A free service provided by Paul Szeto LLC, a full service immigration law firm. Paul Szeto - a former INS attorney and an experienced immigration practitioner - can be reached at 732-632-9888, http://www.szetolaw.com/ (All information is not legal advice and is subject to change without prior notice.)

Thursday, April 17, 2014

15-Day H-1B Premium Processing Begins on April 28

USCIS just confirmed that the 15-day premium processing clock will start on April 28 this year for H-1B petitions.  This includes both regular-cap and advanced-degree cases.

Monday, April 14, 2014

May 2014 Visa Bulletin: Family 2A may retrogress

In May, family-based immigration advances moderately for the 1st preference category. Most significantly, F-1 Philippines advances three (3) months to 02/01/2002.  F2A (spouses and children of permanent residents) remains unchanged for all countries including China and India.  Unfortunately, the State Department expects that F2A cut-off dates will actually retrogress within the next few months because the demand has continued to increase dramatically for this visa category.

On the employment side, EB-2 China advances five (5) weeks to 04/15/2009 while India remains stuck at 11/15/2004. Significantly, EB-3 Philippines moves forward by more than three (3) months to 11/01/2007.   EB-3 India moves forward slowly by two (2) weeks to 10/01/2003.  The sluggishness of India's priority dates will likely continue until the next the fiscal year begins.

FAMILY
Other Countries
China
India
Mexico
Philippines
F1
03/08/07
03/08/07
03/08/07
11/15/93
02/01/02
F2A
09/08/13
09/08/13
09/08/13
04/15/12
09/08/13
F2B
02/01/07
02/01/07
02/01/07
05/15/93
06/22/03
F3
09/01/03
09/01/03
09/01/03
07/01/93
03/01/93
F4
12/08/01
12/08/01
12/08/01
12/01/96
11/01/90

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
India
Mexico
Philippines
EB1
C
C
C
C
C
EB2
C
04/15/09
11/15/04
C
C
EB3
10/01/12
10/01/12
10/01/03
10/01/12
11/01/07
Other Workers
10/01/12
10/01/12
10/01/03
10/01/12
11/01/07
EB4
C
C
C
C
C
EB5
C
C
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)


Friday, April 11, 2014

Receipts for H-1B cap cases

We are pleased to report that we received our first receipt notice for a master-cap H-1B petition from the VSC Premium Processing Service unit this morning.

Thursday, April 10, 2014

Final Count: 172,500 H-1B petitions submitted this year

USCIS announced today that the agency received about 172,500 H-1B petitions for FY 2015 including petitions filed for the advanced degree exemption.  This year only 65,000 H-1B visa numbers are available for applicants with a bachelor's degree and another 20,000 visa numbers for advanced degree holders.  A computer-generated random selection process was completed on 4/10/2014 to select the cases for further processing.

Monday, April 7, 2014

H-1B Visa CAP Reached for FY 2015 as of 04/07/2014

As expected, USCIS announced today that the H-1B cap has been reached today, including both the 65,000 regular cap and 20,000 advanced-degree cap.

USCIS will use a random selection process to select H-1B petitions for further processing, picking the winners for the the 20,000 advanced degree cap first before the 65,000 regular cap cases.

The date for the random selection process has not been released yet, but applicants should keep in touch with their attorneys and employers for updates.

Saturday, April 5, 2014

BIA held Asylees may not adjust status twice

A foreign national, after having been granted political asylum by the United States, adjusted his status to became a permanent resident.  However, due to his conviction for conspiracy to traffic in counterfeit goods, he was deportable from the United States as a non-citizen convicted of a crime involving moral turpitude (CIMT) and an aggravated felony.  Can this person apply for adjustment of status again based on his previous asylee status to stay in the United States?  The answer is negative, according to a recent decision by the Board of Immigration Appeals (BIA) in Matter of C-J-H-, 26 I&N Dec. 284 (BIA 2014).

Under the current immigration law, a foreigner who has been convicted of an aggravated felony has little chance of fighting deportation from the United States.  Aware of his predicament, the respondent in the above case came up with a creative argument to stay here.  He argued that because he was granted political asylum before, he should be able to re-adjust his status to become a lawful resident again pursuant to section 209(b) of the Immigration and Nationality Act ("the Act").   In so arguing, he was also hoping that he could also apply for a waiver for his criminal conviction  under section 209(c) of the Act.

Section 209(c) if the Immigration Act makes some grounds of inadmissibility - public charge ground, lack of labor certification, not in possession of a valid, unexpired immigrant visa - inapplicable. Further this section of law also allows the government to waive some other grounds of inadmissibility including criminal grounds such as crimes involving moral turpitude (CIMT) in the exercise of discretion. However, this section of law cannot be used to waive charges relating to drug trafficking, espionage or sabotage, terrorist activities, and foreign policy.

