A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Monday, January 23, 2017

Who is the President of the United States?


If you are are studying for the naturalization test, there has been some changes about the U.S. government following the recent elections.

The following are the most recent changes put together by the USCIS. For example, Obama is no longer the President of the United States. Make sure you answer the questions correctly.  


Question
Update

20.  Who is one of your state’s U.S. senators now?

The answer to this question may have changed on January 3, 2017, when the 115th Congress began to meet. 

Give the name of one of your state’s current U.S. senators. For a list of current members of the U.S. Senate, please visit www.senate.gov
23.   Name your U.S. representative.

The answer to this question may have changed on January 3, 2017, when the 115th Congress began to meet. 

Give the name of your current U.S. representative. For a list of current members of the U.S. House of Representatives please visit www.house.gov.

28.  What is the name of the President of the United States now?
·  Donald J. Trump
·  Donald Trump
·  Trump

29.  What is the name of the Vice President of the United States now?
·  Michael R. Pence
·  Mike Pence
·  Pence 

43.  Who is the governor of your state now?
The answer to this question may have changed depending on inauguration dates.
Give the name of your state’s current governor. For a list of current governors, please visit http://www.usa.gov/Agencies/State_and_Territories.shtml

46.  What is the political party of the President now? 
·  Republican (Party) 




Saturday, January 21, 2017

USCIS To Change Filing Addresses for Form I-140 / Form I-907 Applications

Starting January 19, 2017, the Form I-140 and Form I-907, Request for Premium Processing, must be filed at the addresses listed below based on the worksite location:


Worksite Location:
For U.S. Postal Service (USPS)
 First Class and Priority Mail Express deliveries
For overnight/courier deliveries (non-USPS)USPS
Maryland, New Jersey, or Pennsylvania
Premium Processing
USCIS Texas Service Center
P.O. Box 279030 Dallas, TX 75227-9030
Premium Processing
USCIS Texas Service Center
4141 N Saint Augustine Dr.
Dallas, TX 75227-4818
Tennessee
Premium Processing
USCIS Nebraska Service Center
P.O. Box 87103
Lincoln, NE 68501-7103
Premium Processing
USCIS Nebraska Service Center
850 S. Street
Lincoln, NE 68508



Thursday, January 19, 2017

Change of Gender in Immigration Documents

U.S. Citizenship and Immigration Services issued a policy memo on January 19, 2017 regarding change of gender designation on documents issued by the immigration agency.   To request for a change in the gender on a USCIS-issued document, one may present one of the following forms of evidence: 

• A court order granting change of sex or gender;

•A government-issued document reflecting the requested gender designation. Acceptable government-issued documents include an amended birth certificate, a passport, a driver’s license, or other official document showing identity issued by the U.S. Government, a state or local government in the United States, or a foreign government; or

• A letter from a licensed health care professional certifying that the requested gender
designation is consistent with the individual’s gender identity.   For these purposes, a licensed health care professional includes licensed counselors, nurse practitioners, physicians (Medical Doctors or Doctors of Osteopathy), physician assistants, psychologists, social workers, and therapists. The health care certification letter must include the following information:

  1. The health care professional's full name, address, and telephone number;
  2. The health care professional’s license number and the issuing state, country,
  3. or other jurisdiction of the professional license;
  4. Language stating that the health care professional has treated or evaluated the
  5. individual in relation to the individual’s gender identity; and
  6. The health care professional’s assessment of the individual’s gender identity.

Tuesday, January 17, 2017

February 2017 Visa Bulletin: Movement Sluggish



In the February 2017 Visa Bulletin, EB-2 India stays unchanged; EB-3 India moves forward by only one week. EB-2 China and EB-3 China move forward by one month and three weeks respectively.  



EB-3 China remains ahead of EB-2 China.  Therefore, downgrading of the I-140 remains an option for Chinese-born applicants in order to expedite their green card application process.



EB-3 Philippines moves forward by 3 months.


Family First Preference advances 6 weeks to 2 months weeks for most countries, except Mexico, which only moves advances 2 weeks.  Other family categories for all countries have small advancements, i.e., 3 weeks.   Please see the charts below for details.



