If you Previously had an H-1B for Less than 6 Years

Pursuant to § 212(g)7) of the The Act, if you had an H-1B in the past and were in the USA for less than 6 years, you may be eligible to recoup the time that is remaining on the 6-year maximum period of stay to accept employment with a new employer – without being counted against the cap.  An example of this would be someone who works for 3 years in H-1B classification and decides to go back to school on an F-1 student visa.  This individual would be eligible to apply for an H-1B for the remaining 3 years at any time of the year.

If you are abroad for at least one year, you have the choice to either apply for a “new” cap H-1B  for a full 6-year period, or take advantage of the remainder option if you previously had an H-1B.

H-1B 7^th Year Extensions – How This Works

If you are the beneficiary of a labor certification or an I-140 petition that was filed 1 year prior to your 6^th year in H-1B status, pursuant to §106 of AC21, you are permitted to file for a 7^th year extension.  You are also permitted, according to §104(c) of AC21, to apply for a 3-year extension of your H-1B when you have an approved I-140 petition and are unable to move forward with filing your permanent residency case due to employment-based immigrant visa country limits (referred to as retrogression).

If you are in the US and out of status due to a layoff, or are abroad, you are entitled to a 7^th year extension of your H-1B if your labor certification or I-140 petition was filed before your 6^th year in H-1B status with either the sponsoring employer, or with a new employer.  You will more than likely be required to consular process your case in these scenarios.

It is recommended that you seek the advice of a skilled immigration professional with the above cases as they are complex in nature.

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The H-1B visa category is one of the most used visa classifications by US employers and is available to professionals that will work in a specialty occupation that generally requires a minimum of a bachelor’s degree or its equivalent.

Last year, the number of H-1B visa petitions filed in the first 5 days exceeded the entire H-1B visa allotment.  Hundreds of employers were unable to hire all the foreign-based professional talent that they required, and their petitions went into a lottery pool, left to chance and uncertainty.

Given that we are seeing improvements in the economy, it is anticipated that this filing season will be the most competitive one in many years.  Just to review…There is a limit of 85,000 H-1B visas available each fiscal year, 20,000 of which are reserved for individuals who have graduated with an advanced degree (a master’s or higher degree) from a US college or university that is  accredited by a nationally recognized accrediting agency or association. Pre-accreditation status is also acceptable. Secondly, the school must be a public or other nonprofit institution. If these requirements are not met, the candidate will not qualify for the master’s degree exemption. It is also to be noted that employers stand a stronger chance obtaining advanced degree petition approvals, even if the position being offered only requires a bachelor’s degree or its equivalent.

Our position is that it’s just not too early to start assessing where you’d like to add personnel and to start working with your immigration provider on such important matters as:

1)  Credential evaluations for prospective employees with foreign degrees

2)  Thorough job descriptions indicating the percentage of time spent on core areas of the position

3)  Needed updates to your corporate stats and profile information

4)  Updating intake questionnaires for H-1B employees

5)  For new employers who have previously not filed H-1Bs and are not in the databases accessed by government agencies, be prepared for a request to submit to the Department of Labor iCERT system for Labor Condition Applications (LCA) a copy of your IRS letter confirming your EIN number.  It is also not unusual for them to request your corporate formation documents before they will certify your LCA.  H-1B petitions will be denied if not accompanied by a certified Labor Condition Application.  It might be advisable to file your LCA’s in late January or February even though this will shorten a few months from the 3-year initial approval.

If the prospective employee is a national of Canada, Mexico, Australia, Singapore or Chile you have other options to consider.  Canadian and Mexican professionals qualify for TN status (pursuant to Trade NAFTA).  You can file anytime of the year under this classification; there are no quotas, applicants can apply right at the border, and the 3-year period of stay can be extended indefinitely.  Here is a link to the list of occupations that qualify for TN classification.

Australian nationals are eligible for E-3 status in 2-year increments and can consular process their applications, with unlimited extensions available.  A Labor Condition Application is required for these cases.  Nationals from Singapore and Chile qualify according to Free Trade Agreements for the H-1B1 classification.  There is a quota for this category that has never been reached.

If you are contemplating the hire of a professional who currently holds H-1B status with another employer, they are exempt from the quota and can start working for you immediately even though the petition is pending approval.

We encourage employers to call us with any questions that you might have or if you’d like to retain our firm to handle your H-1B filings.  Our email: info@immigrationcompliancegroup.com or by phone 562 612.3996.

This new process allows certain immediate relatives of US citizens who are physically present in the USA and are seeking permanent residence, to apply for and receive provisional unlawful presence waivers BEFORE departing the US for consular processing of their immigrant visa applications abroad.

The benefit of this is that it will reduce the time that U.S. citizens are separated from their immediate relatives while those family members go through the consular process overseas to obtain an immigrant visa. Immediate relatives of U.S. citizens who would need a waiver of unlawful presence in order to obtain an immigrant visa could file a new Form I-601A, Application for Provisional Unlawful Presence Waiver, before leaving the United States to obtain an immigrant visa at a U.S. Embassy or Consulate abroad. All individuals eligible for this streamlined process are still required to depart the United States and must meet all legal requirements for issuance of an immigrant visa and admission to the United States.