The respondent made two main arguments to BIA.  First, unlike section 209(a) of the Act, which specifically disallows refugees to apply for adjustment of status twice, section 209(b) does not have such prohibition. However, mere absence of a negative does not prove a positive.  The fact that Congress does not specifically prohibits readjustment of asylees does not mean  that it is allowed.  The case law has held that like refugees, asylees cease to be asylees once they have adjusted status to lawful resident status.  As such, adjustment under section 209(b) is no longer available to them.  BIA based on its conclusion on the language and structure of the Act, as well as the legislative history.

Secondly, the respondent also argues that since readjustment is allowed by the Board under section 245(a) of the Act in conjunction with waiver applications, he should also be able to re-adjust under section 209(b). It is true that certain legal residents who have been placed in deportation proceedings are allowed to apply for adjustment of status again in conjunction with waivers of grounds of inadmissibility.  However, BIA is not convinced by this argument as adjustment pursuant to section 245(a) is different from adjustment of asylees pursuant to section 209(b), which "has different language and narrower purposes."  

Consequently, BIA held that an asylee who has adjusted status to lawful permanent resident cannot subsequently readjust his status under section 209(b) of the Act.  The Immigration Judge’s decision was upheld and the appeal was dismissed.


Tuesday, March 25, 2014

Premium Processing for H1B CAP cases to begin by April 28, 2014

USCIS will accept H-1B petitions for FY 2015 on April 1, but premium processing services for cap-subject cases will not begin until about April 28, 2015, according to the agency's announcement today.

As usual, USCIS will begin accepting H-1B petitions subject to the annual cap on April 1, 2014. Cases will be considered accepted on the date that the agency receives a complete application with the correct fee.  In other words, the receipt date could be different from the post-mark date or delivery date.

For FY 2015, the annual H-1B cap remains at 65,000.  An additional 20,000 visa numbers are available for individuals with a U.S. advanced degree (master's or higher).  USCIS expects that both caps will be reached by April 7, and is prepared to employ a random selection process (lottery) to select the cases for further processing.

Due to the expected high volume of cases, the agency anticipates that additional time will be needed to process all the cases before formal adjudication can begin. Consequently, USCIS expects to start the 15-day premium processing clock on about April 28, 2014.

Saturday, March 8, 2014

April 2014 Visa Bulletin: Employment 3rd & Family 2B Advance

In April's Visa Bulletin, the advancement in EB-3 continues for most countries except India, which remains unchanged at 09/15/2003.  EB-3 China, Mexico and Other Countries advance one months to 10/01/2012. Many of our clients are taking advantage of the recent rapid movement in the EB-3 visa category to speed up their green card application process.  Some of them have already filed their I-485 applications.  EB-3 Philippines move forward by one month to 06/15/2007.  EB-2 China advances to 03/08/09 while EB-2 India remains unchanged at 11/15/2004. 

Family-based immigration also advance moderately for many visa categories.  Most significantly, Family 2B advance seven weeks to 10/22/2006 for China, India and Other Countries.  Family First (F-1) China, and India advance to 02/22/2007.  F-1 Philippines move forward by about two and a half months to 11/01/2001.  Unfortunately, F-2A is once again unchanged for most countries in April.


FAMILY
Other Countries
China
India
Mexico
Philippines
F1
02/22/07
02/22/07
02/22/07
11/01/93
11/01/01
F2A
09/08/13
09/08/13
09/08/13
04/15/12
09/08/13
F2B
10/22/06
10/22/06
10/22/06
05/01/93
06/08/03
F3
07/15/03
07/15/03
07/15/03
06/22/93
02/22/93
F4
11/22/01
11/22/01
11/22/01
11/22/96
10/01/90

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
India
Mexico
Philippines
EB1
C
C
C
C
C
EB2
C
03/08/09
11/15/04
C
C
EB3
10/01/12
10/01/12
09/15/03
10/01/12
06/15/07
Other Workers
10/01/12
10/01/12
09/15/03
10/01/12
06/15/07
EB4
C
C
C
C
C
EB5
C
C
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, March 3, 2014

Third Circuit Appeals Court Finds N.Y. Attempted Arson Not an Aggravated Felony

Aggravated felonies in immigration law are serious criminal offenses that make the offender ineligible for most immigration benefits such as adjustment of status (green card).  Recently the Third Circuit Federal Court of Appeals ruled that the criminal offense of attempted arson in New York is not an aggravated felony.  The court found the absence of the federal jurisdictional element in the New York arson statute exempted it from the definition of an aggravated felony under INA §101(a)(43)(E)(i).

