Posted On: August 31, 2012

MVP LAW GROUP – Immigration Q&A Forum, Friday, August 31, 2012

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.


Question #1 – Employment Based Immigration – Green Card
I appealed my denied my labor application to BALCA. My employer just got notice that my appeal has been docketed. When can I expect a decision?

Answer #1
According to the United States Department of Labor website, it is approximately taking up to two (2) years for a case to be reviewed by BALCA from the date of filing the appeal.


Question #2 – Green Card (Permanent Residence)
If my permanent resident card has expired, do I need a visa? Or is it possible to renew my permanent residence?

Answer #2
A green card is valid for a period of 10 years; you may renew 6 months prior to its expiration. You may renew your green card by filing Form I-90 with the USCIS.


Question #3 – H-1B Non-immigrant Work Visa
How long does it take for the USCIS to review an H1B case that has been returned by the Department of State? When can we contact USCIS to check on the status?

Answer #3
The USCIS has indicated that when cases are returned to them from the Department of State (DOS), those cases are reviewed and processed when time and resources allow. Accordingly, they are low priority in the eyes of the USCIS. Pursuant to the USCIS National Customer Service Center (1-800-375-5283), you may initiate a Service Request after waiting 180 days from the date your case is returned to the USCIS.


Question #4 – Student Visa (F1)
I am currently on OPT (F1 Visa) I am planning to get married in this December. Can I bring my wife to USA on dependent visa (F2 Visa) while I am on OPT (F1 Visa) status?

Answer #4
The F2 is reserved for spouse and children of the F1 visa holder. It depends upon a majority of factors – time remaining on OPT, sufficient funds to provide for you and your spouse, proof of intent to return to your home country, etc.


Question #5 – H-1B Non-immigrant Work Visa
What is the difference between having H-1B status and having an H-1B visa?

Answer #5
H-1B status generally refers to your legal status while in the United States, as the moment you exit the U.S., you are no longer considered in H-1B status. An H-1B visa is a stamp that you receive in your passport when a Consular Officer approves your H-1B petition at a U.S. Consulate overseas. The valid H-1B visa stamp allows you to enter the U.S. as an H-1B non-immigrant in H-1B visa status.


Question #6 – H-1B Non-immigrant Work Visa
Can I change my job while I am under the H-1B visa?

Answer #6
Yes, the petition would be referred to as an H-1B transfer. You are allowed to change jobs if you find a new and willing H-1B sponsoring employer. You must file the new H-1B transfer case with the USCIS.


Question #7 – Temporary Work Visa
If I work for a company with offices overseas, and I want to work for the company in its United States offices, would I apply for a employment based visa? If not, which visa would I apply for?

Answer #7
It depends. You could apply for an H-1B non-immigrant visa; an L1, Intra-Company Transferee visa; possibly an E1, Treaty Trader visa or an E2, Treaty Investor visa, an E3 Australian visa, or a TN visa, etc. Please contact our office to further discuss your particular situation and which visa would be a better fit for you.


Question #8 – Temporary Visas
Will a criminal conviction impair my ability to receive a temporary visa?

Answer #8
It depends upon the type of criminal conviction. Depending upon the seriousness of the criminal conviction, it is possible to be inadmissible and/or deportable for certain criminal convictions – crimes of moral turpitude, crimes involving domestic violence.


Question #9 – General – Social Security Card
How and when can I get a Social Security Card?

Answer #9
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 #10 – General
Is it necessary that I have someone sponsoring me when I apply for a visa?

Answer #10
It depends, as almost all types of visas require sponsorship whether employment based or family based.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, September 14, 2012!

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

Posted On: August 30, 2012

Green Card Process

In EB permanent residence, commonly referred to as "green card," cases there are and have always been many unknown factors that impact processing times. The timeframes can range by years from one case to the next. Procedures can change in mid-stream, disrupting plans and strategies.

Labor Certification - PERM

All labor certifications are filed under the PERM process. Under PERM, all cases must be pre-advertised. There is a 30-day "quiet period" following the completion of recruitment efforts. The case can only be filed after the 30 days. Thus, the time required for preparation of a PERM case is a combination of this quiet period, a 30-day State Workforce Agency (SWA) job order requirement, a number of recruitment requirements, a job posting, and the need to obtain a prevailing wage determination. Of course, all of the time necessary for the preparation and review of a case, and communication between the lawyer and the employer and/or employee, must also be considered. Additional time is required for the employer to screen resumes submitted in response to recruitment efforts and to interview potentially qualified applicants. Depending upon how quickly the prevailing wage determination is issued, whether the employer has engaged in any recruitment efforts prior to the start of the PERM case, how quickly the employer or employee provides information and documentation, and the number and qualifications of job applicants, it could take as long as four to six months for the PERM case to be ready for filing.

