For more information contact Banerjee and Associates

Highlights on the newly revised I-9 include drop-down lists and calendars to assist the preparer, checks to certain fields to assist the employer in correctly entering information, screen instructions to assist in completing the I-9 form, and areas for multiple preparers and translators, which are welcome changes.  There is also a space reserved for an employer to enter additional information instead of the current practice of requiring employers to enter such information in the I-9 margins.

Nepalese citizens seeking to register for this extension of TPS must do so within the 60 day window between October 26, 2016 and December 27, 2016.  Nepalese TPS applicants will receive a new Employment Authorization Document (“EAD”) with a June 24, 2018 expiration date.  USCIS acknowledges that some applicants will not receive their new EAD before their current EAD will expire on December 24, 2016, and for that reason, the announcement of the TPS extension designation also automatically extends existing EADs through June 24, 2017.  Employers are cautioned to comply with USCIS instructions in re-verifying automatically extended EADs.

USCIS calculates the increases to be a weighted average of 21 percent.  Federal law requires DHS to review its fee structure biennially and make fee adjustments such that the fees charged cover the full cost of providing immigration and naturalization adjudications.

Highlights of the new fees include: EB-5 Regional Center Designations: $17,795, up from $6,230; Annual Regional Center Certification: $3,035, a new fee; EB-5 immigrant petition: $3,675, up from $1,500; a 3 tier naturalization fee: $640, up from $595, no fee for qualifying military service applicants, and a reduced fee of $320.00 for applicants whose family income falls between 150% and 200% of the poverty guidelines.

Other, more frequent filings include:   Petition for a Fiancé: $535, up from $340; Petition for Alien Relative: $535, up from $420; Immigration Petition for Alien Worker: $700, up from $580; and Application to Adjust Status: $1,140, up from $985.

We will be publishing the complete list of fees on our web site shortly.

Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
Whose startup was formed in the United States within the past three years; and
Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:
Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities; or
Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

Under the proposed rule, entrepreneurs may be granted an initial stay of up to two years to oversee and grow their startup entity in the United States. A subsequent request for re-parole (for up to three additional years) would be considered only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue or job creation. The notice of proposed rulemaking in the Federal Register invites public comment for 45 days, after which USCIS will address the comments received.

Note:
1. The proposed rule does not take into effect immediately. It typically takes the Government quite a few months after the comment period to adopt the rule. I personally don’t think this will happen before 2017
2. The rule does not grant permanent status as of now. It just gives temporary stay of up to 5 years
3. Both the Democrats and the Republicans support this rule.
4. This would have been law, due to bipartisan support, but the Democrats wanted “Comprehensive” Reform and not the piecemeal legislation
5. Thus I expect this rule to continue no matter who our next President is.

For more information contact Annie Banerjee

For more information please contact Immigration Lawyer, Annie Banerjee in Houston

A. Banerjee is a Houston immigration lawyer in Texas. Before selecting an attorney, contact the Law Offices of Annie Banerjee by visiting their information filled web site at http://www.visatous.com.

I know Trump makes for a great opening line in any blog, so I will start with Trump.  Trump criticized Mr. Khan, the Gold Star parent by saying that Khan, a lawyer took money from Muslims so that they could buy their citizenship.  What he was referring to is the EB-5 investor visa program which is controversial.  But before I go into any details, let me say that Trump used EB-5 foreign money to build his luxury rental apartments in New Jersey called Trump Bay Towers.

The EB-5 is a program where investors can invest 1 million USD (or $500,000 in underdeveloped areas) and create at least 10 jobs.

The funds have to be obtained “lawfully” and USCIS traces the source of the funds meticulously.  If for instance, one inherits a property and sells it to obtain funds, the Citizenship and Immigration Service will demand that one traces the source of funds used by the buyer to buy the property.  This requirement is very strict

The investors have to put the funds “at risk”.  That means that the investor has to invest the money into a for profit, new venture. Very often, people invest in “regional Centers”—- businesses which pool a lot of these investment and build a new project.  However they create very little interest, and the money is tied up for about 10 years.  The interest is not enough to be able to live in the US

Over the years investors in this program have invested billions of dollars and have created thousands of jobs.  So why is this program criticized?  .  The problem with this program is not what Mr. Trump thinks, Muslims bringing in illegal money.

The problem is China.  90% of the individuals and capital come from China.  At first it would seem that China sells so much goods to us, that it is wonderful for them to invest capital in the US.  But PRC is not a free country, and that’s the problem.  Ordinarily PRC does not allow money to be brought outside the country. However, it turns a blind eye to the EB-5 program.  The investors do not directly find investment opportunities in the USA. China has state run brokers who liaise with owners of Regional Centers in the US. So these state run brokerage have access to how real estate is done in the US. They also have access to computer files.  They also can invest and control flow of capital in strategic areas.  Some have criticized that China is using economic, information and technological “warfare” with us through this EB-5 program.

The program expires on September 30^th, 2016. But my guess is that this Congress will simply extend the program for one year, and let this be the problem of the new administration.

