Articles Posted in US Work Visa

A few weeks ago we blogged about a new regulation allowing H-4 visa holders (dependents of H-1B visa holders) to work in the United States. However, a case has just been filed in Washington D.C. federal court challenging this regulation. The lawsuit, Save Jobs USA v. U.S. Department of Homeland Security, was filed last Thursday by Save Jobs USA, a group representing former California computer workers, claiming that the regulation violates the Immigration and Nationality Act and asking the court to vacate the H-4 rule allowing spouses to work in the United States.

courthouse-1330873-mSave Jobs USA backs up its claims by stating there is no statute that authorizes H-4 visa holders to work in the United States and that in promulgating this rule, the Department of Homeland Security has exceeded its authority. The effect of this, as much of the complaint is focused on, is the increase in foreign competition, which in turn burdens U.S. citizens by increase the difficulty of finding a job. Specifically it states the new rule will increase the foreign workforce by 179,000 in the first year and 55,000 following years. Save Jobs USA goes on to list three instances of Save Jobs USA members who have been replaced by H-1B visa holders.

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woman-1134419-m (1)Currently dependent spouses on H-4 visas cannot lawfully seek employment in the United States, but that will be changing soon! The USCIS has officially announced that certain H-4 dependent spouses of H-1B visa holders may seek employment in the United States starting May 26, 2015.

Those eligible are H-4 dependent spouses of H-1B holders who are the principal beneficiary on an approved I-140 or the H-4 dependent spouses who have been granted H-1B status under section 106(a) and (b) of the American Competiveness in the Twenty-fist Century Act of 2000 (amended by the 21st Century Department of Justice Appropriations Authorizations Act).

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As H-1B season approaches, it’s time to begin your application process for a spot in the lottery. Currently, the USCIS allots 65,000 H-1B visas each year. Vying for a spot in the lottery are an estimated  195,000 applicants.   With three times the amount of applicants than visas available,  many applicants will be unable to get H-1B status due to sheer lack of numbers.

The Obama administration has attempted to combat  immigration reform but these attempts have not survived in Congress. One bill called the Immigration Innovation Act proposes to increase the amount of H-1B issued from 65,000 to 115,000.  The bill also proposes a removal of the 20,000 Cap on applicants with U.S. Master’s degree.

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Although sometimes the hardest part may be trying to get a visa, it can also be difficult just trying to keep it. Regular, everyday people can sometimes get charged for minor crimes such as DUIs, minor domestic disputes, car accidents, or even minor drug possession charges. This article will discuss what consequences such minor criminal actions can have for someone who is not a U.S. citizen.

The first thing to note is that the U.S. immigration laws has its own rules and definitions when it comes to crimes. Thus, it is not a simple matter of looking at the charges one is arrested for or convicted of and comparing it to the federal immigration law. Two of the major types of criminal categories the U.S. immigration system has is “aggravated felonies” and “crimes involving moral turpitude.” Thus, even a relatively minor crime could be considered a crime involving moral turpitude or aggravated felony. For example, if a non-U.S. citizen were to steal something and the maximum punishment was 1 year in prison, but the non-U.S. citizen was able to negotiate a plea bargain down to 6 months of imprisonment, it still may be possible that he has committed an “aggravated felony” under federal immigration laws. The receipt of stolen property could also be a “crime involving moral turpitude.” However, in general, aggravated felonies and crimes involving moral turpitude include crimes that are serious in nature and fall outside the scope of what most minor crimes people would commit.

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It is not uncommon for many families and business people to bring personal assistants with them while travelling to the United States. These people can be nannies, butlers, maids, cooks, chauffeurs, and others. These domestic workers may come to the United States under a B-1 visa if they and their employer meet certain qualifications.

The B-1 visa requirements for a domestic worker are tied to the immigration status of the employer. Unfortunately for legal permanent residents (green card holders), they may not bring a domestic worker under a B-1 visa under any circumstances. For U.S. citizen and nonimmigrant visa employers, however, the option is available to bring domestic workers under a B-1 visa if both they and their domestic worker satisfy certain requirements.