Once it is filed, the U.S. Department of Labor (DOL) estimates processing times of up to 60 days. Historically, PERM processing timeframes have ranged from a few days to more than eleven months. If there is an audit by the DOL, there would be an extended delay. The time necessary for the additional processing of the audited PERM application is unknown and can add an additional year or more to the process. If all goes well, however, the time from the initiation of the PERM process to approval would be approximately six to ten months.

After Labor Approval - I-140 Petition

Following the labor certification approval, the case moves to the stages of the employer petition (I-140) and the adjustment of status (I-485). It would also be possible to select consular processing instead of I-485. This is when the time estimate becomes quite uncertain. First, there is the I-140 petition. The time it takes to prepare this for filing can depend upon the availability of documents and the speed of action by the employer, employee, and attorney. I-140s have to be supported by the employer's financial data and proof that the employee / beneficiary has the required education and work experience. The safer and faster route is to try and gather all or most of this type of documentation in advance, in parallel with the PERM LC filing. It may be necessary, however, to obtain updated financial information that could slow the preparation time. There are no advertising or other time-bound requirements that dictate the time-frame for preparation and filing of the I-140 petition.

At this time, the I-140 petitions are processed by the USCIS Nebraska and Texas Service Centers. A general estimate of the expected processing time can be obtained based upon the Service Center Processing reports, available on the USCIS website and MVP Law Group’s website. The processing time for any particular case can vary, depending upon the service center, whether there is an RFE issued, and general variations from case to case. Typical processing times range from four months to one year. It is possible to expedite most I-140 filings by using premium processing. It is not necessary to have an I-140 approval to file the I-485. This is where the real uncertainty comes about with processing times.

Adjustment of Status - I-485 Application

Once the labor certification is approved, the general procedures allow for concurrent filing of the I-140 and I-485. However, the I-485 cannot be filed unless the priority date is current for the particular case. The I-485 can take some time to prepare, depending upon how much work was done in advance. It is necessary to have a medical exam, which means waiting for a doctor's appointment and test results. It is also necessary to document immigration status history, provide birth and marriage records, and biographical information. Those who are more organized about their documents and have less complicated histories will have an easier time providing what is needed. If documents are needed from abroad, it is best to work on obtaining these well in advance.

It is not always possible to file the I-485 with the I-140 due to unavailability of visa numbers. Essentially, in order to file an I-485, there must be an available visa number in the particular category. This concept of visa unavailability, retrogression, and visa cutoff dates is vital to the understanding of the immigration process at this time.

Possible Delays in Filing Due to Lack of Visa Numbers

So, a person may have an approved labor certification, and even an approved I-140, but not be able to move forward to the I-485 stage. This problem is severe for people from all countries in the employment-based, third preference EB-3 category, and for those from India and China in EB-2. Following labor certification approval, the employer can file the I-140 petition and even obtain its approval without regard to visa number availability. The case will stall at that point, however, until visa numbers are available for the individual's employment-based category so that the I-485 can be filed. This delay could be a few weeks, a few months, or in many cases, a few years or longer. This is why it is virtually impossible to answer the question, "How long will it take to get a green card?"

Possible Delays in Adjudication Due to Retrogression

If a visa number is available and a case is filed, it is still not immune to delays caused by a lack of visa numbers known as retrogression. For an I-485 to be approved there must be a visa number available on the date of the I-485 approval. Thus, if a case is filed while visa numbers are available, and then the cutoff dates move backward, or retrogress, while it is pending, the case will have to wait until the visa numbers become current again. The time delay, again, is an unknown factor. While this tends to be less of a problem with I-485 cases being filed as of this writing, historically, it has been an enormous complication, impacting many cases.

Consular Processing

If one elects to take the route of consular processing, instead of adjustment of status, the analysis is similar. In this event, the I-140 is filed after the labor certification approval. It is then necessary to wait for the I-140 approval to move forward. The processing time ultimately depends upon how quickly the case moves through to an appointment at the particular consulate. This is generally a number of months, perhaps between four to eight months. A case cannot be approved at the consulate for an immigrant visa, however, unless there is a visa number available. Therefore, consular cases are also delayed by retrogression, and are held at the National Visa Center (NVC) awaiting visa number availability.

