H1B Visa Lawyer Blog

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
Can I apply for a spousal visa, if I am getting married to a green card holder & am currently in H-1B visa status?

Answer #1
Yes; however, you must first marry your spouse. After marriage, your green card holder (Lawful Permanent Resident) spouse, may then prepare and submit an I-130, Petition for Alien Relative on your behalf to the USCIS for processing.

Question #2
Are employers required to post a notice of filing of LCA at the end-client location? Why can’t we just post at our offices?

Answer #2
Yes. Pursuant to the regulations, notices are to be posted in two conspicuous locations at the actual location where the work is to be performed. Therefore, posting at the employer’s office only is not sufficient.

Question #3
If I have less than six months before my passport will expire, how can I file an H-1B petition?

Answer #3
You can still file an H-1B petition. However, your passport should be current at all times. If visa stamping is needed, then you should have a valid passport for a validity period of longer than six months.

In most cases, to enter the United States, you must have a passport that is valid for at least six months after the date you enter or reenter. Many countries will allow you to renew your passport while in the United States. The other alternative is to renew your passport when you return home for a visit. You may want to delay leaving the United States until you have renewed your passport. You will not be able to reenter the United States without a valid passport.

If your expired passport has a valid visa, you can still use it if you kept the old passport. Present the old passport, along with the new passport when you reenter the country.

Question #4
I have my Green Card and I will be traveling outside of the US this summer. What documents do I need to travel outside the United States?

Answer #4
Your Green Card. However, be certain to not take trips longer than 6 months in duration outside of the U.S., if you intend to apply for Citizenship in a few years, as it will disrupt the continuous residence requirement. Furthermore, please take note not to make any trips outside the U.S. of one year or longer without possessing a valid re-entry document in addition to your Green Card.

Question #5
If I am a Green Card holder and plan to be outside of the US for more than a year to care for my ailing mother, what should I do?

Answer #5
You should apply for a re-entry permit with the USCIS.

Question #6
If I lost my Green Card, how do I replace it? What are the costs?

Answer #6
You must file Form I-90, Application to Replace Permanent Resident Card with the USCIS. The USCIS filing fee is $365.00 plus biometrics $85.00, total of $450.00

Question #7
Once I get my H-1B transfer, is there any time restriction to join my new employer?

Answer #7
Pursuant to AC21, H-1B transferring employees are able to begin working with the new sponsoring employer upon submission of the case to the USCIS; however, the applicant may only begin working with the new employer if the LCA and I-129 cover the beginning date of employment.

Question #8
Is there a limit of how many times someone can transfer an H-1B Visa?

Answer #8
No, there is no limit of how many times someone may transfer their H-1B to a new employer.

Question #9
Can I change my status from an H-4 to an F-1? I am enrolling in college this Fall.

Answer #9
Yes, if you are eligible to change status from H4, dependent status to F1, student status.

Question #10
While we were staying in the US with my H-1 Visa, my wife had a baby boy. Do I need to get a Visa or a US Passport to travel with him out of the country?

Answer #10
If your baby boy was born in the United States, he is automatically a U.S. Citizen. Therefore, yes, you will need to apply for a U.S. Passport for your son in order to travel with him outside of the country.

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

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

Immigration Policy Center Releases Updated State-by-State Fact Sheets!

The Immigration Policy Center (IPC) has released the first twenty updated state-by-state fact sheets with accompanying info graphics. 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. debates Comprehensive Immigration Reform, we thought that it would be an appropriate 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; Delaware, Florida, Hawaii and Illinois.

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:

• Delaware: http://www.immigrationpolicy.org/just-facts/new-americans-delaware

• Florida: http://www.immigrationpolicy.org/just-facts/new-americans-florida

• Hawaii: http://www.immigrationpolicy.org/just-facts/new-americans-hawaii

• Illinois: http://www.immigrationpolicy.org/just-facts/new-americans-illinois

Source of Information:

The Immigration Policy Center (IPC), May 2013, Just the Facts
http://www.immigrationpolicy.org/just-facts

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 “Producer.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. It required the Employer to show proof of the State Workforce Agency’s (SWA) job order as well as all resumes received in connection with the position. The Employer responded and the CO continued to review the application.

The CO denied the application based on two different PERM regulations. PERM regulation 20 C.F.R. 656.17 (e)(1)(i) requires that “two print advertisements are mandatory for all applications involving professional occupations.” These advertisements must run on two different Sundays in the area of intended employment. The Employer placed the ad for the Producer position in the Wall Street Journal (WSJ), which does not qualify as a professional journal, and could not be used in lieu of the mandatory Sunday advertisements as required by the PERM regulations, because the ad was not run on a Sunday. Furthermore, the CO indicated in his denial that the employee did not meet the minimum requirements of the position. He cited PERM regulation 20 C.F.R. 656.17(i)(1).