FOR U.S. CITIZEN EMPLOYERS

U.S. citizens themselves must meet a certain requirement before even considering bringing a domestic worker under a B-1 visa, which can be satisfied in one of two ways. One way to satisfy this requirement is to show that the U.S. citizen employer ordinarily resides in the U.S. and is traveling to the U.S. temporarily. Or, in the alternative, the U.S. citizen employer can satisfy this requirement by showing that he or she is subject to frequent international transfers lasting two years or more and who, as a condition of employment, is going to reside in the United States for a stay no longer than four years.

There is also a relationship requirement that must be satisfied between the U.S. citizen employer and the B-1 visa domestic employee. This requirement can be satisfied in one of two ways. One way this requirement is satisfied is by showing that the employer-employee relationship existed for at least 6 months prior to the employer’s admission to the United States. Or, in the alternative, the U.S. citizen employer has regularly employed a domestic servant in the same capacity while abroad;

The employee must also satisfy two requirements. First, the employee has had at least one year experience as a personal or domestic servant, which can be proven by producing statements from previous employers attesting to such experience. Second, the employee must have no other work, and will receive from the employer free room and board and round trip airfare as indicated under the terms of the employment contract.

FOR NONIMMIGRANT VISA EMPLOYERS

The above requirements apply only to U.S. citizens seeking to obtain a B-1 visa for their domestic workers. For nonimmigrant visa employers seeking to do the same, they have slightly different but still similar requirements to satisfy. As an initial matter, only nonimmigrant visa holding employers with the following visas are allowed to bring domestic workers under a B-1 visa in the first place: B, E, F, H, I, J, L, M, O, P, Q, or R visas.

The domestic worker must satisfy slightly different requirements than what would be required if the employer was a U.S. citizen. The first requirement is a relationship requirement and can be satisfied in one of two ways. One way to satisfy this relationship requirement is by showing that the domestic worker has been employed outside the United States by your employer for at least one year prior to the date of your employer’s admission to the United States. Or, in the alternative, the employer-employee relationship existed immediately prior to the time of your employer’s application, and the nonimmigrant visa employer can demonstrate that he/she regularly employed (either year-round or seasonally) domestic help over a period of years preceding the time their application

In addition, the domestic worker must satisfy two additional requirements. First, the domestic worker has at least one year’s experience as a personal or domestic employee as attested to by statements from previous employers. Second, the domestic worker will have no other work, and will receive free room and board and round trip airfare from your employer as indicated under the terms of the employment contract. This is very much similar to the requirements for domestic workers working for U.S. citizens.

ALL B-1 DOMESTIC WORKERS

Regardless of whether the B-1 domestic worker is employed by a U.S. citizen or a nonimmigrant visa holder, the domestic worker must show the following:

  1. The purpose of their trip is to enter the United States for work as a domestic employee;
  2. They plan to remain for a specific, limited period;
  3. Their employer meets certain qualifications as stated above;
  4. They have evidence of compelling social and economic ties abroad; and
  5. They have a residence outside the United States as well as other binding ties that will ensure their return abroad at the end of the contract.
  6. They are at least 16 years old.
  7. They are not related to the employer by family relationship.

The B-1 visa domestic worker cannot bring their family members as dependents. The family members must seek their own visa categories, such as a B-2 visa, and meet those requirements independently.

In addition to these requirements, the contract defining the relationship between the employer and the domestic worker must be carefully drafted to not only protect the rights of both the employer and employee, but also to meet USCIS requirements. In addition, the domestic worker must still obtain employment authorization.

If you have questions about visa options for your domestic worker or if you have general immigration questions, please contact our office today.

