MVP LAW GROUP – Immigration Q&A Forum, Friday, October 24, 2014

October 24, 2014

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
I am currently awaiting my green card. My spouse’s Green card was approved, yet my case is still pending and I am the primary applicant. Both filed at the same time. My wife’s case was filed as dependent, mine under EB2, Employment based. When do you think I will receive my green card?

Answer #1
Was a Request for Evidence issued on your case? It is possible that your case has just been overlooked. Contact the USCIS to determine the expected time frame of when the USCIS expects to make a decision on the case. Try contacting the USCIS at 1-800-375-5283 to initiate a Service Request. If you require assistance, please contact our office to set up a consultation.


Question #2 – H-1B Nonimmigrant Work Visa
My Long pending H1B visa petition was returned by Chennai Visa consulate. I am a retired ex-serviceman (Indian Navy) and my petition for H1B visa for "Software Programmer" was approved by USCIS in June 2013. However, the petition was returned to USCIS by Chennai Consulate in November 2013. Until today, I have not received any confirmation from USCIS for receipt of returned petition. Is my past military service to do anything with this extraordinary delay? Please note that I have B1 visa.

Answer #2
Are you still in contact with your sponsoring employer? Have you checked with them to see if they have received a Notice of Intent to Revoke from the USCIS? Did your employer have an Attorney? Contact our office to schedule a consultation.


Question #3 - H-1B Nonimmigrant Work Visa
I hold an H4 visa and I am currently looking for a consultant position from a U.S. employer that sponsors H1B visas holders. I want an H1B visa. Is there a cut-off date for submission of an H-1B application for the year 2014 and 2015?

Answer #3
If you have never before been in H-1B visa status, then YES, any H1B petition filed on your behalf will be subject to the annual quota. Each fiscal year, beginning on April 1, 65,000 visas are available for those who qualify for ‘Specialty Occupations.’ An additional 20,000 are reserved exclusively for those who graduate from U.S. Universities with Master’s degrees. In years past, the annual quota was filled within a week of being open. Although you are able to submit your H-1B petition as of April 1, if selected and approved, authorized H-1B employment will not begin until October 1 of the same year. The annual quota for years 2014 and 2015 has been reached. We are now getting ready for the FY2016 H1B Cap, opening April 1, 2015.


Question # 4 – Advance Parole/Travel
My parents came to US on B1/B2 in March 2014. In July (after 3 Months), we filed concurrent applications for green cards. Their I-94 expired on 09/17/2014. Their AP has been approved now while I-485 and I-130 are still processing. Fingerprinting is also done. Is it safe for them to visit India for 2 Weeks to attend a wedding?

Answer #4
Although they have been granted the Advance Parole document providing them permission to travel outside of the U.S. while their I-130 and I-485 remain pending, it has been my practice to advice clients not to travel under these circumstances unless it is absolutely necessary. Please contact our office to further discuss the potential issues involved with traveling abroad while the Immigrant Petition and AOS application remain pending.


Question #5 – Immigrant Petition for Alien Worker, Form I-140
I got an approved H-1B visa in September 2012. When can I apply for I-140? Do I have to wait until H-1B expires after 2 years or I can apply right now?

Answer #5
Your employer would need to initiate the Green Card process on your behalf, which starts with the filing of the Labor Application with the Department of Labor after sufficient recruitment has been conducted. You should speak with your employer concerning whether employment based green card sponsorship is available within your company. As far as timing is concerned, it is recommended that you begin the Green Card process well before your 5th /6th year of H-1B status in order to take advantage of the H-1B extensions available under AC21 Law due to the unavailability of visa numbers.


Question #6 – F1, Student Status
My mother sponsored an application to adjust status on my behalf, but it was rejected by the USCIS. I am currently in F1 status, can I still apply for OPT even after having applied for I-485 and been denied?

Answer #6
Speak with your Designated School Official (DSO).


Question #7 - Immigrant Petition for Alien Relative, Form I-130
On the I-130 application, what address abroad do I need to write for my wife? She has been living in the US legally for the past 9 years.

Answer #7
I believe the question is ‘Your Relative’s Address Abroad’ – you should enter the last known address where she lived outside of the United States or N/A. You can certainly contact our office to schedule a consultation to discuss the specifics of your case.


Question #8 – H-1B Nonimmigrant Work Visa
I am an H-1B holder, and I have already filed an I-485. Do I need to apply for Advance Parole?