For more information, contact Houston Immigration Lawyer, Annie Banerjee

The H-1B visa classification permits a U.S. employer to offer a professional position to a degreed foreign national and employ that foreign national to work in such a position in the United States. Tenrec, Inc., a web development company, sought to hire a Ukrainian citizen, and Walker Macy LLC, a landscape architecture and urban design firm, sought to hire a Chinese citizen. Both companies are based in Portland, Oregon and each one filed its H-1B petition on or shortly after April 1, 2016, the earliest time period permitted by regulation to obtain a sought after H-1B visa number for an October 1, 2016 employment start date. Neither company’s H-1B petition was selected in the USCIS H-1B lottery. USCIS implemented an H-1B lottery by regulation to address how it will proceed when USCIS receives more H-1B petitions than there are statutorily allocated H-1B visa number permitted per fiscal year. In 2016, USCIS received a record 236,000 petitions for 85,000 available H-1B visas.

The lawsuit alleges that there is no legal justification to support the H-1B lottery system. The plaintiffs believe the statute implementing H-1B requires a system which issues H-1B visa numbers in the order in which H-1B petitions are submitted. The lawsuit seeks class action status, and demands that the current annual five-day filing window which is part of the H-1B lottery system be replaced with year-round filing.

This employers’ lawsuit follows a suit filed by a U.S. immigration attorneys’ organization demanding that USCIS produce documents showing how the H-1B lottery process works. The plaintiffs in that suit previously filed a Freedom of Information Act request and claim that the government’s response to that request was inadequate.

The EB-5 Regional Center program will expire on September 30, 2016 unless Congress reauthorizes it, and many in Congress are concerned about fraud after the Vermont Jay Peak indictments, the largest of many which have occurred, and also about ways to measure the economic benefits of the program.  EB-5 interest groups have begun pressure on Congress to extend the Regional Center provisions accepting many proposed integrity changes and even a likely increase in the investment amount perhaps to $1,200,000 or $800,000 if in a high unemployment or rural area.  The EB-5 program has never had an increase in the investment threshold since the program came into existence in 1990.  Efforts to extend the EB-5 Regional Center program failed last December, 2015, and Congress extended the program unchanged until this coming September.

In its July, 2016 EB-5 processing time information, USCIS reports a 16+ month adjudication time for EB-5 petitioners seeking conditional permanent resident status, and an additional 20+ months for those investors with conditional residence who file to remove conditions of their residence, which is another petition filed with USCIS about 2 years later.  While these processing delays are long, they have not affected investors’ interest and participation in the EB-5 program arising out of the processing wait period.

For citizens of China, though, it is not just processing time that delays gaining lawful permanent resident status, it is having a visa number available.  Unlike foreign nationals from every other country who use the EB-5 program and who have a visa number immediately available, a factor unrelated to USCIS petitioning processing time, investors from China who filed their EB-5 petitions for conditional lawful permanent resident status in February, 2014 have a visa available in August, 2016.  Those Chinese investors who have filed there EB-5 petitions after February, 2014 must wait for a visa number to become available before the investor and his or her family can immigrate to the U.S.  Current information is that USCIS has about 40,000 EB-5 cases filed by Chinese EB-5 investors which are awaiting to be decided, and 20,000 additional Chinese investor EB-5 cases which USCIS has approved but are awaiting visa availability.  Visa availability is an issue because there is an annual quota of just 10,000 EB-5 visas available for investors world-wide, not just from China.  The likelihood is that the wait for all pending and approved EB-5 Chinese investor cases will be years before all such EB-5 Chinese investor cases will have a visa number available.  This multi-year visa wait will likely decrease EB-5 demand from China, prompting EB-5 Regional Centers to seek out investors other countries, especially from India and Vietnam, to benefit from the program.

Stay tuned to EB-5 Regional Center developments as they unfold.

USCIS has announced that E-Verify users who do not log in to their E-Verify accounts every 270 days will have the account deactivated.  The remedy?  Users who do not timely log in will have to sign up with E-Verify again.  This new policy will likely affect small business E-Verify users who may not add staff often.

In addition, the NSC will accept concurrent applications for H4 spouses to extend their stay and concurrent applications for certain H4 spouses who may be eligible for employment authorization.

With this refinement in filing location, USCIS is now requiring an H-1B employer to be yet more mindful of which USCIS Service Center is appropriate for the type of H-1B petition that the employer is filing.

The Employment-Based Fifth Preference Immigrant Investor Program, known as the EB-5 program, and administered by the Department of Homeland Security’s (DHS) U.S. Citizenship and Immigration Services (USCIS), permits immigrant investors who meet certain requirements to obtain lawful permanent resident status in the United States. To be eligible, an immigrant entrepreneur can directly invest $1 million in a business that will create 10 or more jobs, or invest half that amount in an area that is rural or has high unemployment while creating 10 or more jobs. Alternatively, immigrant entrepreneurs can invest in a project through specially set up and approved EB-5 Regional Centers with the same investment amount break points, but where the entrepreneur can be credited with indirect creation of 10 or more jobs.

USCIS had previously conducted multi-agency EB-5 fraud risk assessments in fiscal year 2012 and again 2015 as one-time efforts. While USCIS acknowledged the constantly evolving nature of new fraud schemes, it lacked plans to conduct future risks assessments. GAO recommended regular future fraud assessments be done and USCIS agreed. In February 2016, USCIS agreed to develop such plans by the end of this fiscal year.

According to Gambler’s testimony, while USCIS has increased the size and expertise of its workforce to assess job creation, USCIS still needs to develop a strategy to enhance its information collection, and a methodology to analyze information submitted on program forms to better evaluate the actual number of jobs created and to determine whether the investment amount was appropriate. The GAO recommended that USCIS track and verify data to confirm total investment and jobs created and DHS agreed to implement this recommendation by the end of fiscal year 2017.