Despite the media attention surrounding immigration from Mexico, it’s important to remember that the United States shares a border to the north with Canada as well. Given Canada’s proximity to the United States, it is no surprise that there are some special requirements and restrictions for Canadians seeking entry into the United States, even though Canadians can receive status to all of the more common visa categories.

 

It is important to note  that there is a difference between a visa and a status. A visa is merely a placeholder in the line to obtain status. A visa is much like a plane ticket –you have a seat reserved on the plane, but a person can be stopped or prevented from boarding the plane for a number of reasons. Similarly, applying for a visa means a person is applying for a spot in line into the US, and receiving a visa that means the spot in line is secure. However, that same person may not be granted status despite having a visa and can still be turned away.

 

Thus, for Canadian citizens, they do not need a visa unless they are seeking E, K, S, or V nonimmigrant status. However, they must still obtain the status necessary. For example, although a Canadian citizen need not seek an F-1 visa to study in the United States, they must still satisfy all of the F-1 status requirements in order to study in the United States.

 

Also, under the Visa Waiver Program, Canadians can seek entry into the United States without a visa if they meet certain conditions. The travelling Canadian must be a Canadian citizen, not a permanent residence or other status under Canadian laws. If travelling by air or sea, the Canadian citizen must also show proof of a return ticket. The Canadian citizen must also be traveling to the United States for transit, tourism, or a short term business visit. They cannot seek extensions of their stay past the approved stay period, but can adjust status if based on marriage to a US citizen or an application based on asylum.

 

There is also a special TN status available to Canadians and Mexicans as well.

 

The TN status is similar to the H-1B status, but there are some advantages and disadvantages. The advantage is that receiving TN status can be much faster as it can be dealt with at the border and not through USCIS. Also, it is not subject to any visa limitations, while the H-1B visa is subject to its visa cap. However, one disadvantage is that the TN status does not allow for the Canadian citizen to adjust status to a green card, while an H-1B visa does.

 

If you are a Canadian citizen and have questions about seeking entry in the United States or have general immigration questions, contact our office to consult with attorney Sweta Khandelwal.

The visa bulletin for December of this year has been released. This month’s visa bulletin has seen both modest and significant movement forward, as well as some unfortunate retrogression for certain visa seekers from India.

In the family categories, the biggest advancements were only by a measure of approximately two months. The FB-4 category for people from the Philippines, the FB-2B category for people from India, and the FB-2B from the “All Chargeability Areas” category (excluding mainland China, India, Mexico, and the Philippines) all moved forward by approximately two months. However, the other family based categories only experienced movement by a few days or a month, and in some instances there was no movement at all.

There was much more movement in the employment based categories, with some categories jumping ahead by a year. All of the categories that were Current (“C”) last month remained Current. The categories that experienced the most movement were the EB-3 and “Other Workers” categories for people from Mexico, China, and the “All Chargeability Areas” (excluding Mainland China, India, Mexico, and the Philippines). Each of these categories experienced a jump by a year. Unfortunately for people from India, the EB-2 category retrogressed by almost 4 years backwards. This is in part due to the high demand from the rapid advancements in this category in recent months, thus creating a backlog. The EB-2 category for people from India may not experience further advancements until May 2014.

FAMILY BASED CATEGORIES – DECEMBER 2013

Family-Sponsored All Charge -ability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIPPINES
F1 15NOV06 15NOV06 15NOV06 22SEP93 01JUL01
F2A 08SEP13 08SEP13 08SEP13 01SEP13 08SEP13
F2B 01MAY06 01MAY06 01MAY06 01APR94 22MAR03
F3 08MAR03 08MAR03 08MAR03 01JUN93 22JAN93
F4 08SEP01 08SEP01 08SEP01 22OCT96 01JUN90

*NOTE:  For December, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01SEP13.  F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01SEP13 and earlier than 08SEP13.  (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