Answer #8
You are not required to file for Advance Parole; however, it may be worthwhile to speak with an Attorney to discuss the advantages/disadvantages of applying for an Advance Parole document while in a valid H-1B nonimmigrant visa status. Contact our office to schedule a consultation to further discuss.


Question #9 – Green Car Renewal
I came to the United States on a Fiancé’ visa many years ago. I got married and have been married for 11 years since. However, I never renewed my green card (it has been 6 years). My recently sent application was denied. What could be the reason?

Answer #9
The reason for denial should have been listed in the notification that you received informing you that the application had been denied. Contact our office to schedule a consultation.


Question #10 – H-1B Nonimmigrant Work Visa
I just got my visa stamped, but I am planning to change employers before travelling to US. If my new employer wants to file an H1b petition for me, will it be cap exempt considering I haven’t travelled to the US on this H-1B?

Answer #10
It depends. More information is required from you in order to affirmatively answer YES or NO to your question. Is this your first ever H-1B? Who sponsored you – a cap exempt entity? ETC... Please contact our office to schedule a consultation.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, November 7, 2014!

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

H-2B Cap Count UPDATE – 10/10/14

October 23, 2014

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.

The H-2B cap limit for first half of FY 2015 (October 1 - March 31) is 33,000. As of the last count (10/10/14); 7,790 beneficiaries have been approved and 1,372 are pending for a total of 9,162.

The H-2B cap limit for second half of FY 2015 (April 1 - September 30) is 33,000. As of the last count (10/10/14); 0 beneficiaries have been approved and 0 are pending for a total of 0.

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


Source of Information:

- USCIS.gov (10/16/14) Web Page

- AILA InfoNet Doc. No. 14101744 (posted 10/17/14)

BALCA on Familial Relationship between Alien and Employer

October 22, 2014

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

Upon evaluating an Employer’s Application for Permanent Labor Certification which provided that the employer was a closely held corporation, partnership, or sole proprietorship in which the alien has an ownership interest, or …there is a familial relationship between the owners, stockholders, partners, corporate officers, incorporators, and the alien, the CO issued a “Request for Additional Information.” In 30 days, he needed the following evidence: (1) Proof of a federal employer identification number; (2) Proof that the company was a business entity; and (3) Proof of the physical location of the company. It appears from the record that most of the information requested by the CO already accompanied the Application.

A few months later, the CO delivered a “Notice of Supervised Recruitment.” The Employer was required, in 30 days, to send a draft job advertisement, corporate financial & structure documentation as well as any family relationship the Alien has to the Employer. In a timely fashion, the Employer responded by providing their business license, operating agreement, IRS FEIN number, organization certificate from the Virginia State Corporation Commission, and a letter from the Company’s owner describing his relationship to the Alien.

After reviewing the data, the CO did not conduct any additional supervised recruitment and denied the Labor Application without issuing a request for proof of the Employer’s recruitment efforts. He believed the position “was not open and available to any US worker”. Since the foreign worker is the brother of the owner, the Alien has a benefit in the company and influence/control over the hiring practices. The CO stated the Employer violated PERM regulation 20 CFR 656.10(c)(8).

The Employer sent a reconsideration request to the CO. In the argument, the Employer declared that they supplied documents to prove that the Alien has no ownership interest in the company. In addition, they noted that the CO did not request to view any recruitment documentation on the position so he could not determine whether or not the position was available to US workers.

Upon reconsideration of the employer’s arguments, the CO forwarded the case to BALCA for further examination. In a letter to the Board, he cited the foreign worker was already employed by the company in the same position for three years before the new company was established. The CO also noted the Alien is the supervisor for the other 4 employees in the company and only reports to the Owner (his brother).

When determining whether a bona fide job opportunity exists, the Board must consider the totality of the circumstances, considering, among other factors, whether the alien:


  1. Is in the position to control or influence hiring decisions regarding the job for which labor certification is sought;

  2. Is related to the corporate directors, officers or employees;

  3. Was an incorporator or founder of the company;

  4. Has an ownership interest in the company;

  5. Is involved in the management of the company;

  6. Is on the board of directors;

  7. Is one of a small number of employees;

  8. Has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application; and

  9. Is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operation without the alien.


*No single factor, such as a familial relationship between the alien and the employer or the size of the employer, shall be controlling.

