travel plans and how long the applicant will plan on staying in the U.S., there may be a number of filing strategies.  We certainly recommend that a reentry permit is, at a minimum, filed before departing the U.S. so that during the next entry into the U.S. there will be a proof that steps have been taken to comply with the “I-327 Advised” notation.     Please see our article on Reentry Permit Timing Strategies and Considerations as it discussed important factors and requirements – including the requirement to file the actual reentry permit while the applicant is physically in the U.S. and to complete the required biometrics (which can be done in the U.S. territories only).

Green card holders who are given an “I-327 Advised” passport notation (or its verbal equivalent warning) but do not apply for a reentry permit as soon as possible and while they are in the U.S. take the risk that upon their next entry into the U.S. CBP may subject them to increased scrutiny and perhaps even consider green card abandonment proceedings.    And even if the CBP questioning does not result in more serious consequences, for most people who travel abroad frequently the ability to avoid the secondary CBP questioning  process altogether by flashing a reentry permit upon initial CBP inspection is worth the effort to obtain a I-327 reentry permit document.

Conclusion

Our office has a special reentry permit division where we handle reentry permits on a daily basis for a variety of green card applicant situations and we will be delighted to discuss and, possibly, help throughout the application process.    Please do not hesitate to contact us with any questions or comments or complete the case evaluation and quote form if we can be of any assistance with this or related immigration-related issues.  We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

Immigration Relief Options for Nepal Nationals Impacted by the Recent Disaster

After the recent earthquake in Nepal, our office is receiving a number of inquiries by Nepali nationals regarding relief options and alternatives in various U.S. immigration situations.   USCIS has also indicated that they would provide relief in a number of situations understanding that a disaster may affect the ability of an individual to maintain status in the U.S. or to otherwise comply with the relevant immigration regulations.

As a result, there are a number of options for Nepali nationals who are impacted by the recent disaster.   Please note that other foreign nationals may also be able to claim relief under these options if they can show that their ability to comply with immigration regulations has been impacted by the disaster.

Application to Extend (or Change) Status from within the U.S.

Nepali nationals can now obtain relief by having an application for extension or change of status approved after such application is filed after the authorized period of admission has expired.

Advance Parole – Expediting and Extending

USCIS permits re-parole of individuals already granted parole.  Also, extension of certain parole grants and expedited processing of advance parole applications is available.

Employment Authorization

USCIS would allow expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship.  As a result, Nepali students who are on F-1 status and would otherwise qualify for financial hardship EAD work permit can apply to do so on the basis of the disaster.   Similarly, USCIS would review favorably expedited processing of other pending EAD applications.

Fee Waivers

USCIS would entertain requests to have certain immigration fees waived based on the applicant’s inability to pay or similar hardship.

Immediate Relatives Immigrant Petitions

USCIS may permit expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs) where either the petitioner or the beneficiary are Nepali nationals impacted by the recent events.

Foreign Assistance to LPRs Stranded Overseas

USCIS and Department of State are also willing to provide assistance to Lawful Permanent Residents (LPR) who are stranded overseas without immigration documents such as green cards.

Conclusion

We applaud USCIS’ willingness to accommodate the needs of certain Nepali nationals who are impacted by the earthquake.   Our office stands ready to assist affected Nepali nationals who need help with their immigration options.  Please contact us for a free initial consultation and analysis of your options.

USCIS Completes Data Entry and Receipting of H-1B Cap Petitions

Many of our readers are aware that as of April 7, 2015, USCIS had received a sufficient number of H-1B cap-subject petitions to fill the annual H-1B quota.    As USCIS has been issuing receipt notices for the H-1B cap cases which are being selected for processing (we even are starting to see H-1B cap premium processing approvals), we wanted to provide an update as to how long will H-1B petitioners and applicants wait to hear whether their H-1B petition has been selected for processing under the H-1B cap.

H-1B Completes H-1B Petition Data Entry on May 4, 2015

USCIS has just announced that they have completed the data entry and receipting of all selected H-1B cap petitions.  This means that the last set of receipt notices are about to be sent out.   Here’s USCIS’s announcement:

USCIS announced May 4, 2015, that it has completed data entry of all fiscal year 2016 H-1B cap-subject petitions selected in our computer-generated random process. USCIS will now begin returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, the time frame for returning these petitions is uncertain. USCIS asks petitioners to not inquire about the status of submitted cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS will issue an announcement once all the petitions have been returned.

