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

This blog entry was originally posted on 4/12/13. 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 just heard the H-1B cap has been reached and they are doing a lottery. How does the H-1B Lottery work?

Answer #1
According to the USCIS website:
USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.
The agency conducted the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected were part of the random selection process for the 65,000 limit.

Question #2 – H-1B Nonimmigrant Work Visa
If my employer filed my case during the H-1B Cap, how will I know if my case has been accepted?

Answer #2
If your case was filed under premium processing, and accepted in the lottery, your employer’s attorney will receive an electronic emailed receipt notice from the Vermont Service Center premium processing unit, or the California Service Center premium processing unit.

If your case was filed under regular processing, and accepted in the lottery, your employer and your employer’s attorney will receive a receipt notice in the regular mail from the USCIS.

If your case was filed under premium processing or regular processing, and NOT selected in the lottery, the petition along with the USCIS filing fees will be returned to the employer or the employer’s attorney’s office.

Question #3 – H-1B Nonimmigrant Work Visa
Now that the H-1B cap has been reached, what are the other options for companies to hire foreign workers?

Answer #3
Please refer to our previous Blog post entitled “Alternatives to the H-1B Visa for Individuals who did not make the FY2014 H-1B Quota“.

Question #4 – H-1B Nonimmigrant Work Visa
Right now, I have an H-1B with one company and I just got hired to work for another firm. Can I transfer my H-1B status without worrying about the cap?

Answer #4
Yes, transfer filings and extension filings are not subject to the annual H-1B CAP. However, if you are changing from a cap-exempt H-1B sponsoring employer, to a cap-subject H-1B sponsoring employer, the CAP for FY2014 with employment beginning October 1, 2013 has been reached, so you will need to wait until FY2015.

Question #5 – H-1B Nonimmigrant Work Visa
What kind of visa should I apply for if I am an International student from Germany and I want to work off campus?

Answer #5
As an international student, you will need to apply for F1 student visa status; you may work on-campus or in other previously approved jobs if approved by your Designated School Official (DSO).

Question #6 – Family Based Immigration
My Grandfather (Dad’s Dad) was a US citizen and he had filed an I 130 petition (Immigrant petition for relative, fiancé, or orphan) for my dad in Feb 2009. Unfortunately, my grandfather passed away this April. My dad’s sisters are US citizens and they are willing to take over the case, if we can transfer the petition. I would like to know if there anything that can be done with this petition now? Or is it a closed chapter?

Answer #6
Under regulation 8 C.F.R. § 205.1(a)(3)(i)(C)(2), an I-130 petition is automatically revoked upon the death of the petitioner, unless:

USCIS determines, as a matter of discretion exercised for humanitarian reasons in light of the facts of a particular case, that it is inappropriate to revoke the approval of the petition. USCIS may make this determination only if the principal beneficiary of the visa petition asks for reinstatement of the approval of the petition and establishes that a person related to the principal beneficiary in one of the ways described in section 213A(f)(5)(B) of the Act is willing and able to file an affidavit of support under 8 C.F.R. part 213a as a substitute sponsor.

Only a spouse, parent, mother in law, father in law, sibling, child, son, daughter, son in law, daughter in law, brother in law, sister in law, grandparent, grandchild or legal guardian of the principal beneficiary is eligible to be a substitute sponsor. A substitute sponsor must also be a U.S. Citizen/national or Lawful Permanent Resident (LPR), be at least 18 years of age, be domiciled (live) in the U.S. and meet all of the financial requirements of a sponsor.

Question #7 – General
What is Customer Identity Verification?

Answer #7
According to the USCIS website:
On Monday, May 6, 2013, U.S. Citizenship and Immigration Services (USCIS) will implement Customer Identity Verification (CIV) in its field offices. Individuals will now be required to submit biometric data, specifically fingerprints and photographs, when appearing at USCIS offices for interviews or to receive evidence of an immigration benefit. CIV will help to both defend against threats to national security and protect customers from identity fraud by enhancing the agency’s ability to verify identity.
For CIV, an individual appearing at a USCIS field office for an interview or to be issued evidence of an immigration benefit will have his or her identity biometrically re-verified. Examples of evidence include temporary travel documents, parole authorizations, temporary extensions of Form I-90, and temporary I-551 stamps on passports or on Forms I-94 to evidence lawful permanent resident status. Individuals coming to USCIS field offices for other purposes, such as an Infopass appointment or as the guest of an applicant or petitioner, will not submit biometric data.
Under this new process, staff will take two fingerprints and a photograph of the individual and input this information into the United States Visitor and Immigrant Status Indicator Technology’s (US-VISIT’s) Secondary Inspections Tool (SIT). SIT is a Web-based application that processes, displays and retrieves biometric and biographic data. US-VISIT also links databases associated with border inspections and security. After identity verification is satisfactorily completed, individuals will proceed to their interviews or be issued their immigration documents.

Question #8 – Temporary Nonimmigrant Work Visa
I am an Australian citizen who has been hired by a US corporation. Will I be subject to a cap for my visa?

Answer #8
As an Australian citizen, you may be eligible for the E3 Australian visa. The 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 otherwise would be the logical category.

Question #9 – General
What is an RFE?

Answer #9
An RFE is a Request for Additional Evidence from the USCIS. An RFE is issued when an adjudicating Officer cannot make an informed decision based upon the documentation provided in the initial filing whether to approve or deny the case, and seeks additional information in order make a decision.

Question #10 – Employment Based Green Card
We filed a labor application and it was approved for a software engineer. We have not received the certified labor application in the mail (approved several weeks ago) and wish to move to the next step, file the I-140. What can we do?

Answer #10
Generally, there are two options available to you; however, both are rather similar. The recommended route is to file the I-140 petition with a request that the United States Citizenship and Immigration Service (USCIS) obtain the certified Labor from the Department of Labor (DOL) itself. The other option is to write a letter to the DOL notifying them that the USCIS will be requesting the certified Labor from them directly for purposes of filing the I-140 petition.

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

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

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