Other Variations

There are numerous other matters that can cause variations in processing times. Receipt of requests for evidence (RFEs), can slow the processing times. Putting aside retrogression, enormous variations in processing times are evident at the various service centers and local USCIS offices. While most employment-based green card cases for professionals are ruled upon at the service centers, some are sent to the local USCIS offices for interview. This can cause additional months of delay.

Green card cases can be complex, and anyone who is contemplating filing a green card case should consult with our knowledgeable and experienced attorneys at MVP Law Group in advance of filing.

Posted On: August 28, 2012

Non-Immigrant Visa Interview Waiver Eligibility Checklist for India

A non-immigrant visa interview waiver checklist for India has been posted by Mission India to help you determine your eligibility. The requirements are listed below for non-immigrant visa interview waiver eligibility for visa renewal applications submitted at any U.S Consular office in India (Delhi, Mumbai, Chennai, Hyderabad or Kolkata).

Eligibility Requirements

• I have a previous U.S. visa in the same class as the visa class for which I wish to renew.
• My previous visa was issued in India.
• I am applying in the consular district where I want my passport delivered.
• I confirm I have no refusals for a visa in any category after my most recent visa issuance.
• If I am applying for a B1/B2 or C1D visa, my prior visa in the same category expired within the last 48 months or is still valid.

OR,

If I am applying for a J2, L2, or H4 visa, my prior visa in the same category of the same petitioner expired within the last 12 months or is still valid.
• I understand that if my visa was issued before January 1, 2008, I may be required to submit fingerprints at a consular section.
• My prior visa does NOT have the annotation ’’Clearance Received’’

If you have answered ‘’Yes’’ to all the questions above, you may be eligible for Visa renewal/re-issuance without a Visa interview.

Supporting Evidence

Please print a copy of the completed checklist and submit it with the following documents to the nearest VFS U.S Visa Application Centre, located under the respective Embassy or Consulate where you intend to apply. For address and submission timings please refer to www.vfs-usa.co.in

1. Original Passport (old passports to be attached if you have the previous U.S visa pasted on it).
2. DS -160 nonimmigrant visa application confirmation sheet.
3. Original HDFC receipt (Embassy copy)of visa fee and service charges Receipt activation takes up to 2 working days from the day of
payment at HDFC bank.
4. (1) Photograph with white background (2 x 2 inches (51 x 51 mm) in size. Specifications available on the VFS website.
5. Copy of DS - 2019 for J2 applicants.
6. Copy of I- 797 and primary applicant’s visa copy for H4 and L2 applicants.
7. Copy of joining letter and original CDC for C1D applicants.

Note that eligibility for interview waiver does not guarantee a visa issuance nor does it guarantee that an interview will be waived. Although your visa interview maybe waived, you may still be required to appear for fingerprinting. Any necessary notifications will be made by the email address listed in your DS 160 online application.


Contact MVP Law Group for more information!

Posted On: August 27, 2012

MVP "Immigration Q & A Forum" - This Friday, August 31, 2012

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, August 31, 2012. 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.

Posted On: August 22, 2012

Alternatives to the H-1B Visa for Individuals who did not make the FY2013 H-1B Quota

Now that all of the new H-1B visas for the 2013 Fiscal Year have been allocated, What options do Employers who are looking to hire Foreign National Professionals have?

Here are some creative solutions to this problem:

O-1 Visa
The O-1 visa is suited for individuals of extraordinary ability or achievement. The O classification is a useful and flexible alternative to the H-1B program because there is no overall limit on time in the classification and there is no cap. O-1 beneficiaries in the sciences, arts, education, business, or athletics must have extraordinary ability “demonstrated by sustained national or international acclaim.”

E-3 Visa
The E-3 visa classification is limited to Australian Professionals. The E-3 visa is a “specialty occupation” visa similar to the H-1B visa. Therefore to be eligible for the visa, the Australian citizen must possess a bachelor’s degree or higher (or its equivalent) in the specialty and the specialty occupation must require the degree. There is a 10,500 annual limit on the E-3 visa.

L-1 Visa
The L-1 visa is an option for international organizations with offices in the United States who transfer employees to the United States for temporary periods of time. In order to be eligible for an L-1 visa, the petitioning entity must prove that the beneficiary of the visa has worked for the non-U.S. based sister company/subsidiary for at least one full year within the last three years as an executive, manager or employee with specialized knowledge.

TN Visa
The TN Visa is a product of NAFTA, under this agreement, certain citizens of Canada and Mexico are eligible to enter the U.S. under the non-immigrant TN status. The TN Visa enables Canadian and Mexican citizens to temporarily work in the U.S. in a NAFTA-approved professional occupation.