Based on this announcement, we expect that it may take another week or so to expect to receive H-1B cap receipt notices for selected cases.   Afterwards, USCIS will turn its attention to sending out the H-1B non-selection notices and document packages back.

Receipt of Rejection Packages Can Take Weeks

Please note that given the number of rejections USCIS will have to send out (~150 thousand), we expect that it may take at least several weeks before all H-1B lottery rejection packages are sent back and before knowing with certainty that a case did not make it under the H-1B cap lottery.

Was My Case Selected for Processing Under the H-1B Lottery This Year?

  • If your case was filed under premium processing and a receipt notice was not issued by now, chances are that the H-1B cap case was not selected under the lottery.
  • If your case was filed under regular processing, we should know that your case was selected under the H-1B cap lottery by mid-May.
  • If your case was filed under regular processing and we do not have news by mid-May, it is likely that your case was not selected under the H-1B cap lottery; however, the actual rejection notice may take several weeks.

Conclusion

Our office will continue to monitor developments relating to the H-1B cap  season.    For those who did not make it under the H-1B cap lottery, we have provided an article describing some common H-1B cap alternative options.     In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help with any of the H-1B visa alternative options, please feel free to contact us.

H-4 Spouse EAD Lawsuit Update: H-4 EAD Program Still on Track

Our office has been receiving a number of inquiries about a lawsuit challenging the H-4 Spouse EAD program as it is about to become effective on May 26th.    We have been monitoring this lawsuit and related developments very closely as our office is helping many H-4 Spouse EAD applicants and as of the time of this article, we believe that the H-4 EAD program will come into effect as planned on May 26th.

The Lawsuit

The lawsuit was filed last week by a group of U.S. high tech workers and seeks to block the H-4 Spouse EAD program.   The main claim in the lawsuit is that the U.S. Department of Homeland Security/USCIS do not have the authority to implement this type of a rule.     The lawsuit seeks to invalidate the H-4 Spouse EAD program.    The lawsuit is Save Jobs USA v. DHS, Civil Action No. 1:15-cv-615, United States District for District of Columbia, filed on April 23, 2015.

Immediate Impact of the H-4 EAD Lawsuit

Our attorneys, in consultation with colleagues in the field,  have reviewed and analyzed carefully the complaint and it appears that the arguments put forth in this lawsuit so far may not be sufficient for blocking of the H-4 EAD rule.   For example, the arguments in this lawsuit mirror arguments made in similar prior lawsuits challenging other similar regulations, for example, challenges to the 17-month OPT STEM work permit extension rule.    Obviously, the 17-month OPT STEM extension rule is still valid, years after its implementation.    At this time, there does not appear to be hearing scheduled on this lawsuit.

Rule Expected to Become Effective, as Planned

At this time, we do not believe that there is cause for panic among the significant numbers of H-4 EAD qualified applicants and we believe that the H-4  Spouse EAD rule will continue and will become effective as planned on May 26th.

We will continue to provide information on this rule and the pending lawsuit  as soon as we have anything to share.  Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.    We can also provide a quote for the attorney service for filing the H-4 Spouse EAD.

This Year’s H-1B Cap Has Been Reached – What Are the Alternative Visa Options?

Many of our readers are aware that as of April 7, 2015, USCIS had received a sufficient number of H-1B cap-subject petitions to fill the annual H-1B quota.  This year’s number of filings (233,000) is at an all-time high, meaning that about 1 in 3 H-1B cap applications will be selected for review.    As USCIS is starting to issue receipt notices for the H-1B cap cases which are being selected for processing (we even are starting to see H-1B cap premium processing approvals), we wanted to provide an overview of the alternative visa options for those H-1B employers and employees whose H-1Bs did not get selected under the H-1B cap lottery.

The H-1B Cap Season Numbers

This year there were 233,000 applications filed for the 85,000 available H-1B cap visas, resulting in a simple calculation of about 36% average chance than an application will be selected for processing under the H-1B cap.    U.S. master’s degree holders have higher change, while the rest of the applicants have slightly lower chance due to the way U.S. master’s degree holders’ H-1B cap cases are given priority at the lottery.   This 36% chance is significantly lower than last H-1B cap year’s 50% average chance of H-1B cap selection.     As a comparison, there were 172,500 H-1B applications filed last year (which translates to 35% more H-1B cap applications filed this year compared to last year’s H-1B cap season).

