Posted On: October 29, 2010

LATEST UPDATE: H-1B FY2011 CAP COUNT

The United States Citizenship and Immigration Service (USCIS) has updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of October 22, 2010, 44,300 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of October 22, 2010, 16,200 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Posted On: October 29, 2010

Clothing Retailer - Form I-9 Investigation

A $1,047,110 settlement fine was charged to clothing retailer Abercrombie & Fitch by US Immigration and Customs Enforcement (ICE) Office of Homeland Security Investigations (HSI) because of the employer’s failure to verify the employment eligibility of their workers.

After a Form I-9 investigation in November 2008, investigators uncovered “technology-related deficiencies” in their electronic verification system. Abercrombie & Fitch cooperated fully with ICE HSI and has since put into practice new measures to further prevent any violations. In addition, the audit did not reveal the company had knowingly hired any illegal workers. ICE HSI says this settlement serves a warning to others companies who may not be fully complying with employee verification procedures.

I-9 Forms must be completed by an employer for every individual employed to determine identity, eligibility, and evidence the documents are legitimately related to the individual. Under their new strategy implemented in 2009, ICE has been trying to reduce the demand for illegal workers by auditing and investigating suspicious companies.

MVP Law Group, P.A. provides assistance to employers interested in establishing an effective employment compliance program which includes training administrative personnel and other employees. If you are interested, please contact our office.

Posted On: October 28, 2010

What to Do About 287(g)?

After a report was released earlier this year by the Department of Homeland Security Office of Inspector General (OIG) with recommendations for the 287(g) program, a subsequent report was released on October 22 stating that the program has significant shortcomings and allows, “local law enforcement to enforce federal immigration laws.”

Section 287(g) of the Immigration and Nationality Act was put into legislation in 1995 and allows local enforcement officers to enforce federal immigration laws. The new report stated that only 5 suggestions for the program have been met out of the 33 given by OIG in the original report. Immigration and Customs Enforcement (ICE) still cannot authenticate the programs legitimate use of funding, spending habits, and acceptable operations in the program. According to the President of the American Immigration Lawyers Association (AILA), David Leopold, the continuance of the program undercuts the faith that the public has in the law enforcement agency charged with protecting them.

Posted On: October 28, 2010

USCIS - Citizenship Resource Center

The USCIS launched the new Citizenship Resource Center on its website. The new feature was created to centralize resources for citizenship as well as help individuals better comprehend the naturalization process and gain understanding to better prepare them for a successful process. Some other highlights of the Citizenship Resource Center include podcasts, interactive learning tools, a search function for online citizenship classes, and resources for citizenship class instructors. Videos and citizenship information on the site are conviently provided in several languages.

The Citizenship Resource Center was formed along with the Fiscal Year (FY) 2010 Citizenship and Integration Grant Program which aims to create local citizenship education programs and increase the number of citizenship services offered.

Posted On: October 27, 2010

Comprehensive Immigration Reform Act of 2010

Senators Robert Menendez (D-NJ) and Patrick Leahy (D-VT) introduced The Comprehensive Immigration Reform Act of 2010 into the Senate on September 29. This bill is the first comprehensive immigration bill that has been introduce in the Senate since 2007. It also combines key Democratic and Republic viewpoints and elements. Menendez and Leahy’s legislation proposes enhanced border security, mandatory employee verification, revisions to visa systems, a legalization plan for undocumented individuals in the US, and harsher penalties for illegal immigration.

To improve the security at our borders it specifically calls for improved training and more accountability for border/immigration officers, further cooperation with Canada and Mexico to improve border security, and reiterates that immigration power solely resides with the federal government. If passed, visa waiver privileges would be denied to certain countries, the waiting period would stop for refugees/asylees trying to obtain a green card, as well as increased penalties for immigration and visa fraud. Social Security cards would become “tamper-resistant” under the new bill to prevent fraud and the Social Security Administration (SSA) would be required to design a new more secure way of verifying social security numbers. Labor protections would also be expanded under H-2A, H-2B, H-1B, and L-1 visas in addition to preventing the expiration of green cards due to processing delays and establishment of certain exemptions from the quotas. A Lawful Prospective Immigrant (LPI) status for undocumented immigrants with no criminal background would be put into effect and it entails submission of data, security checks, and a $500 application fee for the LPI status of four years. Additionally, the Comprehensive Immigration Reform Act of 2010 would include the DREAM Act and institute programs to help immigrants learn English and US civics. Click here to read the full text of the bill or to find out more information.

