Posted On: December 31, 2012

MVP "Immigration Q & A Forum" - This Friday, January 4, 2013

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, January 4, 2013. Act now and submit your questions!

THANK YOU!

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

Posted On: December 28, 2012

MVP LAW GROUP – Immigration Q&A Forum – Originally posted 6/22/12

This blog entry was originally posted on 6/22/12. We here at the MVP Law Group would like to wish every one of our blog readers, Happy Holidays!

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 – H-1B Nonimmigrant Visa
My son is on opt and it is expiring on august. Meanwhile his employer has filed H1B visa on April 9th all his colleagues have received acceptance. My son’s status is still in initial review. Should I panic that there will be a denial. How long should I wait?

Answer #1
The delay in obtaining a decision is most likely based upon whether your son’s H-1B was filed under regular processing or premium processing. It may be that his colleagues’ H-1B cases were filed with premium processing, which provides a decision within 15 calendar days of receipt of the filing. Currently regular processing is taking 3-4 months from the date of receipt.


Question #2 – Employment Based Immigration
When will employment based visas in 2nd preference for India be available again?

Answer #2
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. It is impossible to accurately estimate how long that may take, but current indications are that it would definitely not occur before Spring 2013.


Question #3 – 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 #3
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 #4 – Employment Based Immigration
Can I obtain EAD and AP immediately upon filing my I-485 with the INS?

Answer #4
No, these ancillary benefits are not granted immediately upon submission of the I-485 petition. Current processing times indicate a processing period of 2-3 months before issuance of the EAD and AP benefits.


Question #5 – General
Under this new DREAMERS legislation, if a person has an illness and has been in the country seeking treatment for that illness, are they eligible to stay and get the work permit?

Answer #5
It seems that you have received incorrect information concerning the announcement made on Friday regarding deferred action for undocumented youth. The Department of Homeland Security (DHS) will grant deferred action for undocumented youth that meet strict eligibility requirements.

First things first, to be eligible for deferred action the applicant must:
• Have arrived in the U.S. when they were under the age of sixteen
• Have continuously resided in the U.S. for at least five years prior to June 15, 2012 and have been present in the U.S. on June 15, 2012
•Currently be in school, have graduated from high school, have a GED, or be an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces (*Note: Friday's email mistakenly identified those currently serving in the military as eligible, only those honorably discharged are eligible)
• Not have been convicted of a felony offense, a “significant misdemeanor offense,” three or more non-significant misdemeanors, or otherwise pose a threat to national security or public safety
• Have been under thirty-one years old on June 15, 2012
DREAMers should not apply affirmatively for deferred action at this time.


Question #6 – Employment Based Immigration
My AP expires today and since i just came back from the Phillipines, i don’t 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 for a new one 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 #6
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.


Question #7 –H-1B Nonimmigrant Visa
My date of birth and country of citizenship was incorrectly listed on the I-797 received by USCIS. My I-129 form had it correct. So my I-797 is not right, what do I need to do now?

Answer #7
Contact the USCIS National Customer Service number (1-800-375-5283) and speak with an Agent to request that the mistakes be corrected, so that your I-129 Approval notice (Form I-797) will provide the correct date of birth and country of citizenship.


Question #8 – Employment Based Immigration
I have an approved I-140 filed by my previous company and they also submitted my I-485 back in 2007 when priority dates were current. I have since moved onto employment with another company on my EAD. Can I file AC21 Portability letter?

Answer #8
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 certified by the DOL.


Question #9 – H-1B Nonimmigrant Work Visa
Are there any H1Bs left under either CAP?

Answer #9
As of June 11, 2012, USCIS received a sufficient number of petitions to reach the statutory cap for FY 2013. As of June 7, 2012, USCIS also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will continue to reject petitions subject to the cap for H-1B specialty occupation workers seeking an employment start date in FY 2013 that are received after June 11, 2012.


Question #10 –H-1B Nonimmigrant Visa
Used first three years of H-1B, filed extension. Will I have to stop working while I wait for my H-1B extension approval? I think I waited too long to apply for the extension. My current H-1B expires at end of July. What is going to happen if I do not receive the approval prior to expiration of my current H-1B?

Answer #10
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.


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

MVP LAW GROUP –Immigration Q&A Forum – Originally posted 6/22/12

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

Posted On: December 27, 2012

MVP LAW GROUP – Immigration Q&A Forum – Originally posted 5/25/12

This blog entry was originally posted on 5/25/12. We here at the MVP Law Group would like to wish every one of our blog readers, Happy Holidays!

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 Green Card
Does an approved labor certification allow me the legal right to work within the U.S.?

Answer #1
No. An approved labor certification only allows your employer to file an EB-2 or EB-3 category immigration petition on your behalf.


Question #2 – Permanent Residence
Can I work in India while holding US green card and not jeopardize my naturalization process in US?