As a result,  many employers and prospective employees who wanted to take advantage of the H-1B program this year are unable to do so — either because they were unable to file between April 1st and 7th or because their application was not picked by the H-1B lottery.     We seek to describe some alternative visa options.

Alternatives to H-1B Cap Petitions

Now that the H-1B quota has been reached, we are receiving an increasing number of inquiries by both cap-subject employers and prospective employees about the alternatives for work authorization between now and October 1, 2015, when the new fiscal year’s H-1B quota would begin (as a reminder, April 1, 2016 is the earliest a cap-subject H-1B application can be filed under next year’s cap).  We describe some of the most common H-1B visa alternatives.  Note that the list is not intended to exhaust all possible visa types and scenarios pursuant to which an employee may be legally employed.  Our goal is to list some of the common options for the benefit of our clients and readers.  We are happy to discuss individual cases as part of our initial consultation.

Cap-Exempt H-1B

A number of employers may qualify to be cap-exempt and are allowed to file for H-1B petition at any time.   A cap-exempt employer is (1) an institution of higher education, (2) related or affiliated to a higher education institution nonprofit entity, or  (3) nonprofit research organization or a governmental research organization.  A cap-exemption case may be made even if the actual H-1B employer does not meet these requirements but the placement of the H-1B worker will be at the location of a cap-exempt employer.    Please see our cap-exempt H-1B employer guide.   As a result, many educational institutions, non-profit and research organizations may qualify to file cap-exempt H-1Bs.   We are happy to help evaluate whether an employer can qualify to be cap-exempt.

O-1 or P-1 Extraordinary Ability Visas

O-1 and P-1 visas are generally reserved for individuals who have extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics.  By definition, not many individuals qualify for one or both of these visa types, but where possible, an application for O-1 and/or P-1 should be prepared in lieu of H-1B.   In addition to being able to obtain work authorization pursuant to these visa types, an O-1 and/or P-1 approval may establish the basis for the subsequent application for an EB-1 category permanent residency.  Please contact us if you would like our help in evaluating your O-1 and/or P-1 visa case.

L-1 Intracompany Transferee

The L-1 visa type allows multinational companies who have presence abroad to transfer their employees from their overseas offices to their U.S. office (or to establish a new U.S. office).  This visa type is a good option for foreign employers seeking to establish or boost their U.S. presence and for foreign nationals currently employed abroad.   Foreign nationals who are currently in the U.S. generally will not qualify for L-1 visa.  An added benefit to the L-1 visa is that family members are entitled to a work authorization pursuant to L-2 status.

TN for Canadian and Mexican Professional Workers

An option available to certain Canadian and Mexican nationals in certain occupations is the TN visa classification.   It is available to citizens of Canada and Mexico who would be employed in the U.S. in one of the designated occupations.  The TN visa is not subject to a cap and can be obtained fairly easily either by applying at the border (for Canadians) or by filing a petition with USCIS.    Please see more information on the TN visa classification.

E-1/E-2 Treaty Trader or Investor

The E-1/E-2 visas allow nationals of countries with which the U.S. has trade treaties to invest an amount in the U.S. and receive an E-1 (treaty trader) or E-2 (treaty investor) visa.  See a list of treaty countries.

The E-1 treaty trader visa is suitable if the foreign national has a multinational employer who is willing to transfer them, and the company has significant trade between the foreign country and the U.S.  The employee must also have skills which are essential to the operation of the company trade.   Dependents of E-1 visa holder are eligible for work in the U.S.

The E-2 treaty investor allows foreign nationals to invest (preferably) a substantial amount in the U.S. and obtain an E-2 visa to be able to manage and direct their investment.  The amount required for investment generally varies depending on the industry (the so called, proportionality test) with more capital-intensive industries requiring more significant investment for E-2 application.   Dependents of E-2 visa holders are eligible to apply for work authorization.