H-1B Visa for FY2014
WAIT for the H-1B FY2014 Quota. The H-1B FY2014 Quota will open on April 1, 2013 with employment beginning on October 1, 2013. 65,000 visas are annually allocated to foreign nationals who possess a bachelor’s degree or higher (or its equivalent) in the specialty and the specialty occupation must require the degree. We can begin to prepare cases for the annual quota now; however, no cases will be filed with the USCIS towards the CAP until after April 1, 2013.

Contact MVP Law Group for more information!

Posted On: August 21, 2012

Updated Service Center Processing Times

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on August 17, 2012 with processing dates as of June 30, 2012.

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

**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.

Posted On: August 17, 2012

MVP LAW GROUP – SPECIAL: Deferred Action for Childhood Arrivals Q&A Forum, Friday, August 17, 2012

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 – Marriage
Will my being married make me no longer eligible?

Answer #1
No, being married will not make you ineligible, as long as you satisfy all the eligibility requirements, you may submit an application for deferred action and a request for employment authorization if there is an economic necessity for employment.


Question #2 – Gaps
Will a brief interruption in the requirement to be in the U.S. continuously from June 15, 2007 to August 15, 2012 affect my eligibility for deferred action?

Answer #2
According to the guidance released by the USCIS, a brief, casual, and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States for any period of time, your absence will be considered brief, casual, and innocent, if it was before August 15, 2012, and the absence was short and reasonably calculated to accomplish the purpose for the absence; the absence was not because of an order of exclusion, deportation, or removal, the absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before you were placed in exclusion, deportation, or removal proceedings; and the purpose of the absence and/or your actions while outside the United States were not contrary to law.


Question #3 – Diploma/GED
If I am now in High School but have three more years before I graduate, does this mean that since I have not yet graduated from High School or earned a GED that I won’t be able to be legalized?

Answer #3
According to the guidance released by the USCIS, you must be either: currently in school, graduated or received a certificate of completion from high school, obtained a general educational development certificate (GED), or an honorably discharged veteran of the Coast Guard or U.S. Armed Forces.

Additionally, it is important to note that this deferred action process will not result in lawful permanent status, or naturalization.


Question #4 – Asylum
I want to know if an asylum denial will prevent me from qualifying for the deferred action process?

Answer #4
An asylum denial should not prevent you from qualifying for the deferred action process; however, it is recommended that you speak with a qualified Immigration Attorney in order to fully discuss your eligibility.


Question #5 – Proof
What is the best acceptable evidence to establish my identity and the fact that I’ve been here?

Answer #5
As this is a new process, effective August 15, 2012, we have heard that passports, childhood immunization records and school records are acceptable evidence to establish identity and continuous residence in the United States.


Question #6 – Removal
What process should Individuals who are not in removal proceedings but who are subject to a final order of removal take in order to be eligible?

Answer #6
According to the guidance released by the USCIS, this process is open to any individual who can demonstrate he or she meets the guidelines for consideration, including those who have never been in removal proceedings as well as those in removal proceedings, with a final order, or with a voluntary departure order (as long as they are not in immigration detention). If you are not in immigration detention and want to affirmatively request consideration of deferred action for childhood arrivals, you must submit your request to USCIS – not ICE – pursuant to the procedures outlined below. If you are currently in immigration detention and believe you meet the guidelines you should not request consideration of deferred action from USCIS but should identify yourself to your detention officer or contact the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9 a.m. – 5 p.m., Monday – Friday) or by email at EROPublicAdvocate@ice.dhs.gov.


Question #7 - Two Years
Why is it only for two years? What happens after two years? Am I taking a risk by coming out of the shadows?

Answer #7
Individuals who demonstrate that they meet the guidelines may request consideration of deferred action for childhood arrivals for a period of two years, subject to renewal, and may be eligible for employment authorization.

It is very important to understand that while the Deferred Action eligibility criteria may seem to be straight forward, immigration law is complicated and an application for Deferred Action can lead to consequences for a foreign national. Applicants should consider seeking the advice of a licensed Immigration Attorney before submitting an application for Deferred Action.

According to the guidance released by the USCIS, if a request for consideration of deferred action for childhood arrivals is denied, USCIS will apply its policy guidance governing the referral of cases to U.S. Immigration and Customs Enforcement (ICE) and the issuance of Notices to Appear (NTA). If a case does not involve a criminal offense, fraud, or a threat to national security or public safety, the case will not be referred to ICE for purposes of removal proceedings except if DHS determines there are exceptional circumstances.


