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.
VISAS FOR PROFESSIONALS FROM CHILE AND SINGAPORE
In 2003, the U.S. Congress created a special H-1B program for citizens of Chile and Singapore as part of the laws implementing the Free Trade Agreements with these countries, called H-1B1. Citizens of Chile and Singapore can file their H visa application directly with the U.S. Embassy, rather than having to file a petition first with the USCIS in the United States.
Similar to the general H-1B program, applicants must qualify as professionals, meaning they must have the U.S. equivalent of a bachelor’s degree and the position for which they are being sponsored must also be a professional position. Also, an applicant must have a U.S. company which is offering them a professional position, and is their sponsor for the visa. The U.S. company must be willing to pay the prevailing wage, and must obtain an approved Labor Condition Application prior to the applicant applying for an H-1B1 visa. Additionally, the spouse and children under 21 may also obtain visas and accompany the principal H-1B1 applicant to the United States.
However, the special H-1B1 program for citizens of Chile and Singapore is different from the general H-1B program in several ways. First, the applicant must show non-immigrant intent – that they are coming to the U.S only temporarily and that they do not have the intention to stay permanently in the U.S. Second, the H-1B1 visa is valid for only 18 months, while an H-1B visa is valid initially for up to three years. However, H-1B1 visa holders are eligible for extensions. Third, a person in H-1B1 status in the United States cannot apply for a change of status or for the greencard. Thus, in certain ways, the H-1B1 program is more restrictive than the general H-1B program.
DEPORTATION / REMOVAL
Under pre-1996 immigration law, people who could prove that they have been residing continuously in the U.S. for at least seven years, had good moral character and would suffer extreme hardship if they were deported could qualify for suspension of deportation and a green card. They could win suspension of deportation by showing extreme hardship to themselves or to a close family member who was a U.S. citizen or permanent resident. However, you can no longer apply for suspension of deportation under the old immigration law unless you are from Guatemala or El Salvador.
Under the 1996 immigration law, you can apply for what is now called “cancellation of removal” and obtain a green card if you can prove that you have been living in the U.S. continuously for at least ten years, have good moral character, and that a close relative who is a U.S. citizen or a lawful permanent resident would suffer extreme hardship if you were deported or removed from the United States.
In order to qualify for cancellation of removal you need to wait another few years until you have been in the U.S. for at least 10 years. It is not enough to have been living in the U.S. for ten years, you have to prove it with documentation. You will have to present documents such as bank statements, rent receipts, utility bills, etc., for each year that you have been residing in the U.S.
Second, the fact that you have been paying income taxes each year helps to show that you have good moral character. Also, the fact that you have never been in trouble with the law helps to demonstrate your good moral character. Additionally, if you are involved in community organizations and activities that help the community, this will help to prove that you have good moral character.
Third, under the rules for cancellation of removal, the hardship to yourself if you had to return to your home country is no longer considered as a factor. Only the hardship to your U.S. citizen children or spouse would be considered as important. If your children are very young and are in good health, an immigration judge would probably find that they could return to your home country without suffering extreme and unusual hardship. Young children are thought to have an easier time adjusting to a new environment than older children. Older children who have already adjusted to the American school system, and can speak, read and write only in English and who do not know the language of the home country would suffer much more than younger children if forced to return to their parents’ home country. If you can prove that you would probably be killed if returned to your home country, this would be important only in so far as it impacts on your young children. Thus, the psychological effect of losing their parent and the financial impact of losing their main source of financial support would be considered. Of course, if the children were also in danger of being killed if they were returned to your home country, this would show extreme hardship.
As of June 24, 2002, INS had detained a total of 752 individuals on immigration violations since September 11th in connection with the investigation into the terrorist attacks. Of these, 81 are currently being detained. The rest have been released on bond pending resolution of their immigration charges after they were determined to have no links to the investigation or to terrorist organizations, or their immigration proceedings have been completed and they have been released or removed. Of the 81 who remain in USICE detention, 73 have had a removal (deportation) hearing. Thirty-eight have final orders of removal, and the USICE is trying to remove (deport) them as soon as possible.
As of May 29, 2002, 611 individuals detained by USICE have been subject to closed hearings pursuant to a directive issued by the Chief Immigration Judge on September 21, 2001.
However, most individuals in INS detention are not suspected of or charged with being involved in terrorism. Many are asylum applicants, minor children, permanent residents who have completed a criminal sentence and others charged with various immigration violations.