F-1 Optional Practical Training (OPT) Extension or F-1 Curricular Practical Training  (CPT)

Many of the H-1B cap candidates are F-1 student visa holders who are already in the U.S. and for them there may be ways to continue to stay on F-1 status while having work authorization.    OPT holders who have completed a STEM degree (See Which Degrees are on the STEM List?) are eligible to apply for a 17-month STEM OPT extension.    There are certain requirements to qualify for the 17-month STEM OPT extension (employer must be E-Verified company, extension must be filed before the current OPT expires, and others) but this is a great way for F-1 students to continue to be able to work in the U.S.

Additionally, certain schools and F-1 degree programs allow an F-1 student to engage in employment related to their field of study under the Curricular Practical Training, CPT, program.    Availability and eligibility varies by school and program; but when available, the F-1 CPT option may allow continued employment authorization.

File for a Permanent Residency/Green Card Directly

For some employers and their foreign workers filing for an employment-based green card may be  viable option.   Normally, employers seek to hire a foreign worker on H-1B status and then the employer does a green card sponsorship.    However, it is also possible to do a green card directly, without going through the H-1B visa option.      This option may work best for foreign workers who have a master’s degree OR a bachelor’s degree and five years of experience and are nationals of a country other than China or India.   This option may work well even for holders of a bachelor’s degree from a country other than China or India.     Unfortunately, this direct green card filing option may not work so well for India or China nationals because of the significant waiting time for a visa number to become available (4-5+ years).

For example, it may be possible to secure a PERM Labor Certification approval in 9-12 months.   For many EB-2 (and even for some EB-3) candidates, the way the Visa Bulletin cutoff dates have advanced means that the second and third stages of the green card process (which also grants permission to stay in the U.S. and EAD permission to work) can be filed within a year (or possibly even less) after starting the green card process.    While the foreign national will need to be able to maintain valid status in the U.S. during this time, the direct filing of a green card may be a good alternative to simply skip the H-1B work visa filing process.     Obviously, the suitability of this option depends on a number of factors, including education, experience, country of nationality and the ability to maintain status in the U.S.     We are happy to provide a more personalized overview of this option – please contact one of our attorneys for more information.

H-1B Program Changes by Congress Possible, Although Timing is Uncertain

It has become a pattern that after every H-1B cap season ends, resulting in a high number of disappointed employers and employees who did not make it under the lottery, there is increased talk about raising the H-1B cap limit.     There are proposals and much talk here in Washington, DC about this kind of a chance in the H-1B program; however, as of this time, there is no proposal or law which would become law any time soon.    As we have done in the past, our office would continue to monitor and report on any developments relating to relief to H-1B employers and workers, so stay tuned.

Wait and File on April 1, 2016 for the FY2017 Cap

For some of our clients, waiting until April 1, 2016 to file a new cap-subject H-1B petition may be the best (or only?) option.  The H-1B visa type, although subject to some requirements, is a fairly common visa type for which many qualified employees are eligible.    As of now, and assuming any proposed immigration reform is not enacted by then, the FY2017 H-1B cap is expected to be the same as it was for the FY2016 fiscal year – 65,000 H-1B visas (plus 20,000 for holders of U.S. master’s degrees).

Conclusion

Our office will continue to monitor developments relating to the H-1B program, this and next year’s caps and the immigration proposals.   In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help with any of the H-1B visa alternative options, please feel free to contact us.

H-4 Spouse EAD – Four Major Outstanding Questions for USCIS

As our office is gearing up for May 26, 2015 when the first H-4 Spouse EAD applications under the new rule can be filed, we are still looking forward to clarifications and updates from USCIS on a number of important topics.      Here are four major issues which affect a number of H-4 EAD applicants and which issues are still outstanding as of today, about a month before the H-4 Spouse EAD applications can be filed.

When Would the Final Form I-765 (and Accompanying Instructions) be Released?

While USCIS has published the approved draft revision of Form I-765, they have not released the form for general circulation on the relevant Form I-765 website.    As our office is gearing up for a high number of H-4 Spouse EAD applications, we would like to see the revised form released for public use as soon as possible to avoid timely (and calm) H-4 Spouse EAD preparation process.     It is unclear at this time whether USCIS will accept the current version of Form I-765 for H-4 Spouse EAD filings on or after May 26th.

Would Concurrently-Filed H-4 Change of Status and H-4 Spouse EAD Applications be Approved At the Same Time?