Answer #2
There are various eligibility requirements to qualify for Naturalization - Be 18 or older; Be a green card holder for at least 5 years immediately preceding the date of filing the Form N-400, Application for Naturalization; Have lived within the state, or USCIS district with jurisdiction over the applicant’s place of residence, for at least 3 months prior to the date of filing the application; Have continuous residence in the United States as a green card holder for at least 5 years immediately preceding the date of the filing the application; Be physically present in the United States for at least 30 months out of the 5 years immediately preceding the date of filing the application; Reside continuously within the United States from the date of application for naturalization up to the time of naturalization; Be able to read, write, and speak English and have knowledge and an understanding of U.S. history and government (civics); Be a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States during all relevant periods under the law.

Additionally, if you remain outside of the U.S. for a period of one year or longer, Customs and Border Patrol (CBP) does have the authority to question you and may take your Green Card, as they consider trips of 1 year or longer without a re-entry permit, abandonment of Lawful Permanent Residence in the United States.


Question #3 – Employment Based Green Card
What is the difference between a labor certification and a work permit?

Answer #3
A work permit or Employment Authorization Document (EAD) is a document that the USCIS issues to aliens stating that they are eligible to work on a temporary basis within the U.S. In contrast, a labor certification DOES NOT give the alien authorization to work within the U.S. Rather, it deals with future employment. Instead, a labor certification is the first step that allows the employer to file an immigration petition on the alien’s behalf.


Question #4 – H-1B Nonimmigrant Work Visa
Any H1Bs left?

Answer #4
As of May 18, 2012, there were approximately 42,000 H-1B Regular CAP subject nonimmigrant visas filed and 16,000 H-1B Masters Exemption nonimmigrant visas filed. 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.


Question #5 – Employment Based Green Card
Does an approved PERM labor certification provide me legal status within the U. S.?

Answer #5
No. It will, however, often provide the foundation for a later filing that can afford you legal status in the U.S. as a lawful permanent resident (green card holder).


Question #6 – General
How can I check the status of my application with Immigration Services?

Answer #6
There are two ways in which to check the status of your application with the USCIS. You may contact the USCIS National Customer Service Center at 1-800-375-5283 and speak with a Customer Service Representative. Or, you may go to www.uscis.gov and enter your receipt number into the case status box on the left hand side of the website.


Question #7 – Family Based Green Card
If my child is a U.S citizen can I obtain legal status in the U.S?

Answer #7
You cannot obtain legal status in the U.S. from your child until your child reaches the age of 21.


Question #8 – Employment Based Green Card
I have a part-time job and my employer agrees to file a PERM labor certification application on my behalf. Does a part-time position qualify for PERM labor certification?

Answer #8
No. The job offer must be for a permanent and full-time position. Part-time positions do not qualify. Please note, however, that the permanent and full-time requirements are for the future position when permanent residency is granted. You are not required to work full time at the time the labor certification petition is filed.


Question #9 – Employment Based Green Card
How much is the DOL filing fee for a PERM labor certification application?

Answer #9
No DOL filing fee is required for a PERM labor certification application.


Question #10 – General
Do I have to notify Immigration if I change my address?

Answer #10
Most non-U.S. citizens must report a change of address with the USCIS within 10 days of moving within the United States or its territories. Exceptions include: Diplomats (visa status A), Official government representatives to an international organization (visa status G), and Certain nonimmigrants who do not possess a visa and who are in the U.S. for fewer than 30 days. You may report a change of address by filing Form AR-11 either electronically or by mail with the USCIS.

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

MVP LAW GROUP –Immigration Q&A Forum – Originally posted 5/25/12

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

Posted On: December 26, 2012

MVP LAW GROUP – Immigration Q&A Forum – Originally posted 4/13/12

This blog entry was originally posted on 4/13/12. We here at the MVP Law Group would like to wish every one of our blog readers, Happy Holidays!

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 – H-1B Nonimmigrant Work Visa
I am an international student with F1- status and Associate degree that I obtained here in US. Am I qualified to change my status to h1B VISA?

Answer #1
Unfortunately, you are not, unless you possess qualifying work experience. To be eligible to obtain an H-1B visa, you must have a Bachelor’s degree in a Specialty Occupation field, and the position for which you are being sponsored must require at a minimum the attainment of a Bachelor’s degree in a specific specialty occupation field.


Question #2 – H-1B Nonimmigrant Work Visa
Is H-1B CAP moving faster or slower than this time last year? How many have been filed at this point?

Answer #2
Faster. According to the USCIS, H-1B petitions being filed subject to the CAP have doubled since this time last year. As of April 9, 2012, there were approximately 17,400 H-1B Regular CAP subject nonimmigrant visas filed and 8,200 H-1B Masters Exemption nonimmigrant visas filed. 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 FY2012 H-1B Cap updates, please refer to our www.h1bvisalawyerblog.com.