If USICE believes that you are not legally in the United States, USICE will serve you with a Notice to Appear, charging you with specific immigration violations and ordering you to appear in Immigration Court. Previously called deportation or exclusion proceedings, immigration court proceedings are now called removal proceedings. Once you appear before the Immigration Judge, the judge will determine whether you are removable (deportable). If you are determined to be removable from the U.S., you may request relief from removal (deportation), such as asylum, withholding of removal, cancellation of removal or voluntary departure. If you are a long-time permanent resident, and have a criminal conviction dating from before April 1996, you may also be eligible for 212(c) relief, which is a waiver of deportation.
If you are in removal proceedings, you have a right to be represented by an attorney at your own expense. You also have a right to a court-appointed interpreter, if you are unable to speak English fluently. You have a right to present evidence in your favor and to cross-examine witnesses.
Should you lose your case before the Immigration Judge, you have the right to appeal to the Board of Immigration Appeals (BIA), and may remain in the U.S. while the appeal is pending. If the BIA denies your case, you will be under a final order of removal (deportation), and USICE may then arrest and deport you. However, you will have 30 days from the date of the BIA decision to go into federal court for yet another appeal and to stay your deportation.
In order for USICE to deport someone, USICE must obtain a valid travel document and the home country must be willing to accept him or her. USICE has difficulty deporting nationals of certain countries, and thus those individuals may spend a great deal of time in USICE custody while under a final order of deportation, while USICE is trying to deport them. If an individual is in USICE custody for more than 90 days while under a final order of deportation and USICE is unable to deport him or her, that individual may apply for release.
If you have a final order of removal or deportation against you, local police may now arrest you on your removal or deportation order. This is a change from past practice, whereby only immigration officers could execute deportation orders. A new federal rule, effective August 23, 2002, permits local police officers to exercise Federal immigration enforcement authority, and arrest aliens on deportation orders.
People who have a well-founded fear of persecution should they be returned to their home country, on account of their political opinion, religion, race (or ethnicity), nationality, or membership in a particular social group (such as their family), may claim asylum. One has only to show a reasonable possibility – which may be as low as a 10 percent possibility – that he or she will be persecuted if returned home. Persecution does not include violence or harm suffered just because one was in the wrong place at the wrong time. For example, if there is a civil war raging in a country, and one just happens to be shot, that is not considered persecution.
Recently, U.S. immigration law has provided for claims for asylum by women and homosexuals. In a highly publicized case, the Board of Immigration Appeals granted asylum to an African woman who had fled from her home country to escape from female genital mutilation, a ritual of her ethnic group, which would have been forced upon her by her family and her husband in an arranged marriage. In 1990, the Board of Immigration Appeals held that a gay man from Cuba had established a well-founded fear of persecution on account of his sexual orientation.
One cannot qualify for asylum if one has persecuted others, or if one has been convicted of an aggravated felony, or a particularly serious crime and is a danger to the community.
One must apply for asylum within one year of having arrived in the United States. If not, one must show that extraordinary circumstances caused the delay or that circumstances in one’s home country have changed, effecting one’s eligibility for asylum.
One may make either an affirmative asylum application, or one may make an application for asylum after having been placed in exclusion, deportation or removal proceedings, as relief from deportation or removal. If one makes an affirmative asylum application, one will first have an interview before a USCIS asylum officer. The asylum officer may either grant asylum, or refer the applicant to immigration court if the applicant is not in legal immigration status. Even if the applicant is not granted asylum by the asylum officer, he or she will have a full opportunity to prove his case before the immigration judge.
The 1996 immigration law created a new procedure for people arriving in the U.S. who lack proper documents. Arriving aliens are subject to expedited removal. Those who express either an intent to apply for asylum or a fear of persecution are referred by the inspecting immigration officer for a “credible fear” interview with a designated immigration officer. If the officer finds that the alien has a credible fear of persecution, he or she is referred for a hearing before the immigration judge.
People granted asylum may reside indefinitely in the United States. One year after being granted asylum, one becomes eligible to apply for permanent residency. Asylees who are applying for permanent residency are not subject to the public charge ground of inadmissibility.
Family sponsored immigrants are divided into two categories: 1) those who can immigrate to the U.S. and who are not limited numerically, and 2) those who must wait in a queue to immigrate to the U.S., because of the numerical limits placed on their category of family immigration. The total number of visas available for family immigration are 480,000 minus the number granted to immediate relatives plus unused employment based visas.