A key question for those seeking to change status to H-4 and concurrently be able to obtain work permit is whether USCIS will be able to approve the H-4 change of status (COS) application together with the H-4 Spouse EAD application.     USCIS has indicated that they would accept concurrently filed H-4 COS and H-4 EAD applications; however, there is no much clarity on the mechanics of approval.

This situation poses a problem for applicants who are currently in status authorizing employment and are, in fact, employed.    Ideally, we hope that the H-4 COS and the H-4 EAD applications will be approved at the same time, which would ensure continued work authorization to the applicant and would eliminate disruption to the applicant’s continued employment (which can be costly to the applicant in terms of career reputation and income).

For example, an H-1B worker who is gainfully employed and seeks to transition to H-4 EAD would have to file the H-4 COS and H-4 EAD applications.    However, if the H-4 COS application is approved first while the H-4 EAD remains pending, the person will find themselves in H-4 status but without a work authorization document and they will need to stop working immediately after H-4 COS approval and refrain from working until the H-4 EAD is approved.     We are hoping that USCIS would provide guidance that H-4 COS and H-4 EAD applications which are filed concurrently will be approved at the same time; alternatively, some guidance which would ensure that H-4 EADs approved after the H-4 COS is approved would be backdated with an effective date of the H-4 change of status approval date.

Guidance on this point is critically needed because many H-4 EAD applicants may be exposed to either having to stop working or perhaps engage in a period of unauthorized employment.   We will provide updates as soon as we have any.

Would the H-4 Spouse EAD Be Allowed When the Primary H-1B Spouse Is Extending Beyond the Sixth-Year Maximum But When Part of the New H-1B Term Includes Periods of the Initial Six-Year Term?

This question applies to situations where the H-1B spouse is getting close to the sixth-year H-1B term and when the H-1B employer has filed for extension of (or extended) the H-1B term which extension includes part of the initial six-year H-1B term and H-1B time beyond the sixth-year limit based on PERM or I-140 pending for more than 365 days under AC21.    There is no question that this is permitted for H-1B extensions.

The question is whether the H-4 Spouse EAD rule will allow H-4 spouse to obtain the EAD when the H-1B spouse has a term which includes a combination of H-1B time under the initial six-year H-1B limit and additional time beyond the six-year H-1B limit under AC21.   USCIS has indicated that guidance on this point is forthcoming as part of a FAQ document.  Please stay tuned for updates.

Would International Travel When an H-4 EAD Application Remains Pending Be Permitted Without Having to Refile Another H-4 EAD Application After Return to the U.S.?

Since May 26th coincides generally with the beginning of the summer travel season, many H-4 Spouse EAD applicants have already made travel plans for the May-September period.    We know that the actual H-4 Spouse EAD application will have to include evidence of an applicant’s H-4 status in the U.S. which essentially requires the H-4 EAD applicant to be in the U.S. physically and be able to provide valid I-94 card as evidence.

The question is whether an H-4 Spouse EAD applicant can leave the U.S. after having filed the H-4 EAD application and whether such departure would affect the outcome of the H-4 EAD application and/or the validity of the H-4 EAD document, once approved.    We do not have guidance from USCIS on this point and they have indicated that they will be providing guidance.

We are hopeful that such guidance would match guidance issued in other similar EAD situations – L-2 EAD, E-2 EAD, OPT EAD – where travel during the time an EAD application remains pending does not normally affect the outcome or validity of the actual EAD application.

Conclusion

As we are getting closer to the May 26th H-4 Spouse EAD “opening day” we are hoping for smooth and clear H-4 EAD filing process, especially within the first days and weeks after May 26th.    The new rule still has a number of outstanding issues which require clarifications and we are hoping USICS will be able to provide updates over the next several days.

We will continue to provide information on this rule and answers to these questions as soon as we have anything to share.  Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.    We can also provide a quote for the attorney service for filing the H-4 Spouse EAD.

H-1B Amendment Required When Changing Jobsites – Regulatory Updates and New Compliance Guidelines

A recent Administrative Appeals Office (AAO) decision which highlighted the requirement for an H-1B amendment any time there is a change in the job site requiring a new Labor Condition Application (LCA) has created a lot of conversation in some H-1B circles and our office has been handling many inquiries, concerns and reactions to the requirements imposed by the AAO decision.        This article and the resources our office will be providing over the next weeks are aimed at clarifying the H-1B amendment requirements and providing guidance to H-1B employers (and their H-1B workers) for proper compliance.