Federal law permits a maximum of 65,0000 first time H-1B petitions, and an additional 20,000 first time U.S. earned advanced degree holder H-1B petitions each fiscal year.  Each federal fiscal year begins on October 1 and employers can file H-1B petitions 6 months in advance of that date which makes April 1 in recent years the target date for H-1B filings which have the following October 1 as the H-1B start date.

USCIS will randomly select those petitions which are to be counted against the 65,000 and additional 20,000 H-1B annual cap.  It will first complete an intake processing for all H-1B petitions which it received before the announcement date.  USCIS will then randomly determine which U.S. earned advanced degree H-1B petitions will be counted for the 20,000 advanced degree exemption, and then select the general H-1B category “lottery” winning employer H-1B petitions. USCIS will reject all subsequent cap subject H-1B petitions which it receives after April 7, 2016.

In Fiscal Year 2016, USCIS received more than 230,000 H-1B petitions, and H-1B filings for Fiscal Year 2017 may approach or exceed that number.  Owing to high volume, USCIS does not know when it will conclude the selection process.

Not all H-1B employer petitions are subject to these annual caps, though.  Foreign nationals already in H-1B status are exempt from annual H-1B numerical limitations, as are institutions of higher education or related non-profit entities, non-profit research organizations, and government research organizations.  There is no numerical limit on the number of H-1B petitions such employers can file.

Effective February 16, 2016, persons in employment authorized H-1B1 status from Chile and Singapore whose employers have timely filed to extend their stay automatically continue employment while USCIS decides the employer’s extension petition.  Similarly, persons in employment authorized E-3 status from Australia, and persons in employment authorized CW-1 status from the Commonwealth of Northern Mariana Islands also are entitled to seek this benefit.

H-1B1, E-3 and CW-1 nonimmigrants are now added to the list of many other employment authorized nonimmigrants for whom this benefit has been available, including A-3, E-1, E-2, G-5, H-1B, H-2A, H-2B, H-3, I, J-1, L-1, O-1, O-2, P-1, P-2, P-3, R-1 and TN.

The H-1B program permits a U.S. employer to file for a foreign national to temporarily fill a position in the United States provided the position requires at minimum a bachelor’s degree, and the United states Citizenship and Immigration Service (“USCIS”) deems the position to be professional.  There are other requirements, too, including an employer representation certified by the Department of Labor that the employer will pay prevailing or actual wages to the foreign worker as it does to U.S. workers in the area of intended employment, or to its other, similarly situated workers.

The statute caps H-1B visa numbers at 65,000 each fiscal year, and provides an additional 20,000 visas solely for U.S. earned masters or higher degree holders.  In recent years, the statutory allotment of H-1B visas has proven to be inadequate.  Last year, U.S. employers submitted ~224,000 H-1B petitions for the 85,000 visa numbers which became available on October 1, 2015.  Employers can file 6 months in advance of the upcoming fiscal year.  By the end of the first week in April, 2015, the earliest time when employers could file, all H-1B visa numbers for the following fiscal year were accounted for.  USCIS conducted a “lottery” to randomly select which petitions were the ones chosen to fill the quota.

As the economy continues to improve, FY 2017 may result in even greater number of H-1B visa petitions for the number of H-1B visas available.

Many employers, especially in the high tech sector, use the H-1B program to employ STEM graduates to address marketplace shortages of U.S. workers in this and other areas.  One study done in 2012 in partnership with the U.S. Chamber of Commerce, found that every foreign national U.S. university graduate who remains in the U.S. employed in a STEM field generates on average of 2.62 U.S. worker jobs.  Principal sectors of the economy which benefit from the H-1B program include manufacturing and healthcare.

Employers today have to evaluate the chances of their H-1B petition being chosen and the costs of preparing the application against the value that the foreign national represents in skill and talent, and the paucity of similarly skilled and available U.S. workers.  No U.S. employer should be handicapped and made to rely on a lottery to fill key staffing needs.

The proposed rules amend existing regulations to incorporate USCIS policies that have been put in place since October 2000, the date of enactment of the America Competitiveness in the Twenty First Century Act (AC21). To date, the first rules that USCIS has proposed for AC21 would do the following:

• Clarify that a foreign national’s place in line waiting for a visa number, known as a Priority Date, is established on the date that a labor certification is filed with the Department of Labor. If no labor certification is needed, the priority date is the date on which USCIS receives the employer’s petition properly signed, together with the required fee.
• State that employment based petitions filed in the EB-1, EB-2 or EB-3 category provide a foreign national with a Priority Date for any subsequently filed EB-1, EB-2 or EB-3 petition, and if multiple immigrant visa petitions are filed for the same person, the foreign national beneficiary is entitled to the earliest priority date.
• Clarify that a Priority Date on an employment based immigrant visa petition is lost when USCIS revokes the petition for fraud or willful misrepresentation, or upon DOL revocation of the accompanying labor certification. Unless revoked, an employment-based petition is valid indefinitely.
• Provide employment authorization eligibility for EB-1, EB-2 or EB-3 beneficiaries if four conditions are met: 1) Their petition has been approved; 2) Their status is E-3, H-1B, H-1b1, O-1 or L-1; 3) No immigrant visa number is available in the category sought; and 4) USCIS chooses to exercise its discretion based on the person’s showing of compelling circumstances. Spouses can obtain employment authorization, too, if the principal beneficiary has been granted employment authorization.
• Provide a regulatory 10-day grace period to depart at the conclusion of their authorized stay in E-1, E-2 E-3, H-1B, L1 or TN classifications, and provide foreign nationals in any of those classifications who cease to continue their employment a one-time period of 60 days without losing status. Such persons remain eligible to file an extension petition during that period.
• Eliminate the regulatory requirement to adjudicate an Employment Authorization Document (EAD) within 90 days of filing, eliminate the current regulatory requirement that USCIS issue interim an EAD when EAD adjudication is delayed, and provide an automatic extension of EADs for up to 180 days for an applicant who has filed to renew his or her EAD.

