MVP "Immigration Q & A Forum" - This Friday, March 6, 2015

March 2, 2015

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, DREAMers, Deferred Action for Childhood Arrivals, priority dates, the monthly visa bulletin, adjustment applications, etc., please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, March 6, 2015. Act now and submit your questions!

THANK YOU!

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.

H-2B Cap Count UPDATE – 2/13/15

February 27, 2015

The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs. There is a cap limit of 33,000 for the first half of the fiscal year and 33,000 for the second half for a total of 66,000 per year. If the cap is not reached during the first half of the fiscal year, the extra numbers are then made available for the second half.

The H-2B cap limit for first half of FY 2015 (October 1 - March 31) is 33,000. As of the last count (1/26/15) this first half cap count has been reached. Please read USCIS update below!

The H-2B cap limit for second half of FY 2015 (April 1 - September 30) is 33,000. As of the last count (2/13/15); 9,761 beneficiaries have been approved and 1,345 are pending for a total of 11,106.

*UPDATE: The congressionally mandated H-2B cap for the first half of fiscal year (FY) 2015 has been reached. Jan. 26, 2015 was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2015. The final receipt date is when USCIS received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the first half of FY 2015. This means that no cap numbers from the first half of FY 2015 will carry over to the second half of FY 2015, which begins on April 1, 2015. *USCIS Web Site

For further details read, “Cap Count for H-2B Nonimmigrants


Source of Information:

- USCIS.gov (2/19/15) Web Page

Immigration at the 2015 Oscars!

February 26, 2015

Last Sunday, February 22nd, I watched the 87th Academy Awards with millions of other viewers across the world. It was nearly over with only one award left to be given, the Oscar for Best Picture. Actor Sean Penn was brought out as the Presenter and he quickly opened the envelope! He then stated, “Who gave this son of a bitch his green card?" as he presented Mexican Director Alejandro Gonzalez Iñarritu the Oscar for Best Picture for "Birdman."

Iñarritu got the last word by dedicating the Oscar to his fellow Mexicans! In the last line of his acceptance speech he stated, "I just pray they (immigrants) can be treated with the same dignity and respect of the ones that came before and built this incredible, immigrant nation."

The “Birdman” director later told reporters about Penn's joke, "I found it hilarious. Sean and I have that kind of brutal relationship where only true friendship can survive." I will say one thing about Penn’s off color joke; at least it got us to think about how immigration affects all of us!”


Source of Information:

CNN.com, 2/23/15, article:
Sean Penn and others rile up social media at the Oscars

CNN.com, 2/23/15, article:
Oscars 2015: The winners list

Huffingtonpost.com, 2/23/15, article:
Alejandro González Iñárritu Thought Sean Penn's Green-Card Joke Was 'Hilarious'

DHS Extends Eligibility for Employment Authorization to Certain H-4 Dependent Spouses

February 25, 2015

USCIS Director León Rodríguez announced on Tuesday, February 24th, that the Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR), effective May 26, 2015.

Finalizing the H-4 employment eligibility was one of President Obama’s key elements in his immigration executive actions announced last November.

Eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who:
• Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
• Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (i.e., an extension of H1B status beyond the 6th year).

USCIS will begin accepting applications on May 26, 2015. Once USCIS approves Form I-765, Application for Employment Authorization, and the H-4 dependent spouse receives the physical Employment Authorization Document (EAD), he or she may begin working in the United States.

For further details please read the USCIS news release linked below.

To discuss your eligibility, contact an Immigration Attorney.

Note: EAD applications CANNOT be filed until May 26, 2015.


Source of Information:

USCIS.gov, 2/24/15, News Release:
DHS Extends Eligibility for Employment Authorization to Certain H-4 Dependent Spouses of H-1B Nonimmigrants Seeking Employment-Based Lawful Permanent Residence

USCIS Stakeholder Teleconference with USCIS Director León Rodríguez – 2/25/15

February 24, 2015

The United States Citizenship and Immigration Services (USCIS) will be holding a stakeholder teleconference on Wednesday, February 25, 2015 between 3:00 to 4:00pm (EST). The subject of the event will be a “Dialogue with USCIS Director León Rodríguez” and will include his introduction and a Q&A session. León Rodríguez was confirmed by the U.S. Senate in June and sworn in on July 9, 2014, as the new director of USCIS. For more information on this teleconference please review the Meeting Invitation.