FAMILY BASED CATEGORIES – NOVEMBER 2013

Family-Sponsored All Charge -ability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIPPINES
F1 22OCT06 22OCT06 22OCT06 22SEP93 01JUL01
F2A 08SEP13 08SEP13 08SEP13 01SEP13 08SEP13
F2B 22MAR06 22MAR06 22MAR06 01APR94 01MAR03
F3 08FEB03 08FEB03 08FEB03 01JUN93 08JAN93
F4 22AUG01 22AUG01 22AUG01 22OCT96 22APR90

*NOTE:  For November, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01SEP13.  F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01SEP13 and earlier than 08SEP13.  (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

EMPLOYMENT BASED CATEGORIES – DECEMBER 2013

Employment- Based All Chargeability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIPPINES
1st

C

C

C

C

C

2nd

C

08NOV08 15NOV04

C

C

3rd

01OCT11

01OCT11

01SEP03

01OCT11

08JAN07

Other Workers

01OCT11

01OCT11

01SEP03

01OCT11

08JAN07

4th

C

C

C

C

C

Certain Religious Workers

C

C

C

C

C

5th
Targeted
EmploymentAreas/
Regional Centers and Pilot Programs

C

C

C

C

C

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year.  This reduction is to be made for as long as necessary to offset adjustments under the NACARA program.  Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

EMPLOYMENT BASED CATEGORIES – NOVEMBER 2013

Employment- Based All Chargeability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIPPINES
1st

C

C

C

C

C

2nd

C

08OCT08 15JUN08

C

C

3rd

01OCT10

01OCT10

22SEP03

01OCT10

15DEC06

Other Workers

01OCT10

01OCT10

22SEP03

01OCT10

15DEC06

4th

C

C

C

C

C

Certain Religious Workers

C

C

C

C

C

5th
Targeted
EmploymentAreas/
Regional Centers and Pilot Programs

C

C

C

C

C

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year.  This reduction is to be made for as long as necessary to offset adjustments under the NACARA program.  Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

If you have questions about the December visa bulletin or if you have general immigration questions, contact our office today.

It is a stressful, but rewarding, time when a noncitizen finally begins their adjustment of status process to obtain a green card. Not only are many of the visa restrictions lifted, but it also allows for more frequent travel in and out of the United States. This article will explore some of the issues, however, of travelling with a pending I-485 adjustment of status application with USCIS.

The old law required a foreign national to obtain an Advance Parole document to travel outside the US while the I-485 was filed and still pending adjudication with USCIS. However H-1B, L, and K-3/K-4 (but not K-1/K-2) visa holders with a pending I-485/Adjustment need not seek advanced parole before travel. However, there is no harm in obtaining one, and in fact a memorandum put out by USCIS states that it is the alien’s prerogative to present either the advanced parole document or their H-1, L, or K-3/K-4 visa papers to evidence proper entry into the United States. If the noncitizen presents both, however, the reviewing officer should take the visa papers instead of the advanced parole document and inform the noncitizen that they don’t need the advanced parole document.

If the noncitizen re-enters the United States by using the Advanced Parole document instead of his or her visa papers, it does not negate their H-1B status. Thus, when a nonimmigrant is attempting to adjust status to obtain a green card, there is no break in the requirement to continuously maintain valid nonimmigrant status. For all intents and purposes, the H-1B status is continuously maintained and H-B beneficiaries have gone on to successfully obtain extensions premised on a valid underlying H-1B visa. Even if there were to be some question about this, the Act specifically creates a safe harbor exception for “technical violations,” which this situation would fall under. It would be incongruous for the noncitizen to be considered “out of status” when using an Advanced Parole document to re-enter the United States, but still allow him or her to obtain extensions on that H-1B visa.

If you have questions about your visa and the effect of obtaining an Advanced Parole document, contact our office today for more information or to speak with an attorney.

It is no secret that many immigrants are young students seeking to attend the United States’ top universities. Many of these universities are in California, but California universities’ out-of-state tuition rates can be prohibitively expensive. What is considered a “resident” for California university tuition purposes has some interplay with immigration laws. This article will explore some of them here, based on the University of California tuition guidelines.