AD: Dates for Final Action (Approval)
FD : Dates for Filing Applications

FAMILY
Other Countries
China
India
Mexico
Philippines
F1
AD
02/22/2010
02/22/2010
02/22/2010
05/08/1995
12/01/2005
FD
01/01/2011
01/01/2011
01/01/2011
06/01/1995
05/01/2006
F2A
AD
04/15/2015
04/15/2015
04/15/2015
04/01/2015
04/15/2015
FD
11/22/2015
11/22/2015
11/22/2015
11/22/2015
11/22/2015
F2B
AD
07/08/2010
07/08/2010
07/08/2010
11/08/1995
04/08/2006
FD
02/08/2011
02/08/2011
02/08/2011
06/01/1996
02/01/2007
F3
AD
03/22/2005
03/22/2005
03/22/2005
12/15/1994
09/08/1994
FD
08/22/2005
08/22/2005
08/22/2005
05/01/1995
01/01/1995
F4
AD
02/08/2004
01/22/2004
06/15/2003
05/22/1997
06/22/1993
FD
07/01/2004
07/01/2004
05/01/2004
12/01/1997
04/01/1994

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)
4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)



Employment
Other Countries
China
El Salvador Guatemala Honduras
India
Mexico
Philippines
EB1
AD
C
C
C
C
C
C
FD
C
C
N/A
C
C
C
EB2
AD
C
11/15/2012
C
04/15/2008
C
C
FD
C
03/01/2013
N/A
04/22/2009
C
C
EB3
AD
10/01/2016
10/01/2013
10/01/2016
03/22/2005
10/01/2016
10/15/2011
FD
C
05/01/2014
N/A
07/01/2005
C
09/01/2013
Other Workers
AD
10/01/2016
12/01/2005
10/01/2016
03/22/2005
10/01/2016
10/15/2011
FD
C
08/01/2009
N/A
07/01/2005
C
09/01/2013
EB4
AD
C
C
07/15/2015
C
07/15/2015
C
FD
C
C
N/A
C
C
C
EB5
AD
C
04/15/2014
C
C
C
C
FD
C
06/15/2014
N/A
C
C
C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers,outstanding prof./researchers)
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)
4th: "Special Immigrants" (Religious & others)
5th: Employment Creation (Investors)

Monday, January 9, 2017

Intercompany Transferee L-1A Visa Or Green Card for Smaller Businesses



Two recent AAO decisions illustrate the particular challenges that small businesses face when applying for the multinational executive and manager visa - whether it be the temporary L-1A work visa or the permanent employment EB-1C immigrant visa.  

The visa applicant in the first case, Matter of B-R- Inc., is the owner of a business that operates two convenience store/gas stations.  The denial of his petition for an EB-1C immigrant visa (green card) was upheld by the AAO (Administrative Appeals Office).  The reasons cited for the denial are the vagueness and generic nature of the owner's job duties, as well as the insufficient staffing at the U.S. business. For 2015, the business had 11 employees.  The employee's average salary was $16,303 (petitioner's salary was $30,000).  After some analysis, the AAO concluded that it was not possible for the 11 employees to operate the two stores with a combined 32 gas pumps, several coffee counters and cashiers, etc., 24 hours a day, seven days a week. The $30,000 was also insufficient to support applicant's executive/managerial position.  Most significantly, AAO held that the petitioner company does not have enough employees to relieve the owner-applicant of his operational duties.  

Perhaps the most important message of this decision is AAO's declaration that just because the beneficiary manages and directs or even owns a business, it does not follow that he qualifies as an intercompany transferee manager.  Although not explicitly mentioned in the case, the business owner was likely to be already a L-1A visa holder.  Hence, this case also illustrates that prior approval of one's L-1A petition does not necessarily mean that his EB-1C immigrant visa will be approved. 

In the second case, Matter of A-S-, Inc., the AAO denied a L-1A petition filed by a new car wash business on behalf of its CEO. This is a "new office" and the petitioner has to prove that the U.S. business will be able to support the CEO position after one year in terms of finances and organizational needs.  When compared to the first case, this business is larger and employs more employees. In fact, the petition states that the car wash business is only a stepping stone for the enterprise to invest in the real estate development business.  The reasons for denying the L-1A petition are similar, i.e., the job duties are not detailed enough to support an executive and/or managerial position, and there is also insufficient evidence to establish that the CEO will be relieved of his non-qualifying operational duties.  