Posted On: October 26, 2010

Updated List: SEVP Approved Schools

The United States Immigration and Customs Enforcement (ICE) recently updated the list of Student and Exchange Visitor Program (SEVP) approved schools. The schools listed have all been certified to participate in the program.

The program allows foreign students interested in obtaining an education in the United States to complete a visa petition, pay the required fee, and attend a U.S. College or University.

Interested Foreign students: There is a process in obtaining a student visa, but it is not a difficult one. The student must first obtain Form I-20 from the U.S. College or University from which he/she intends to enroll, pay the required visa fee (Form I-901) and contact a local U.S. Consulate/Embassy to schedule an interview. The SEVP procedures differ among U.S. Consulates/Embassies; contact your U.S. Consulate/Embassy NOW to determine its particular procedure on applying for a visa before planning for the interview.

Interested Schools: There is a separate process to obtain F & M Certification. Authorized school officials must obtain and complete Form I-17. An overview of the SEVP Certification process can be found on the ICE website . If approved, the school will be certified and allowed to issue Form I-20 to qualifying foreign students.

If you need assistance or an explanation of the SEVP/student visa, please contact our office to schedule a consultation.

Posted On: October 19, 2010

LATEST UPDATE: H-1B FY2011 CAP COUNT

The United States Citizenship and Immigration Service (USCIS) has updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of October 15, 2010, 42,800 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of October 15, 2010, 15,700 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Stay posted to MVP Law Group for future FY2011 H-1B Cap updates!

Posted On: October 18, 2010

Updated Service Center Processing Times

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on October 14, 2010 with processing dates as of August 31, 2010.

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
National Benefits Center
Nebraska Service Center
Texas Service Center
Vermont Service Center

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.

Posted On: October 15, 2010

MVP LAW GROUP – Immigration Q&A Forum, Friday, October 15th, 2010

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. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.


Question #1 – Temporary Work Visa – E3 Australian Visa
As an Australian, I am eligible for an E-3 visa, but my potential employer has suggested I am eligible and should look into an H1-B visa too. What is the difference, and which is preferable?

Answer #1
The H-1B non-immigrant worker visa is subject to numerical limitations imposed by Congress. Each fiscal year, beginning on April 1, 65,000 visas are available for those who qualify for ‘Specialty Occupations.’ Specialty Occupations are defined as those that require a theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. The H-1B visa allows foreign workers to enter the U.S. and work in a variety of fields ranging from architecture and engineering to teaching and medicine. The H-1B visa offers a wide range of employment possibilities and is a logical first step toward permanent immigration. In order to qualify for H-1B classification, the applicant must have at least a U.S. bachelor’s degree or its foreign equivalent AND the job sought must require at least a bachelor’s degree or its equivalent. This is not a self-petitioning category; therefore the applicant must have a sponsoring employer in the U.S.

The E-3 visa is exclusively reserved for Australian nationals. The visa allows Australian Professionals to come to the U.S. to work in a specialty occupation, similar in many aspects to the H-1B nonimmigrant worker visa. The new E-3 visa classification is limited to 10,500 Australian nationals annually. E-3 principal nonimmigrant aliens must be coming to the United States solely to perform services in a “specialty occupation”. This term is used and defined in the Immigration and Nationality Act in the same context as the H1B visa program, and will be interpreted in accordance with the criteria used for H1Bs. The category has requirements with respect to the education of the beneficiary and the job duties to be performed which mirror the H1B requirements. It thus will be helpful in some situations where the H1B CAP has been exhausted. To be eligible, the Australian citizen must possess a bachelor's degree or higher (or its equivalent) AND the specialty occupation must require the theoretical and practical application of a body of specialized knowledge.


Question #2 – Employment Based Immigration – Green Card - EAD Renewal
Can I expedite the EAD renewal process since my EAD expires next week? I made a Service Request after 90 days. Is there an interim EAD card that I can get in the meantime?