The Recent AAO Decision – Matter of Simeio Solutions, LLC

In Matter of Simeio Solutions, LLC (PDF copy), in an April 9, 2015 decision, the AAO discussed the requirements for an H-1B amendment when there is a change in the terms of an H-1B petition  and, specifically, change in the work location noted in the underlying H-1B petition.

In this specific case, USCIS was not able to find the beneficiary at the location named on the initial LCA and on the H-1B petition (which was in the Los Angeles, CA area) and sought to revoke the H-1B petition.   In response, the petitioner indicated that the beneficiary would work at additional work sites, not named in the initial H-1B petition, and provided certified LCAs  for the new worksites – one of which was in Camarillo, CA and the other for Hoboken, NJ.   The petitioner had made the argument that the new LCA work locations are sufficient to show compliance with the H-1B regulations and that the H-1B petition should not be revoked. The California Service Center did not accept these arguments and revoked the H-1B petition.   The petitioner then appealed to the AAO.

In its decision, the AAO reviews the relevant H-1B/LCA regulations and concludes that a change in the place of employment of a beneficiary to a geographical area requiring a corresponding LCA be certified would materially change to the terms of the approved H-1B petition and this requires an amendment.   The AAO relies on the following section of the regulations:

8 CFR 214.2(h)(2)(i)(E) states (emphasis added):

The petitioner shall file an amended or new petition, with fee, with the Service Center where the original petition was filed to reflect any material changes in the terms and conditions of employment or training or the alien’s eligibility as specified in the original approved petition. An amended or new H-1C, H-1B, H-2A, or H-2B petition must be accompanied by a current or new Department of Labor determination. In the case of an H-1B petition, this requirement includes a new labor condition application.

Also, petitioners are required to notify USCIS immediately if the terms and conditions of the H-1B petition “may affect eligibility”.   8 CFR 214.2(h)(11)(i)(A) (emphasis added) states:

The petitioner shall immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility under section 101(a)(15)(H) of the Act and paragraph (h) of this section. An amended petition on Form I-129 should be filed when the petitioner continues to employ the beneficiary.

Taking these two sections of the relevant regulations, and analyzing the prevailing wage requirements for the various worksite locations, the AAO concluded that change in the worksite location may affect the eligibility under the H-1B program and, as a result, requires an amendment to be filed “immediately.”    An important note is that the AAO decision implicitly confirms that if there is a worksite location change to a new area covered by the same LCA (which is often the same Metropolitan Statistical Area, or MSA), then the requirement for an H-1B amendment would not apply.

It is important to note that the underlying case was governed by the California Service Center but this AAO decision would apply to the Vermont Service Center as well because the regulations giving rise to the decision apply to both H-1B processing service centers.

The H-1B Amendment Requirement Has Been Part of a Trend for Some Time Already

It is important to point out that this AAO decision is not a sudden change of direction.  Our office has been following closely H-1B adjudication and post-approval (site visits, consular returns, NOIR) trends coming out from both the Vermont and California Service Centers and advising clients to file H-1B amendments any time there is a change in the H-1B worksite requiring a new LCA for many months, even for well over a year.

For example, in October 2014 we wrote an extensive article (“Change in H-1B Work Location – To Amend or Not to Amend?“, October 2, 2014) about the trend in the H-1B amendment requirements coming from both Vermont and  California.    In this article we reported discussed the history of the H-1B program and the prior (and overruled by recent AAO action) guidance that an H-1B amendment is not required when the only change in the terms of the petition is a worksite location.    We wrote how this prior guidance was based on

[A]n October 23, 2003 Letter from Efren Hernandez III, Dir., Bus. and Trade Branch of USCIS, Mr. Hernandez specifically expresses guidance that H-1B amendment is not required where the H-1B worker is placed at a new location as long as there is an LCA for this new jobsite.    Over the past years, however, this guidance has been slowly and gradually superseded by a more strict interpretation of the H-1B  regulations.