Question #3 – Family Based Immigration
Who is responsible for scheduling the Interview, my fiancé or the Consulate itself?

Answer #3
The Consulate is responsible for scheduling the Interview and will send you notice of the date and time of the scheduled interview.


Question #4 – H-1B Nonimmigrant Work Visa
I filed I-485, am waiting for EAD, my H-1B expires in May 20, can I wait until first week of May to prepare and file the H-1B, in hopes of receiving my EAD in the meantime? I do not want to get any unlawful presence/status. Please advise.

Answer #4
As long as you timely file your H-1B extension, 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 the date of expiration. During 240 days, there is no INA 245(c) bar to adjustment of status. We recommend that you maintain H-1B status while your I-485 is pending as a safety net in case any problems arise in the adjudication of your I-485 petition.


Question #5 – H-1B Nonimmigrant 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 #5
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 #6 – H-1B Nonimmigrant Work Visa
Is a Nurse Practitioner considered a Specialty Occupation? A doctor’s office has given me a job opportunity (I’m on OPT) and I wanted to make sure before I accept that this is doable?

Answer #6
If you have at least a Bachelor’s degree in a specific field and the position requires at least a Bachelor’s degree in a stated filed, then you may be eligible for the H-1B nonimmigrant visa. In the medical industry, most of these occupations require graduate school. This type of position also requires extensive skill, knowledge and experience.


Question #7 – Employment Based Immigration – Green Card
The May visa bulletin shows that priority dates went back to 2007 for my category, EB2, I’m from India. My priority date was August 2010. Please explain to me what “priority date becoming current” means?

Answer #7
In order for an individual to obtain an immigrant visa, a visa number must be available to you. This is referred to as the priority date being "current." 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. This Bulletin is accessible at www.travel.state.gov. If there is a backlog in the preference category in which you were filed in, this means, that you must wait until a visa becomes available, until your priority date becomes current. When your priority date becomes current, you may file the I-485 application, but until then, you must wait. If your priority date was after May 2, 2010, then you will have to wait.


Question #8 – H-1B Nonimmigrant Visa
I have a student on OPT currently working for my company. I need to apply for her H-1B under this CAP. Her OPT expires in August of 2012. Will she have to return home or will she be covered under the “CAP GAP”? I am not sure of eligibility requirements for H1B CAP GAP. Please assist.

Answer #8
H-1B petitions that are timely filed, on behalf of an eligible F-1 student, that request a change of status to H-1B on October 1 qualify for a cap-gap extension. Once a timely filing has been made, requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. Timely filed means filed within the H-1B acceptance period beginning April 1, 2012. The paperwork (LCA and I-129) must also reflect a beginning employment date of October 1, 2012 to be covered under the CAP GAP.


Question #9 – Employment Based Immigration – Green Card
We appealed a denial of an I-140 Immigrant Petition filed on behalf of one of our employees. How much longer can we expect to wait for a decision to be made?

Answer #9
According to the Administrative Appeals Office (AAO), Appeals filed under the EB2 preference category (Professionals with Advanced Degrees) are currently being reviewed within 23 months of filing the appeal. Appeals filed under the EB3 preference category (Skilled and Professional workers) are currently being reviewed within 36 months.


Question #10 – H-1B Nonimmigrant Work Visa
Can an H-1B applicant change employers during the visa process?

Answer #10
Yes, an H-1B applicant is free to change employers during the visa process, changing H-1B employers is considered an H-1B transfer, and that petition would not be counted against the CAP, unless they are changing from a CAP EXEMPT employer to an employer who is not CAP EXEMPT.


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

MVP LAW GROUP –Immigration Q&A Forum – Originally posted 4/13/12

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

Posted On: December 25, 2012

Happy Holidays!

The best and most beautiful things in the world cannot be seen or even touched. They must be felt with the heart. Wishing you happiness! - Helen Keller

Happy Holidays, from our family to yours!

The MVP Law Group

Posted On: December 24, 2012

U.S. and Canada announce agreement to share some Visa and Immigration Information

U.S. Department of State announced on December 13, 2012, an agreement with Canada for limited Visa and Immigration Information sharing. The Information sharing agreement will be for third country nationals applying for a visa or claiming asylum. Neither country will share any data about their own citizens.

This sharing agreement will increase the amount of information used by immigration and refugee protection officers and will help them to make better informed decisions. Under this agreement biographic immigration information sharing will start in 2013 and biometric sharing will start in 2014.


Source of Information: "U.S. Dept. of State PRESS Release, Washington, DC (12/14/2012)"

Posted On: December 21, 2012

MVP LAW GROUP – Immigration Q&A Forum, Friday, December 21, 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 – Naturalization
I have been a Lawful Permanent Resident for the past 3 years, 7 months. I received my Green Card through marriage to a U.S. Citizen. Conditional status has been lifted. When can I apply for Naturalization?

