MVP LAW GROUP – Immigration Q&A Forum, Friday, March 6, 2015

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

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

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

Question #2 – H2B Nonimmigrant Work Visa
What is the H-2B Visa and who is eligible to file for it?

Answer #2
The H-2B nonimmigrant worker visa is subject to numerical limitations imposed by Congress. The program is capped at 66,000 visas per year and equally split between the winter and summer seasons. H-2B visas are available for individuals to perform nonagricultural work of a temporary or seasonal nature, if U.S. workers capable of performing such service or labor cannot be found in the U.S. This classification requires the Sponsoring Employer to conduct active recruitment to determine if U.S. workers are available to fulfill the temporary need.

Click here to see the H2B Eligible Countries List. http://www.uscis.gov/working-united-states/temporary-workers/h-2b-non-agricultural-workers/h-2b-temporary-non-agricultural-workers

Question #3 – H1B Nonimmigrant Work Visa
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. Can he use that approved I-140 to get a three year extension with our company?

Answer #3
Generally, Yes. Pursuant to AC21 law, an H-1B immigrant may extend his or her status beyond the 6 year limitation 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. It would be advisable to speak with an Immigration Attorney.

Question #4 – Ancillary Benefits of I-485 (AOS)
My EAD and AP are expiring in October. When is the earliest that I can file my renewal petitions?

Answer #4
You may file an EAD renewal application 120 days in advance of the expiration of your existing EAD card. With Advance Parole, you may file 120 days in advance as well; however, before the issuance of the new Advance Parole, you may be asked to return the existing Advance Parole card.

Question #5 – H1B Nonimmigrant Work Visa
I never used my previously approved H-1B petition. Can I transfer it or do I have to file a new case during the Cap?

Answer #5
If you have previously been subject to the CAP, you certainly may be eligible to reinstate your unused time in H-1B visa status. You should contact an Immigration Attorney to schedule a consultation to discuss your options.

Question #6 – Green Card
Today I received my Green Card in the mail but my birth date is wrong. How do I fix it?

Answer #6
File Form I-90, Application to Replace Permanent Resident Card with the USCIS. Make sure to check off the applicable reason for filing the form – ‘Error made by the USCIS’.

Question #7 – Citizenship
If I have been a Green Card Holder for 8 years, am I eligible to Apply for Citizenship?

Answer #7
The general requirements for administrative naturalization include:
• A period of continuous residence and physical presence in the United States;
• Residence in a particular USCIS District prior to filing;
• An ability to read, write and speak English;
• A knowledge and understanding of U.S. history and government;
• Good moral character;
• Attachment to the principles of the U.S. Constitution; and,
• Favorable disposition toward the United States

Question #8 – Adjustment of Status
How much does it cost to file a 485 application for myself and my wife?

Answer #8
Assuming you and your wife are over the age of 14, Form I-485 carries a USCIS filing fee of $1,070, this fee includes biometrics.

Question #9 – Certain H4 Spouses & Employment Authorization
Is it true that H4 holders can apply for an EAD? When can my wife apply?

Answer #9
The Department of Homeland Security (DHS) will be extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants.
Eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants, who:
• Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker;
or
• Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (i.e., an extension of H1B status beyond the 6th year).

USCIS will begin accepting applications on May 26, 2015.

Please view our blog post, “DHS Extends Eligibility for Employment Authorization to Certain H-4 Dependent Spouses” for more information.

Question #10 – Deferred Action for Parental Accountability (DAPA)
What is DAPA and who is eligible to apply for this program?

Answer #10
On November 20, 2014, the President of the United States announced the eligibility criteria for exercising prosecutorial discretion through the use of deferred action for Parents of U.S. Citizens or Permanent Residents . This deferred action program will be for a period of three years and will be subject to renewal. As a result of the deferred action, the applicant may be eligible for work authorization.

You may request consideration of Deferred Action if you*:
1. have, as of 11/20/2014, a son or daughter who is a U.S. citizen or lawful permanent resident (child born on or before 11/20/2014); AND 2. have continuously resided in the United States since January 1, 2010; AND 3. were physically present in the United States on 11/20/2014, and at the time of making a request for consideration of deferred action with USCIS; AND 4. have no lawful status as of 11/20/2014; AND 5. are not an enforcement priority, pursuant to the November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum; AND 6. present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, March 20, 2015!

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