In our 2014 analysis of the H-1B amendment requirement problem we also explained how in

a non-precedent AAO decision dated as of July 23, 2014, USCIS explicitly overruled the 2003 Hernandez letter and took the position that the Vermont Service Center properly revoked an H-1B petition where there was a jobsite change and LCA without an H-1B amendment filing.

The bottom line is that the Matter of Simeio Solutions, LLC decision is not a sudden change in policy or direction.   Our office had been reporting on this for a long time now and we hope that our clients and readers would find themselves with at least a bit of advance knowledge at this point and not be surprised by this new AAO decision as many appear to be.

Change in Worksite Location and H-1B Amendment – Compliance Steps for H-1B Employers

Needless to say, the recent AAO decision and the publicity it has received is causing a lot of discussion and anxiety, especially among H-1B employers who place their workers at third-party worksites.     As discussed above, our office was aware of the changing trends and we have already been providing this kind of guidance and advise for many months.    Here are some points for better compliance and less H-1B issues (such as H-1B site visits, visa stamp denials and revocations).

Anticipate and Evaluate Possible New Worksite Locations.    First, any time there is the possibility of a worksite location change during the term of an H-1B petition, the employer (and perhaps the worker) should have a process to anticipate the timing of such worksite location change, including analyzing the actual worksite change location.

H-1B Amendment Likely Not Required if New Worksite Within Same MSA or Within “Normal Commuting Distance”. The AAO decision states that “a change in the place employment of a beneficiary to a geographical area requiring a corresponding LCA be cerfified” required an H-1B amendment.  However, by implication, if there is a change in the worksite to a location within the same MSA or within a normal commuting distance, then the LCA remains valid and no H-1B amendment is required.   “Normal commuting distance” can vary depending on the area – but 20, 30 or 50 miles may be considered to be “normal commuting distance.”

File H-1B Amendment “Immediately”.    The regulations require that the H-1B employer “shall immediately notify” USCIS when there is a change in the terms of the petition – essentially, an H-1B amendment must be filed before (ideally) the new worksite location placement takes place.    Since a new LCA takes up to seven business days, the LCA and the H-1B amendment filing process should be anticipated and started at least 2-3 weeks before the new worksite location placement begins.      Even if this is not possible, the LCA/H-1B amendment should be done as soon as possible.

Late Compliance (H-1B amendment) is Better than No Compliance.   We would like to encourage H-1B employers who have not done the necessary H-1B compliance and who have relied on LCAs only for worksite changes to consider preparing and filing H-1B amendments as soon as possible.

What Kind of H-1B Cases Are in Jeopardy?   We do not know how much additional scrutiny USCIS would impose on existing petitions for worksite compliance, but mismatch between an actual worksite and H-1B petition is likely to cause H-1B visa stamp delays/denials and, ultimately, consular returns.   Similarly, H-1B site visits are likely to cause problems which would lead ultimately to a Notice of Intent to Revoke and a likely H-1B revocation.     Similarly, H-1B extensions may also face higher scrutiny to establish current compliance and status as part of the H-1B extension adjudication process.

H-1B Worksite Change/Amendments Discussion and Step-by-step Guidance – FREE Webinar

We feel that our position as having closely followed the H-1B worksite change/H-1B amendment situation over the last year or so and our advising many H-1B third-party worksite employers allows us to provide some useful guidance and compliance steps.     To accommodate the great recent demand of clarification and guidance on this issue and create a public forum for discussion, our attorneys will be conducting a free webinar focused solely on the H-1B Worksite Change/Amendments topic.

Please join us for a FREE webinar and Q&A session on the H-1B Worksite Change/Amendments topic on Monday, May 4, 2015 at 1 p.m. eastern U.S. time.    Registration is free but registration spots are limited and we expect a capacity webinar event.    Please register now to claim your spot.

Conclusion

We would like to iterate clearly that based on recent developments and trends we see,  we are recommending that H-1B amendment petitions be filed when there is a change of job location all the time and before the placing the H-1B worker at the new jobsite.     We are also happy to work with our clients to make a comprehensive compliance plan for prompt and cost-effective LCA/H-1B compliance.    H-1B employers who routinely place workers at third-party worksites should consider making such LCA/H-1B compliance plans.   Contact us to allow us to evaluate your needs and provide suggestions for compliance planning.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with analyzing or filing H-1B petitions, including amendments.

