Articles Posted in Immigration Applications

Happy New Year!  It’s never too early to start preparing for the H-1B Cap for Fiscal Year 2018, and our immigration attorneys are happy to aid your in the process.  Demand for the H-1B visa has steadily increased over the years; last year for instance, only about 36% of the H-1B petitions were selected in the lottery.  Employers should expect this trend to continue and be prepared to file their H-1B petitions on the earliest possible date, which is April 3, 2017 this year.

The H-1B is a significant visa category as it allows qualified professionals to enter the U.S. for employment in a specialty occupation.  Due to the ever-increasing demand for the visa, it is important the employers evaluate their employee populations early to ensure that all petitions are submitted by the earliest possible date.  Some of the different types of employees eligible for H-1B visas are F-1 Students and L-1B visa holders.

Students, particularly those on F visas, currently working for you pursuant to an approved Optional Practical Training (OPT) should be the first group of employees to consider for filing an H-1B petition.  The reason being that if you do not file H-1Bs for these employees, they will lose their employment authorization at the conclusion of their OPT.  Even when employees may extend their OPT, the employer is still advised to file an H-1B for the 2018 fiscal year, giving the employees two opportunities to obtain the H-1B.  In the event that more applications are filed than visas available and student employees do not obtain the H-1B this year, then the OPT extension will serve as a back-up and the employer may file for the H-1B again next year.

Just last week, Senators Lindsey Graham (R-SC), Dick Durbin (D-IL), Dianne Feinstein (D-CA), and Lisa Murkowski (R-AK) introduced the Bar Removal of Individuals who Dream ad Grow our Economy (BRIDGE) Act, which would provide work authorization and relief from deportation to individuals who are eligible for the DACA initiative created in 2012 by the Department of Homeland Security (DHS).

Under DACA, or Deferred Action for Childhood Arrivals, individuals who arrive in the United States as children must pass a background check and meet specific age, education, and United States residency requirements.  Once such requirements are met, eligible individuals are granted a temporary reprieve from deportation and are then able to receive a renewable two-year work permit.

Since 2012, approximately three-quarters of a million individuals have come forward to take advantage of the career and higher education opportunities that are made accessible to them through the provisions of DACA.  The BRIDGE Act would reinforce protections provided by DACA, while extending protection from deportation and eligibility of employment authorization to individuals who are not DACA recipients, but do qualify for the program.

The United States Citizenship and Immigration Services (USCIS) published a final rule to improve aspects of certain employment-based immigrant and nonimmigrant visa programs.  Preexisting regulations have been amended to enable US employers to hire and retain foreign workers who are beneficiaries of approved employment-based visa petitions as they wait to become lawful, permanent residents.  The rule positions nonimmigrant workers to further their careers by accepting promotions, changing positions within current employers, and pursuing other job opportunities.

These changes will expand the class of workers eligible to apply for an Employment Authorization Document (EAD), setting guidelines on when an employment-based immigrant may retain his or her “priority date” after departing from their employers. Among the more notable provisions, the rule permits persons of E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status to apply for an EAD, provided they meet certain conditions:

  1. Applicant is the beneficiary of an approved employment-based immigration visa petition

To constituents, executive actions may seem like simple maneuvers—quick fixes to a discordant Supreme Court or a disagreeing Congress.  But to those who have held Presidential office, executive actions have shown themselves to be much more complex.  Each comes with its own set of statutorily or judicially imposed restraints.  Some actions are subject to modification or even revocation while others must comply with certain mandated procedures; all actions, though, fall subject to a lack of permanence and are often withdrawn just as swiftly as they were first put into place.

Most executive actions can be broken down into three basic categories:

  1. Executive orders, which are written directions issued by the incumbent President that govern actions of executive branch officials as well as government agencies

Religious Worker Immigrant Visa, Immigrant Investor Visa, Conrad State 30 Program for doctors

 On October 5, 2016, the U.S. Department of State (DOS) issued an extension on The Conrad State 30 Program, the EB-5 Regional Center (Immigrant Investor) Program, and the Special Immigrant Religious Worker Program (SR Visa)

Under the Conrad 30 Visa Waiver Program, each state’s health department can request J-1 Visa Waivers for up to 30 foreign physicians per year.  The program addressed the shortage of qualified doctors in federally designated health professional shortage areas or medically underserved areas.  Although each state has developed its own application rules and guidelines, the above program requirements apply to all J-1 medical doctors.