In brief, here is what he said:

India:    EB-2s from India have advanced significantly in the last few months arising out of lower than anticipated demand.  DOS is taking steps to ensure that cases can be concluded and visas issued within the fiscal year by aggressively moving visa numbers in these categories.  It is unclear if lower demand arose from fewer India EB-3 to EB-2 conversions than previously were expected, or whether prior months’ visa movement met the India EB-2 visa demand, or whether USCIS reduced its EB-2 backlog from India so that demand appears to be lower.

China:    China EB-2s are expected to trail EB-3s, although DOS expects the China EB-2 demand will diminish from high usage levels seen in October, 2015.  EB-2 demand has decreased ever since.  China EB-3 demand has remained low and EB-3 visa numbers are expected to move forward because first quarter FY 2016 visa usage targets were not reached.  Continued EB-3 movement could result in EB-2 to EB-3 conversions.  China EB-2 and EB-3 may re-balance as a result.  Both China EB-2 and EB-3 are expected to move forward in March, 2016.

The rule harmonizes the regulations with the implementing statute so that both state that H-1B1 and E-3 nonimmigrant workers are authorized to work for a specific employer incident to their status.  The rule clarifies that there is no further filing needed with USCIS to document the H-1B1 or E-3 nonimmigrant’s employment authorization in the United States.

The rule also permits E-3 and H-1B1 nonimmigrants to continue employment with a specific employer upon the employer’ filing of a timely extension of stay petition for the E-3 or H-1B1 nonimmigrant for 240 days beyond the initial time that the Department of Homeland Security granted while USCIS adjudicates the pending extension filing.  Additionally, the rule now specifically provides that E-3 and H1B1 nonimmigrants can change status or extend their stay in the United States.

Finally, the rule permits EB-1 outstanding professors and researchers to submit comparable evidence of eligibility instead of or in addition to the specific type of evidence set forth in the regulations, if the latter do not readily apply.

Public Law 111-230 was signed into law by President Barack Obama on Aug. 13, 2010. The law directed up to $600 million toward border security, paid for in part by an increased visa filing fee for companies with more than 50 employees in the U.S., with greater than 50 percent of employees in L-1 or H-1B status. These companies were required to pay an additional $2,250 for each L-1 petition and $2,000 for each H-1B petition. The law included a sunset provision that allowed the requirement to expire as of Sept. 30, 2015. As Congress did not act to renew the provision, as of Oct. 1 the additional fees are no longer required.

The additional fees had greatly increased visa petition costs for affected employers, and those employers — at least for now — can now file visa applications without these additional fees.

Other L-1 and H-1B fees still apply, including the case filing fee and the anti-fraud fee. Where applicable, the American Competitiveness and Workforce Improvement Act of 1998 Fee also applies. U.S. Citizenship and Immigration Services (USCIS) reminds petitioners that petitions may be rejected if the correct fees are not submitted, and that USCIS requests separate checks for each filing fee.

The Notice, published on November 9, 2015, provides that a student is eligible under the Notice if he or she is a citizen of Nepal, was lawfully present in the United States in F-1 status on April 25, 2015 and was enrolled in a SEVIS certified school and maintaining F-1 status, and is experiencing severe economic need arising out of the direct effects of the earthquake.  Eligibility means that the student can register for a reduced case load per semester and engage in employment on or off campus and still be engaged in a full course of study for the purpose of maintaining F-1 status.  USCIS estimates that there are more than 9,300 Nepalese students to whom this Notice can apply.  The benefits provided under the Notice end on December 24, 2016.

Eligible Nepalese F-1 undergraduate students must register for 6 semester hours per semester and eligible Nepalese graduate students must register for 3 hours per semester.  The Notice also provides that both undergraduate and graduate students can count the equivalent of 1 course or 3 credit hours of online or distance learning to satisfy the reduced required per semester course load.

Eligible Nepalese F-1 students can engage in on-campus employment for more than 20 hours per week.  Eligible Nepalese F-1 students can engage in off-campus employment without having been in F-1 status for 1 full academic year, nor demonstrating that accepting employment will not interfere with carrying a full course of study, nor with a limitation of working more than 20 hours per week off campus while school is in session.

The school’s DSO makes the determination whether a Nepalese F-1 student has demonstrated severe economic need to enter authorization for these benefits in the Nepalese student’s SEVIS record.  The Notice does not provide employment authorization for the spouses of covered F-1 Nepalese students.

Previously, the Visa Bulletin listed only a Priority Date, that is, a cut-off date of the first applicant who could not be reached within the numerical limits for a specific month.  Now, Priority Date has been re-named Application Final Action Date (or “Final Action Date”).  Added is a new date, Dates for Filing Applications (or“Filing Date”), that is, the date on which an applicant can file for adjustment of status.  These changes apply to both family based and employment based immigrant visa categories.

