MVP LAW GROUP – Immigration Q&A Forum, Friday, May 27, 2016

May 27, 2016

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 – Deferred Action for Childhood Arrivals (DACA)
If you apply for DACA and get denied, do you risk deportation?

Answer #1
As indicated on the USCIS website, if you apply for DACA and are denied, you cannot appeal the decision or file a motion to reopen or reconsider. USCIS will not review its discretionary determinations.
The USCIS will apply their policy guidance governing the referral of cases to U.S. Immigration and Customs Enforcement (ICE) and the issuance of notices to appear. If your case does not involve a criminal offense, fraud, or a threat to national security or public safety, they WILL NOT refer your case to ICE for purposes of removal proceedings except where DHS determines there are exceptional circumstances.
*You will not be considered for DACA if you have been convicted of: A felony offense; A significant misdemeanor offense; or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct. Or, you are otherwise deemed to pose a threat to national security or public safety.


Question #2 – K1, Fiancé Visa
If my fiancé’ was denied a tourist visa, can I still apply for a fiancé’ visa for her?

Answer #2
It depends upon the specific circumstances of your case, i.e., the reason the tourist visa was denied. However, you should be able to apply for a fiancé visa for her. Please contact our office to schedule a consultation to further discuss.


Question #3 – NAFTA TN Visa
What is the typical processing time for the approval of a TN Visa?

Answer #3
It depends upon whether you are a Canadian Citizen or a Mexican Citizen. Canadian citizens may apply for a TN visa directly at the Canadian border; whereas, a Mexican citizen must apply for and receive a TN visa stamp in their passport at a Mexican Consulate.


Question #4 – Family Based Immigration
Do I need to change my I-130 petition if I filed for my relative as a LPR, but now I have become a US Citizen?

Answer #4
Yes, you should contact the USCIS Office that is reviewing your application and inform them that you have become a U.S. Citizen by submitting a copy of your Naturalization Certificate.

Question #5 – Naturalization/Citizenship
If I want to apply for Citizenship, do I need to be present in the US to start the process?

Answer #5
Yes, you must have lived in the state or district where you are filing your application for at least three (3) months.


Question #6 – H1B Nonimmigrant Work Visa
If I got fired from my job, can I apply for another H-1B visa with a different company?

Answer #6
You should consult an Immigration Attorney to discuss your options.


Question #7 - E-Verify
Do all businesses need to enroll in the USCIS E-Verify program? I run a small business with only 5 employees.

Answer #7
No, it is not a mandatory requirement for all businesses at this time. Only Federal Contractors are required to enroll in the USCIS E-Verify Program at this time.


Question #8 - Citizenship
If I have been a Green Card Holder for 8 years, am I eligible to Apply for Citizenship?

Answer #8
The general requirements for administrative naturalization include:
• A period of continuous residence and physical presence in the United States;
• Residence in a particular USCIS District prior to filing;
• An ability to read, write and speak English;
• A knowledge and understanding of U.S. history and government;
• Good moral character;
• Attachment to the principles of the U.S. Constitution; and,
• Favorable disposition toward the United States


Question #9 – H1B Nonimmigrant Work Visa
Can I get a Social Security card if I am working in the US on H-1B status?

Answer #9
Yes.


Question #10 – Conditional Permanent Residence
How do I remove my conditions on my Conditional Green Card?

Answer #10
File Form I-751, Petition to Remove Conditions on Residence with the USCIS, within 90 days of the expiration of the conditional permanent resident card. You should file the petition jointly with your spouse through whom you obtained conditional status. However, certain exceptions do exist that may allow you to apply for a waiver of the joint filing requirement.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, June 10, 2016!

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

BALCA Reverses Denial, Finding 3 out of 4 Recruitment Steps in Compliance

May 26, 2016

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 “Battery Engineer.”

The CO denied the application stating that the Employer’s web posting did not identify the job location. He cited it was in violation of PERM regulation 20 C.F.R. 656.17(f). PERM regulation 20 C.F.R. 656.17 (f) requires that an advertisement must indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.

The Employer requested a review of the CO’s denial stating that the company conducted four additional recruitment steps rather than just the three that are required. In the recruitment process, they posted the position on a job search website, advertised in a local newspaper, advertised through their employee referral program, and posted the job position on their company website.