Immediate relatives of U.S. citizens are not limited numerically, and can apply right away for permanent residence. Immediate relatives of U.S. citizens include spouses, unmarried children under 21, and parents of U.S. citizens who are over the age of 21.
The other family-sponsored categories are all limited numerically, and include the following:
1) First preference: unmarried adult children over the age of 21 of U.S. citizens;
2) Second preference: spouses, minor children and unmarried sons and daughters of permanent residents;
3) Third preference: married adult children of U.S. citizens;
4) Fourth preference: brothers and sisters of adult U.S. citizens.
Those who have been in the U.S. in unlawful status on or after April 1, 1997 must have had their relative petition filed before April 30, 2001 in order to adjust to permanent residency within the United States. Alternatively, if the person was the beneficiary of another relative petition or a labor certification application filed before April 30, 2001, they may then make a completely different application and adjust to permanent residency, so long as they filed before April 30, 2001 either a labor certification application or a relative petition which was approvable when filed. You should consult an attorney about the details for substituting another application for one which was filed prior to April 30, 2001.
If they entered legally with a valid visa, and were inspected and admitted by an immigration officer, even if they have fallen out of status, an immediate relative of a U.S. citizen may adjust to permanent residency within the United States.
The Child Status Protection Act
Generally, children only qualify for sponsorship if they are under 21 years of age and unmarried (although there are separate categories for adult sons and daughters). Previously, children being sponsored by their parents for a greencard would no longer be eligible for permanent residency the day they turned 21, even if they had not received their greencards because of INS delays in processing their applications, or other factors beyond their control.
With the new Child Status Protection Act (CSPA), signed into law on August 6, 2002, this is no longer the situation. The CSPA protects the children of U.S. citizen parents, permanent residents and asylees. For purposes of determining eligibility for a greencard, the child’s age is determined on the date on which the relative petition is filed by a U.S. citizen parent. For example, if a U.S. citizen mother files a petition for her 18 year old daughter, the daughter will still be granted permanent residence even if a U.S. Consulate does not complete processing of the application for permanent residence until the daughter is 22 years old.
Second, if a minor child is being sponsored by a lawful permanent resident parent, and the parent later naturalizes to U.S. citizen, the child’s age is determined based upon the date of the parent’s naturalization. For example, if a permanent resident files a petition for a 17 year old son, and then naturalizes when the son is 20, the son will remain eligible for an immigrant visa even if the son has already turned 22 on the date of the visa application.
Third, if a U.S. citizen parent sponsors a married son or daughter, and the child later divorces, the child’s eligibility for immediate relative status would be determined based upon the child’s age on the date of the divorce. This would only apply if the child married very young, and then divorced before becoming 21 years old.
Fourth, the CSPA protects children of lawful permanent residents who have been sponsored by their parents, or who are accompanying or following to join immigrants sponsored by their family or employer, or who won the diversity lottery. In these cases, the age of the child is determined on the date an immigrant visa number becomes available (which is when a priority becomes current and there is an approved petition), minus the number of days the petition was pending. However, the child must apply for permanent residence within one year of the priority date becoming current and the approval of the petition.
Immigration Through Marriage For Battered Spouses And Children
|Because of a concern that the path to permanent residency through marriage to U.S. citizens was being abused by desperate and dishonest aliens, the Immigration Marriage Fraud Amendments (IMFA) of 1986 created obstacles to obtaining permanent residence through marriage. To deter marriage fraud, it creates a two-year conditional residence status if the marriage is less than two years old at the time of the INS interview. Towards the end of the two-year period, both husband and wife have to jointly file to remove the condition, and change the alien’s status from conditional to permanent resident.
According to immigration law prior to 1990, if the marriage fell apart within the two years and the U.S. citizen spouse refused to cooperate in filing the joint petition, it was extremely difficult for the immigrant spouse to become a permanent resident. The law required the immigrant spouse to demonstrate that he or she was not at fault in the marriage.
The Immigration Act of 1990 provided that the alien spouse may change his or her conditional green card to a permanent green card without the help of the U.S. citizen spouse when one of the following applies: 1) The marriage has been legally terminated. The marriage was entered into in good faith and has been ended through divorce or annulment, regardless of which party was at fault; 2) Battered Spouse Waiver. During the marriage, the alien spouse was battered or subjected to extreme cruelty. The alien spouse must submit evidence of domestic violence, as well as any actions she or he took to protect herself or himself. For example, police complaints, court records, orders of protection, and hospital or doctor records will help show that the spouse was battered or subjected to extreme cruelty. Extreme mental cruelty is shown by an evaluation of a professional such as a psychologist, psychiatrist, or social worker; 3) Extreme hardship would result if the alien is deported.