Question #8 – Citizenship
Will the deferred action process lead to citizenship?

Answer #8
This process does not result in lawful status for persons who have received deferred action because deferring action is only a discretionary determination to defer removal action as an act of prosecutorial discretion and does not provide you with a lawful status. Also, keep in mind that deferred action does not confer lawful permanent resident status or a path to citizenship, only Congress acting through its legislative authority can confer these rights.


Question #9 – Stolen Identity
How will I be affected if my passport was stolen?

Answer #9
You will need to report that your passport was stolen, and if able, apply for a new passport.


Question #10 –Study Visa
Will the Deferred Action Policy have any impact on my study visa?

Answer #10
Have you reviewed all of the eligibility requirements? Specifically, did you enter without inspection before June 15, 2012 or did your lawful immigration status expire as of June 15, 2012. If you were in the United States on an F1 student visa and your student visa expired as of June 15, 2012, then you may be eligible for the deferred action process.

Even though this is very exciting news for our youth, it is extremely important that these young people get quality legal advice from lawyers and not ill-informed sources, since the young population is easier to be taken advantage of. You should only trust information from a reliable source, such as an official government website or reputable legal or charitable organizations; you may also consult with a qualified Immigration Attorney before requesting deferred action.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, August 31, 2012!

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

Posted On: August 15, 2012

Deferred Action for Childhood Arrivals

Deferred Action is a decision by the executive branch to postpone the deportation of a foreign national as an act of selective enforcement. The Department of Homeland Security (DHS) has the authority to grant Deferred Action to any noncitizen at any stage of the deportation process. Deferred Action has been used by Presidents of both political parties to temporarily stop the removal of foreign nationals for Humanitarian reasons. President Obama has decided to focus on the arrest and deportation of dangerous criminals, national security risks and immigration violators. Accordingly, the Obama Administration’s “deferred action” initiative is for unauthorized youth who were brought to this country as children. Those youth are commonly referred to as “DREAMers” because they comprise most of the individuals who meet the general requirements of the Development, Relief and Education for Alien Minors (DREAM) Act.

It is very important to understand that while the Deferred Action eligibility criteria may seem to be straight forward, immigration law is complicated and an application for Deferred Action can lead to consequences for a foreign national. Applicants should consider seeking the advice of a licensed immigration attorney before submitting an application for Deferred Action

On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several key eligibility requirements may request consideration for deferred action for a period of two years, subject to renewal, and, as a result, may be eligible for work authorization. Only individuals who can demonstrate through documentation that they meet these guidelines will be considered for deferred action under this process. Determinations will be made on a case-by-case basis under the guidelines set forth in the Secretary of Homeland Security’s memorandum.

This process does not result in lawful status for persons who have received deferred action arrivals because deferring action is only a discretionary determination to defer removal action as an act of prosecutorial discretion and does not provide you with a lawful status. Also, keep in mind that deferred action does not confer lawful permanent resident status or a path to citizenship, only Congress acting through its legislative authority can confer these rights.

In order to request consideration of deferred action for child hood arrivals - eligible youth will mail their request to the United States Citizenship and Immigration Services (USCIS). The total USCIS filing fees will be $465. USCIS released the requisite forms (I-821D), (I-765) and (I-765WS) late yesterday afternoon. They are available for download at www.uscis.gov/childhoodarrivals .

Eligibility Requirements

• You were born after June 15, 1981; under the age of 31 as of June 15, 2012;
• Arrived in the United States before the age of 16;
• Have continuously resided in the United States since June 15, 2007, up to the present time;
• Were physically present in the United States on June 15, 2012; and at the time of making your request for consideration of deferred action with USCIS;
• Entered without inspection before June 15, 2012 or your lawful immigration status expired as of June 15, 2012;
• Are currently in school, graduated or received a certificate of completion from high school, obtained a general educational development certificate (GED), or that you are an honorably discharged veteran of the Coast Guard or U.S. Armed Forces; and
• You are at least 15 years of age at the time of filing, if you have never been in removal proceedings or if your case was terminated before your request;
• Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

A brief, casual, and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States for any period of time, your absence will be considered brief, casual, and innocent, if it was before August 15, 2012, and the absence was short and reasonably calculated to accomplish the purpose for the absence; the absence was not because of an order of exclusion, deportation, or removal, the absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before you were placed in exclusion, deportation, or removal proceedings; and the purpose of the absence and/or your actions while outside the United States were not contrary to law.