For UC tuition purposes, California has two requirements to satisfy: a physical presence requirement and an intent requirement. However, for noncitizens who hold nonimmigrant visas (H-1B, F-1, etc.) there are a specific list of visas that will not be able to satisfy either of these requirements. Some common examples are B-1/B-2, F-1, F-2, or H-1B visas. These nonimmigrants must change their status to another visa type or adjust status to obtain legal permanent residence status (i.e., a green card).

However, even if one has a green card or have a qualifying nonimmigrant visa, it does not mean they automatically qualify for “residence” status under the UC tuition guidelines. They must still satisfy the two requirements set out above: physical presence and an intent to be a California resident. Sometimes, nonimmigrants and green card holders may spend significant amounts of time abroad for many reasons. Even if such a noncitizen buys a home in California and pays California taxes, the existence of other homes in other states or abroad may cause the University of California to question whether the student and his or her family intend to make California their home.

More specifically, a person must spend at least 366 days (1 day and 1 year) in California to satisfy the physical presence requirement. Some breaks for travel are acceptable, but large breaks in the 366 day requirement may cause problems with obtaining California residence status. Also, for the intent requirement, this is a fact specific inquiry that depends on each individual case. Some examples of documents that will help satisfy the intent requirement are sale records of previous homes, evidence of a place of residence in California, receipts, employment records, having a California driver’s license, and registering to vote in California. These are again just examples and an attorney should assess the entirety of the situation.

Another issue for young noncitizens attempting to become California residence for UC tuition purposes is the relationship they have with their parents. Often, even if the student lives in California, if the parents are residing elsewhere then it may prevent being considered a California resident. One way around this is to show that the student is wholly financially independent and need not depend on his parents for financial assistance, but this is a rare exception.

If you have questions about the effect your visa or your immigration plans may have on attending a University of California school, or if you have other immigration questions, contact our office today so that we may assist you.

In this week’s article, we explore one common issue that happens to noncitizens
seeking entry into the United States from abroad. For those noncitizens who have
received an I-130 or I-140 approval and have a current priority date, many of them
have to undergo processing at a U.S. consulate or embassy in their home country.
One issue they may run into is a hold under 221(g) of the Immigration and
Nationality Act.
In some ways, an administrative hold under 221(g) of the Act is similar to a Request
for Evidence (“RFE”) response that USCIS utilizes when a visa petition lacks
supporting evidence. The consulate or embassy can use 221(g) to place an
administrative hold to request documents related to statements made in the
support letter, information made on the USCIS Forms, or for other reasons. For
example, some H-1B visa seekers may have to explain projects they have worked
on, large spans of unemployment in their work histories, or specific projects they
intend to work on for other reasons. In other cases, a 221(g) hold may be placed for
medical or criminal reasons.
The first step the noncitizen should do is to seek the advice of a competent
immigration attorney, especially for complicated 221(g) issues. The noncitizen
should then contact the embassy that issued the 221(g) hold to find out what the
exact procedure is to alleviate that hold. Sometimes, this can be resolved mostly
through email. Other times, more specific instructions must be followed, such as an
interview or awaiting for processing from another government agency. Also, every
embassy is different in their procedures and can differ from country by country or
even by local region. It is important that the noncitizen and his or her immigration
attorney remain fully informed and work together to resolve the 221(g) issue.

Once the procedures have been clarified, it is up to the client and the attorney to
marshal the appropriate documents together and draft an appropriate response.
Assembling the documents may take months in situations where the attorney
and/or noncitizen have to coordinate with employers, medical professionals, police
departments, courts, federal government agencies, or any other third-parties that
may have records relating to the 221(g) issue. The immigration attorney may then
draft an appropriate response summarizing all of the information.
If you have questions about your 221(g) hold or if you have immigration questions
in general, contact our office today to speak with attorney-at-law Sweta Khandelwal.