by Heidi Meyers | Sep 5, 2019 | Articles
In order to qualify to apply for EB-1 as an Outstanding Professor, first, your position must be as a professor in a tenured or tenure-track position. The title of the position does not necessarily indicate whether it is tenured or tenure track or just temporary. For example, at Cornell University, Assistant Professor positions are generally not tenure track and are considered temporary. At the University of Washington, Associate Professor positions are tenure-track, while some Assistant Professor positions are tenure-track and others are not. Each college and university has its own policies regarding job titles and requirements for tenure track and tenured positions, so you need to read the individual college’s policy in detail. Some temporary positions may convert to tenure-track in the future. You are not eligible to apply as an Outstanding Professor if your position will convert to tenure-track at some point in the future. At the time of filing the I-140, your position must already be tenure-track. For example, if at the time of filing an EB-1 I-140, Professor Thinksalot is not in a tenure-track position, even if later on, while the EB-1 is still pending, her position becomes tenure-track, her EB-1 will be denied.
It has become more difficult to qualify for a tenure-track or tenured position. See, for example, The Chronicle of Higher Education, “How to be Strategic on the Tenure Track”, https://www.chronicle.com/article/How-to-Be-Strategic-on-the/244863
Aside from whether or not you will qualify for EB-1, there are other immigration considerations in deciding whether to take a non-tenure track position with a nonprofit or public college or university. One extremely important consideration is that you will be eligible for a change of status to H-1B at any time of the year, without have to worry about not getting an H-1B visa number, as there are no restrictions on visa numbers for professional positions with a nonprofit or public university or college. If you were unable to get an H-1B visa number applying through a private firm, then this may be a great option to stay in the US and further your career. Thus, while the salary may be quite a bit lower in academia than working for a private company, the security of definitely receiving an H-1B visa number and being able to remain in the US legally may outweigh any loss in salary.
Additionally, while you will not qualify as an EB-1 Outstanding Professor if the position is not tenure track, you may still qualify for a green card through a PERM labor certification special handling application as a professor, if you do classroom teaching, or possibly for a national interest waiver.
Of course, there are more considerations than simply immigration is deciding whether to take a position as a non-tenure track professor. Here is a nice article on tenure versus temporary or contract positions in academia, overview of different employment policies colleges and universities may have, and your considerations (outside of immigration) in deciding whether to take a contract position initially.https://www.apa.org/careers/resources/academic/non-tenure
The other option, the EB-1 Outstanding Researcher, requires an offer of permanent employment, which may be tenured or tenure-track, but is not required to be, as long as it is permanent. However, USCIS has clarified that even though many researchers have employment contracts valid for only one year, because the position depends upon funding from grants received yearly, it still may be considered a permanent position for the purposes of an EB-1 Outstanding Researcher. The university or college would have to show it intends to continue to seek funding and that it is reasonable to expect funding to continue, in order to prove that the Researcher position is permanent.
Copyright 2019 © Heidi J. Meyers all rights reserved.
by Heidi Meyers | Sep 5, 2019 | Articles
The O-1 may be an option for those who did not get an H-1B visa number. Unlike H-1Bs, which have a shortage of visa numbers, there is no limit to the visa numbers for the O-1 category. Because it is for those with “extraordinary ability”, it generally is not suitable for those who have just graduated from university, or young people just starting out in their career. The O-1 allows those who have shown extraordinary ability in the sciences, education, business, athletics, the arts, or in the motion picture and TV industries to come to the U.S. temporarily for up to three years initially, and then may be extended.
Thus, suppose you are a fashion designer with national or international renown who did not get an H-1B visa number in the visa lottery this year, you may still apply for an O-1. Additionally, there is no requirement for the O-1 to prove that the beneficiary is a “professional”, thus there is no requirement that the O-1 applicant have a four-year bachelor’s degree that is closely related to his or her field.