If a request for consideration of deferred action for childhood arrivals is denied, USCIS will apply its policy guidance governing the referral of cases to U.S. Immigration and Customs Enforcement (ICE) and the issuance of Notices to Appear (NTA). If a case does not involve a criminal offense, fraud, or a threat to national security or public safety, the case will not be referred to ICE for purposes of removal proceedings except if DHS determines there are exceptional circumstances.


USCIS will begin accepting requests for consideration of deferred action today, Wednesday, August 15, 2012.

To file a request, please collect documents as evidence to show you meet the guidelines, then complete the USCIS forms (I-821D), (I-765) and (I-765WS), and finally mail the forms and filing fee to the USCIS. Once your filing is received, the USCIS will provide you with a receipt notice to monitor the status of your filing.

Even though this is very exciting news for our youth, it is extremely important that these young people get quality legal advice from lawyers and not ill-informed sources, since the young population is easier to be taken advantage of. You should only trust information from a reliable source, such as an official government website or reputable legal or charitable organizations, you may also consult with a qualified immigration attorney before requesting deferred action.

Supporting Evidence

• Birth Certificate or Passport
• Employment records, Medical records, Financial Records, Military Records that all show that you came to the U.S before the age of 16 and resided in the U.S. for at least five years before June 15, 2012 and were physically present in the U.S. as of June 15, 2012
• School records - Diplomas, GED certificates, report cards, school transcripts and other evidence of enrollment

MVP Law Group is ready and willing to help this young population of DREAMer’s.

Posted On: August 14, 2012

SEPTEMBER 2012 VISA Bulletin

The Department of State has released its latest Visa Bulletin.

Click here to view the September 2012 Visa Bulletin.

The September 2012 Visa Bulletin shows employment based second preference (EB-2) as oversubscribed with no numbers presently available in the EB2 classification for China and India. Employment based third preference (EB-3) visas are also listed as oversubscribed.

According to the Visa Bulletin, numbers will be available for China and India Employment Based Second Preference cases beginning October 1, 2012 under the FY2013 numerical limitations. Every effort will be made to return the China and India EB2 cut-off date to the May 1, 2010 date which had been reached in April 2012.

Note: Readers should be advised that it is impossible to accurately estimate how long that may take, but current indications are that it would definitely not occur before Spring 2013.

**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.

Posted On: August 13, 2012

MVP "Immigration Q & A Forum" - This Friday, August 17, 2012

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, 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, August 17, 2012. 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.

Posted On: August 10, 2012

Administrative Appeals Office (AAO) Processing Times

Administrative Appeals Office (AAO) Processing Times were released with processing dates as of August 1, 2012.

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 current processing time for an I-129 H-1B Appeal is 16 months; for an I-129 L1 Appeal - 20 months. The current processing time for an I-140 EB2 Appeal for an Advanced Degree Professional is 12 months; for an I-140EB3 Appeal for a Skilled or Professional Worker is 32 months.

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

Posted On: August 7, 2012

Advance Submission of Documents Discontinued at U.S. Consulate Hyderabad

As of 8/6/2012, U.S. Consulate Hyderabad will no longer accept advance submission of documents for all Business Executive Program (BEP) and regular H & L petition cases. Instead, all documentation must be delivered to the consulate on the day of the interview.

Anyone with appointments from August 6 onwards are required to carry their documents directly to the consulate on the day of their interview.

Posted On: August 3, 2012

MVP LAW GROUP – Immigration Q&A Forum, Friday, August 3, 2012

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.


Question #1 – Employment Based Immigration - Green Card
My Employer filed for my Labor in January of this year, it is on appeal, and my H1 is expiring this December, 2012. Am I eligible for either a one year or three year extension under the AC21?

Answer #1
Based on the facts as you have described them, it appears you are not eligible for either a one year extension or a three year extension. Under AC21 Section 104(c), you are eligible for a three year extension of H-1B status if you have an approved I-140, Immigrant Petition for Alien Worker. Under AC21 Section 106(a), you are eligible for a one year extension of H-1B status if a Labor certification or an I-140 was filed on your behalf AND 365 days or more have elapsed since the filing of the labor certification or I-140 Immigrant Petition.


Question #2 – Family Based Immigration – Green Card
Are there any restrictions on a 'conditional green card”? Once my wife gets her green card, can she travel (internationally)?

Answer #2
She can travel internationally provided the trip is less than 6 months out of the year. The restrictions are mostly just the time frame, given most GCs are issued for 10 years, they want to make sure at the end of the two (2) years, prior to renewal of the GC, that you are still in a legitimate marriage and that the marriage was not for fraudulent purposes. Once the two (2) years are over and the conditions are removed after she applies to remove them, she will receive a GC valid for 10 years.