A key benefit for adjustment applicants is the eligibility to file for employment authorization and travel permission while their adjustment application pends.  In addition, for many employment based categories, once the adjustment application has been pending for 6 or months, the applicant can port to a different employer in the same or similar job classification.  These are welcome changes to many applicants in heavily backlogged visa categories.

Although an applicant can file for adjustment of status in advance of the Final Action Date, USCIS cannot approve the application until a visa number actually becomes available.  In reading the Visa Bulletin, applicants filing for adjustment must use the Final Action Date unless the Visa Bulletin states that the Filing Date can be used.   For the month of October, 2015, the Visa Bulletin references a USCIS determination that the Filing Date can be used in determining whether the applicant can submit their application or applications to USCIS.  Each month thereafter, USCIS will make a determination regarding adjustment projection numbers and the Visa Bulletin will state whether the applicant can use the Filing Date or must use the Final Action Date.

Please see http://www.travel.state.gov/content/visas/english/law-and-policy/bulletin/2016/visa-bulletin-for-october-2015.html for the October, 2015 Visa Bulletin.

Matter of Simeio Solutions, LLC concerns the H-1B visa classification, a nonimmigrant category which permits a U.S. employer to employ a foreign national worker temporarily in a specialty occupation in the United States. The precedent decision stated that a U.S. employer must file an amended petition when a change in an H-1B worker’s worksite location requires a new Labor Condition Application (LCA). USCIS guidance released in May, 2015, made that process retroactive, requiring a new LCA and an amended H-1B petition for each worker whose location changed prior to the decision. USCIS set August 19, 2015, as the amended petition deadline for compliance.

In its final guidance issued July 21, 2015, USCIS changed that position. USCIS now states that it will generally not pursue adverse actions, solely based on an employer’s failure to file an amended petition, against employers whose H-1B employees moved to a new area of employment on or before April 9, 2015 (the date that Matter of Simeio Solutions, LLC was decided). Thus, a new LCA application and an amended petition is only required for a location change occurring after April 9, 2015.

In addition, the deadline of August 19, 2015, was moved to January 15, 2016. USCIS will consider an amended H-1B petition filed by the amended deadline to be timely. The precedent decision and policy guidance demonstrate the importance and complexity of this issue. Employers employing foreign workers in H-1B status should work with an experienced immigration attorney to ensure compliance.

The new AAO decision, In the Matter of Simeio Solutions LLC, holds that if a new Labor Condition Application (LCA) is filed for an H-1B employee to reflect a change in work location that is outside the metropolitan statistical area of the original worksite or worksites set forth on the LCA and in the original H-1B petition, then the H-1B employer must now file an amended petition with a new LCA with USCIS for that worker.

The requirement of an amended petition only applies when the work location is in a different MSA, or metropolitan statistical area, from the original work location. Therefore, an amended petition is not necessary when a worker is moved to a different worksite within the same MSA, although the original LCA must still be posted at the new worksite. Similarly, an amended petition is not needed when a worker is simply traveling to a non-worksite location, such as for a training event. In some circumstances, a worker may also be placed at a new worksite, even in a different MSA, for a short-term placement without the need for an amended petition. This applies when the original worksite is still the employee’s base, but the worker is moved to a different worksite for less than 30 days, or in some cases, 60 days.

Subsequent to the AAO decision, which USCIS considers to apply retroactively, USCIS issued guidance to employers, stating that employers who move H-1B employees to new worksites prior to the issuance of the decision have until August 19, 2015 to file amended petitions.

Stewart Rabinowitz, Board Certified, Immigration and Nationality Law – Texas Board of Legal Specialization. Rabinowitz & Rabinowitz, PC. is an immigration law firm representing businesses, families, and individuals.

USCIS conducted a computer-generated random process to select the 65,000 general cap petitions and the 20,000 advanced degree exemption, and on April 13, 2015, selected all petitions for each group.  The agency will return to petitioning employers those petitions not selected.  USCIS has since announced that the it will begin premium processing the selected H-1B cases who have selected that service on April 27, 2015.  It will continue to accept and process H-1B petitions for H-1B workers who have previously been counted against the H-1B cap.

Rabinowitz & Rabinowitz, PC. is an immigration law firm representing businesses and foreign nationals in employment-based visa cases. To learn more or to contact a Dallas immigration lawyer, visit http://www.rabinowitzrabinowitz.com.

USCIS will use a lottery to decide which cases it will select.  It will reject and later return all cases not chosen, including filing fees.  USCIS has not announced when it will conduct the “H-1B lottery” nor the total number of petitions it has received since it began accepting H-1B filings on April 1 for the fiscal year beginning on October 1.  During the last fiscal year, USCIS received more than 124,000 H-1B petitions.

U.S. employers were further frustrated this year by news that trusted delivery services either delayed or damaged numerous H-1B filings.  Many employers learned too late of the delivery fiasco and USCIS provided instructions on how to withdraw the first and re-submit another  H-1B petition the day before the cap was reached, which was too late for many employers whose cases arrived late or damaged to timely withdraw and re-file.

Rabinowitz & Rabinowitz, PC. is an immigration law firm representing businesses and foreign nationals in employment-based visa cases. To learn more or to contact a Dallas immigration lawyer, visit http://www.rabinowitzrabinowitz.com.

After the trial period ends, USCIS intends to implement an application to replace a Permanent Resident Card through the USCIS ELIS portal in early 2015.

Rabinowitz & Rabinowitz, PC. is a Dallas immigration law firm representing businesses, families, and individuals. To learn more or to contact an attorney, click here to visit http://www.rabinowitzrabinowitz.com.