After the denial, the Employer requested review of the case. The Employer believed the US Department of Labor had unselectively concluded the WSJ did not meet the requirements of a professional journal. In addition, they tried to use an expert’s opinion of the paper as evidence. With regards to PERM regulation 20 C.F.R. 656.17(i)(1), the Employer believed that his Employee “more than exceeds the requirements of the position.”

The CO forwarded the appeal to BALCA for review of the case arguing that the WSJ was only a general circulation newspaper. Since the paper has a widespread circulation beyond the professional market as well as other sections including news, politics and editorials, it clearly demonstrates the characteristics of any other broad-spectrum distribution newspaper. BALCA ordered the denial of labor certification.

Administrative Appeals Office (AAO) Processing Times were released with processing dates as of May 2, 2013.

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 9 months.

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

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 24, 2013. 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.

USCIS Service Center Operations indicated on a May 15, 2013 call with AILA that as of Friday, May 10th all data entry was completed and receipt notices have been sent.

Rejection notices have also started to be sent out.

Please allow until the end of May for delivery of receipt/rejection notices.

Source of Information: "AILA InfoNet Doc. No. 13041600 (posted May. 16, 2013)"

Immigration Policy Center Releases Updated State-by-State Fact Sheets!

The Immigration Policy Center (IPC) has released the first twenty updated state-by-state fact sheets with accompanying info graphics. 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. debates Comprehensive Immigration Reform, we thought that it would be an appropriate 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, Arizona, California and Connecticut.

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: http://www.immigrationpolicy.org/just-facts/new-americans-alabama

• Arizona: http://www.immigrationpolicy.org/just-facts/new-americans-arizona

• California: http://www.immigrationpolicy.org/just-facts/new-americans-california

• Connecticut: http://www.immigrationpolicy.org/just-facts/new-americans-connecticut

Source of Information:

The Immigration Policy Center (IPC), May 2013, Just the Facts
http://www.immigrationpolicy.org/just-facts

On May 13th, the Governor of California, Jerry Brown (D) wrote a letter to Senator Dianne Feinstein (D) supporting the Senator’s work on immigration reform. Senator Feinstein is a senior member of the Senate’s Judiciary Committee, which is working on the proposed immigration reform legislation, S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Reform Act (Comprehensive Immigration Reform). In his letter, the Governor stated, “California is home to over 10 million immigrants, greater number than the whole population of Georgia or Michigan.” He pointed out that, “From the engineers and programmers working in Silicon Valley on H-1B visas, to the 2.9 million undocumented workers toiling mostly in the service and agricultural industries, the contributions of foreign-born Californians are fundamental to the state’s economy.”

In the letter, the Governor makes some interesting points about the need for reform. He goes further and states, “The future of all Californians depends upon the success of immigrants…” He feels that, “In order to avoid dire consequences for our state, comprehensive immigration reform must occur this year…”

MVP Law Group finds it notable that the Governor of the largest populated state in our country used the word, “dire” to describe the consequences for his state if our national immigration system is not reformed. I would like to note that California is the largest producer of agricultural products in the United States and the home of Silicon Valley.

Source of Information:

Office of the Governor (California), (5/13/13), letter
Letter form Governor Brown to Senator Feinstein – Immigration Reform

Senator Marco Rubio, one of the republican members of the Gang of Eight is asking the public to “Help Us Improve the Bill”. His senate web site includes a page requesting citizens to make comments on the proposed immigration reform legislation, S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Reform Act (Comprehensive Immigration Reform). This proposed bill is still in committee, so it is a great time to submit your comments.

Senator Rubio included a video that summarizes his views on immigration reform. The video points out why he thinks this legislation is so important to his constituents and overall, the America people. He states, “…I want to invite you to share your thoughts and submit your ideas below, on ways we can improve it (Comprehensive Immigration Reform).”

MVP Law Group would encourage anyone interested in the proposed immigration reform legislation to take a few minutes and provide comments and ideas on the Senator’s web page.

Source of Information:

Senator Marco Rubio’s Web Site, rubio.senate.gov: Help Us Improve the Bill

The Department of State has released its latest Visa Bulletin.

Click here to view the June 2013 Visa Bulletin.

The June 2013 Visa Bulletin shows employment based second preference (EB-2) and employment based third preference (EB-3) as both being oversubscribed. EB-2 is current for all chargeability areas except those listed.

The employment based second preference cut-off date for China is 7/15/08 and 9/1/04 for India.

**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.

Senator Marco Rubio, one of the republican members of the Gang of Eight requested that the U.S. Social Security Administration, Office of the Chief Actuary study the effects of the proposed immigration reform legislation, S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Reform Act on this country’s Social Security system. An actuary is a statistician who calculates the possible financial impact of financial proposals. You can read the resulting analysis in a letter from the Chief Actuary to Senator Rubio in the link below. The letter includes an accompanying table which shows the findings in further detail.

The Chief Actuary’s analysis projects that by 2024 that the proposed immigration reform act would create 3.22 million jobs and increase the Gross Domestic Product (GDP) by 1.63 percent. He stated in the closing that, “Overall, we anticipate that the net effect of this bill on the long range OASDI actuarial balance will be positive.” OASDI stands for old age, survivor and disability insurance, which is commonly referred to as Social Security.