After BALCA’s examination of the case, BALCA reversed the CO’s decision. The Board believed that the CO should not have denied certification. BALCA mentioned that the Employer provided enough evidence that the Alien did not have ownership interest in the company. The Board also stated the CO failed to request recruitment documentation for the job opening and he “abandoned the supervised recruitment process without warning or notice or to the Employer.”


Impact of New Americans - California, Colorado, Connecticut & Delaware

October 21, 2014

Immigration Policy Center Releases Updated State-by-State Fact Sheets (2014)

The Immigration Policy Center (IPC) has released all fifty states, the District of Columbia and the United States (Overall), for a total of fifty-two updated fact sheets with accompanying info graphics and other details. These fact sheets highlight the demographic and economic impact of Immigrants, Asians and Latinos in each state. The Immigration Policy Center (IPC) is the research and policy division of the American Immigration Council (AIC).

As Washington D.C. continues the discussion of Comprehensive Immigration Reform, we thought that it would be a good time to provide some statistics on the Immigrant population in the United States as provided by this IPC research. Once a week we will be posting a blog with information on four states at a time. This week we will highlight; California, Colorado, Connecticut and Delaware.

The IPC has compiled research which shows that Immigrants, Latinos and Asians are an essential part of each of these states’ economy, labor force and tax base. Immigrants and their children are a growing economic and political force as consumers, taxpayers and entrepreneurs. With the nation working towards economic recovery, immigrants and their children will continue to play a key role in shaping the economic and political future of each of these states.

To view the state-by-state fact sheets click on the links below:

California
Colorado
Connecticut
Delaware


Source of Information:

The Immigration Policy Center (IPC), Interactive Map (fact sheets):
The Economic and Political Impact of Immigrants, Latinos and Asians State by State

The Immigration Policy Center (IPC), List (fact sheets):
The Economic and Political Impact of Immigrants, Latinos and Asians in all 50 States

MVP "Immigration Q & A Forum" - This Friday, October 24, 2014

October 20, 2014

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, October 24, 2014. 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.

IPC - Executive Grants of Temporary Immigration Relief, 1956-Present

October 17, 2014

On October 2, 2014, the Immigration Policy Center (IPC) published the article, “Executive Grants of Temporary Immigration Relief, 1956-Present”. The publication points out that since 1956, every United States President has used their executive power to grant temporary immigration relief of some form. This article includes an easy to read chart listing thirty-nine (39) different examples, some big, some small, of Immigration related Executive Decisions. These Presidential decisions were made for a variety of reasons; legislation was pending, in response to humanitarian emergencies or to address situations that existing laws couldn’t handle. Please review the article listed below for more detailed information and to view the chart.


Source of Information:

immigrationpolicy.org, 10/2/14, Just the Facts - Article:
Executive Grants of Temporary Immigration Relief, 1956-Present

Impact of New Americans - Alabama, Alaska, Arizona & Arkansas

October 16, 2014

Immigration Policy Center Releases Updated State-by-State Fact Sheets (2014)

The Immigration Policy Center (IPC) has released all fifty states, the District of Columbia and the United States (Overall), for a total of fifty-two updated fact sheets with accompanying info graphics and other details. These fact sheets highlight the demographic and economic impact of Immigrants, Asians and Latinos in each state. The Immigration Policy Center (IPC) is the research and policy division of the American Immigration Council (AIC).

As Washington D.C. continues the discussion of Comprehensive Immigration Reform, we thought that it would be a good time to provide some statistics on the Immigrant population in the United States as provided by this IPC research. Once a week we will be posting a blog with information on four states at a time. This week we will highlight; Alabama, Alaska, Arizona and Arkansas.

The IPC has compiled research which shows that Immigrants, Latinos and Asians are an essential part of each of these states’ economy, labor force and tax base. Immigrants and their children are a growing economic and political force as consumers, taxpayers and entrepreneurs. With the nation working towards economic recovery, immigrants and their children will continue to play a key role in shaping the economic and political future of each of these states.

