MVP LAW GROUP – Immigration Q&A Forum, Friday, November 5th, 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
Is the H-1B quota still open?

Answer #1
As of October 29, there were approximately 19,400 H-1B Regular CAP subject nonimmigrant visas remaining and approximately 3,300 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to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.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.mvplg.com.

Question #2 – Temporary Work Visas – H-1B Nonimmigrant Visa
Do non-profits come under the same category as far as H1B is concerned?

Answer #2
If you are the beneficiary of an H-1B nonimmigrant visa for a company that is a not-for-profit, and they have sufficient proof of their non-profit status, then any new H-1B nonimmigrant petition filed by that company is not subject to the annual H-1B nonimmigrant visa CAP. An H-1B petition for new employment can be filed at any time.

Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
One yr ago I employed someone on HIB 3yr visa. I found out he has applied for job in Australia. What recourse do I have?

Answer #3
Generally, employers are rather limited in what they can do to H-1B employees who transfer employment, unless your employment agreement/contract provided for liquidated damages or other alternatives in case the employee would decide to terminate the employment prior to the end of the validity period of the visa. If you are terminating the H-1B employee, you are responsible for paying for the nonimmigrant’s travel back to his/her home country.

Question #4 – Employment Based Immigration – Green Card
I just received my Green Card, what do I do now?

Answer #4
USCIS maintains a useful web page on the topic “Now That You Are A Permanent Resident.” It can be found at http://uscis.gov this is the USCIS home page, click on After a Green Card is Granted under the Green Card (Permanent Residence) heading. Then look to the right side and under More Information you will find valuable information on, among other topics, how not to lose your status as a permanent resident. Additionally, if you look to the left side under After a Green Card is Granted you will find numerous resources on different topics relating to your status as a Permanent Resident.

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

Answer #5
No, applications for the DV 2012 random lottery were accepted from Tuesday, October 5, 2010 through Wednesday, November 3, 2010.

Question #6 – Temporary Work Visa – H-1B Nonimmigrant Visa
Hello, I have a question about a H1B visa application. My situation is as follows: A H1B application was submitted by employer-with assurances that it would go through, however the legal representation was being provided pro-bono and as a result (in my opinion) not enough attention was paid to it…thus, this week the petition was denied: in retrospect, the application was weak. What should I do next? Should I appeal? I believe the process may be lengthy and perhaps unfavorably viewed on the back of a weak initial submission. Is it legitimate to start over and submit a new petition with clearer job description and more accurate information? Many thanks in advance.

Answer #6
You will need to have your employer contact our experienced Immigration Attorneys to discuss the details of the denial and determine your options moving forward, whether it would be better to just re-file or file an appeal. I cannot provide you with advice moving forward without fully reviewing your case and the evidence that was initially submitted.

Question #7 – Marriage Based Immigration – Conditional Permanent Resident
I would like to know the procedure for “removing conditions.” When can I file? I’m married to a U.S. Citizen and my conditional green card is set to expire in May of 2011.

Answer #7
You can file to remove the conditions 90 days prior to the expiration of your second anniversary as a conditional resident. It is very important that you file Form I-751 (Petition to Remove the Conditions on Residence) within the 90 day window of time. If you file too early, the USCIS will send your application back. You may file at any time during the 90 day window, but it is suggested that you file fairly early in the window. If you fail to properly file Form I-751 within the 90 day period, your conditional resident status will automatically be terminated and the USCIS will order removal proceedings against you and a hearing will be conducted where you will be given the opportunity to rebut the government’s allegations against you.

The items involved in filing the application to “remove conditions” include: (1) a completed Form I-751; (2) USCIS filing fee of $545.00; (3) certified copy of front and back of permanent resident card; (4) evidence of a bona fide relationship; and a (5) detailed cover sheet indicating the contents of the package.

Question #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have a valid H1B through Aug2011. But I would like to move to L2 visa. Is it possible to cancel my h1B visa? If so then how long will it take and what is the process?

Answer #8
Notify your employer that you wish to cancel your H-1B visa. They will write a letter to the USCIS requesting that the USCIS withdraw your H-1B visa. You will have to apply for the L2 status with the USCIS and wait for the approval or obtain the L2 visa at a consulate with proof of your eligibility. *You will want to apply for the L2 visa status prior to your employer writing the letter to cancel your H-1B visa so that you can maintain an authorized valid presence in the United States.

Question #9 – Temporary Work Visas – H-1B & L1A/L1B Nonimmigrant Visas
I am the President of a small business in Texas. 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 #9
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 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. Additionally, Employers are required to pay an additional fee of $2,250.00 for each L1 petition filed in addition to the USCIS filing fees already required. 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 #10 – Temporary Work Visas – H-1B & L1A/L1B Nonimmigrant Visas
Does the new public law apply to transfer and extension petitions?

Answer #10
Under Public law 111-230, petitioners subject to the new fees must submit the fee with an H-1B or L-1 petition filed (1) initially to grant an alien nonimmigrant status; or (2) to obtain authorization for an alien having such status to change employers. Therefore, the fee must be submitted with any initial H-1B filings and any transfers, but extensions with the same employer do not require the new fee.

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 19th, 2010! Please remember to submit your questions/comments on our h1bvisalawyerblog.