Source of Information:

washingtonpost.com (5/8/13) letter:
Letter from the Office of the Chief Actuary to Senator Rubio, includes table

washingtonpost.com (5/8/13) post:
Study: Immigration reform would create over three million jobs

latimes.com (5/8/13) article:
Social Security boosted by immigration bill, chief actuary says

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
If I am working in the US with an H-1 Visa, can I obtain a driver’s license right away? What do I need to show them at the Motor Vehicle place?

Answer #1
Yes. You must present necessary supporting documents required to verify legal presence in the United States. Generally, a nonimmigrant should be prepared to present the following: Valid passport with visa (if applicable); Form I-94, “Arrival/Departure Record”; Form I-20 (for an F or M student) or Form DS-2019 (for a J exchange visitor); EAD card (Form I-766 “Employment Authorization Document”), if on post-completion OPT; Form I-797, “Notice of Action,” in cases of a change of status (e.g., from F-1 to H-1B); Social Security number (SSN) on a Social Security card. To determine what is specifically required in your state, you will need to check the DMW website or contact a local DMV office

Question #2
How do I become categorized as STEM worker? I would like to find a job in the US. Right now, I live in Prague and have my Master’s Degree in Computer Science.

Answer #2
In order to become categorized as a STEM worker, an applicant must receive an accredited U.S. degree in one of the STEM fields – Science, Technology, Engineering and Math.

Question #3
I work for Toyota as a head mechanical specialist and my company wants to transfer me to a plant in the US. Would I qualify for an L-1 Visa?

Answer #3
The L-1 visa allows companies operating both in the U.S. and abroad to transfer certain types of employees from its overseas office to the U.S. office for up to seven years. This visa comes in the following categories: L-1A - for executives and managers; and L-1B - for personnel with specialized knowledge.
Businesses that function both in the United States and in their home country gain the benefits of the best of both areas. The L-1 visa is open to international organizations with offices in the U.S. who transfer employees to the U.S. office for temporary periods of time. This visa is sometimes referred to as the 'intra-company transferee' visa.
To obtain an L-1 visa, you must be able to prove that you have worked for the non-U.S. company for at least one full year within the last three years as an executive, manager or employee with specialized knowledge. The L-1 visa enables the transfer of managers, executives and specialized knowledge personnel to a U.S. office, subsidiary or affiliated company.

Question #4
What date does my company have to start using the new I-9 form?

Answer #4
Beginning May 7, 2013, Employers must ONLY use the newly revised Form I-9 with revision date 3/08/2013 appearing in the lower left hand corner of the Form.

Question #5
What is an EB-5 visa?

Answer #5
In short, The EB-5 visa is for Immigrant Investors. This visa provides a method of obtaining a green card for foreign nationals who invest money in the United States. To obtain the visa, individuals must invest $1,000,000 (or at least $500,000 in a "Targeted Employment Area" - high unemployment or rural area), creating or preserving at least ten (10) jobs for U.S. workers excluding the investor and their immediate family.

For more information on the EB-5 Immigrant Investor visa, please contact our office.

Question #6
My family has vacation plans to travel back to India in August 2013. Can I file my H-1B extension petition prior to my leaving for vacation?

Answer #6
You may file your H-1B extension up to 6 months prior to the expiration of your current H-1B visa. You should file as early as possible, as we do not recommend that you travel outside of the U.S. while your H-1B extension petition is pending with the USCIS.

Question #7
What does it mean when a Priority Date becomes current?

Answer #7
When your Priority Date becomes "Current", it means that there are visa numbers available for your particular nationality, for your situation, for your particular preference category, (i.e. India, Employment Based, Third Preference). When your Priority Date becomes current, you may then proceed to the Adjustment of Status or Consulate Processing phase of the Green Card process.

Question #8
If my Green Card is expiring the end of this year, how soon should I apply to renew it?

Answer #8
You can apply up to six months prior to the expiration date of your card (indicated on the front of the card).

Question #9
I’m a U.S. Citizen and engaged to marry my Irish fiancé. We have known one another for over five years and have been engaged for three months. Can I sponsor my fiancé? What are the requirements?

Answer #9
If you petition for a fiancé(e) visa, you must show that:
• You (the petitioner) are a U.S. citizen.
• You intend to marry within 90 days of your fiancé(e) entering the United States.
• You and your fiancé(e) are both free to marry and any previous marriages must have been legally terminated by divorce, death, or annulment.
• You met each other, in person, at least once within 2 years of filing your petition. There are two exceptions that require a waiver:
1. If the requirement to meet would violate strict and long-established customs of your or your fiancé(e)’s foreign culture or social practice.
2. If you prove that the requirement to meet would result in extreme hardship to you.

Question #10
If I am residing in the US with an H4 Visa, can I apply for a Social Security card?

Answer #10
You cannot apply for a Social Security card, as an H4 dependent under current immigration laws.

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

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