For example, musicians who lack a bachelor of music or others who cannot show both that the position is a professional position and that they have the requisite degree and so are not eligible for an H-1B, may be eligible for an O-1 because as long as you can show the requisite degree of success in your field, you may obtain an O-1 even if you have no formal degree, or the job itself is not professional.
This article will focus on O-1s in the arts, which have an easier legal standard to satisfy than O-1s in the sciences, business and education. Federal regulations define “arts” very broadly to include the following:
1) fine arts, i.e., painting, drawing, etc;
2) visual arts, i.e., industrial design, graphic design, fashion design, fashion modeling, interior design, photography, are just some examples;
3) culinary arts, i.e., top French chefs; top pastry chefs, etc., and
4) performing arts, i.e., singers, composers, musicians, actors, dancers, directors, choreographers, etc.
You may be eligible for an O-1 even if you are not the principal creator and performer, but essential to the production, including directors, set designers, lighting designers, sound designers, choreographers, conductors, orchestrators, coaches, arrangers, musical supervisors, costume designers, makeup artists, flight masters, stage technicians, and animal trainers.
The legal standard for an O-1 in the arts is somewhat lower than the exceptionally high standard in the fields of business, sciences and education. While in the areas of business and science, you have to prove that you are one of the few at the very top of your field, in the area of arts, you instead must prove “distinction”, meaning “renowned, leading, or well-known in the field of arts”.
One advantage of the O-1 over the H-1B, is that you do not need a single employer to be the petitioner. The O-1 allows you to use a US agent as the petitioner. The U.S. agent may be: the actual employer of the beneficiary; the representative of both the beneficiary and the employer; or a person or entity authorized by the employer to act in its place. The agent and beneficiary must have a written contract, and if there are a series of events or performances in various locations or with various employers, a detailed itinerary with dates, locations, etc.
O-1s also generally require a written advisory opinion from a peer group, union, labor and or management organization. To give you an idea of the various organizations suitable for an O-1B advisory opinion, USCIS has a non-exhaustive list, at https://www.uscis.gov/working-united-states/address-index-i-129-o-and-p-consultation-letters.
If one has not been nominated for, or received, significant national or international prizes, such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award, the beneficiary must show at least three of the following:
1) they have performed a lead or starring role in productions with a distinguished reputation;
2) leading or critical role for organizations or establishments with a distinguished reputation;
3) they have national or international acclaim as shown by critical reviews or articles in major newspapers, trade journals, etc;
4) major commercial or critically acclaimed success;
5) significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field;
6) high salary or substantial remuneration.
7) A catch-all category, so the beneficiary can submit “comparable evidence” if the list above is not directly applicable to their field.
Copyright 2019 © Heidi J Meyers, all rights reserved.
by Heidi Meyers | Sep 5, 2019 | Articles
According to federal regulations, a foreign national who fears persecution in his or her home country, must apply for asylum within one year of their entry date in order to be eligible.
First, we will review the requirements for meeting the one-year deadline for asylum. Suppose you entered the U.S. on January 25, 2019, you would have until January 26, 2020 to file your asylum application. If the last day falls on a Saturday, Sunday, or federal holiday, then the applicant has until the following business day to meet the one-year deadline. The USCIS (US Citizenship and Immigration Service) or the Immigration Court would have to receive the I-589 asylum application by the deadline.
If USCIS receives the I-589 application, but it is not complete, meaning every single box is filled in or checked, USCIS will return the application to the applicant within 30 days. If USCIS rejects the application, it is not considered to have been received. However, if you complete all the corrections and return it promptly, it may be considered to meet one of the exceptions and considered filed timely.
The best practice is to file the asylum application well before the one-year deadline. It does not make sense to get into a contentious dispute with DHS if the application was received exactly at the one-year mark. The Immigration Judges, BIA and USCIS generally apply a high bar to showing exceptions to the one-year rule, so it is best to just comply and meet the deadline rather than arguing over an exception later on.