Answer #1
You may apply now for Naturalization. If you received your Green Card based upon marriage to a U.S. Citizen, you are eligible for Naturalization after 3 years if certain conditions are satisfied. If you received your Green Card based upon employment, an applicant is eligible for Naturalization after 5 years.


Question #2 – H-1B Nonimmigrant Visa
Can we file our H-1B CAP cases with the USCIS now in order to ensure we get selected for the CAP?

Answer #2
No, everyone must wait before submitting their H-1B CAP case to the USCIS for consideration. The USCIS will return any H-1B CAP cases that are filed prior to April 1, 2013. Beginning on April 1, 2013, the USCIS will begin to accept H-1B CAP cases.


Question #3 – Adjustment of Status (EAD/AP renewals)
I am receiving conflicting information, please advise. If I filed my I-485 petition after 2007, must I pay the USCIS filing fees of $380.00 and $360.00 each time I request renewal of my EAD and AP?

Answer #3
Taken directly from the USCIS website: Please note that, if you file Form I-485 to adjust your status as a permanent resident on or after July 30, 2007, no additional fee is required to also file an application for employment authorization on Form I-765 and/or advance parole on Form I-131. You may file these forms together. If you choose to file the I-765 and/or I-131 separately after July 30, 2007, you must also submit a copy of your I-797C, Notice of Action, receipt as evidence of the filing of an I-485. If you filed your Form I-485 prior to July 30, 2007, you must pay the fees associated with Forms I-765 and/or I-131 when you file.


Question #4 – Naturalization
As part of my divorce order, I must pay child support and alimony to my wife. I have constantly been paying for past 3 years and nothing is overdue, how do I provide proof of my payments at my Naturalization interview?

Answer #4
As listed in the Documents Checklist for Form N-400, Evidence of your financial support (including evidence that you have complied with any court or government order), can be shown through: a. Cancelled checks; b. Money and receipts; c. A court or agency printout of child support payments; d. Evidence of wage garnishments; e. A letter from the parent or guardian who cares for your child(ren). If you decide to present a letter, we recommend that you present a notarized letter.


Question #5 – Religious Workers
My current R1 temporary visa is expiring in May of 2013. I am ready to apply for I-360 petition approval. Can I file I-360 petition with I-485 application so that I can remain in the U.S. once my temporary visa expires in 2013?

Answer #5
No - Religious Workers may not file Form I-360 with Form I-485 per the recent decision by the Ninth Circuit Court of Appeals, which overturned the permanent injunction issued by the District Court in Ruiz-Diaz v. United States, No. 09-35734.


Question #6 – Naturalization
Can you guide me in the right direction where I can find tools to study for Naturalization test?

Answer #6
Please see the below resources to help you prepare for the Naturalization test:

Naturalization Self-Test

Study Materials


Question #7 – H-1B Nonimmigrant Visa
I received an approval for an H-1B back in 2009 but never used it. I am outside of the U.S. Can I now apply to work for another employer in the U.S. who is willing to sponsor me or must I now wait for the CAP to open?

Answer #7
If you have received an approval for an H-1B in the past six years and have time remaining in H-1B status, then yes, you may be eligible to file an H-1B with the new sponsoring employer.


Question #8 – 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 #8
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 #9 –Naturalization
Our Immigration Officer told everyone during my Naturalization ceremony that any child under the age 18 who lives with their parent who are US Citizens, are eligible for US Citizenship. Is this true?

Answer #9
Please refer to the following link: Citizenship Through Parents


Question #10 –E3 Australian Visa
As an Australian, I am eligible for an E-3 visa, but my potential sponsoring employer has suggested I am eligible and should look into an H1-B visa too. What is the difference, and which is preferable?

Answer #10
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.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, January 4, 2013!

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

Posted On: December 20, 2012

H-2B Cap Count UPDATE – 12/14/2012

The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs.

The H-2B cap limit for first half of FY 2013 (October 1 - March 31) is 33,000. As of the last count (12/14/2012); 13,774 beneficiaries have been approved and 2,959 are still pending for a total of 16,733.

The H-2B cap limit for the second half of FY 2013 (April 1 - September 30) is 33,000. As of the last count (12/14/2012); 0 beneficiaries have been approved and 313 are pending for a total of 313.

For further details read, “Cap Count for H-2B Nonimmigrants


Source of Information: “AILA InfoNet Doc. No. 12102342. (Posted 12/17/12)”

Posted On: December 19, 2012

USCIS Releases New DACA Statistics through December 13, 2012 - UPDATE

These USCIS statistics on DACA cases from 8/15/12 to 12/13/12 show a total of 355,889 DACA requests accepted for processing, 336,464 biometric services appointments scheduled, 157,151 requests under review, and 102,965 requests approved. The data also show the number of accepted requests from the top countries of origin and states of residence.