Event Information:
DATE: Wednesday, February 25, 2015
TIME: 3:00 – 4:00 pm (EST)

To register for this session:
- Visit our registration page to confirm your participation
- Enter your email address and select “Submit”
- Select “Subscriber Preferences”
- Select the “Event Registration” tab
- Provide your full name and organization
- Complete the questions and select “Submit”


Source of Information:
USCIS.gov, 2/20/15, National Engagement:
- Teleconference Invitation Dialogue with USCIS Director León Rodríguez
- Meeting Invitation

BALCA Finds Employer’s Attempts to Screen U.S. Workers Insufficient

February 23, 2015

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Hardwood Floor Installer.”

Upon evaluating the Employer’s Application for Permanent Labor Certification, an Audit was issued. In this Audit Notification, the CO asked the Employer to explain why US workers were rejected. After reviewing the Audit response, the CO denied the labor certification stating the Employer rejected three US applicants for reasons that were not job related. The CO “found the rejections were based on the failure to meet the Employer’s job requirement of having two years of hardwood floor installation experience.” He discovered three of the candidates have other experience in the construction industry that he believed would meet the requirements for the job.

The Employer requested reconsideration and BALCA review. They argued the CO was wrong in judging these three candidates were qualified for the position. Even though the applicants did have experience in “general carpentry/and or construction,” they did not believe this experience was enough to meet the requirements of the Hardwood Floor Installer job. The Employer included a Business Necessity Letter in its Audit response materials. The Employer pointed out that one of the candidates did have skills in hard wood flooring installation but he did not list how he obtained that experience. The employer also provided proof to the CO of letters that they had sent to the US worker applicants asking for them to contact the company with further information on their qualifications. The Employer claimed none of them responded to the letters.

Once again, the CO denied the labor application because he thought the Employer had “unlawfully rejected US workers who were able and qualified for the job opportunity.” As the regulations provide - if a worker, during a reasonable period of time, could be trained in a particular skill, than the company does not have a legitimate basis for refusing to hire them. The CO forwarded the case to BALCA for review.

Upon review, the BALCA panel affirmed the denial because they believed the three US workers who applied for the job opportunity were rejected for reasons that were not lawful or job-related. The Board believed it was the responsibility of the Employer to find out if these applicants could have become fully trained in the position. The BALCA panel suggested that the Employer may have come closer to meeting its burden if they actually provided proof that the applicants received their letter seeking more information, i.e., they should have sent the letters via certified mail, return receipt to the potentially qualified applicants.

MVP LAW GROUP – Immigration Q&A Forum, Friday, February 20, 2015

February 20, 2015

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.


Question 1: Employment Based Immigration
Can I change my I-140 from one category to the other without being penalized? I am on EB-3 but want to change to E-B2.

Answer 1:
If you are already the recipient of an approved I-140 for the EB3 preference category, if eligible you may be able to upgrade to EB2; however, the process requires starting from the beginning of the GC process - with the test of the US Labor market, followed by the filing of the Labor Certification. At the I-140 stage, you would file under EB2, and make a request for the USCIS to recapture your earlier priority date in EB3 and apply that towards your I-140 EB2.


Question 2: Green Card
I am in the process of applying for my Green Card. Is it OK for me to switch jobs?

Answer 2:
More information is required in order to provide an accurate response. Please contact our office to schedule a consultation with an Immigration Attorney.


Question 3: H-1B CAP FY2016
If my wife has an H-1B Visa, can I apply for one under this year’s H-1B cap?

Answer 3:

Yes, if you are presently on H4 and have an offer of employment to begin 10/01/2015 and you qualify for the Specialty Occupation, then you may apply under this year’s H1B cap. Contact our office to further discuss your eligibility.


Question 4: National Visa Center
What is the National Visa Center and how are they involved in the immigration process?

Answer 4:
The National Visa Center (NVC) processes all approved immigrant visa petitions after they are received from United States Citizenship and Immigration Services (USCIS) in the Department of Homeland Security (DHS) and retains them until the cases are ready for adjudication by a consular officer abroad.