Within 90 days of the two-year anniversary of obtaining conditional residence, you and your wife will be required to file a Joint Petition to Remove Conditions on Residence (Form I-751). Once the conditions are removed, your wife will officially have Lawful Permanent Residence with no restrictions in the US.


Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
I exhausted my six years in H-1B status and have since returned to my home country. I have been at home for almost six months; can I now apply for a new H-1B visa under the current cap to return to U.S.? Please let me know so we can move forward.

Answer #3
According to the regulations, once you have exhausted the six year limit on H-1B, you must return to your home country for one (1) year (365 days) before you can petition again for an H-1B nonimmigrant visa. The FY2013 H1B Cap closed in June for employment beginning October 1, 2012. You will have to wait until the FY2014 H1B CAP opens on April 1, 2013, for employment beginning October 1, 2013.


Question #4 – Employment Based Immigration – Green Card
I have an approved I-140 filed by my previous company and they also submitted my I-485 back in 2007. I have since moved onto employment with another company on my EAD. Can I file AC21 Portability letter?

Answer #4
You may be eligible to file an AC21 106(c) Portability Request if the new position/duties are the same or substantially similar to the position/duties listed in your Labor application as certified by the DOL.


Question #5 –Temporary Work Visa - H-2B Nonimmigrant Visa
I’ve been approached by an employer and I think I may be interested in applying for an H-2B temporary visa. What is it?

Answer #5
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 #6 –Temporary Work Visa – H-1B Nonimmigrant Visa
USCIS received my H1B/H4 petitions on 07/14/2012, we filed for premium processing. What is the timeframe for normal processing? My driving license expires on 9/19/2012. If they process under normal process do they return $1225 which is extra we paid to process under premium processing?

Answer #6
The normal processing time for a case filed under Premium Processing is 15 calendar days from the date of submission. You should contact the USCIS National Customer Service Center or the appropriate Service Center to ensure that the case is processed according to the timeframes provided for premium processing. Regular processing is currently taking 2-3 months according to the most recent processing times posted for the California and Vermont Service Centers.


Question #7 – Employment Based Immigration – Green Card
One of our employees is nearing his 6th year on H-1B visa status, but he has an approved I-140 filed by a different company. Is it possible to use that approved I-140 to get a three year extension with our company.

Answer #7
Pursuant to AC21, an H-1B immigrant may extend his or her status beyond the 6 year limitation if a labor certification, or I-140, 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 #8 – Temporary Work Visas – H-1B Nonimmigrant Visa
If we sponsor an employee and pay the associated legal fees and USCIS filing fees, can we consider those payments in their employment review/raise evaluation in subsequent years? I am trying to treat all employees fairly, and it seems odd that the company is required to pay legal fees for one employee, but not another who may have legal fees associated with divorce, child custody, or other legal matters which would also affect their ability to work.

Answer #8
The H-1B nonimmigrant program is a program designed to allow foreign professional workers to work temporarily in the United States to help boost the economy and keep U.S. businesses at the top in terms of work productivity, developing new products, etc. When you speak of using the associated legal fees when determining employment reviews/raise evaluations, it is not fair to the H-1B worker who has been sponsored by you for the sole purpose of working for your company to then take those fees and hold them against them. To my knowledge, it is unlawful and the Department of Labor (DOL) would not look favorably over this issue. It may seem odd that you are required to pay for the foreign worker's legal fees and associated filing fees, but that is just an aspect of the United States Citizenship and Immigration Service (USCIS) and DOL’s partnership in the H-1B nonimmigrant program.

The other employees you are referring to in regards to divorce, child custody issues, those are personal in nature. Although they may affect an individual's ability to work, an employer has no legal obligation to pay those fees as those personal related issues and fees should not play into your employment reviews/raise evaluations. A job is a job and when performance reviews/raise evaluations are conducted, they should be based entirely on the ability/productivity and experience of the worker.


Question #9 – Employment Based Immigration – Green Card
We recently bought a new house and we are expected to move on August 25th, 2012. How do I notify and update the USICS with our new address for our I-485s and EADs that are currently processing?

Answer #9
The link provided at the bottom of this response will direct you to the online portal for submission of your address change request (however, you will still need to submit Form AR-11 to USCIS within 10 days after your move). According to the USCIS website:

Non-U.S. Citizens
If you have moved, you need to follow two different steps:
Step 1: File a Form AR-11 (This changes your address in our master database.);
Step 2: If you have a pending case, you must also file a Change of Address online or call our National Customer Service Center at (800) 375-5283. (This changes your address for the specific application you have submitted.)
**Please note that if you are a non-U.S. citizen and you have a pending case, you must complete both steps to make sure that you comply with the regulations and so we can reach you at your correct address.