The Employer argued the location of the employment could be found on their website and they had only one geographic location. As proof, the Employer presented documentation to show that its location was completely revealed on its “Contact Us” page.

The CO forwarded the appeal to BALCA for review of the case. Upon review, it was ordered that “the denial of labor certification in this matter be reversed & remanded for certification.” BALCA cited the following reason for its decision. “Even though the Employer’s advertisement on its own website did not comply with the regulations, the Employer conducted three additional recruitment steps that are in compliance.”

Temporary Protected Status (TPS) Extended for Honduras

May 25, 2016

On Monday, May 16, 2016, Secretary of Homeland Security, Jeh Johnson announced that the country of Honduras will be designated for Temporary Protected Status (TPS) for an18 month extension. This decision was based on the overall conditions within Honduras. This status will allow eligible Honduran nationals (or those who last resided in Honduras) residing in the United States to apply for TPS with U.S. Citizenship and Immigration Services (USCIS). The additional 18 months are effective from July 6, 2016, through Jan. 5, 2018.

Current TPS Honduras beneficiaries who want to extend their TPS must re-register during the 60-day re-registration period that runs from May 16, 2016 through July 15, 2016. USCIS encourages beneficiaries to re-register as soon as possible once the 60-day re-registration period begins. This designation means that, during the designated period, eligible nationals of Honduras and people without nationality who last habitually resided in Honduras will not be removed from the United States and may receive an Employment Authorization Document (EAD), which will allow them to work within the United States.


For further details please review the USCIS News Release, “Temporary Protected Status Extended for Honduras”.


Background: The Secretary of Homeland Security may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country's nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately. USCIS may grant TPS to eligible nationals of certain countries (or parts of countries), who are already in the United States. Eligible individuals without nationality who last resided in the designated country may also be granted TPS.


Source of Information:
USCIS.gov, 5/16/16, News Release:
Temporary Protected Status Extended for Honduras

USCIS.gov, 3/29/16, Web Page:
Temporary Protected Status

USCIS Reaches H-2B Cap for FY 2016

May 24, 2016

On Thursday, May 12, 2016, USCIS announced that it has received a sufficient number of H-2B petitions to reach the congressionally mandated cap (66,000) for Fiscal Year (FY) 2016. May 12, 2016 is now the “final receipt date” for cap-subject H-2B worker requesting employment start dates before October 1, 2016. The “final receipt date” is the date on which USCIS determined that it has received enough cap-subject petitions to reach the limit of H-2B workers for FY2016.

USCIS will reject new H-2B petitions that were received after May 12, 2016 and that request an employment start date before October 1, 2016, but there are some exceptions!
The exceptions are listed below:
• For FY 2016 only, workers identified as “returning workers” who were previously counted against the annual H-2B cap during FYs 2013, 2014, or 2015;
• Current H-2B workers in the U.S. petitioning to extend their stay and, if applicable, change the terms of their employment or change their employers;
• Fish roe processors, fish roe technicians and/or supervisors of fish roe processing; and
• Workers performing labor or services from November 28, 2009, until December 31, 2019, in the Commonwealth of Northern Mariana Islands and/or Guam.

For more detailed information about this subject please review the USCIS News Alert, “USCIS Reaches H-2B Cap for Fiscal Year 2016”.

Source of Information:
USCIS.gov, 5/19/16, News Alert:
USCIS Reaches H-2B Cap for Fiscal Year 2016

USCIS.gov, 5/19/16, Web Page:
Cap Count for H-2B Nonimmigrants

MVP "Immigration Q & A Forum" - This Friday, May 29, 2016

May 23, 2016

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, May 29, 2016. 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.

Impact of New Americans (2015) - Michigan, Minnesota & Mississippi

May 20, 2016

Immigration Policy Center Releases Updated State-by-State Fact Sheets (2015)

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 three states at a time. This week we will highlight; Michigan, Minnesota & Mississippi.

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:

Michigan
Minnesota
Mississippi

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

Temporary Protected Status (TPS) Extended for Nicaragua

May 19, 2016

On Monday, May 16, 2016, Secretary of Homeland Security, Jeh Johnson announced that the country of Nicaragua will be designated for Temporary Protected Status (TPS) for an18 month extension. This decision was based on the overall conditions within Nicaragua. This status will allow eligible Nicaraguan nationals (or those who last resided in Nicaragua) residing in the United States to apply for TPS with U.S. Citizenship and Immigration Services (USCIS). The additional 18 months are effective from July 6, 2016, through Jan. 5, 2018.