May 2015 Visa Bulletin – EB-2 India and China Continue to Advance Notably; EB-3 Philippines Major Retrogression; EB-5 China Cutoff Date

The U.S. State Department has just released the May 2015 Visa Bulletin which is the eighth Visa Bulletin for the FY2015 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the significant 7.5-month forward movement in EB-2 India and the 14-month forward movement in EB-2 China.    EB-3 Philippines moves back by seven years and EB-5 China now has a cutoff date.

Summary of the May 2015 Visa Bulletin – Employment-Based (EB)

Below is a summary of the May 2015 Visa Bulletin with respect to the employment-based categories:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India moves forward significantly by seven and a half (7.5) months to April 15, 2008.  EB-2 China moves forward by fourteen (14) months to June 1, 2012.
  • EB-3 ROW and Mexico advance by three (3) months to January 1, 2015.   EB-3 Philippines retrogresses by over seven (7) years back to July 1, 2007.   EB-3 China moves forward by four (4) months to May 1, 2011 while EB-3 India  advances by only one (1) week to January 15, 2004.
  • The “other worker” categories for ROW and Mexico advance by three (3) months to January 1, 2015 while Philippines retrogresses by over seven (7) years back to July 1, 2007.   Other workers China moves forward by three (3) months to November 15, 2005 while India  advances by only one (1) week to January 15, 2004.
  • EB-5 China now has a cutoff date of May 1, 2013.

Summary of the May 2015 Visa Bulletin – Family-Based (FB)

Below is a summary of the May 2015 Visa Bulletin with respect to some family-based categories:

  • FB-1 ROW, China and India move forward by two (2) weeks to August 15, 2007.   FB-1 Mexico moves forward by one (1) week to November 8, 1994 while FB-1 Philippines remains unchanged at February 1, 2005.
  • FB-2A moves forward again, this month the forward movement is by one (1) month to September 1, 2013 for ROW, China, India and Philippines.  It also moves forward by one (1) months to August 8, 2013  for Mexico.

Another EB-2 India Significant Forward Movement

This month’s Visa Bulletin brings another significant forward movement in EB-2 India of seven and a half months which is very similar to last month’s eight-month forward movement.  Overall, EB-2 India has advanced by well over two years over the last few months so this is certain a good sign.      EB-2 India applicants with a priority date earlier than April 15, 2008 can now move forward with their applications (or expect approvals if they have already filed their I-485 applications).

The Department of State had indicated that EB-2 India may move forward by four to six months per Visa Bulletin over the next few months so we expect the forward movement in EB-2 India over the next few months to be similarly moderate.

EB-2 China Advances Significantly; EB-3 China Moderate Forward Movement

EB-2 China continues to advance this month.  In fact, this month’s forward movement of 14 months is one of the more significant movements in EB-2 China for some time.   EB-3 China also advances (after a significant retrogression last month) by four months.   We had noted in our earlier Visa Bulletin alerts that the demand in EB-3 China is expected to rise with the forward date movement and it now seems that the Department of State is trying to moderate the demand by retrogressing (last month) and then advancing gradually (this month) the cutoff dates.

EB-5 China Cutoff Date

Based on significant demand in the EB-5 category from Chinese nationals, the Department of State has introduced a cutoff date for EB-5 China.     Further retrogression is also possible (not immediately expected) based on the number of demand from Chinese nationals in this category (which demand has been very strong recently).

EB-3 Philippines Major Retrogression

One significant development is the major retrogression in EB-3 and Other Workers Philippines.   The cutoff dates for these categories are set to move back by over seven years — from October 2014 back to July 2007.   This is a significant retrogression caused by high demand in this category.

It is important to note that EB-3/OW Philippines applicants who have a cutoff date which is current now and who would no longer be current as of May 1st to consider filing their I-485s immediately (if they are in the US) or take other steps to take advantage of the current priority date.   EB-3/OW Philippines candidates who have a priority date between October 1, 2014 and July 1, 2007 will be affected — please contact us for a consultation and analysis of your personal case situation.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of a current (or close to current) priority date.   Those applicants whose priority dates are current as of the May 2015 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.

Please do not hesitate to contact us if our office can help you take advantage of this (very time-sensitive for some) opportunity to file I-485 applications.    We are also happy to provide a free quote for preparing and filing your I-485 application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the May 2015 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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