In 1994, Congress enacted the Violence Against Women Act, allowing a spouse or child suffering abuse from a spouse or parent who is a lawful permanent resident or United States citizen to file an immigrant petition on his or her own without the help or agreement of the abuser. In that legislation, Congress also created a new form of suspension of deportation for abused spouses and children of lawful permanent residents or U.S. citizens. The prior law only helped the battered spouse after the conditional green card had been granted, by allowing her to file for the removal of the conditional status on her own. But the petitioning spouse could still refuse to file the initial petition or withdraw the petition before the issuance of the green card. The 1994 amendments now allow the battered spouse or child of either a US citizen or resident to file the petition herself, without the help of the spouse.
The spouse or child who is self-petitioning must reside in the U.S. at the time she or he applies for this benefit and must have resided in the U.S. with the U.S. citizen or lawful permanent resident. The spouse must show that she or he married the abusive spouse in good faith, and intended that they spend their lives together. Children who are self-petitioning do not need to prove the “good faith” nature of the marriage. It is important to note that the victim of domestic abuse, or the parent of the child victim, must be married to the abuser at the time of filing the self-petition. A divorce obtained upon filing will not affect the validity of the petition. Any change in the abuser’s immigration status, such as relinquishment/abandonment of the green card or deportation, will have no effect on the battered spouse’s self-petition. The abuser must be a citizen or permanent resident. The legal status of the abused spouse or her children is irrelevant. The act applies to a spouse or child who “has been battered by or has been the subject of extreme cruelty perpetrated by a USC or LPR spouse or parent”. Extreme cruelty includes violence or threats of violence. The self-petitioner may be a spouse who is suffering domestic abuse, a child suffering domestic abuse, or the parent of a child suffering domestic abuse. Children who are not suffering abuse may be part of the parent’s self-petition. The abuse must have taken place during the marriage. The self-petitioner must prove that he or she has “good moral character”. One cannot show good moral character if one has been convicted of a drug offense (other than a single offense of simple possession of 30 grams or less of marijuana), or has been convicted of an aggravated felony, or false testimony to obtain a benefit under the INA, or confinement in a jail for 180 days or more, or other offenses.
The self-petitioner must show extreme hardship to the applicant or child if deported. Hardship includes more than poverty. The factors include:
1) age of the person;
2) number of the person’s children and their ability to adjust in their native country;
3) serious illness that necessitates medical attention which is difficult or impossible to obtain in the foreign country;
4) person’s inability to find a job that pays an adequate salary or any job at all in the foreign country;
5) adverse psychological impact of deportation;
6) irreparable harm that may result from lack of educational opportunities.
For victims of domestic violence, the following factors would be considered:
1) the nature and extent of the physical and psychological effects of the battering or extreme cruelty;
2) the impact of the loss of access to the US courts and criminal justice system (including the ability to obtain and enforce orders of protection, criminal investigations and prosecutions, family law proceedings and court orders regarding child support, maintenance, child custody and visitation);
3) the self petitioner’s need for social, medical and mental health services which would not be available in the home country;
4) laws, customs and social practices that would penalize the petitioner as the victim of abuse;
5) the abuser’s ability to travel to the foreign country and the ability and willingness of the foreign authorities to protect the self-petitioner; and
6) the likelihood that the abuser’s family and friends or others acting on behalf of the abuser would physically or psychologically harm the self-petitioner or the self-petitioner’s child.
The Act also provided for suspension of deportation for the victims of domestic violence at the hands of a US citizen or permanent resident spouse or parent. Only people in deportation proceedings can apply for suspension of deportation. The abuser must be a U.S. citizen or permanent resident spouse or parent. The applicant must have been “battered or subjected to extreme cruelty in the United States” by the spouse or parent. The applicant must have been continuously residing in the United States for at least three years before filing the application. The applicant for suspension of deportation must be a spouse, a child suffering domestic abuse, or the parent of a child suffering domestic abuse. If a child is not suffering domestic abuse, but his or her parent is, it appears that the parent’s suspension application may not include her children. A person seeking suspension of deportation must show extreme hardship if deported. A person seeking suspension must also prove “good moral character” during the three year period required for suspension.