What happens if you miss this deadline and you fear returning to your home country? Let us take an example. A young man from India comes to the U.S. as an F-1 student to study computer engineering as an undergraduate. After four years, he graduates with his bachelor’s, works for a year with OPT and then returns to school to study for his masters. By now, almost six years have passed since he first came to the U.S. It just so happens that this young man happens to be Christian, from one of the scheduled castes. Since the election of Narendra Modi in 2014, there has been an exponential increase in violence against Christians in India. Recently, in a phone call, his parents told him that their family church which he attended since birth has been burned down by Hindu extremists, and that there are RSS vigilantes in their area practicing paramilitary exercises regularly. His family is terrified. The BJP government is not doing anything to protect Christians, and in fact is encouraging Hindu extremism. Local politicians are demanding that Christians and Muslims either convert to Hinduism or leave India. The young man has missed the one-year deadline to apply for asylum. Is there some exception whereby he would still be eligible?
Many people miss the one-year deadline for various reasons. What are the exceptions to the one-year rule? What if you have been living in the US for a number of years, is it possible you are still eligible for asylum?
According to 8 CFR 208.4(a)(4), an applicant may still be eligible for asylum if he or she proves “changed circumstances”, which include:
(A) Changes in country conditions;
(B) Changes in the applicant’s own circumstances, such as changes in US law, or activities he or she becomes involved with in the US ; or
(C) Minors who were included on their parents’ I-589, and who reach the age of 21, have a reasonable period of time after their birthday to file their own asylum application. Additionally spouses of asylum applicants who are divorced or widowed, the divorce or death of the spouse is considered a changed circumstance.
Applicants with changed circumstances must file their I-589 asylum application within a reasonable period of time after the change. If the applicant can show they did not know about the change in circumstances for a certain period of time, “such delayed awareness shall be taken into account in determining what constitutes a ‘reasonable period’ “.
The second category of exceptions from the one-year deadline is extraordinary circumstances. Extraordinary circumstances include the following:
(i) Serious illness or mental or physical disability, including any effects of persecution or violent harm suffered in the past, during the one-year period after arrival;
(ii) Legal disability (for example, the applicant was an unaccompanied minor or suffered from a mental impairment) during the one-year period after arrival;
(iii) Ineffective assistance of counsel – your attorney did not do their job causing you to miss the deadline (Lozada complaints are a whole other discussion, I will not go into the details of them here);
(iv) The applicant maintained TPS (Temporary Protected Status), lawful immigrant or nonimmigrant status, or was given parole, until a reasonable period before the filing of the asylum application;
(v) The applicant filed an asylum application prior to the expiration of the one-year deadline, but that application was rejected by USCIS as not properly filed, was returned to the applicant for corrections, and was refilled within a reasonable period thereafter; and
(vi) The death or serious illness or incapacity of the applicant’s legal representative or a member of the applicant’s immediate family. 8 CFR 208.4(a)(5).
Returning to our example above, the young man meets a combination of extraordinary circumstances and changed conditions. Initially, during his first year in the U.S. and continuing up to the present, he has maintained legal immigration status, thus, he can show he meets one of the extraordinary circumstances exceptions, as he has maintained legal status up to a reasonable period before filing for asylum. Second, he also meets the changed country conditions exception, as conditions in India for Christians have dramatically worsened with the rise of Hindu fundamentalism, and there has been a dramatic increase in violence against Christians, as well as the burning down and vandalism of churches, since when he initially came to the U.S. Thus, our young man would have a good argument that he is eligible for an exception to the one year rule, and should be eligible to apply for asylum.
Copyright 2019 © Heidi J. Meyers all rights reserved
by Heidi Meyers | Jul 2, 2019 | Articles
The Commerce Dept’s BIS (Bureau of Industry and Security) has issued a final rule providing a temporary general license for companies already doing business with Huawei or one of its related companies as of May 16, 2019. For the complete final rule, see, https://www.bis.doc.gov/index.php/documents/regulations-docs/2396-temporary-general-license-rule/file With the exception of the transactions allowed by the temporary license, exports, re-exports and in-country transfers continue to require a license for Huawei and its companies.