View the (.PDF) USCIS Report, “Deferred Action for Childhood Arrivals Process (December, 2012)

For further information regarding Deferred Action for Childhood Arrivals, please visit www.uscis.gov/childhoodarrivals.


Source of Information: “USCIS Bulletin (Posted 12/14/12)”

Posted On: December 18, 2012

Implementation of New USCIS Immigrant Fee Feb. 1

New fee allows USCIS to recover the costs of processing immigrant visas after individuals receive their visa packages from the Department of State abroad

WASHINGTON—On Feb. 1, 2013,U.S. Citizenship and Immigration Services (USCIS) will begin collecting a new USCIS Immigrant Fee of $165 from foreign nationals seeking permanent residence in the United States. This new fee was established in USCIS’s final rule adjusting fees for immigration applications and petitions announced on Sept. 24, 2010.

USCIS has worked closely with the Department of State (DOS) to implement the new fee which allows USCIS to recover the costs of processing immigrant visas in the United States after immigrant visa holders receive their visa packages from DOS. This includes staff time to handle, file and maintain the immigrant visa package, and the cost of producing and delivering the permanent resident card. The implementation of this new fee is further detailed in a Federal Register notice scheduled for publication tomorrow.

In order to simplify and centralize the payment process, applicants will pay online through the USCIS website after they receive their visa package from DOS and before they depart for the United States. DOS will provide applicants with specific information on how to submit payment when they attend their consular interview. The new fee is in addition to fees charged by DOS associated with an individual’s immigrant visa application.

USCIS processes approximately 36,000 immigrant visa packages each month. Prospective adoptive parents whose child will enter the United States under the Orphan or Hague processes are exempt from the new fee.

For more information visit our USCIS Immigrant Fee webpage.

For general information on USCIS and its programs, please visit www.uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis) and the USCIS blog The Beacon.


Source of Information: "USCIS NEWS, Washington, D.C. (12/13/2012)"

Posted On: December 17, 2012

MVP "Immigration Q & A Forum" - This Friday, December 21, 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, December 21, 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: December 14, 2012

Former INS employee, 6 others indicted in marriage fraud scheme

A past applications-adjudicator for the former U.S. Immigration and Naturalization Service (INS) has been indicted by a Bay Area grand jury on nine criminal counts stemming from his alleged role in a marriage fraud scheme.

Andrew Chojecki, 61, a naturalized U.S. citizen who most recently resided in Poland, is charged in an indictment handed down Dec. 6 with conspiracy to commit marriage and visa fraud, marriage fraud, and alien harboring. The charges are the result of a two-year probe by U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI) and its partner agencies on the San Francisco Document and Benefit Fraud Task Force, including U.S. Citizenship and Immigration Service's Fraud Detection and National Security Unit.

Six additional defendants are accused of conspiring with Chojecki to commit the fraud. They are; Beata Szkop, Malgorzata Zuk, Aaron Goldsmith, Pawel Karolak, Vito Scherma and Hector Vargas. The latter four defendants are also charged with alien harboring.

According to the indictment, unsealed Monday, Chojecki allegedly facilitated fraudulent marriages in exchange for cash payments from at least April 2010 through November of this year. The indictment claims Chojecki introduced aliens and U.S. citizens to each other for the purpose of entering into sham marriages to evade U.S. immigration laws. The indictment further alleges Chojecki provided the aliens with fraudulent immigration forms he prepared, sample questions he anticipated they might be asked by immigration officials, and guidance on steps aliens should take to make the marriages appear legitimate. In exchange for these services, Chojecki allegedly required the aliens to pay an initial lump sum at the time of the wedding, which he split with the U.S. citizen spouses, with additional sums payable to the spouses when the aliens received their green cards.

Chojecki was arrested in Los Angeles Nov. 23 when he arrived on a flight from Poland. The following week a magistrate judge in Los Angeles ordered Chojecki released on a $170,000 unsecured bond, with the condition of electronic monitoring. Prosecutors have appealed that release order to the district court in San Francisco on the grounds that Chojecki is a flight risk. Defendants Szkop, Karolak, Vargas and Zuk were arrested Monday and made their initial appearance in federal court. Defendants Goldsmith and Scherma remain at large.

Each count of conspiracy to commit marriage and visa fraud, and marriage fraud carries a maximum penalty of five years in prison. The maximum statutory penalty for each count of alien harboring is 10 years in prison. The government is also seeking forfeiture of assets arising out of the conspiracy and alien harboring counts.


Source of Information: "ICE NEWS Release, San Francisco, CA (12/10/2012)"

Posted On: December 13, 2012

VISA Bulletin - January 2013

The Department of State has released its latest Visa Bulletin.

Click here to view the January 2013 Visa Bulletin.