Rabinowitz & Rabinowitz, PC. is a business immigration firm representing businesses and foreign nationals in employment-based visa cases. To learn more or to contact a Dallas immigration attorney, visit http://www.rabinowitzrabinowitz.com.

Rabinowitz & Rabinowitz, PC. is an immigration law firm representing businesses and foreign nationals in employment-based visa cases. To learn more or to contact a Dallas immigration lawyer, visit http://www.rabinowitzrabinowitz.com.

USCIS will conduct its random selection of the advanced degree exemption H-1B petitions first and those not selected will be added to the pool of petitions to be considered for the 65,000 H-1B petition limit.  Because of the volume of received H-1B petitions, USCIS has not announced when it will conduct the selection process.

Rabinowitz & Rabinowitz, PC. is an immigration law firm representing businesses and foreign nationals in employment-based visa cases. To learn more or to contact a Dallas immigration lawyer, visit http://www.rabinowitzrabinowitz.com.

As background, a foreign national spouse in the U.S. in H-4 status is authorized to stay in the U.S. only so long as the principal alien.  There are time limits on most nonimmigrant stays in the U.S.  If the foreign national dependent spouse later seeks to be re-classified as a principal alien in certain non-immigrant classifications, the question remains whether previous time in dependent H-4 status will count against future time limits as a principal alien. In December, 2006, USCIS determined that time in H-4 status spent by a spouse of an H-1B nonimmigrant does not count toward future time limits if the dependent spouse seeks to become a principal alien in H-1B status, nor does time spent by a spouse in L-2 status count against future time limits if the dependent spouse seeks to become a principal alien in L-1 status.  USCIS had been silent about whether the same rule applied to H-4 status if the dependent spouse seeks to become a principal alien in H-2 or H-3 status.

Now USCIS has supplemented and extended its policy to include future time H-2 and H-3 status.  USCIS states that these changes are appropriate because they are consistent with overall statutory authority and because they promote family unity, resulting in a harmonious application of law.  Thus, a foreign national spouse in the U.S. in H-4 status eligible to be granted H-2 or H-3 status, can remain in the U.S. for the maximum time permitted by each respective classification without subtracting time previously spent in H-4 status.

Rabinowitz & Rabinowitz, PC. is a business immigration firm representing businesses and foreign nationals in employment-based visa cases. To learn more or to contact a Dallas immigration attorney, visit http://www.rabinowitzrabinowitz.com.

As a prospective employee, you may be sponsored into the U.S. by multiple potential employers for a change of status. Multiple sponsors would increase one’s chances of success, in theory. But if multiple petitions are selected for the lottery and are approved, that individual now has multiple I-94s issued, all with the same start date of October 1. The employee may join the employer of his or her choosing, and must maintain that visa status. Concurrent employment should be discussed with an immigration attorney to ensure that there is correct filing with the USCIS.

If you are a prospective employee, your employer may have filled out an H-1B petition which requests a change of status for an L-1 status foreign national, or someone who is otherwise a nonimmigrant. The petition must be filed in April for a start date of October 1. You may not hear again from the prospective employer and assume that they H-1B petition was not approved, and then hear after the October 1 start date that it was approved when you receive a work request. This happens quite frequently. An employer may hold onto authorization for a variety of reasons, or communications go awry.

Unfortunately, if you fail to join the H-1B employer on the start date of October 1, it is considered a status violation. Additionally, work you perform for your L-1 employer after October 1 is considered unauthorized employment.

If an individual’s status has changed and they wish to continue in their prior status, they may be advised informally to leave the U.S. and then return to the U.S. in their preferred status. The general wisdom is that returning will cause an individual to be issued a new I-94 at their port of entry. However, there are numerous risks with this approach and the many issues that can occur during travel. It is strongly suggested that you or your employee consults with an experienced Houston immigration attorney before deciding that this will solve any visa status issues.

A. Banerjee is a Houston immigration attorney in Texas. Before selecting an lawyer, contact the Law Offices of Annie Banerjee by visiting their website at http://www.visatous.com.

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Rabinowitz & Rabinowitz, PC. is an immigration law firm representing businesses and foreign nationals in employment-based visa cases. To learn more or to contact a Dallas immigration lawyer, visit http://www.rabinowitzrabinowitz.com.

The ELIS system permits an applicants to make a payment, file an application, and submit electronically scanned evidence directly to USCIS. It also permits an applicant to gain real-time information about his or her case and receive USCIS notices electronically. Despite substantial investment by USCIS in ELIS, it covers only a single form: An application used by certain foreign nationals who seek to change or extend their visitor, or student stay. Now ELIS is also to be used by immigrants abroad to pay a Immigrant Fee to USCIS before departing for the U.S. instead of making payment on pay.gov. Starting February 1, 2013, USCIS began collecting a $165.00US fee for each immigrant who receives an immigrant visa package from a U.S. consulate or embassy abroad to receive a green card in the U.S. The fee reimburses USCIS for the cost of immigration processing after an immigrant surrenders his or her visa package to USCIS.

USCIS has not stated when ELIS will be expanded to process any of the other dozens of paper forms which USCIS requires of immigrants and non-immigrants alike.

Rabinowitz & Rabinowitz, PC. is an immigration law firm representing businesses, families, and individuals. To learn more or to contact an attorney, click here to visit http://www.rabinowitzrabinowitz.com.