Up until August 19, 2019, as long as written contracts were already signed and effective, the US government will still allow
1) continued operation of existing networks and equipment, including software updates and patches;
2) Service and support to existing Huawei handsets;
3) Cybersecurity research and vulnerability disclosure, including the disclosure to Huawei companies of security vulnerabilities in its items;
4) Engagement as necessary for the development of 5G standards by a duly recognized standards body, such as the IEEE – Institute of Electrical and Electronics Engineers, among others.
The licensing and other polices of the EAR regarding exports, re-exports and transfers (in-country) to Huawei companies that were in effect prior to May 16, 2019 are in effect for transactions eligible for this temporary general license, which expires on August 19, 2019.
Copyright 2019 © Heidi J Meyers all rights reserved
by Heidi Meyers | Jul 1, 2019 | Articles
Foreign nationals who obtain their green card through marriage to a US citizen or permanent resident, but who have been married for less than two years at the time of approval of their adjustment of status, get only a two-year conditional residency, with an expiration date. During the 90-day period prior to expiration of the conditional green card, both husband and wife have to file a joint petition to remove the conditions on residency, the Form I-751. The husband and wife, even though they file jointly, must still prove that the marriage is genuine and that they are continuing to share their lives together. The foreign national can then get his or her permanent residency, and is also eligible to file for naturalization within 90 days of the third-year anniversary of their green card.
What if the marriage does not work out? Perhaps it was an arranged marriage where the families had a very formal relationship prior to the wedding, and everyone was on their best behavior, with an expensive, grand three-day wedding that was absolutely beautiful. But then afterwards, no one is on their best behavior anymore. The new husband and wife discover that they do not share the same values or outlook and are totally incompatible. Or the wife discovers she has an unbearable mother-in-law. Or the husband turns out to be abusive (of course, there are abusive wives too!!), or has had a girlfriend on the side the whole time whom he has continued seeing. And, well, all hell breaks loose…
Of course, there are many reasons marriages can break down. If you are a conditional resident with your expiration date coming up and have separated from your spouse, he or she is not willing to cooperate in filing the I-751, what are you to do?
You still need to try to file the Form I-751 prior to the expiration date of your conditional residency. Only now you will no longer be filing jointly with your spouse, but instead must qualify for an exception.
One exception is where you entered the marriage in good faith (meaning you married to spend your lives together, not for immigration purposes), but that the marriage has ended in divorce or annulment. To qualify on this basis, the conditional resident must already have in hand a final divorce judgment or annulment. Many mistakenly believe that as long as they file for divorce, this is enough. It is not. The judge must have issued a final order in your divorce case. You must also prove that the marriage was genuine, not for immigration purposes.
A second exception is where you were battered or suffered extreme cruelty by your U.S. citizen or permanent resident spouse. Documentation is very important, you will need to submit any police reports, medical reports of injuries, photos of injuries, orders of protection, proof of counseling for any emotional or psychological harm (or evaluation by a forensic psychologist), and affidavits from witnesses.
A third exception is where removal from the U.S. would cause you extreme hardship. Here, you may document conditions in your country of origin, such as sectarian violence, discrimination against minority religions or ethnic groups, war, conditions for women, access to health care and opportunities, etc. Also, if you have US citizen children or other close family members in the U.S., have lived here for many years, would have to sacrifice your career, and other factors are also important.
Another exception is where the U.S. citizen or permanent resident spouse dies. Again, it is always important to prove that the marriage was genuine. Perhaps you are the beneficiary of life insurance.
The conditional resident has the option of filing more than one I-751 waiver, each based on a different exception. So, for example, you could file one I-751 waiver based on the fact that your spouse abused you, and a separate I-751 based on extreme hardship if you had to return to your home country.
Hopefully, you will have an interview, and if your case is well-documented and you can articulate the history of your marriage and how you qualify for an exception, the USCIS will approve your I-751. But let us imagine the worst-case scenario, if USCIS denies your I-751 and terminates your conditional residency.