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

The employment based second preference cut-off date for China is 12/8/07 and 9/1/04 for India.

**The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department's monthly Visa Bulletin.

Posted On: December 12, 2012

Administrative Appeals Office (AAO) Processing Times

Administrative Appeals Office (AAO) Processing Times were released with processing dates as of December 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 8 months; for an I-129 L1 Appeal - current. The current processing time for an I-140 EB2 Appeal for an Advanced Degree Professional is now current; for an I-140 EB3 Appeal for a Skilled or Professional Worker is 21 months.

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

Posted On: December 11, 2012

Pennsylvania woman pleads guilty to conspiracy to commit mail fraud

Following an investigation by U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI), a Pennsylvania woman pleaded guilty Thursday to conspiracy to commit mail fraud.

Eleni Nguyen, 29, of Phoenixville, Pa., pleaded guilty in federal court to the charge in connection with filing false documents with the Pennsylvania Unemployment Compensation program. Nguyen is the third person charged in a scheme involving a temporary employment agency hiring illegal alien employees. Nguyen is the owner of the employment agency.

Andri Gunawan, a representative for the company, previously entered guilty pleas to various crimes, including conspiracy to transport illegal aliens, harboring illegal aliens and mail fraud. Both Gunawan and Nguyen are awaiting sentencing.

As part of the scheme, members of the employment agency contracted with various third party businesses to provide temporary employees. The conspirators would fulfill these contracts by hiring illegal aliens and paying them in cash "under the table," failing to pay various federal, state and local taxes, fees or compensation insurance. Using this scheme, the temporary employment agency was able to maximize its profits.

At sentencing, Nguyen faces a maximum of five years in prison and a fine of $250,000.
The U.S. Department of Labor, Office of Inspector General, Labor Racketeering and Fraud Investigations, the Pennsylvania State Police and U.S. Department of Health and Human Services assisted in the investigation.


Source of Information: "ICE NEWS Release, Scranton, PA (12/6/2012)"

Posted On: December 10, 2012

EAD – The Ins and Outs as an Option for Employment

Many people seem to be wondering whether they should work based on their employment authorization documents (EADs). This dilemma is likely tied to the large number of individuals who were able to file adjustment of status applications (I-485s) in late 2011 or early 2012. For these individuals, the option of employment using an EAD is a recent development.

Background: Cutoff Date Retrogression and Fluctuation

There was rapid advancement of the EB2 India and China cutoff dates from December 2011 through April 2012. Thereafter, for most such applicants, visa numbers have been unavailable due to a phenomenon known as retrogression. As of this writing, the cutoff date for EB2 India has retrogressed - or moved backwards - to a cutoff date of September 1, 2004, valid during the months of October, November, and December 2012. EB2 China has less extreme retrogression, with a cutoff date of October 22, 2007 during the month of December 2012.

The end result is many I-485 applicants who expect to have to wait for a long time before their cases become eligible for approval, since approval is contingent upon the availability of visa numbers. This same group of I-485 applicants is eligible for the issuance of EADs, based on pending I-485 cases. Most applicants routinely request EADs with I-485 filings. Many have their EADs in hand, therefore, and are wondering about the possibility of using those privileges, rather than extending H1B or L-1 or other nonimmigrant status.

Pros and Cons of Using the EAD for Employment

The EAD provides unrestricted employment authorization. It is a valuable privilege, and foreign workers with EADs often find that their employment options expand once they have the document. The questions generally asked are whether the H1B should be extended if a person has an EAD or whether a person should accept a job using an EAD. Our answer to this is that, if a person allows the H1B or other nonimmigrant status to lapse they are relying solely on the I-485 as their basis for being in the United States.

With the I-485 pending, the foreign national is considered to be in a period of authorized stay in the United States. S/he is eligible to extend the EAD as long as the I-485 remains pending. Travel is also possible, if the applicant also has advance parole (AP). Many people have joint EAD/AP cards, but they require two separate applications and, depending upon timing, some are issued as two separate documents.

Using the EAD and relying upon the I-485, means that there is no underlying nonimmigrant status. Thus, if the I-485 is denied for some reason, the person will be out of status. The options at that point depend upon the reason for the I-485 denial and other factors, including whether there are any options through a spouse. This is a very different situation from an I-485 denial for a person who still has an H1B or other nonimmigrant status. In that situation, after the I-485 denial, the foreign national would still have the nonimmigrant status to fall back on and would usually have more options available to them.

Considerations in Using the EAD

Put simply, generally, it is safer to maintain a nonimmigrant status rather than relying solely on the I-485 and EAD. However, there are valid reasons that many decide to take the calculated risk. For some, there is no choice, as the employer will not extend the H1B status after the person has the EAD. Still others may have faced layoffs and other job issues, and have had to move to a new employer using the EAD.