OPT extension for foreign students in STEM (Science, Technology, Engineering, Mathematics) fields

Foreign students in the U.S. inevitably face this question: What do I do after my OPT ends?  There are different visa options that they may consider including the H-1B Visa, TN Visa (Canadians and Mexicans), E-3 Visas (Australians), Aliens of Extraordinary Ability Visa (O-1), Investors (E-1/E-2), etc.  For those students who have earned a degree in STEM (Science, Technology, Engineering, Mathematics) fields, they actually have another option:  apply for a 17-month STEM OPT extension.

Requirements for STEM OPT
To apply for a STEM OPT extension, a student must be in post-completion 12-month OPT and has earned a designated STEM degree.  Employment must be directly related to the field of study. Further, the employer must be registered with the DHS E-Verify employment verification system, and agree to report any termination or changes in employment status within 48 hours.

Advantages of STEM OPT
The obvious advantage of obtaining a STEM OPT extension is the additional 17 months of employment and stay in the United States.  As long as work is related to the STEM field of study, students may work as employees, contractors, interns, or volunteers.  Foreign students may also start a business and be self-employed.  In this situation, the student must work full-time and establish that he or she has the proper business licenses and is actively engaged in business activities that relate to the STEM degree.  Most importantly, the additional 17 months will accord students more time to explore other visa opportunities such as H-1B employment.

Things to know about STEM OPT
Students may apply for STEM OPT 120 days before the regular OPT expires by filing the I-765 form. Once an application is submitted, a student is allowed to continue working for up to 180 days or until the USCIS makes a decision. However, if extension is denied, a student should leave the country within the regular 60-day grace period unless he or she is able to obtain another visa status.

For students on regular post-completion OPT or cap-gap automatic extension, they are allowed to be unemployed for 90 days. Students with an approved 17-month extension will be entitled to another 30 days of unemployment time for a total of 120 days over the entire period of post-completion OPT.

STEM OPT is not without limitations.  It is a one-time extension which starts the day after the regular 12-month OPT period and ends 17 months later, regardless when the application is approved.  It cannot be broken down into smaller periods of employment.  Further, a student on STEM OPT must report any changes of legal name, address, employer, employer address, employment, immigration status, etc. to the school's DSO within 10 days of the change by submitting the Post Completion OPT Reporting Survey.  The survey must be submitted every 6 months even if there are no changes.

How do STEM OPT students travel?
For international travel, students on STEM OPT must have a valid F-1 visa stamp, a passport valid for at least six months, the STEM Extension EAD card, and an employment verification letter from their employer. Finally, they should also obtain an I-20 with travel endorsement from their school. Travel endorsement cannot be more than six months old.

Sunday, March 2, 2014

Chile to join the U.S. Visa Waiver Program

Starting March 1, 2014, Chilean passport holders with both an approved Electronic System for Travel Authorization (ESTA) and an e-passport will be able to visit the United States visa-free for up to 90 days for personal and/or business matters. Chile is the 38th country that participates in the U.S. Visa Waiver Program, according to a recent announcement by the Department of Homeland Security. Approximately 220,000 Chileans visited the U.S. in FY 2013.

Monday, February 24, 2014

Computer jobs are among top H-1B occupations

The number one occupation for H-1B filings is Computer Systems Analysts, followed by Software Application Developers and Computer Programmers, according to the most recent statistics released on 02/14/2014 by the Employment and Training Administration, a branch office of the U.S. Department of Labor.  

According to these statistics, the top ten occupations are as follows:  Computer System Analysts (47,860), Software Developers, Applications (16,792), Computer Programmers (15,205), Computer Occupations, All Other (12,982), Software Developers, Systems Software (5,492), Accountants and Auditors (5,101), Management Analysts (3,367), Computer and Information Systems Manager (2,830), Electronics Engineers, Except Computers (2,759), Network and Computer Systems Administrators (2,645). 

It is not surprising that computer-related jobs are the most popular among H-1B applicants.  The shortage of skilled U.S. workers in the technology field has been known and discussed for many years.  In fact, this is one of the main reasons for Congress to create the H-1B visa classification in the Immigration Act of 1990. Among IT positions, software positions are the most in demand on different levels  - systems, applications, web-based, cloud-based, etc.  

It should be noted that many H-1B applicants are also Accountants and Auditors, which are the 6th most popular occupation. The other non-computer occupation is Management Analysts, which consumed 3,367 H-1B visa numbers. 

Where are the H-1B jobs?  Not surprisingly, they are concentrated in the coastal areas. The new report shows that the top five (5) States for H-1B filings are: California (28,287), New York (12,139), Texas (11,889), New Jersey (10,001), and Illinois (6,636).   The next five States are: Massachusetts (5,519), Pennsylvania (5,537), Florida (5,181), Washington (5,115), and George (4,819).