Question 5: Paperless Electronic I-9 Records
If I lost my I-94, is there any way I can obtain a new one?

Answer 5:
CBP no longer issues paper I-94 records. You may access your I-94 record and travel history yourself on the Customs and Border Protection Website.


Question 6: President Obama’s Executive Actions
Will Obama’s Executive Action on Immigration impact the wait times for Priority Dates? It seems like I have been waiting forever for my date to become current.

Answer 6:
As part of President Obama’s Executive Actions, he wants to streamline legal immigration to boost our economy and promote naturalization by:

Reducing family separation for those waiting to obtain LPR status. Due to barriers in our system, U.S. citizens and LPRs are often separated for years from their immediate relatives, while they wait to obtain their LPR status. To reduce the time these individuals are separated, DHS will expand an existing program that allows certain individuals to apply for a provisional waiver for certain violations before departing the United States to attend visa interviews.

Issuing a Presidential Memorandum on visa modernization. There are many ways in which our legal immigration system can be modernized to reduce government costs, eliminate redundant systems, reduce burdens on employers and families, and eliminate fraud. The President is issuing a Memorandum directing an interagency group to recommend areas for improvement.


Question 7: Family Based Immigration and Student Visas
I am planning to sponsor my brother and have sent in my I-130. Can he apply for student visa during this process?

Answer 7:
The answer focuses on his intent. When applying for a student visa, you are interviewed by a Consular Officer who asks you questions regarding your purpose for the visa and your intent, whether or not you have substantial ties to your home country – essentially, whether you will come back once you complete school. In order to obtain the visa, you must schedule an interview and attend that interview…in order to schedule the interview, you must complete an electronic form and submit it to the Consular Post, one of the questions listed concerns whether or not an Immigrant Petition has been filed on your behalf and whether you have any family members living in the US…to which you must answer truthfully. It would be advisable for you to contact an Immigration Attorney to further discuss your situation.


Question 8: H-1B Nonimmigrant Work Visa
Once my H-1B application is approved, do I have to return to my home country for Visa Stamping or can go to an embassy?

Answer 8:
It depends upon where you are AND whether or not an I-94 appears at the bottom of your Approval Notice, Form I-797A. If you are in the USA and applied for an H1B transfer or extension of status and an I-94 appears on your approval notice, Form I-797A, you do not need to go anywhere or do anything; however, if you plan to take a trip outside of the USA, in order to be admitted back into the USA, you will have to obtain visa stamping, it is recommended that you obtain that visa stamping in your home country. If you were in the USA in another valid status and applied for a change of status to H-1B based upon the annual CAP, then again, you do not need to go anywhere or do anything if your Approval notice displays an I-94 in the bottom right hand corner. If you applied for the visa from abroad, you will need to obtain visa stamping. To further discuss, please contact our office to schedule a consultation.


Question 9: Employment Based Immigration
A few months ago, my company began the PERM process for me. Now, they are being merged with another company. How will this affect my PERM processing?

Answer 9:
It depends. This is quite a complex issue that could affect both the PERM and I-140 processes and must be evaluated on a case-by-case basis. If the merged company took all the assets and liabilities in the merger, the new merged company is the Successor in Interest and the new merged company may continue the PERM process. It would be advisable to speak with an Immigration Attorney concerning the details of the merger.


Question 10: GC – Re-Entry Permit
If my Green Card expires while I am outside of the US, can I still re-enter the US if I have a re-entry permit?

Answer 10:
Yes, if your re-entry permit remains valid.


MVP Law Group would like to thank everyone who contributed a question or comment.

Our next “Immigration Q & A Forum” is scheduled for Friday, March 6, 2015!

Please remember to submit your questions/comments on our H1B Visa Lawyer blog!

Updated Service Center Processing Times

February 19, 2015

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on 2/11/15 with processing dates as of 12/31/14.

If you filed a petition with one of the Service Centers, please review the links below to determine the applicable processing time associated with your particular case.


California Service Center (CSC)

National Benefits Center (NBC)

Nebraska Service Center (NSC)

Texas Service Center (TSC)

Vermont Service Center (VSC)

EB-5 Immigrant Investor Program Office (IPO)


**Please be aware that the data provided above is approximately 45 days old at the time of posting.

If your petition is out-side of the normal range listed, contact USCIS (1-800-375-5283).