Answer #2
According to the information you have provided, it seems as though you have made the expedite request when you made the service request after 90 days of your case being in the pending status. You can file an EAD renewal request up to 120 days in advance of the expiration of your current EAD. You should be aware of the Service Center processing times well in advance of filing so that you can obtain an approval of the EAD, so that you can continue working. If you do not receive your EAD renewal request by next week when your current EAD expires, you MUST WAIT and NOT WORK until your EAD is approved and you receive the actual EAD card in the mail.


Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
Is the H-1B quota still open?

Answer #3
As of October 8, there were approximately 23,100 H-1B Regular CAP subject nonimmigrant visas remaining and approximately 4,600 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2011 H-1B Cap updates, please refer to www.mvp.com.


Question #4 – Employment Based Immigration – Temporary Work Visa - H-2B Nonimmigrant Visa
What is the H-2B temporary visa?

Answer #4
The H2B working visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. temporarily and engage in nonagricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence. To qualify for an H-2B visa, you must have a valid job offer from a U.S. employer to perform temporary or seasonal nonagricultural work and proof of an intent to return to your home country on expiration of the visa.

The limitations of the H-2B visa are that the job must be temporary in nature and the need must be for one year or less, the employer's need may not be ongoing or continuous. The employer has the burden of establishing the facts necessary to support a finding that the need is a one-time occurrence, seasonal, peak load or intermittent need. H-2b time counts whether you are in the U.S. or abroad, and H-2b dependents may not work in the U.S.


Question #5 – Employment Based Immigration – Temporary Work Visas – H-1B Nonimmigrant Visa
I recently got a new project in Northern Virginia. I will be working at a client in Northern Virginia and living in Maryland. I have North Carolina labor filed on my H1B petition. Do I need to file a new labor for Northern Virginia? If so can you guide me and my employer in filing a new labor in a new state?

Answer #5
According to the regulations governing the H-1B program, when you move to a new location outside of the geographical location listed on the original certified LCA, a new LCA as well as an amended petition must be filed with the USCIS. In summary, since your location change would be considered a "material change" in your previously approved employment, you would need to file a new LCA as well as the amended petition to stay within the regulations.


Question #6 – Temporary Work Visas – H-1B & L1A/L1B Nonimmigrant Visas
I am a U.S. small business employer with 20 employees with half of them being on H-1B status. I have read different articles about the new public law and its applicability to nonimmigrant visas, but I am somewhat confused based on what I have read. Does the new public law fee apply to me and my company?

Answer #6
Under Public law 111-230, Employers with 50 or more employees in the U.S., for which more than 50% of their workforce utilize H and L visas are subject to the new fee. Employers to which the Public law is applies will have to pay an additional fee of $2,000.00 for each H-1B filed, in addition to normal USCIS filing fees associated with the H-1B visa. If your company employs less than 50 employees, you are not subject to the new fee. If you are a larger company and have 50 or more employees and have less than 50% of those employees on H1B/L1 visas, then you are not subject to the new fee.


Question #7 – Employment Based Immigration – Employment Authorization Document (EAD)/Advance Parole Document (AP)
My EAD and AP are expiring this year sometime. When is the earliest that I can file my renewal petitions?

Answer #7
You can file for an EAD renewal with the USCIS no more than 120 days in advance of the expiration of your current EAD. You can file for AP renewal no more than 30 days in advance of the expiration of your current AP or the USCIS will issue an RFE requesting your current AP document before issuing a new AP document.


Question #8 – General – Social Security Card
How and when do I obtain a Social Security Card?

Answer #8
Generally, you may obtain a Social Security Card once you are legally authorized to work in the United States. Such authorization may be evidenced by receipt of an employment authorization card, an Alien Registration Card (Green Card), or receipt of temporary evidence of Green Card status (as established by presentation of an I-551 stamp in your passport). You will need to file an application for a Social Security Number in person at the Social Security Office. When filing this application at the Social Security Office, you should bring the following documents with you: your original birth certificate, passport, and employment authorization document, stamped passport or Green Card. Call 1-800-772-1213 for further information including the address of your local Social Security office, or visit their website at www.ssa.gov.