To view the state-by-state fact sheets click on the links below:

Alabama
Alaska
Arizona
Arkansas


Source of Information:

The Immigration Policy Center (IPC), Interactive Map (fact sheets):
The Economic and Political Impact of Immigrants, Latinos and Asians State by State

The Immigration Policy Center (IPC), List (fact sheets):
The Economic and Political Impact of Immigrants, Latinos and Asians in all 50 States

BALCA on Content of Supervised Recruitment Report

October 15, 2014

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 Vice President, Mergers & Acquisitions.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO informed the Employer that he would need to oversee their PERM recruitment. As part of the process, the CO sent the employer separate instructions for its advertisement and recruitment report. In the instructions for the recruitment report, he requested the Employer to “state the names, addresses and provide resumes (other than those sent to the employer by the CO) of the U.S. workers who applied for the job opportunity.

A few months later, the Employer presented the outcomes of its PERM recruitment in its recruitment report. The Employer indicated they had received 70 applications from U.S. Workers; and 7 applications from non-U.S. workers. Out of the 70 U.S. candidates, only three of the candidates were interviewed for the position. Based on the interviews, the Employer decided none of the applicants were qualified because they lacked the required critical experience and skills. In the recruitment report, the Employer identified the name of each applicant and provided the reason each candidate was disqualified. However, in the actual report, the Employer did not state the addresses of the applicants. In the report, they wrote a note to the CO that specified the following, “The resumes of the applicants who responded directly to JP Morgan Chase are attached to this report. Please note that the resumes, which are part of this recruitment report, include the name and address of each applicant.”

Upon review of the recruitment report, the CO denied certification of the labor application. The CO provided that the Employer violated PERM regulation 20 CFR 656.21 (e)(3) because the Employer neglected to “state” the U.S. worker’s addresses in the recruitment report.

The Employer requested reconsideration and/or review of the denial. The Employer argued that they did not fail to provide the U.S. worker’s addresses because they included the applicant’s resumes along with their report. The Employer contended it was not necessary to re-type the addresses because the information could be found on the resumes. Upon review, the CO reaffirmed his denial. He referred the case to BALCA.

After BALCA’s examination of the case, BALCA affirmed the CO’s decision to deny certification. The Board found the Employer’s recruitment report did not obey the supervised recruitment instructions as the addresses of the applicants were not stated in the report. BALCA believed the CO should not have had to look through resumes to find names and addresses. Additionally, some of the resumes did not contain applicant’s addresses.

Updated Service Center Processing Times

October 14, 2014

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on 10/7/14 with processing dates as of 8/31/14.

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.

Visa Bulletin - November 2014

October 13, 2014

The Department of State has released its latest Visa Bulletin.

Click here to view the November 2014 Visa Bulletin

As projected by the U.S. Department of State, the November 2014 Visa Bulletin shows the EB2 date for nationals from India retrogressed (moved backwards) from 5/1/09 to 2/15/05; the EB3 date for nationals from India made a small movement from 11/15/03 to 11/22/03; the EB2 for Chinese Nationals moved from 11/15/09 to 12/8/09; the EB3 for Chinese Nationals moved from 4/1/09 to 1/1/10; and EB3 for WW moved from 10/1/11 to 6/1/12; and the F2A category moved from 2/1/13 to 3/1/13, except Mexico which moved from 7/22/12 to 9/22/12. The F2A category is reserved exclusively for Spouses and unmarried children (under the age of 21) of green card holders (LPRs).

For more details on this month’s India EB-2 retrogression please read our blog, “India EB-2 may Retrogress to 2005”.

*The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department's monthly Visa Bulletin.

**”All Chargeability Areas except Those Listed”, includes all other countries except: China, India, Mexico and Philippines.

MVP LAW GROUP – Immigration Q&A Forum, Friday, October 10, 2014

October 10, 2014

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 – H-1B Nonimmigrant Visa
I have an I-129 petition (Approved from Oct 1, 2010) which was never used and I never traveled to USA. Can an employer file my H1B under cap exemption category?

Answer #1
Yes, as you have been subjected to the H-1B CAP within the last 6 years. Accordingly, you should be eligible to file your H-1B petition without being subject to the H1B CAP.


Question #2 – Family Based Immigration
Can I adjust status or apply for a visa if I am in a same-sex marriage?

Answer #2
In order to adjust status to Permanent Resident, you will first have to have your partner sponsor you for an immigrant visa. Your case will be considered family based immigration, dependent upon a familial relationship between the petitioning sponsor and the beneficiary. Depending upon the Immigration Status of your partner, you may be able to file the immigrant visa petition and adjustment petition concurrently. Please contact our office to further discuss the process.


Question #3 – Anticipated Immigration Legislation
I am on an H-1B visa and my wife is on H-4. I was told the Employment Authorization Document (EAD) could allow my wife to work in U.S. How do I apply for it?