Typically, a foreign national who has accrued more than one hundred eighty (180) days but less than one year of unlawful presence is subject to a three (3) year bar from returning the US after a departure. A foreign national who has accrued more than one year of unlawful presence is typically subject to a ten (10) year bar from returning to the U.S. after a departure (commonly referred to as the “3/10 year bar”).  While a waiver of these bars remains available, applicants may only apply for this waiver from outside the US.  This process carried a very significant risk of being trapped outside of the US for months or even years pending the adjudication of the waiver.  Even worse, if the waiver application were to be denied, the applicant would be unable to return to the US for 3/10 years, depending upon the previous duration of unlawful presence.

As of March 4, 2013, immediate relatives[1] of US citizens were eligible to apply for the provisional unlawful presence waiver (“601A waiver”) to request that USCIS grant a provisional waiver of these grounds of inadmissibility before departing the United States for consular processing of their immigrant visas— rather than applying for a waiver abroad after their immigrant visa interviews.  This provided applicants with a significant degree of certainty that they would be eligible to return to the US after their interview because the Applicant would already know if their waiver had been granted prior to departing the US.  If the 601A waiver were denied, most Applicants would simply remain in the US.  In practice, while many Applicants were able to make use of the 601A Waiver to reenter, there remained a modicum of danger, as US Customs and Border Protection (CBP) ultimately determines admissibility at the time of entry.  In addition, this iteration of the 601A left out many otherwise qualified individuals, such as immediate relatives of legal permanent residents (LPR).

On July 29, 2016, U.S. Citizenship and Immigration Services (USCIS) announced a final rule, to expand the class of individuals who may be eligible for a provisional waiver of certain grounds of inadmissibility based on the accrual of unlawful presence in the United States.  The final rule is to take effect on August 29, 2016.

Over the weekend, immigration officials stayed true to their word and began their next phase of immigration law enforcement against Central American nationals who have received a final order of removal from an immigration judge in recent years.

While immigration officials claim they are only looking to find and remove families from Central America who have had their chance to present their case in court and received a “final order of removal” dated January 1, 2014 or later, it remains to be seen whether this will be the case. In fact, for individuals with removal orders in absentia, they may have never even stepped foot into the courtroom. Many of these families are fleeing the continuing violence and economic ruin of countries such as El Salvador, Honduras, and Guatemala.

Although few details have been released regarding the execution of enforcement actions, immigration officers executed removal orders over the weekend which resulted in the arrest and detention of 121 Central American mothers and their children. These raids were targeted against families at their known addresses. These raids seem to have served little purpose than to sow fear in our communities and cause further harm to immigrants who are already fleeing unprecedented violence and persecution in their home countries.

NIW applicationsA national interest waiver (NIW) petition is an alternative to the more common way of obtaining permanent resident status through employer sponsorship. It falls under the employment-based immigration EB-2 category. National Interest Waivers have several advantages:

  • They allow applicants to waive the labor certification
  • No job offer is required
  • Applicants may self-petition, rather than rely on an employer to apply on their behalf
  • The NIW approval process is a relatively speedy process

However, National Interest Waivers have become much more difficult to obtain since the landmark New York State Department of Transportation case of 1998. In that case, three general requirements were laid out regarding approval of NIW applications: the applicant must seek work in an area of substantial intrinsic merit, the applicant’s work must be national in scope, and the benefits of the applicant’s work must outweigh the national interest of U.S. workers currently involved in the labor certification process.

Area of Substantial Intrinsic Merit

Immigration Fraud LawyerThe immigration attorneys at Lubiner, Schmidt & Palumbo know that the United States has seen an explosion in Chinese immigration in the past decade. This immigration trend is especially prevalent in New York City where the foreign-born Chinese population grew by a third between 2000 and 2011. According to the New York Times, the Chinese immigrant population in New York City is poised to overtake Dominicans as the city’s largest immigrant group.

As the Chinese immigrant population grows, New York City has seen a corresponding increase in Chinese immigrants who are seeking asylum as a means to stay in the United States permanently. In fact, over the past six years, about half of all Chinese immigrant applications for asylum nationwide were filed in New York City.

With this explosion in asylum petitions come allegations that asylum fraud — condoned and even fostered by lawyers, paralegals, and interpreters — has become a veritable industry among the Chinese immigrant population in Chinatown, as well as in Chinese communities in Flushing, Queens, and Sunset Park, Brooklyn.

NJ Immigration AttorneyAt the law firm of Lubiner, Schmidt & Palumbo, LLC we practice immigration law and represent not only small and large businesses, but individuals, as well. If you are dealing with immigration as an individual, the process can be daunting and fraught with obstacles and surprises.

When looking for an immigration attorney, we suggest that you ask your potential counsel some important questions, such as:

What is your experience with immigration law?