Question #9 – Employment Based Immigration – Temporary Work Visas – H-1B Nonimmigrant Visa
One of my employees is nearing her 6th year on H-1B visa status, but she has an approved I-140 filed by a different company. Is it possible to use that approved I-140 to get her a three year extension with our company.

Answer #9
Generally, the answer to that question is yes. Pursuant to AC21 law, an H-1B immigrant may extend his or her status beyond the 6 year limitation if a labor certification, I-140, or employment based adjustment of status application has been filed where 365 days or more have elapsed since the filing of the labor certification or I-140. Or, where the H-1B immigrant has an I-140 petition which has been approved under the employment based green card and the AOS/485 is pending due to the unavailability of visa numbers.


Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
My H1b visa got approved in 2008 which was filed by my previous employer.I did not get chance to travel to USA and even my visa is not stampted. Now I am with another employer. Can I transfer my H1b to the new employer?

Answer #10
The safest option to utilize at this point given the facts as you have provided is to file a new H-1B petition. Transfers and Extensions do not apply in this scenario because you have never entered the U.S as an H-1B nonimmigrant. Once the petition is filed and approval received, you would need to attend the Consulate interview and if all goes well, you would be able to then travel to the U.S. and after speaking with CBP, enter as an H-1B nonimmigrant visa holder.


MVP Law Group would like to thank everyone who contributed a question or comment. We hope the information provided is helpful.

Our next “Immigration Q & A Forum” is scheduled for Friday, November 5, 2010! Please remember to submit your questions/comments on our h1bvisalawyerblog.

Posted On: October 13, 2010

November 2010 Visa Bulletin

The Department of State has released its latest Visa Bulletin.

Click here to view the November 2010 Visa Bulletin.

The November 2010 Visa Bulletin still shows employment based third preference (EB-3) visas as oversubscribed while the employment based second preference (EB-2) is current for all areas of chargeability except for China and 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.

Have you already applied in EB3, thinking about filing in EB2...if you are eligible, contact MVP Law Group.

Did you file in EB3 or EB2 and still waiting...and married to a U.S. Citizen or Permanent Resident?...you may be eligible to file a Family Based Immigrant Petition for faster processing.

Questions, contact MVP Law Group online or toll free at 1-800-447-0796.

Posted On: October 13, 2010

LATEST UPDATE: H-1B FY2011 CAP COUNT

The United States Citizenship and Immigration Service (USCIS) has updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of October 8, 2010, 41,900 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of October 8, 2010, 15,400 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Stay posted to MVP Law Group for future FY2011 H-1B Cap updates!

Posted On: October 13, 2010

U.S. Citizen pleads guilty in Cambodian marriage fraud scheme

Justin Michael Martin of Kentucky pleaded guilty to commit marriage fraud and is facing a possible sentence of 10 years with $500,000 in fines. Martin was set up by Michael Chanthou Chin to travel to Cambodia and marry Yota Em, a Cambodian national. He agreed to marry Yota so she could avoid U.S. immigration laws for a compensation of about $7,000. When he visited Yota in Cambodia all of Martins expenses were paid and when they returned to the US, Yota was his fiancé and she had a K-1 visa. They then lied to immigration officers reporting their marriage was legitimate and Yota gained her full U.S. residency. By June of 2009 the couple was divorced.

Due to their separation and marriage fraud, the U.S. Immigration and Customs Enforcement (ICE) is presently looking for Yota Em, currently a fugitive in the US.

Posted On: October 12, 2010

USCIS Naturalization Fact Sheet

Each year the USCIS naturalizes approximately 680,000 citizens and so far over 6.8 million citizens have been naturalized into the United States. This fiscal year alone the US has already naturalized 495,232 people.

To apply for naturalization an individual must fill out Form N-400 (Application for Naturalization) and fulfill the requirements of the Immigration and Nationality Act (INA). The INA sates an applicant must be at least 18, a green card holder, have resided in the US for at least five years, physically present in the US for at least 30 months, have good character, understand U.S. government & history, comprehend the English language and take the Oath of Allegiance.