Answer #3
You cannot apply for it at this time, as it is not an offered benefit from the USCIS yet. The Department of Homeland Security first proposed authorizing employment for spouses of certain H-1B visa holders in May of 2014! Please view our blog entry about the topic, “DHS Proposes Reforms to Attract and Retain Highly Skilled Immigrants”.

Stay tuned to our H1B Visa Lawyer Blog for updated information. http://www.h1bvisalawyerblog.com/


Question# 4 – L1B Nonimmigrant Work Visa
I have an L1B visa and I’m working for a small company. Can I apply for U.S. Green Card or is the L1B visa not a "dual intent" visa?

Answer #4
The L1B nonimmigrant work visa is a temporary visa and is not a ‘dual intent’ visa like the H-1B nonimmigrant visa.


Question #5 – AC21 Portability/Green Card
After my I-140 is approved, could I change my job and not affect my Green Card application?

Answer #5
When did your employer submit the I-140 petition? Were you eligible to file the I-485 petition? If so, when did you file the I-485 petition? Please contact our office so that we can obtain more information from you in order to adequately address your situation.


Question #6 – AC21 Portability/Green Card
I sent my I-140 application to the USCIS based on EB1 about 6 months ago. My H-1B will expire next year in August, after six years in H-1B status. Can I get additional H1B extensions in one-year increments, before the final decision for my I-140 application from USCIS?

Answer #6
USCIS is required to grant the extension of stay pursuant to §106(a) of AC21, in one-year increments, until such time as a final decision has been made to:

A. Deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification;

B. Deny the EB immigrant petition, or

C. Grant or deny the alien’s application for an immigrant visa or for adjustment of status.


Question #7 – Employment Authorization Document (EAD)
My I-485 application is still pending, and my EAD will expire soon. Do I have to renew my EAD? If so, when should I renew it?

Answer #7
If you are authorized to work pursuant to your EAD card, then YES, you must renew your EAD in order to continue working for the same employer or another employer. You are NOT ALLOWED to continue working past the expiration date unless you have a new EAD card in your possession. You are allowed to renew your EAD up to 120 days prior to its expiration.


Question #8 – H1B Nonimmigrant Visa
Right now, I am on H-1B, but it will expire in January. I am also starting to look for another job within the same industry. If my H-1B expires after I-140 approval, but before I-485 approval, is it legal for me stay unemployed? What is the best situation for me?

Answer #8
When did your employer submit the I-140 petition? When did you file the I-485 petition? When applying for the I-485 petition, did you submit a completed Form I-765, Application for Employment Authorization? If so, once the Employment Authorization application is approved, the EAD will be mailed to you and will provide you with employment authorization to work anywhere. You should not remain unemployed for any period of time. Please contact our office so that we can evaluate your options and determine the best situation for you.


Question #9 – Diversity Visa Lottery
What is the Diversity Visa Lottery and how/when can you apply for it?

Answer #9
Annually, the United States government issues a maximum of 50,000 green cards through a computer-generated random lottery drawing. Applications for the DV-2016 random lottery will be accepted from noon (EDT) Wednesday, October 1, 2014 through noon (EST) Monday, November 3, 2014.
For more information and to apply, please read our Blog, “Diversity Visa (DV-2016) Lottery Announced”.


Question #10 – Advance Parole (AP)
I filed my I-485 and got the Advance Parole. When I travel to my home country on Advance Parole, what kinds of other documents are needed for me to come back to the US?

Answer #10
You should carry the Advance Parole card with you, along with a copy of your I-485 receipt notice, your valid passport and government issued ID. In most situations, the Officer will only request to see your Advance Parole card.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, October 24, 2014!

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

H-2B Cap Count UPDATE - 10/3/14

October 9, 2014

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.

The H-2B cap limit for the second half of FY 2014 (April 1 - September 30) is 33,000. As of the last count (9/30/14); 26,286 beneficiaries have been approved and 315 are pending for a total of 26,601.

The H-2B cap limit for first half of FY 2015 (October 1 - March 31) is 33,000. As of the last count (10/3/14); 7,222 beneficiaries have been approved and 1,635 are pending for a total of 8,857.

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


Source of Information:

- USCIS.gov (10/7/14) Web Page

- AILA InfoNet Doc. No. 13100840 (posted 10/7/14)