The Process
If you want to change your address online and/or file a Form AR-11 using our Online Change of Address Notification tool, you will need to have certain information available. Please have the following information available before you begin:
• Your receipt notice or other notice we sent you showing your receipt number (if you have a pending case with USCIS);
• Your new address;
• Your old address;
• If you have filed a petition for a family member, the names and biographical information for that person.

If you are a non-U.S. citizen, please also have:
• The date when you last entered the United States (If you cannot remember, please fill in an approximate date.);
• The location where you last entered the United States (the port of entry where you entered – whether by land, sea, or air).

https://egov.uscis.gov/crisgwi/go?action=coa


Question #10 – Employment Based Immigration – Green Card
My EAD and AP are expiring at years’ end. When is the earliest that I can file my renewal petitions?

Answer #10
According to the USCIS, you can petition for an EAD renewal no more than 120 days in advance of the expiration of your current EAD. For instance, if your current EAD card expires on October 16, 2012, the earliest you could file is on or after June 19, 2012. You can petition 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.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, August 17th, 2012!

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

Posted On: August 2, 2012

H-1B Extensions: Do I qualify under AC21 §104(c) or §106(a)?

In October of 2000, Congress passed the American Competitiveness in the 21st Century Act (“AC21"). On October 18, 2000 the President signed the bill and most of the provisions became effective immediately. AC21 has two key provisions that pertain to the ability of an H-1B nonimmigrant to obtain extensions in H-1B worker status if - the Green Card process was initiated on their behalf prior to their 6th year as an H-1B nonimmigrant.

§104(c) provides for three (3) year extensions of H-1B Worker status beyond the 6th year, if:
• the H-1B nonimmigrant has an I-140 petition which has been approved but for the unavailability of visa numbers due to the per country limitations, the Applicant is unable to Adjust Status to Permanent Resident.

§106(a) provides for one (1) year extensions of H-1B Worker status beyond the 6th year, if:
• a labor certification has been filed on behalf of the Applicant, and 365 days or more have elapsed since the filing of the labor certification;

•an I-140, Immigrant Petition for Alien Worker has been filed on behalf of the Applicant, and 365 days or more have elapsed since the filing of the I-140.

USCIS is required to grant the extension of stay request made under section 106(a) of AC21, in one-year increments, until such time as a final decision has been made to:
A. Deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification;
B. Deny the EB immigrant petition, or
C. Grant or deny the alien’s application for an immigrant visa or for adjustment of status.

To further discuss eligibility for H-1B extensions beyond the 6th year pursuant to AC21 §104(c) and/or §106(a), please contact our office.

Posted On: August 1, 2012

"Deferred Action" for Undocumented Youth

President Barack Obama announced on June 15, 2012 that the Department of Homeland Security (DHS) will implement a program for granting "deferred action" to undocumented youth who meet certain eligibility requirements.

To be eligible, an Individual must have come to the U.S. under the age of 16; continuously resided in the U.S. for at least five years; currently enrolled in school, graduated from high school, has obtained a GED, or an honorably discharged veteran of the U.S. Military.; has no criminal record (i.e., not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses) or otherwise pose a threat to national security or public safety; and is not above the age of 30.

Deferred Action requests will be decided on a case-by-case basis. Those granted deferred action will be eligible for permission to work in the United States.

CAUTION: Deferred Action is not a “new law”, it is not a path to lawful status (except in certain limited circumstances), it is not a path to a green card or to U.S. Citizenship. It is a temporary protection against deportation. Please be aware of those individuals who may target our undocumented youth by advertising that it is such.

YOU CANNOT ADMINISTRATIVELY APPLY FOR DEFERRED ACTION AT THIS TIME; DHS HAS NOT RELEASED THE APPLICATION PROCESS TO THE PUBLIC.

In the interim, for those who are eligible, you may begin to gather the requisite documents as provided below:
1. Birth certificate and/or passport, showing applicant’s age as of June 15, 2012;
2. Financial, medical, school, employment, and/or military records demonstrating that the applicant came to the U.S. before the age of 16 AND resided in the U.S. for at least five (5) years before June 15, 2012, AND the applicant was physically present in the U.S. as of June 15, 2012;
3. School records and other evidence of enrollment, or documentation as an honorable discharged veteran of the U.S. Military.

According to the latest reports, the government will inform the public how to apply by August 13, 2012.