If you are a client of MVP Law Group and would like our assistance please contact our office.

Administrative Appeals Office (AAO) Processing Times - 2/1/15

February 18, 2015

Administrative Appeals Office (AAO) Processing Times were released with processing dates as of 2/1/15.

If you filed an appeal, please review the link below to determine the applicable processing time associated with your particular case.

Administrative Appeals Office

The processing time for an I-129 H-1B Appeal is current; for an I-129 L1 Appeal is current. The current processing time for an I-140 EB2 Appeal for an Advanced Degree Professional is current; for an I-140 EB3 Appeal for a Skilled or Professional Worker is current.

*Current = 6 months or less

**Most other cases are within USCIS's processing time goal of 6 months or less.


Source of Information:

USCIS.gov, (2/9/15), AAO Processing Times

BALCA Says CO May Order New PWD During Supervised Recruitment

February 17, 2015

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Nursery Manager.”

After reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. He wanted the Employer to submit a copy of the State Workforce Agency’s (SWA) Prevailing Wage Determination (PWD). The Employer submitted a PWD from “The Survey Group” along with a letter from this company that provided a job description which was similar to the Nursery Manager’s position, specifically, the position was titled – Nursery Technician.

The CO then informed the Employer that they would need to conduct supervised recruitment. The CO ordered the company “to obtain an updated PWD from the National Prevailing Wage Center.” The CO asserted the PWD listed on the Employer’s 9089 Form was no longer valid. As part of its response to the Supervised Recruitment, the Employer insisted that the CO did not have the authority to instruct them to obtain a new PWD. The Employer also sent a draft advertisement that included the original PWD. The CO issued a Draft Advertisement Correction because “the wage offer was lower than the current prevailing wage.” He directed them to send a new advertisement with a PWD that was equal to or surpassed the current PWD.

The Employer sent the CO a letter with their refusal to raise the wage. They resubmitted the original draft ad that included the same PWD. The CO issued a denial letter citing PERM regulation 20 CFR 656.21(f). This regulation, states “The employer shall supply the CO with the required documentation or information within 30 days of the date of the request. If the employer does not do so, the CO shall deny the application.”

The Employer then requested BALCA review. Once BALCA reviewed the case, the Board sided with the CO. The Board found the Employer failed to obtain a proper PWD from the SWA. They also believed the CO had the proper authority to request a new PWD under Supervised Recruitment. In order to accurately test the US labor market and to permit the CO to make the statutorily mandated determination that the employment of the alien in the job opportunity will not adversely affect the wages and working conditions of works in the US similarly employed, use of a current PWD rather than a stale PWD is essential. BALCA affirmed the CO’s decision to deny certification.

MVP "Immigration Q & A Forum" - This Friday, February 20, 2015

February 16, 2015

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, DREAMers, Deferred Action for Childhood Arrivals, priority dates, the monthly visa bulletin, adjustment applications, etc., please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, February 20, 2015. Act now and submit your questions!

THANK YOU!

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.

CBP Premieres New Welcome Videos for International Air Travelers

February 13, 2015

The U.S. Customs and Border Protection (CBP) process over 100 million international air travelers to the United States each year. They have released four new videos to help improve the international traveler’s experience. These videos are available in many different languages on the CBP web site. Acting Assistant Commissioner for Office of Field Operations, John P. Wagner stated, “These new videos will inform visitors and citizens on CBP procedures so travelers know what to expect prior to arriving in the United States.”

The four videos are:

Know Before You Go - This video provides advice for U.S. citizens traveling abroad.

Know Before You Visit – This video provides international visitors with information they need to know about entering the United States.

You’ve Arrived – This video details the arrival process for visitors and residents. It also gives an overview of some of the new technologies being used by the CBP.

How to Expedite Your Entry – This video helps travelers to select the technology that is right for them by explaining the difference between two types of self-service kiosks available at most major airports, Global Entry, for pre-approved members, and Automated Passport Control (APC), for everyone else.

For more details please review the CBP’s media release below.


Source of Information:

CBP.gov, 2/3/15, Media Release:
CBP Premieres New Welcome Videos for International Air Travelers