Current TPS Nicaragua beneficiaries who want to extend their TPS must re-register during the 60-day re-registration period that runs from May 16, 2016 through July 15, 2016. USCIS encourages beneficiaries to re-register as soon as possible once the 60-day re-registration period begins. This designation means that, during the designated period, eligible nationals of Nicaragua and people without nationality who last habitually resided in Nicaragua will not be removed from the United States and may receive an Employment Authorization Document (EAD), which will allow them to work within the United States.


For further details please review the USCIS News Release, “Temporary Protected Status Extended for Nicaragua”.


Background: The Secretary of Homeland Security may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country's nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately. USCIS may grant TPS to eligible nationals of certain countries (or parts of countries), who are already in the United States. Eligible individuals without nationality who last resided in the designated country may also be granted TPS.


Source of Information:
USCIS.gov, 5/16/16, News Release:
Temporary Protected Status Extended for Nicaragua

USCIS.gov, 3/29/16, Web Page:
Temporary Protected Status

BALCA Reaffirms Zero Tolerance for Failing to Submit “Required Documentation”

May 18, 2016

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 “Senior Commissioning Engineer.”

After obtaining & examining an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification ordering the Employer to submit “a copy of the Prevailing Wage Determination received from the State Workforce Agency (SWA), along with a copy of the request for the determination submitted to the SWA.” The Employer responded to the Audit but did not include the SWA prevailing wage determination or a copy of the request.

The CO denied labor certification citing the Employer’s failure to provide the prevailing wage determination as issued by the SWA. He cited PERM regulation 20 CFR 656.20(b) as the source of his denial. PERM regulation 20 CFR 656.20(b) provides “a substantial failure by the employer to provide required documentation will result in that application being denied…”

The Employer requested reconsideration of the denial stating that it inadvertently forgot to include the documents in its Audit response. They said they had obtained a Prevailing Wage Determination from the SWA in Georgia and included a copy in their request for reconsideration.

Once again, the CO denied the labor certification application and forwarded the case to the BALCA board for review of the case. The documentation sent by the Employer constituted evidence not in the record on which the denial was based.

Upon review, the BALCA panel affirmed the denial because the Employer neglected to present the mandatory documentation requested by the CO.

Updated Service Center Processing Times (3/31/16)

May 17, 2016

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on 5/12/16 with processing dates as of 3/31/16.

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.

H-2B Cap Count UPDATE – 5/9/16

May 16, 2016

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 2016 (October 1 - March 31) is 33,000. As of the last count (3/15/16) this first half cap count has been reached. Please read USCIS update below!

The H-2B cap limit for second half of FY 2016 (April 1 - September 30) is 33,000. As of the last count (5/9/16); 31,637 beneficiaries have been approved and 4,513 are pending for a total of 36,150.

Note: The congressionally mandated H-2B cap for the first half of fiscal year (FY) 2016 has been reached. March 15, 2016 was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2016. 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 2016. This means that no cap numbers from the first half of FY 2016 will carry over to the second half of FY 2016, which begins on April 1, 2016.


Source of Information:
USCIS.gov, 5/10/16, Web Page:
Cap Count for H-2B Nonimmigrants

Related Link:
USCIS.gov, 2/5/16, Web Page:
H-2B Temporary Non-Agricultural Workers

MVP LAW GROUP – Immigration Q&A Forum, Friday, May 13, 2016

May 13, 2016

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 – H1B Nonimmigrant Work Visa
Is there a grace period for applying for an H-1B transfer after termination from a previous sponsoring employer?

Answer #1
According to the USCIS, there is no grace period. In practice, a period of two weeks is a reasonable period of time in order to transition to new employment; however, the regulations do not provide for a grace period.


Question #2 – Adjustment of Status (AOS)
My priority date is current and I want to file my I-485 application. Do I have to pay for both Employment Authorization and Advance Parole?

Answer #2
From the USCIS website:
Please note that, if you file Form I-485 to adjust your status as a permanent resident on or after July 30, 2007, no additional fee is required to also file an application for employment authorization on Form I-765 and/or advance parole on Form I-131. You may file these forms together. If you choose to file the I-765 and/or I-131 separately after July 30, 2007, you must also submit a copy of your I-797C, Notice of Action, receipt as evidence of the filing of an I-485. If you filed your Form I-485 prior to July 30, 2007, you must pay the fees associated with Forms I-765 and/or I-131 when you file.