Some exceptions exist for the naturalization requirements for individuals who are members of the military and whose spouses are U.S. citizens. Some of these exceptions include spouses, who may be eligible to receive naturalization in three years after being permanent residents rather than five, spouses stationed abroad may not have to meet residency requirements, children under 18 who are permanent residents can automatically gain citizenship if living with a U.S. citizen parent, and children living abroad with at least one U.S. citizen parent physically in the U.S. can be eligible for naturalization.

Individuals that have been naturalized live primarily in these 10 states: California, New York, Florida, Texas, New Jersey, Illinois, Virginia, Massachusetts, Washington and Maryland.

Posted On: October 12, 2010

Former Guatemalan Special Forces Soldier Sentenced to 10 Years for Making False Statements on Naturalization Forms

Gilberto Jordan was found guilty by Florida’s U.S. District Court for illegally obtaining his U.S. citizenship and human rights violations for his participation in the massacre at Dos Erres, Guatemala. Jordan was a part of the Guatemalan special forces patrol who raided Dos Erres in 1982 looking for stolen rifles and guerrillas. The patrol searched all the houses for the weapons and systematically killed the men, women and children. When applying for his U.S. citizenship in 1996 Jordan denied he had ever been a part of the military or committed any crimes and later in 1999 continued to deny any dishonesty on his application during his application review. At the court sentencing, Jordan’s citizenship was revoked.

Posted On: October 11, 2010

REMINDER - Submit your questions

MVP "Q & A Forum" - This Friday, October 15th, 2010

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, AZ SB1070, priority dates, or the debate focused on Ending Birthright Citizenship, 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 15th, 2010. Act now and submit your questions!

THANK YOU!

Posted On: October 8, 2010

USCIS Announces Final Rule Adjusting Fees for Immigration Benefits

On September 23, 2010 The U.S. Citizen and Immigration Services (USCIS) announced a final rule to adjust fees for immigration applications and petitions effective November 23. Due to USCIS’s large differential between costs and expected revenue, the final rule is necessary to bridge this gap. It will increase overall cost by an average of approximately 10 percent but doesn’t increase the cost for the naturalization application. With the USCIS being a primarily fee based organization it is required to conduct fee reviews every two years and the final rule wraps up the review that began in 2009.

Other new fees included in the final rule include: regional center designations under the Immigration Investor (EB-5) Pilot Program, civil surgeon designation, recovery of USCIS costs to process visas granted. Certain applications are also now applicable for fee reduction and new availability due to the final rule. Furthermore the final plan eliminates fees completely for armed forces members and veterans who wish to file an application for naturalization, application for certificates of citizenship, and requests for hearing on a decision in naturalization proceedings. Due the large amount of public remark over the final rule, the Department of Homeland Security (DHS) allowed for a 45 day comment period after its release and received 225 comments. For further information about the public comments or the details of the final rule visit USCIS and the Federal Registrar.

Posted On: October 7, 2010

Justice sues Arizona Sheriff for Documents

After declining to hand over documents to investigators detailing recent forceful tactics against illegal immigrants to examine whether they are a violation of civil rights, Sheriff Joe Arpaio of Arizona’s Maricopa County was sued by the Justice Department. This lawsuit is the third filed by the Justice Department in relation to how Arizona authorities deal with illegal immigrants.

A federal grand jury is currently investigating Arpaio for misappropriation of federal money and intimidation of opponents. Governor Jan Brewer was questioned about the state’s new immigration law as well as the recent suit against Maricopa County community colleges for putting unlawful requirements on immigrants seeking work.

Posted On: October 6, 2010

USCIS Implemented Public Law 111-230, H-1B/L1 Fee Increase

President Obama signed Public Law 111-230 on August 13, which requires an additional $2,000 in filing fees for some H-1B petitions and an additional $2,250 for some L-1A/L-1B petitions. The fees apply to any company that employs over 50 people within the United States, with more than fifty percent of them having either an H-1B or L1 nonimmigrant status.

These petitions must be postmarked after August 14, 2010 and the provision will be effective until September 30, 2014.

USCIS is asking all petitioners to send in the new fee or an explanation as to why the fee does not apply to their company with the petition. If this is not done, USCIS could require a Request for Evidence (RFE).