These FY2014 statistics include data from H-1B, H-1B1 and E3 Specialty Occupations Labor Condition Applications.  For FY2015, demand for these specialty occupation visas is expected to be high.  In fact, USCIS is already geared up for the upcoming H-1B filing season which begins on April 1.  As usual, computer jobs are likely to be the most popular occupations.  If one's H-1B petition is approved, the applicant will be able to start H-1B employment on October 1, 2014.  H-1B is a highly regulated temporary employment program.  Both employers and employees must fully comply with the terms and requirements according to the regulations.  

Thursday, February 20, 2014

PERM Labor Certification Processing Time

U.S. Labor Department posted the following PERM processing times as of 02/5/2014 -

Analyst Reviews: June 2013  (About 8 months turn around)
Audit Review: November 2012


Reconsideration Requests: February 2014
Gov't Error Reconsiderations: Current

Sunday, February 16, 2014

Change of Status to H-1B

As the H-1B filing season approaches, many foreign nationals have questions about the H-1B visa program such as the application deadline, the job requirements, the prevailing wage, etc. For those applicants who are already present in the United States, they must also understand how to legally change their immigration status to H-1B.

H-1B Visa vs. H-1B Status
In casual conversation, people sometimes talk about their "visa" and "status" as if they were the same thing. In fact, they are completely different concepts in U.S. immigration law.  A foreigner needs a visa to enter the United States; it is like an admission ticket.  His status in the United States, however, is determined at the time he is admitted to the U.S.  An immigration officer at the port of entry determines both the status and duration of admission.  After admission, a foreign national may change status to another non-immigrant status, such as from F-1 to H-1B status. The person does not need another visa unless and until he departs the U.S. and attempts to reenter.

Change of Status to H-1B
Typically, an H-1B applicant is a foreign national who is present in the United States in a non-immigrant status (e.g., F-1).  In order for him to work in H-1B status, the petitioning employer must request for H-1B classification on his behalf.  Further, the Form I-129 petition must also request for a change of status to H-1B.  It is possible that USCIS approves one's H-1B petition but denies the request for change of status.  In such a situation, the applicant would have to depart the U.S. and apply for an H-1B visa to reenter.

Common Reasons for Denying Status Change to H-1B
The most common reason for denying a request to change status to H-1B is failure to maintain one's lawful non-immigrant status.  For example, a F-1 student could have engaged in unauthorized employment or otherwise violated his F-1 status on SEVIS.  Some students engage in Curriculum Practical Training (CPT) employment, but if it is not an integral part of the academic program, then it can be viewed as a violation of status.

Another common reason for denial is departure from the U.S. while one's application to change status is pending.  A request to change status to H-1B is based on the premise that the applicant is present in the U.S. in another status.  Departure destroys one's eligibility.

Most non-immigrant classifications, such as H-4, F-1, L-1, O-1, B-1, B-2, etc., allow the holder to change status to H-1B.  There are some exceptions. For example, if an applicant is a J visa holder who is subject to the 2-year residence requirement, she is not allowed to change status to H-1B unless a waiver is granted.





Friday, February 14, 2014

March 2014 Visa Bulletin: EB-3 Continues Advancement

In March's Visa Bulletin, the advancement in EB-3 continues for all countries.  EB-3 China, Mexico and Other Countries advance three months to 09/01/2012; EB-3 Philippines and India move forward by two weeks to 05/01/2007 and 09/15/2003 respectively.  EB-2 China advances to 02/15/09 while EB-2 India remains unchanged at 11/15/2004. 

Family-based immigration also advance moderately for many visa categories.  Family First (F-1) China, India and Other Countries advance one month to 02/01/2007.  However, F-1 Philippines remains unchanged at 08/15/2001 in March.  F-2A is once again unchanged for most countries in March.  F-2A Mexico actually retrogresses to 04/15/2012, a backward movement of 18 months.  Unfortunately, the State Department does not expect any forward movement in Family 2A in the coming months.  F-2B China, India and Other Countries all move forward nicely by seven weeks to 09/01/2006; F-2B Philippines advances two weeks to 06/08/2003.

FAMILY
Other Countries
China
India
Mexico
Philippines
F1
02/01/07
02/01/07
02/01/07
10/15/93
08/15/01
F2A
09/08/13
09/08/13
09/08/13
04/15/12
09/08/13
F2B
09/01/06
09/01/06
09/01/06
05/01/93
06/08/03
F3
06/15/03
06/15/03
06/15/03
06/08/93
02/15/93
F4
11/08/01
11/08/01
11/08/01
11/15/96
09/01/90

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
India
Mexico
Philippines
EB1
C
C
C
C
C
EB2
C
02/15/09
11/15/04
C
C
EB3
09/01/12
09/01/12
09/15/03
09/01/12
05/01/07
Other Workers
09/01/12
09/01/12
09/15/03
09/01/12
05/01/07
EB4
C
C
C
C
C
EB5
C
C
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)