While there is no guidance directly on point, in a policy Memorandum issued on April, 2010, Immigration and Customs Enforcement (“ICE”) advises against travel for an F-1 student whose H-1B change of status petition has not yet been decided. It bases its reasoning on USCIS policy that considers the change of status portion of an H-1B petition as abandoned if the H-1B beneficiary departs the U.S. before USCIS decides the case. The Memorandum is silent regarding cap-gap travel if the H-1B petition is already approved. To be safe, H-1B cap gap beneficiaries should remain in the U.S. during the cap-gap interval and those considering travel abroad should consider making an H-1B visa application in September. H-1B visa status holders can enter 10 days in advance of their start date but can only begin work on October 1.

Rabinowitz & Rabinowitz, PC. is an immigration law firm in Dallas Texas representing individuals and family members in lawful permanent resident and U.S. Citizenship cases. To learn more visit http://www.rabinowitzrabinowitz.com.

On the nonimmigrant visa side, S.744 both provides for additional nonimmigrant visa categories and additional H-1B visa numbers. It also includes additional restrictions on H-1B and L-1 visa classifications further burdening employers who need foreign talent with additional fees and additional requirements to thwart fraud. As of this writing, the Senate has had 3 days of mark up on S.744.

In this article, we shall examine a summary of the starting point of S. 744 affecting nonimmigrant visa classifications.

A. F-1 Students:

* Dual intent recognized for F-1 students in bachelor’s or graduate degree programs.

B. New E Specialty Workers:

* Permits citizens of countries with whom the U.S. has Bi-Lateral Investment Treaties or Friendship, Commerce and Navigation Treaties to enter the U.S. as specialty occupation workers to work for a U.S. employer offering specialty occupation employment.

* Requires the employer to file and obtain a certified a Labor Condition Application (“LCA”) from the U.S. Dept. of Labor.

* Also provides this benefit specifically to citizens of South Korea.

* Limit is 5,000 visas per year per country.

C. E-3 Visas for citizens of Ireland:

* Irish citizens who seek E-3 status to perform services as an employee must have at least a high school education or its equivalent, or has, within 5 years, at least 2 years of work experience in an occupation which requires at least 2 years of training or experience.

D. Nonimmigrant Visa Portability:

* Both H-1B status holders and now O-1 status holders can begin work with a new H-1B or O-1 employer upon the filing of a new, respective H-1B or O-1 petition provided the new petition is non-frivolous, the H-1B or O-1 status holder has not worked without authorization, and such person has been lawfully admitted.

E. Deference to Previously Approved H-1B and L-1 Petitions:

* If the prior petition does not have material error, a substantial change in circumstances, or adverse newly discovered information, USCIS to defer to the prior petition in exercising its discretion.

F. Nonimmigrant Visa Revalidation Within the U.S:

* Dept. of State to allow visa revalidation in the U.S. for A, E, G, H, I, L, N, O, P, R, or W for otherwise eligible and qualifying applicants.

G. Nonimmigrant Stay and Employment Authorization Extensions:

* Nonimmigrants in employment authorized A, E, G, H I, J, L, O P, Q, R and TN whose employers have filed a timely extension maintain status and employment authorization until the extension is adjudicated.

H. H-1B Specialty Occupation Workers:

* Range of H-1B visa numbers between 110,000 and 180,00 using a High Skilled Demand Index to vary the number. Cap limited to changes of 10,000 visas per year.

* The exemption for foreign nationals with U.S. earned Masters Degree or higher increases to 25,000 but it is limited to STEM occupations, including biological and biomedical sciences.

* Spouses of H-1B will have employment authorization eligibility.

* H-1Bs have a 60 days grace period after termination of employment to depart the U.S. During that period the H-1B considered in status for purposes of filing to extend, change, or adjust status.

* Change to the DOL wage determinations from 4 wage levels to 3. Level 1 = mean of the lowest 2/3 of all surveyed wages in an MSA. Level 2 = mean of all wages. Level 3 = mean of the highest 2/3 of all wages. Employer must pay 100% of prevailing wage.

* 4 level DOL wage determinations remain for nonprofit higher education institutions.

* Employers must recruit for H-Bs by posting notice on a to-be-created DOL H-1B web site for 30 days before filing an LCA. Employer must offer position to a U.S. worker equally or better qualified.

* H-1B employers must attest that they have not and will not displace a U.S. worker for 90 days after the date of filing an LCA. Exempts employers whose number of employees in the same job classification has not changed in the past year. For H-1B dependent employers, the non-displacement period forward and back is 180 days.

* H-1B employers who outsource, lease otherwise contract for placement of services must pay a $500.00 fee. Prohibition on outsourcing for H-1B dependent employers.

* New H-1B or L-1 Fee: In addition to existing H-1B fees, DHS is to collect a new fee from an employer using the H-1B or L-1 program. The fee is $1,250.00 per H-1B petition provided the employer has not more than 25 full time or full time equivalent employees. For employers with 26 or more employees, the fee is $2,500 for an H-1B or L-1 petition. Nonprofit research institutions and nonprofit educational institutions are exempt from these fees.

* Nonprofit institution of higher education, nonprofit research organization, and employers engaged in healthcare who file for a nurse, physician, physical therapist or similar position care not H-1B dependent notwithstanding the number of H-1B workers.

* New definition of “intending immigrant:” A foreign national who intends to live and work in the U.S. for whom a labor certification for 1 year or a filed employment based immigrant visa petition. An intending immigrant is not counted as an employee in H-1B or L status in calculations required under the bill.