Posted On: October 6, 2010

Administrative Appeals Office Processing Times

The Administrative Appeals Office (AAO) Processing Times were released with processing dates as of October 1, 2010.

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

Administrative Appeals Office

The current processing time for an I-129 H-1B Appeal is 14 months. The current processing time for an I-140 EB2 Appeal for an Advanced Degree Professional is 23 months; for an I-140EB3 Appeal for a Skilled or Professional Worker is 26 months.

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

Posted On: October 5, 2010

APPLY TODAY for the 2012 Diversity Visa (DV) Lottery – ONLY ONLINE ENTRIES ACCEPTED

Annually, the United States government issues a maximum of 55,000 green cards through a computer-generated random lottery drawing. Applications for the DV 2012 random lottery will begin to be accepted today Tuesday, October 5, 2010 through Wednesday, November 3, 2010. Paper entries will not be accepted, eligible participants may access the electronic Diversity Visa entry form (E-DV) to apply during this period.

These green cards are only available to those eligible participants from countries with low rates of immigration to the United States. For DV-2012, persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. No countries have been added or removed from the previous year’s list of eligible countries..

Natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the U.S. in the previous five years: Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Peru, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

To enter the DV lottery , you must be a native of one of the eligible countries. In most cases this means the country in which you were born. However, there are two other ways you may be able to qualify. First, if you were born in a country whose natives are ineligible but your spouse was born in a country whose natives are eligible, you can claim your spouse's country of birth provided both you and your spouse are on the selected entry, are issued visas and enter the U.S. simultaneously. Second, if you were born in a country whose natives are ineligible, but neither of your parents was born there or resided there at the time of your birth, you may claim nativity in one of your parents' country of birth if it is a country whose natives qualify for the DV-2012 program.

You must also meet either the education or work experience requirement of the DV program. You must have either a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education; OR, two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform. The U.S. Department of Labor's O*Net OnLine database will be used to determine qualifying work experience.

If you cannot meet either of these requirements, you should NOT submit an entry to the DV program.

Diversity Visa (DV) Lottery Instructions

From May 1, 2011, DV-2012 entrants will be able to use their unique confirmation number provided at registration to check online through Entry Status Check to see if their entry was selected. Successfull entrants will receive instructions on how to apply for immigrant visas for themselves and their eligible family members. Confirmation of visa interview appointments will also be made through Entry Status Check.

Posted On: October 5, 2010

LATEST UPDATE: H-1B FY2011 CAP COUNT

The United States Citizenship and Immigration Service (USCIS) has updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of October 1, 2010, 40,600 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of October 1, 2010, 14,900 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Stay posted to MVP Law Group for future FY2011 H-1B Cap updates!

Posted On: October 1, 2010

MVP LAW GROUP – Q&A Forum, October 1st, 2010

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. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.


Question #1 – Temporary Work Visa – H-1B Nonimmigrant Visa
What is the grace period on H-1B extension? I reside in California, my current H-1B visa expires on 9/25/2010 and I’ve filed for an extension on 9/7/2010. Got certified mail receipt for it. I was told by my lawyer that I have 240 days grace period when an extension application is pending. I need to have some sort of documentation proof on this fact for my employer. Is there anyway I can obtain it?

Answer #1
Under regulation 8 C.F.R. §274a.12(b)(20), a person lawfully employed under A-3, E-1,E-2,E-3,G-5,H-1B, H-2A/B, H-3, I, J-1, L-1, O-1/O-2, P-1/P-2/P-3, R or TN status who timely files an application for extension consistent with 8 C.F.R. §214.1, is automatically given 240 days from date of expiration. This extension does not apply to persons seeking a change of status. During 240 days, there is no INA 245(c) bar to adjustment of status.


Question #2 – Employment Based Immigration – Green Card
I got my I-140 petition approved. Next step is to apply for AOS. What kind of document I need to have for AOS application?

Answer #2
In order to apply for AOS, your priority date needs to be current, once your priority date is current, you will able to file the Form I-485, Application to Adjust Status to Permanent Resident along with the Form I-765, Application for Employment Authorization and Form I-131, Application for Travel Document. There are numerous background documents that will need to be submitted along with your petition, specifically, a sealed medical examination from a civil surgeon in your area, birth certificates, copies of federal tax returns, bank statements, and an employment verification letter, among other documents.


Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
My name is mistakenly typed in the form I-129 submitted to USCIS. In that form only, in all other forms (including I-129 supplements) it has typed correctly. Name mistyped on I-129, so reflecting wrong name on I-797, what I need to do now?

Answer #3
If you believe that the mistake on your I-129 receipt notice (Form I-797) would cause severe issues down the road, you will need to contact the USCIS National Customer Service number (1-800-375-5283) and speak with an Agent to request that the mistake be corrected, so that your I-129 Approval notice (Form I-797) will provide the correct spelling of your name.


Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have some questions to ask about immigration. I am currently on Stem Opt extension and I am a full time employee, my stem opt started on Jan. 15th 2010. I have worked for one client in May 2010 through a vendor and the vendor said they cannot run my payroll directly. I contacted one consultancy but I did not know they are not e-verified. The consultancy got the money from the vendor and they are not enrolling into e-verify now. I am not sure what will be the situation if the non-e-verified company runs my payroll. My current company will apply for my H1 this year. Please advise.

Answer #4
Your current company/present employer should be the one responsible for running your payroll, not the vendor nor the end client. From the information you have provided, it does not seem like you are a direct employee of the vendor or the end client, therefore the only entity responsible for running your payroll is your current company.


Question #5 – Diversity Lottery (DV)
Can I apply for DV now?

Answer #5
Applications for the DV 2012 random lottery will be accepted beginning Tuesday, October 5, 2010 through Wednesday, November 3, 2010. Paper entries will not be accepted, eligible participants may access the electronic Diversity Visa entry form (E-DV) to apply during this period. For more information relating to the DV 2010 random lottery, please refer to www.h1bvisalawyerblog.com.


Question #6 – Employment Based Immigration – Green Card
Regarding a change of job, is there a recommended wait time after the green card that I can change my employer. On the EAD there was a 6mth after which I could do this, but was wondering after the GC if there is any such thing. Appreciate your response.

Answer #6
Although the regulations are silent on this issue, we recommend that you wait at least six (6) months before changing your employer to avoid issues if you intend on applying for citizenship when you become eligible.


Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
Is the H-1B quota still open? Do I still have time to file for an H-1B even though October 1, 2010 is right around the corner?

Answer #7
As of September 24, 2010, there were approximately 25,400 H-1B Regular CAP subject nonimmigrant visas remaining and approximately 5,600 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2011 H-1B Cap updates, please refer to www.mvp.com.


Question #8 – Employment Based Immigration – Green Card
Is an approved I-765 any indication that the I-485 is getting close to approval and would eventually BE approved without a hitch or are they autonomous processes?

Answer #8
They are separate creatures. Therefore, to put it simply, an approved I-765 is not an indication that the I-485 is getting closer to being approved.


Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
I need to file my H-1b as soon as possible, but I am scheduled to leave the country early next week. If I file and leave, will there be any complications? Please advise.

Answer #9
Pursuant to regulation 8 C.F.R. 214.2(h)(15)(i), a person must be in the U.S. when an extension is filed, but may travel abroad while an extension is pending. If the beneficiary is required to travel while the extension is pending, the approval can be sent via cable (or through the PIMS system) to the appropriate consular post upon the Petitioner’s request. We recommend that if you have a pending extension with the USCIS, you do not travel outside of the U.S. unless it is an emergency.


Question #10 – Employment Based Immigration – Green Card
My AP expires today and since i just came back from INDIA, i dont see any travel need for quite some time now hence i am not applying for extension of AP. Is that OK? Or do we need to always apply it before the current one expires. I think we can always apply only on needs basis and do it at a later stage. Will that be fine?

Answer #10
You do not need to apply for the AP prior to the expiration of the current AP. You can always apply at a later date.


MVP Law Group would like to thank everyone who contributed a question or comment. We hope the information provided is helpful.

Our next “Immigration Q & A Forum” is scheduled for Friday, October 15, 2010! Please remember to submit your questions/comments on our h1bvisalawyerblog.