For many, it is a choice and a balancing of risks. Once the I-485 has been pending for 180 days, applicants often start to consider job changes under the American Competitiveness in the 21st Century Act (AC21). All employers in the United States must accept EAD holders; employers are not required to sponsor H1Bs or other nonimmigrant categories. So, the universe of potential employers increases once one has an EAD. This often leads to choosing between working on the EAD on one side and passing up possible career-advancing opportunities to keep non-immigrant status on the other. For that reason, many people ultimately decide to work on the EAD at some point in their cases.

When weighing the choices, it is a good idea to try to assess whether there are any enhanced risk factors in the applicant's I-485 case. While all cases have potential weaknesses, some cases are more likely to run into problems than others. The attorneys at the MVP Law Group can help to assess case strengths and weaknesses, based on our many years of experience in providing I-485 representation, as well as our knowledge of current trends. Those considering the issues surrounding the use of the EAD discussed in this article may wish to schedule a consultation with one of our knowledgeable attorneys.

~Article contributed by Stacey Bell, Senior Paralegal.

For more related information and other articles on Business Immigration please review the MVP Law Group Blog.

Posted On: December 7, 2012

MVP LAW GROUP – Immigration Q&A Forum, Friday, December 7, 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 – General
What steps do my employer and I need to follow in order to switch from H1B to EAD when my H1B expires. My employer and I have decided not to renew my H1 B.

Answer #1
You and your employer will need to complete a new I-9 form and you will need to present the proper document evidencing your eligibility for employment.


Question #2 – H-1B Nonimmigrant Visa
Is there an annual limited on the number of H1B visas?

Answer #2
Congress allocates 65,000 general CAP H-1B visas each year as of April 1, with employment beginning October 1 of that same year. An additional 20,000 H-1B visas are available for those graduating from U.S. Universities with Master’s degrees. Once the annual limits are reached, an eligible applicant must wait until the following April to apply, unless they have found an offer of employment with an H-1B exempt employer.


Question #3 – General
Would like to ask if your office can a find me an employer! I am an RN license in California. I have a specialty Hemodialysis. I have more than 5 years’ experience as a Dialysis Nurse.

Answer #3
Our office cannot assist with your employment search. Once you find a willing sponsor/employer, we can assist with explaining the various Immigration options and with preparing and filing the necessary paperwork with the USCIS.


Question #4 – H-1B Nonimmigrant Visa
When is the best time to submit the H-1B application to the USCIS?

Answer #4
The best time to submit the H-1B application to the USCIS is on the first day the Annual Cap opens, April 1. Accordingly, H-1B CAP subject petitions should be prepared prior to the April 1 date, and filed to reach the USCIS on April 1.


Question #5 – H-1B Nonimmigrant Visa
I am working on OPT. If H-1 B processing time goes beyond validity of OPT, what will happen?

Answer #5
If your H-1B visa petition was filed in a timely manner and the first date of work clearly mentioned October 1, 2012, there should be no issues, as you should be considered under the H-1B CAP GAP.


Question #6 – H-1B Nonimmigrant Visa
What status would my spouse and children have when I am granted H-1B Status?

Answer #6
When you are granted H-1B status, your spouse and children may live with you in the United States as your dependents on H4 status. Individuals on H4 status are not allowed to work, but children may attend school.


Question #7 –H-1B Nonimmigrant Visa
My husband’s I-129 has already been reaffirmed by USCIS almost 2 months already. Until now we are still waiting for the US Embassy to call us. Is there any hope that the embassy will eventually call us and asked us to send our appt. for H1B stamping? What are the possible reasons for the delay? It has already 10 months of waiting since our first interview.

Answer #7
Once the USCIS reaffirms the approval, the applicant may apply again for an H1 stamping interview.


Question #8 – H-1B Nonimmigrant Visa
Hi, my H1B case file filed on June 2nd 2012. I haven't received the Approval. What is the cut off time to get approval from USCIS?

Answer #8
The current processing times for an H-1B filed under regular processing is 2-4 months depending upon the Service Center where the case was filed. You should request that your Employer or the Attorney who filed the case contact the USCIS to initiate a Service Request.


Question #9 – Temporary Nonimmigrant Visas
Is H-1B status the only way that I can qualify to work in the U.S.?

Answer #9
No, the H-1B nonimmigrant work visa is not the only way for an applicant to qualify to work in the U.S. Please refer to our website at http://www.mvplawgroup.com/Immigration_Lawyers/Temporary_Visa to learn about additional options that may be available for you.


Question #10 – H-1B Nonimmigrant Visa
after the I-129 was received by uscis for review from the DOS, it was on the post decision stage. now the uscis sent me an email that they mailed a duplicate copy of their decision on the case or the instructions to follow if it is still pending. my case is now on acceptance stage. why is my case back to acceptance stage?