USCIS will refer you into removal proceedings in immigration court, but issuing an NTA (a Notice to Appear). The great part is that you have a second chance to prove your case in front of the immigration judge. Not only can you renew your I-751 exceptions before the Immigration Judge, but you can also apply for whatever relief from removal for which you may be eligible, such as asylum or cancellation of removal for battered spouses.
Envisioning all the possible scenarios becomes very complex, but as you see, there is no reason to be devastated about your chances of becoming a lawful permanent resident even if your marriage falls apart. You still have options.
Copyright 2019 © Heidi J Meyers, all rights reserved.
by Heidi Meyers | Jul 1, 2019 | Articles
The July 2019 State Department Visa Bulletin is showing the F2A category, spouses and minor unmarried children of permanent residents, as current for all countries including China, India, Mexico and the Philippines. Thus, spouses and minor children of permanent residents with an approved I-130 are able to file for their immigrant visas or adjustment of status to permanent residency during the month of July 2019. Where the beneficiary is already in the U.S., they may be able to file the marriage petition and adjustment to permanent residency concurrently, along with the work authorization application.
The family preference of spouses and minor children of permanent residents has become current for the month of July because the US State Department has received less demand for immigrant visas than it had expected during the first half of the fiscal year (the US government fiscal year runs from October 1st to September 20th, so for July 2019 we have already completed nine months of the fiscal year).
However, should there be a stampede of immigrant visa and adjustment applications in the F2A category during July, it could again become backlogged in August or a little later. This may indeed happen, as nationals of countries such as India, China, Mexico and the Philippines which are used to experiencing longer-than normal backlogs, may suddenly file huge numbers of applications.
If you do have an approved F2A I-130 marriage or child petition, you need to get your immigrant visa or adjustment application ready now, so that you are prepared to file during July 2019.
However, the F2B category for adult unmarried children of permanent residents remains backlogged to September 1, 2013 worldwide as well as for China and India. F2B is even further backlogged for Mexico at July 1, 1995 and the Philippines at August 1, 1997.
#VisaBulletin #spousespermanentresidents #prioritydates #StateDeptVisaBulletin
Copyright 2019 © Heidi J Meyers, all rights reserved.
by Heidi Meyers | Mar 29, 2019 | Articles
For employers and employees who have started preparing their H-1B petitions for filing on April 1st, it is not too early to start thinking of alternatives in case your petition is not selected in the H-1B lottery. This article is just a short overviews of possible options, and does not provide all the details of the requirements for each visa option.
Employers may file an H-1B petition on behalf of an employee, and at the same time may pursue filing petitions for other nonimmigrant visa categories, for example, an L-1A, L-1B or O-1A on behalf of that same employee. Or, go for the gusto and file straight for the geen card. The alternatives available depend upon many factors.
One of the complaints of commenters to the new H-1B rule, was that the new lottery system favors presumably young and inexperienced students over much more experienced foreign workers. If a company wants to sponsor a very high-level foreign worker, the O-1A or O-1B may be an option. The O-1 is for foreign workers who have extraordinary ability in their field, be it science, education, business, athletics, art or the motion picture and television industries or even “any field of endeavor”.
Just how “extraordinary” does the foreign worker have to be to meet the standard for the O-1? This depends upon the field. For the O-1A classification, if the foreign worker is to be employed in the fields of science, education, business, or athletics, the standard is extremely high, and it would have to proven that the individual is at the top of his or her field. The proof must include either receipt of a major international award, such as a Nobel prize, or by submitting at least three of six types of evidence, such as the following: nationally or internationally recognized prizes or awards; membership in an exclusive professional association that requires outstanding achievements to be a member; articles about the beneficiary in professional or major trade publications or media; the beneficiary has judged the work of others in the field; the beneficiary’s important original scientific, scholarly or business contributions; the beneficiary has written important scholarly articles; employment in a critical role for a distinguished organization; or a high salary.