An individual may seek a provisional unlawful presence waiver if he or she:

• Is physically present in the United States;
• Is at least 17 years of age;
• Is the beneficiary of an approved immigrant visa petition (I-130) classifying him or her as an immediate relative of a U.S. citizen;
• Is actively pursuing the immigrant visa process and has already paid the Department of State immigrant visa processing fee;
• Is not subject to any other grounds of inadmissibility other than unlawful presence; and
• Can demonstrate that the refusal of admission would result in extreme hardship to a U.S. citizen spouse or parent.

An immediate relative would not be eligible for the proposed process if he or she:

• Has an application already pending with USCIS for adjustment of status to lawful permanent resident;
• Is subject to a final order of removal or reinstatement of a prior removal order;
• May be found inadmissible at the time of the consular interview for reasons other than unlawful presence; or
• Has already been scheduled for an immigrant visa interview at a U.S. Embassy or Consulate abroad.

Allowing immediate relatives of U.S. citizens to receive provisional waivers in the United States before departure for their immigrant visa interview at a U.S. Embassy or Consulate means that:

• Immigrant visa processing times will improve because of greater capacity in the United States and fewer case transfers between USCIS and the Department of State;
• Immigrant visas will be issued without unnecessary delay (if the individual is otherwise eligible); and
• The period of separation and hardship many U.S. citizens would face due to prolonged separation from their family members will be minimized.

For additional information,we link to the I-601A Questions and Answers document.

Should you wish to become a client of our office, please contact us.

Mexico City, June 29, 2012 (as reported on ILW.com)  – Following President Obama’s efforts to promote travel and tourism as important contributions to job creation and economic growth, the U.S. Embassy is pleased to announce that beginning July 1, 2012, an expanded visa renewal program  will allow many more Mexican citizens and residents to renew their nonimmigrant visas without a follow-up interview at the Embassy or a U.S. Consulate.

Currently, most visas that have been expired for 12 months or less may be renewed after the applicant’s appointment at the Applicant Service Center (ASC), in other words, without a second appointment/interview at the U.S. Embassy or Consulate. Under the new program, you can apply for a renewal of your visa if your current visa has expired within 48 months or less of your renewal application.

This expanded interview waiver program will make the visa process even more convenient and improve visa processing times, strengthening ties through travel and trade between the United States and Mexico. Tens of thousands of Mexican travelers should benefit from this expanded program, saving time and money, and allowing more convenient travel to the United States for business and tourism.

Additional details and qualification requirements for the new interview waiver program can be found on the websites of the U.S. Embassy and each U.S Consulate in Mexico, as indicated above. Contact our office should you have any questions regarding the new procedure at info@immigrationcompliancegroup.com or call 562 612.3996.

In today’s business climate, being prepared on the day of your interview at the US Consulate is critically important. We always recommend that you do an interview prep with an attorney on the eve prior to your in-person interview at the US consulate and that the DS-160 form has been properly reviewed and submitted. You might wish to consider the below points:

1) Be completely familiar with the information and documentation in the Petition that was approved by USCIS.
2) Be able to articulate what your US employer does in the USA
3) Make sure that the US employer is credible and has made you a bona fide job offer
4) Be able to articulate the title and job duties associated with your position
5) Be able to establish a clear link between your prior experience and future job duties
6) Must be able to answer basic questions about your profession and display a level of fundamental knowledge concerning your occupation
7) Remember, you are coming to the USA on a ‘temporary’ basis, with the intention of returning to your home country at the conclusion of your employment in the USA

Overall, focus on direct and specific answers to the questions – think, short & simple. Make eye contact with the officer and be pleasant and professional. Have your papers organized for yourself and each family member in a professional looking manner, so that if you are asked to present a specific document, you’re not scrambling to find it. Professional business attire is recommended.

Should you like to consult with our office or become a client, please contact us.

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USCIS today announced that it has revised the Employment Authorization Document (EAD), or Form I-766, to incorporate the addition of a machine-readable zone on the back of the card.

This update to the EAD is part of USCIS’s ongoing efforts to deter immigration fraud. Starting May 11, USCIS began issuing the revised EAD cards. The machine-readable zone is compliant with International Civil Aviation Organization standards. USCIS also removed the two-dimensional bar code on the backside of the card and moved the informational box of text to just beneath the magnetic stripe on the card.  The revised card retains all of its existing security features.

These revisions are the result of extensive collaboration among Department of Homeland Security components, particularly U.S. Immigration and Custom Enforcement, Customs and Border Protection and USCIS.  For more information on employment authorization, travel documents and other immigration benefits, visit www.uscis.gov or call USCIS¿s National Customer Service Center at 1-800-375-5283.

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New Consular Visa Fees to Start June 4, 2010

The US Department of State announced new fees for visa applications, starting on June 4, 2010. The rule establishes a tiered structure with separate fees for different nonimmigrant visa categories. Examples of the new fees include:

include:

• $140 fee for applicants for all visas that are not petition-based, including B1/B2 tourist and business visitor visas and all student and exchange visitor (F, M and J) visas, will pay a fee of $140.
• $150 fee for petition-based visas, including L, H, O, P, Q and R visas
• $350 for K-1 (fiancee) visas
• $390 for E visas.