Arguably the second case is a stronger case - The L-1A petition actually contains more detailed job descriptions and there is evidence of 24 employees already on the payroll.  The AAO denied the case based on several inconsistencies and lack of clarify in several aspects of the evidence.  For example, there are inconsistencies regarding the transfer of funding from the parent company to the beneficiary's personal accounts and to the U.S. business accounts.  There is also a lack of details and planning regarding the real estate venture that the business will get into. Although the organizational chart in the I-129 L-1A petition indicates that the business employs 40 employees, the actual payroll record only shows 24 employees.  These inconsistencies cast doubt about the credibility of the petition as a whole.  Perhaps the main cause for the denial is the added complexities of the real estate business which the new business was not ready for.  

Small businesses face more challenges and scrutiny when filing for intercompany transferee visa petitions.  Despite these two non-precedent decisions, it is still possible for smaller businesses to obtain L-1A and EB-1C approvals.  These decisions illustrate the importance of having sufficient professional and administrative employees, adhering to a realistic and focused business plan, as well as providing clear and detailed job duties for the beneficiary.  


Friday, January 6, 2017

Filing H-1B For The First Time, Step by Step

Did you just hire this awesome employee that just makes you smile?  The only thing is that she is a foreign worker that needs sponsorship for a "work permit".  Or are you an international student who just graduated from college looking for your first job in America?  In either case, the H-1B visa program could be your best friend.  The following are the steps for the first time filers:  


1) First, there must be a valid job offer. Only a U.S. employer can file an H-1B petition for a foreign worker. Hence, there must be a proper match between an employer's hiring needs and a job seeker's qualifications.

2) Second, confirm whether the position qualifies as an H-1B specialty occupation under Section 214(i)(l) of the Immigration Act.  To put simply, to qualify for H-1B, a job opening must require knowledge of a subject area that is so complex that a bachelor's degree is usually required to enter the profession.  Some examples include software programming, electrical engineering, accounting, etc.  

3) Third, make sure the working conditions, salaries, and other terms of employment are in compliance of the H-1B program requirements.  For instance, a U.S. employer must pay the prevailing or market wage to the H-1B employee and to make sure that the H-1B employer will not adversely affect the working conditions of U.S. workers.

4)  Fourth, retain the services of a qualified H-1B attorney.  Some may argue that this should be the first step.  Although there is no requirement that one must hire the services of an attorney to submit an H-1B petition, the laws and regulations have become so complex that it is very difficult for an employer to do it correctly the first time.  Unfortunately, the rules are very unforgiving and one innocent mistake could result in a denial.  

5) Fifth, have all documents ready.  Foreign workers must produce their immigration related documents such as passport, visa and status change notices, as well as their qualifications documents such as academic degrees and transcripts.  Employers must also produce documents to prove their corporate identify and also financial ability to pay the H-1B salary. 
6)  Sixth, perform the pre-filing requirements.   Even before the H-1B petition can be filed, there are some prerequisite steps that the parties must perform such as posting a Notice of Filing, creation of a public inspection, filing of a Labor Condition Application, etc.   

7) Seventh, prepare and submit the H-1B petition as early as possible.  Every fiscal year, the first date that employers may submit the H-1B cap cases is April 1.  Cap cases are those cases that are subject to the H-1B visa cap. Most of the first time filers are subject to the visa cap unless they are exempt.

8) Eighth, check and double check everything before sending out the petition.  Check the mailing address, the filing fee checks, the signatures of the form, the spelling of names, the dates, etc.  

9) Ninth, relax and pray that your case will get selected in the visa lottery (which is usually conducted when the number of H-1B petitions received exceed the visa cap).  

10) Tenth, respond to any formal Requests for Evidence.  If you get to this step, it means that your case was selected in the visa lottery.  Do your best to answer any questions that USCIS may have. Sometimes these RFEs can be cumbersome and repetitive.  Still, work with your attorney to respond to them properly.