However, for those who will be employed in the arts, the O-1B classification requires only that the artist be “prominent” in the field, and is a lower standard. The arts is defined very broadly, including but not limited to the following: fine arts; visual arts; culinary arts; performing arts; and architecture. The proof must include at least three of a list of six types of evidence, such as performed in a lead or starring role for distinguished productions, or distinguished organizations, critical reviews and articles in the media, a record of major commercial or critically claimed successes, recognition of achievements from experts in the field or a high salary.
Second, if the company in the US has a subsidiary, or offices abroad which already employ the foreign worker, the employer may be able to file an L-1B (specialized knowledge worker) or an L-1A (manager or executive) petition. Whether this is an option depends upon the relationship between the overseas company and the US company sponsor. The US company and the overseas company must be a parent/subsidiary, branch office of the same company or a joint venture. This is just a general description, the specific requirements are more detailed, and should the ownership or control of either company change, then the foreign worker may no longer be eligible for an L visa. According to the statute as written, the employee must have worked for the overseas company for at least one year out of the last three years, but in practice USCIS is extremely exacting and many more years of experience may be necessary in order to convince USCIS that the foreign worker really qualifies for an L visa. For a specialized knowledge worker petition, the employer must show that the employee has “special knowledge of the company product and its application in international markets” or “an advanced level of knowledge of processes and procedures of the company.” In order to qualify for L-1A status, the employer must show that the employee will be primarily performing managerial or executive duties, and not engaged in day-to-day operations that can be handled by less senior staff. This standard is especially difficult for a small company with few employees to meet.
Another option may be the E-1 treaty trader or the E-2 treaty investor. There must be a treaty providing for E visas between the U.S. and the foreign country of which the employer and employee are citizens. If the foreign country does not have any treaty with the U.S., it is not possible to file for an E-1 treaty trader or E-2 treaty investor. For example, India does not have such a treaty with the U.S. so its citizens cannot apply for either E-2 or E-1 status, while Pakistan does have a treaty, so Pakistanis may apply for either E-1 treaty trader or E-2 treaty investor. There is a long list of countries with which the US has bilateral investment treaties, for example, Argentina’s, Colombia’s and Italy’s provide for both E-1 and E-2 visas. Some countries have treaties which provide for only one or the other, for example, Albania’s and Egypt’s provide for only E-2 treaty investor. Here is the list of countries with which the US has treaties for E visas: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html
The sponsoring company must have the nationality of the treaty country. In a small company, for example, the nationality would be determined by the individual owners of the company. For a publicly-traded company, if the company shares are listed exclusively on a particular stock exchange, that is a factor in determining the citizenship of the company, but the company would still have to provide additional evidence.
For E-1 treaty traders, the company must prove that the beneficiary is being admitted “solely to carry on substantial trade, including trade in services or trade in technology, principally between the United States and the foreign state of which he is a national” INA 101(a)(15)(E)(i). The beneficiary must be coming to the U.S. for an executive or supervisory position, or possess skills essential to the firm’s operations in the U.S.
For E-2 treaty investors, the company must prove that the E-2 investor is coming to the U.S. “solely to develop and direct the operations of an enterprise in which he ahs invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital” INA 101(a)(15)(E)(ii). In addition to the investor who provides the capital for and runs the business, an E-2 company may sponsor other E-2 employees for executive or supervisory positions, or where the employee has specialized skills essential to the business, if US workers are not available to do the job.
The above options are all good ones, as the sponsoring employer may continue to employ the foreign worker for long periods of time, and there are no limits on visa numbers. For the O-1A, O-1B, E-1 and E-2 visas, there is no limit on extensions. For L-1A there is a limit of seven years, while for L-1B there is a limit of five years.
As mentioned above, this is only a short overview. Should you need detailed advice, you will need to retain a competent immigration attorney.
In Part II, we will discuss possible options for temporary visas which provide only for short periods of employment, or for a status that does not allow employment, but allows for training or certain types of business activities.