* DOL to conduct annual compliance audits of employers who have more than 100 employees if more than 15% of such workforce is in H-1B status.

* H-1B employers to provide H-1B foreign nationals with a copy of the entire H-1B petition within 30 days of filing the LCA. Employer can redact proprietary or financial information.

* USCIS or DOL to provide H-1B or L-1 foreign national with information on employee rights, employer obligations, and government agency contact information.

* H-1B Dependent Employer Fees Increase:

1. In fiscal years 2014-2024, a $5,000 fee for an employer who employs 50 or more employees if more than 30 percent and less than 50 percent of the applicant’s employees are H–1B nonimmigrants or L nonimmigrants.

2. In fiscal years 2015-2017, a fee of $10,000 for an employer who employs 50 or more employees if more than 50 percent and less than 75 percent of the applicant’s employees are H–1B nonimmigrants or L nonimmigrants.

* Nonprofit institutions of higher education are exempt from these fees and intending immigrants do not count as H-1B or L-1 employees.

* Increases penalties for LCA violations to $2,000. Exposes employers to liability for any employee harmed by the violation as to lost wages and benefits.

* In determining prevailing wage level for an employee of an institution of higher education, or a related or affiliated nonprofit entity or a nonprofit research organization or a governmental research organization, the prevailing wage level only takes into account employees at such institutions and organizations in the area of employment.

* H-1B employers cannot

1. Advertise any as only available to F-1 OPTs or H-1B nonimigrants;
2. Advertise that F-1 OPT or H-1B will receive preference in the hiring process;
3. Solely recruit individuals who are or who will be F-1 OPT or H–1B

* Limitation on total H-1B and L-1 nonimmigrants for a specific employer: Employers with 50 or more employees must sum the number of H-1B and L-1 employees.

1. For FY 2015, that sum cannot exceed 75% of the total number of employees;
2. For FY 2016, that sum cannot exceed 65%;
3. After FY2016, that sum cannot exceed 50% of the total number of employees;

* DOL standard of review for LCA to include “completeness and evidence of fraud or misrepresentation.”

1. DOL has 14 days to certify LCA instead of 7;
2. Employer can file H-1B petition without LCA, but USCIS cannot approve petition until DOL certifies LCA;
3. DOL can investigate if DOL finds evidence of fraud or misrepresentation.

* H-1B or L visa or status holder to receive a brochure of employer’s obligations and employee’s rights, and federal agency contact information which can provide additional information. If visa issued abroad, DOS to provide; if change done in the U.S. by USCIS, USCIS to provide.

I. L-1 Intra-company Transferees

* Employer cannot place, outsource, lease or otherwise contract an L-1′s services unless L-1 would not be supervised by outplaced entity, the placement is not essential labor for hire, and other employer attests that it has not displaced and will not displace a United States worker during the period beginning 90 days prior to and 90 days after the date the employer files L petition.

* New Office L-1s: Petition can be approved for up to 12 months if:

1. Nonimmigrant has not been the beneficiary of 2 or more petitions during the immediately preceding 2 years;
2. The employer operating the new office has an adequate business plan, sufficient physical premises to carry out the proposed business activities; and
3. The financial ability to start doing business immediately upon the approval of the petition.

* Extension approval requires:

1. A statement summarizing the original petition; evidence that the employer has complied with the business plan;
2. Evidence of the truthfulness of statements in the original new office petition;
3. Evidence that the employer has been doing business at the new office through regular, systematic, and continuous provision of goods and services;
4. Statement of the duties the nonimmigrant has performed at the new office during the new office approval period;
5. Duties the nonimmigrant will perform at the new office during the extension period;
6. Statement describing the staffing at the new office, including the number of employees and the types of positions held by such employees;
7. Evidence of wages paid to employees;
8. Evidence of the financial status of the new office;

* Limitation on total H-1B and L-1 nonimmigrants for a specific employer: Employers with 50 or more employees must sum the number of H-1B and L-1 employees.

1. For FY 2015, that sum cannot exceed 75% of the total number of employees;
2. For FY 2016, that sum cannot exceed 65%;
3. After FY2016, that sum cannot exceed 50% of the total number of employees;

* In FY 2014, employers with 50 or more U.S. based employees must pay an L-1 filing fee of $5,000 if more than 30% and less than 50% of the employer’s employees are in H–1B or L-1 status.

* For each FY 2014-2017, employers with 50 or more U.S. employees must pay an L-1 filing fee of $10,000 if more than 50% and less than 75% the employer’s employees are in H–1B or L-1 status.

* DHS can investigate L-1 employers for violations of L-1 requirements based on specific, credible information. DHS can withhold identity of complaining witness. 24 month window. Employer may request a hearing if DHS finds a reasonable basis for employer’s failure to comply and DHS must make a finding within 120 days after hearing.

1. No federal court review of finding permitted.

* DHS may conduct voluntary surveys regarding employer compliance.

* DHS to conduct annual compliance audits of employers with more than 100 U.S. employees if more than 15% such employees are in L-1 status.

* DHS penalties up to $2,000 fine, debarment of 1 year for misrepresentation or failure to comply; up to $10,000 and 2 year debarment for willful failure.

* Employer can be liable to employees for lost wages and benefits harmed by each violation.

Rabinowitz & Rabinowitz, PC. is a business immigration firm representing businesses and foreign nationals in employment-based visa cases. To learn more or to contact a Dallas immigration attorney, visit http://www.rabinowitzrabinowitz.com.