Question #3 – Employment Based Immigration
If my Labor Application is denied, can we appeal the decision?

Answer #3
Yes; however, your employer and Immigration Attorney should review the reasons for denial and determine whether or not the DOL wrongfully denied the ETA 9089. If there is a basis supported by case law and/or documentation for a reversal of the DOL’s decision, the employer may file a Request for Reconsideration with the DOL within the specified time period.


Question #4 – H1B Nonimmigrant Work Visa
I have vacation plans to go out of the country the first week of July. Can I file my H-1B extension petition prior to leaving?

Answer #4
More information is needed in order to provide a sufficient answer. When does your current H-1B expire? Generally, we recommend that you do not travel unless it is an emergency, while a case is pending with the USCIS.


Question #5 – Business Visitor Visa
How long can someone stay in US on a Business Visa (B1/B2)?

Answer #5
You may receive a Visitor Visa valid for 10 years; however, the maximum duration of stay in the United States on a B1/B2 visa is 6 months.


Question #6 – H1B Nonimmigrant Work Visa
Some of our H-1B employees are nearing their 6th year in visa status. They have approved I-140s filed by different employers. Can we use those approved I-140s to get 3 year extensions with our company?

Answer #6
Yes, as long as the I-140 petition is not revoked due to misrepresentation or fraud.


Question #7 - Sanctuary City
Lately, in the news, I have heard the term “Sanctuary City” and I was wondering what it meant?

Answer #7
Sanctuary city is a name given to a city in the United States that follows certain procedures that shelters illegal immigrants. These procedures can be by law (de jure) or they can be by action (de facto).


Question #8 – Family Based Immigration
At what stage of the Family Based Green Card process does the priority date get assigned?

Answer #8
The priority date gets assigned once the I-130, Immigrant Petition for Alien Relative is filed with the USCIS.


Question #9 – Sponsorship
What is an affidavit of support?

Answer #9
From the USCIS website:
An affidavit of support is a document an individual signs to accept financial responsibility for another person, usually a relative, who is coming to the United States to live permanently. The person who signs the affidavit of support becomes the sponsor of the relative (or other individual) coming to live in the United States. The sponsor is usually the petitioner of an immigrant petition for a family member.
An affidavit of support is legally enforceable; the sponsor's responsibility usually lasts until the family member or other individual either becomes a U.S. citizen, or can be credited with 40 quarters of work (usually 10 years).
The law concerning affidavits of support is found in Immigration and Nationality Act (INA) sections 212(a)(4) and 213A. The provisions are codified in Title 8 of the Code of Federal Regulations (CFR) at 8 CFR 213a.


Question #10 – H4 EAD for Certain Spouses of H1B Nonimmigrants
Is there a deadline to apply for the H-4/EAD Visa?

Answer #10
No. Eligible applicants may apply at any time.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, May 27, 2016!

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

BALCA Indicates that ETA 9089 Errors Might Be Addressed in Audit

May 12, 2016

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 “R & D Manager/Chemist.”

After receiving and reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. The Employer responded with details of its recruitment efforts as well as summary chart. After reviewing the Audit materials, the CO denied certification of the application. The Employer provided recruitment efforts that did not match the one as listed on the Employer’s ETA Form 9089. In its ETA Form, the Employer indicated it advertised the job opening through its “employee referral program, a job search website and its own website.” In the Audit materials, the Employer failed to provide any documentation of the referral program. It included an advertisement with ecampusrecruiter.com sponsored by the University of Pittsburgh, which was not listed on ETA Form 9089. Since the Employer failed to provide any evidence of the employer referral program, the CO had no choice but to deny certification of the labor application.

The Employer sent a reconsideration request to the CO. The Employer argued that it had made a clerical mistake by listing the referral program on its ETA Form. In its request for reconsideration, it also submitted a corrected ETA Form 9089. The CO re-affirmed its denial and forwarded the case to the BALCA for review.

After BALCA’s examination of the case, the board sided with the CO. The Employer clearly failed to list the correct recruitment activity. Since they made this error, it prevented the CO from having the right information to make a fair decision on the labor application. Furthermore, the Employer had the opportunity in its Audit response to address this issue and failed to do so.