Copyright 2019 © Heidi J. Meyers all rights reserved.
by Heidi Meyers | Mar 29, 2019 | Articles
In 2019, DHS is still accepting applications for waivers of old removal, deportation and exclusion orders for people who never departed the U.S., are still here and are eligible for their green card but for their old deportation order. Applicants must show all the positive factors in their favor, such as U.S. or permanent resident spouse, parents or children, work history, medical issues of any family members, the applicant’s important role in taking care of the family, military service of any family members, bad conditions in the native country, etc. The positive factors must outweigh the negative factors including having an outstanding deportation order and never having left the U.S.
So, for example, if an applicant has an immediate family member who is a U.S. citizen, and obtains an approved relative petition, the applicant may then apply to waive the old deportation order. Once he or she receives an approval of the I-212 waiver, the applicant is then eligible to file an I-601A provisional unlawful presence waiver based on a U.S. citizen or permanent resident parent or spouse who would suffer extreme hardship should they not be allowed to live in the U.S. Those who have only US citizen children will not be able to qualify.
With both the approved I-212 waiver and the approved I-601A waiver in hand, the individual is then ready to go ahead with immigrant visa processing, get an interview date at the US Consulate in his or her home country, and proceed abroad for the interview for an immigrant visa, and then return to the U.S. as a lawful permanent resident.
Copyright 2019 © Heidi J. Meyers all rights reserved
by Heidi Meyers | Mar 29, 2019 | Articles, Visa
The final H-1B regulation published January 2019, prioritizes F-1 students and others who have completed a U.S. masters degree. This aspect of the rule will be in effect as of April 1, 2019, for this year’s H-1B season. However, the registration requirement will not be implemented until later.
Employers may file an H-1 petition up to six months prior to the start date of the sponsored employee. Demand has consistently been higher than the H-1B visa numbers available. H-1B visa numbers for new beneficiaries (new employees who have not had an H-1B visa number within the past six years) are limited to 65,000 for beneficiaries with a bachelors degree or equivalent, plus an additional 20,000 visa numbers for those with US masters or higher degrees. That means there are only 85,000 total H-1B visa numbers for cap-subject cases each fiscal year. Because the new fiscal year starts on October 1st, employers must file any new, cap-subject H-1B petitions within the first five business days of April. Thus, for this year, employers have between Monday April 1st , 2019 to Friday April 5th, 2019 to file for a start date of October 1st, 2019. Filing means that the petition must be received by those dates.
USCIS then runs a lottery to determine which H-1B petitions will receive a visa number. Those petitions that do not receive a visa number are returned to the employers. Receiving a visa number does not mean that the petition will be approved. It just means that USCIS will take the filing fees, review the petition and adjudicate it. Thus, those receiving visa numbers may still have their H-1B petitions denied.
In the final rule, DHS changes the procedure by which H-1B cap-subject petitions are selected in the lottery in order to favor F-1 students and others who hold a masters or higher degree from a U.S. college or university. Thus, employers who already employ an F-1 student (assuming he or she has a US advanced degree) on OPT have a higher chance of obtaining an H-1B visa number for their employee, than an employer sponsoring an employee abroad whose education was also abroad. The final rule reverses the selection process that USCIS used in the past. Now, USCIS will randomly select H-1B petitions for the regular cap first (the 65,000 visa numbers that may go to any beneficiary with at least a bachelor’s degree or equivalent, including foreign degrees, and also combining education and experience). After filling up the 65,000 H-1B visa numbers, USCIS will then select from among the remaining pool of petitions the additional 20,000 H-1B petitions that are reserved for beneficiaries with a US masters degree or higher (say, F-1 students with a PhD, MD or JD from a US university). USCIS estimates that this new procedure will result in an increase of 16% in the proportion of H-1B visa holders with an advanced US degree.
DHS believes that this rule is merit-based, and is consistent with the policy of “Buy American and Hire American” (BAHA). The rule does not make it easier to hire foreign nationals. Because the rule is expected to result in a greater number of beneficiaries with a US masters or higher degree, it is in line with the executive order’s goal to “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries”.