Answer #10
Were you denied a visa at a U.S. Consulate? If this is the situation, the USCIS has to review the petition from the DOS to determine whether or not to uphold the approval or revoke the original approval based on the reasoning provided by the DOS. Unfortunately, if this is the case, you are at the mercy of the USCIS until they make a final decision on your case.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, December 21, 2012!

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

Posted On: December 6, 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 December 5, 2012 with processing dates as of October 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: December 5, 2012

USCIS Develops Tools to Help Foreign Entrepreneurs Create and Grow Businesses in the United States

U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas marked a significant milestone for the USCIS Entrepreneurs in Residence (EIR) initiative by launching an online resource center today at the Martin Trust Center for MIT Entrepreneurship in Cambridge, Mass. The resource center, Entrepreneur Pathways, provides entrepreneurs who seek to start a business in the United States an intuitive way to navigate the immigration process.

"Through our innovative Entrepreneurs in Residence initiative, we are working to realize our current immigration system’s full potential to attract and retain startup enterprises that promote innovation and spur job creation in America," said Director Alejandro Mayorkas. "The first phase has already led to unique improvements in our programs and enabled us to better serve immigrant entrepreneurs."

Launched earlier this year at an Information Summit in Silicon Valley, the EIR initiative draws on industry expertise to strengthen USCIS policies and practices critical to American economic growth. The team comprised startup business experts and USCIS immigration experts working collaboratively over a short period of time to streamline pathways for a range of existing nonimmigrant visa categories often used by entrepreneurs.

"This initiative is so innovative and progressive. It’s all about finding pragmatic solutions," said EIR team member and Vice President of Strategic and Community Development and Chief Ecosystem Builder at SoftLayer Technologies Paul Ford. "USCIS’s officers and leadership clearly want to deliver quality services to people who want to invest, work and live in the United States. They have embraced our input and did something with it."

In addition to creating Entrepreneur Pathways, the EIR team:

• Developed and deployed a training workshop for USCIS employment-based immigration officers that focuses on startup businesses and the environment for early-stage innovations;
• Trained a team of specialized immigration officers to handle entrepreneur and startup cases;
• Modified Request for Evidence templates for certain nonimmigrant visa categories to incorporate new types of relevant evidence into the adjudicative process; and
• Developed a plan for quarterly engagements with the entrepreneurial community to ensure that USCIS stays current with industry practices.

To sustain the momentum and build on the team’s accomplishments, USCIS extended the EIR project through April 2013. Among other things, the team will expand its focus to immigrant visa pathways that may enable foreign entrepreneurs to start a business in the United States within current immigration law.

For more information on USCIS and its programs, please visit www.uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis) and the USCIS blog The Beacon.


Source of Information: "USCIS NEWS Alert (11/28/2012)"

Posted On: December 4, 2012

ACHIEVE Act

On November 27, 2012, Senators Kyl (R-AZ), Hutchison (R-TX), and McCain (R-AZ) introduced the ACHIEVE Act. The ACHIEVE Act will allow individuals who meet the established criteria to obtain a series of conditional nonimmigrant visas designated as W-1, W-2, W-3.

Key differences from the DREAM Act:

- ACHIEVE Act does not provide a green card to the beneficiaries but creates instead a “permanent nonimmigrant status”

- ACHIEVE Act restricts eligibility to a more narrow class of individuals than DREAM


Some of the eligibility requirements for the initial W-1 visa:

- Initially entered the United States under the age of 14

- Under the age of 29 years on the date of enactment (32 years for those who earned a bachelor’s degree/associate’s degree prior to enactment of the Act)

- Continuous physical residence in the United States during the 5-year period preceding enactment

- Good moral character since the date of initial entry

-Has not been convicted of a felony, crime of moral turpitude, or a misdemeanor under Federal or State law punishable by imprisonment of more than 30 days. (Exception exists for traffic violation that does not include alcohol or controlled substances)

-Does not have a final order of removal (with some exceptions)

- Earned a high school diploma from a high school in the U.S. or a GED; AND
> Is enlisted/intending to enlist in the military;
> Is admitted as a student to an institute of higher education;
> Has earned a bachelor’s degree or an associate’s degree; or
> Has served for a period of at least 4 years in one of the branches of the Armed Forces and was not dishonorably discharged


Source of Information: “AILA InfoNet Doc. No. 12112746. (Posted 11/27/12)”


For more related information and other articles on the “ACHIEVE Act”, please review the following news stories.

Details surface on Rubio-GOP version of Dream Act

Achieve Act Introduced By Kay Bailey Hutchison, Jon Kyl

Hutchison, Kyl propose plan similar to DREAM Act — but without citizenship

Congressional Hispanic Caucus Rejects ACHIEVE Act

Posted On: December 3, 2012

MVP "Immigration Q & A Forum" - This Friday, December 7, 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, December 7, 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.