DHS will also implement a new registration system for employers, however, this is suspended for this FY2020 H-1B cap season. DHS needs to perform user testing of the new online system. DHS anticipates starting the registration system in time for the FY2021 H-1B cap season. All employers must file a registration for each potential employee, and then wait to see if USCIS selects it before filing an H-1B petition. If USCIS does not pick the employer’s registration, the employer is not allowed to file an H-1B petition on behalf of that beneficiary.
Each fiscal year, USCIS will announce the start date of the registration period on its web site at least 30 days prior to the start of the registration period. The registration period will be for a minimum of 14 calendar days. The registration period will begin at least 14 days before the first day of petition filing and last at least 14 days. So, at least for two weeks. USCIS will then determine the end of the registration period, depending upon how many registrations it receives. USCIS may continue the registration period past two weeks, or reopen the registration period for an additional period of time.
Each registration must include the beneficiary’s full name, date of birth, country of birth, country of citizenship, gender and passport number. SEVIS information is not required. USCIS may decide later on to include additional information required for registration. USCIS will check the system for duplicate registrations. Establishing eligibility is not required to file a registration. The registration period is not intended to replace the adjudication process or to assess whether the beneficiary is eligible for the position.
The required information is intended only to identify the beneficiary and limit potential fraud and abuse of the system. DHS is considering ways to allow employers to correct typos in their registrations. Employers will be able to edit a registration until it is submitted. Employers may also delete a registration and re-submit it prior to the close of the registration period.
DHS regulations already forbid the filing of multiple H-1B cap subject petitions by related corporate entities for the same beneficiary, unless there is a legitimate business need.
USCIS will then select sufficient registrations towards the H-1B cap, eliminate duplicate registrations, identify the employer and proposed employee, and to match registrations with subsequently filed H-1B petitions.
In sum, employers and foreign professional may proceed as usual in preparing and filing H-1B petitions this fiscal year. Since the registration process is postponed, the only procedure changing is USCIS’s manner of choosing which H-1B cap petitions receive visa numbers, so that a greater proportion will go to beneficiaries who are F-1 students with advanced degrees.
Copyright 2019 © Heidi J. Meyers, all rights reserved.
by Heidi Meyers | Jan 31, 2019 | Articles
U.S. consulates in India have been issuing more 221(g) refusals to IT professionals, which is when the Consular Officer temporarily denies a visa for lack of essential information or because the applicant is undergoing administrative processing (basically, that the security checks are taking a long time). More software engineers, programmer/analysts and other IT personnel are being denied visas, and given a questionnaire regarding information that the Consular Officer should already have, including questions regarding the particular project the applicant is going to work on, the technical description of the project, budget, timeline, current status, how many employees are assigned to the project, and detailed information about the other employees on the same project.
At the time an H-1B or L-1B application is filed, an IT company will have certain projects going, and will not be able to anticipate all their future projects, as these continuously change, so the Consular Officer may be looking for a way to deny a visa if the original project proposed for the H-1B or L visa applicant is no longer on-going, and the company intends to send the applicant to another project, perhaps without the LCA on file.
Additionally, administrative processing, including security checks with the various agencies such as the FBI, CIA, DEA etc., may also be quite time-consuming, depending on a variety of factors.
Another issue is the BAHA (Buy American, Hire American) proclamation which has been added into the Foreign Affairs Manual (FAM), so visa applicants need to be ready to explain how their position in the US will not take jobs away from US workers, and how they and their project will benefit the US economically. Due to the ongoing shortage of labor in the US, it should not be difficult to document the shortage of IT professionals.
Visa applicants need to be able to express themselves clearly to explain their qualifications, the job duties and the project, as well as answer questions about the company itself and their future salary and benefits. Applicants need to review the petition support letters carefully and be aware of the contents of those letters.
The good news is, a 221(g) refusal is not a final denial, applicants and their employers still have the opportunity to submit additional evidence and make the Consular Officer happy.
