Category Archives: H-1B

212(d)(3)(A) Nonimmigrant Waiver: Advantages and Disadvantages

Posted on March 28, 2016 | Comments Off on 212(d)(3)(A) Nonimmigrant Waiver: Advantages and Disadvantages

Section 212(a) of the Immigration & Nationality Act lists the grounds on which a foreign national is barred from entering the United States. Inadmissible persons may not obtain a nonimmigrant visa (e.g. B-1/B-2 visitor, F-1 student, H-1B worker) or enter the U.S. as a nonimmigrant without a section 212(d)(3) waiver. Visa-exempt persons (e.g. most Canadian citizens) and persons who already have travel documents also need the waiver if they are inadmissible to the U.S.

Although the 212(d)(3) nonimmigrant waiver provides several advantages, it also has disadvantages.

What are the Advantages of the Section 212(d)(3) Nonimmigrant Waiver?

1.  The waiver is broad

For non-immigrants, the 212(d)(3) waiver overcomes almost every ground of inadmissibility listed in section 212(a). This includes health-related grounds, criminal offenses, prostitution, smuggling, fraud or willful misrepresentation of material fact to gain immigration benefits, false claims to U.S. citizenship to gain benefits under federal, state or immigration law, and unlawful presence in the U.S.

2. The waiver is available to almost all non-immigrants

Inadmissible persons who do not qualify for an immigrant waiver often still qualify for a 212(d)(3) waiver.

For example, a foreign national who is inadmissible due to a crime involving moral turpitude within the last 15 years and who has no U.S. citizen or permanent resident spouse, parent, son or daughter for the 212(h) immigrant waiver may enter the U.S. as a nonimmigrant with a 212(d)(3) waiver.

212(d)(3) waiver applicants do not need to show family ties in the U.S. or prove hardships will result if they are not admitted to the U.S. The standards are much higher for 212(a)(9)(B)(v) (unlawful presence) waiver applicants, for example, who must demonstrate a U.S. citizen or permanent resident spouse or parent will suffer extreme hardship if they are not admitted as an immigrant.

A person has a permanent bar under INA 212(a)(9)(C)(i)(I) [9C1] if he reentered or attempted to reenter the U.S. illegally (without inspection or lawful admission) after he accrued more than one year (in the aggregate) of unlawful presence in the U.S. and left. An immigrant visa applicant must wait outside the U.S. for 10 years before he may file for a Consent to Reapply for Admission (permanent relief) to be excused from the 9C1 bar. In contrast, a nonimmigrant visa applicant may seek a 212(d)(3) waiver (temporary relief) through the U.S. Consulate, at any time, to be excused from the same 9C1 bar.

3. The waiver has flexible eligibility standards

The criteria that applicants must meet to get the 212(d)(3) waiver is not defined by statute. In Matter of Hranka, however, the Board of Immigration Appeals listed three factors that must be considered in deciding whether to grant or deny the waiver. They are:

  • The risk of harm to society if the applicant is admitted to the U.S.
  • The seriousness of the applicant’s prior immigration law or criminal law violations, which caused the inadmissibility.
  • The importance of the applicant’s reasons for seeking to enter the U.S.

When reviewing a 212(d)(3) waiver application, the decision-maker applies a balancing test involving these three factors.

The Board stated there is no requirement the applicant’s reasons for wishing to enter the U.S. be “compelling.” The 212(d)(3) waiver is not only for exceptional, humanitarian or national interest cases. It may be granted for any legitimate purpose such as medical treatment (even if available abroad), family visits, school attendance, and tourism. Even applicants with serious criminal convictions, including aggravated felonies, may file for the waiver.

What are the Disadvantages of the Section 212(d)(3) Nonimmigrant Waiver?

1.  The waiver does not overcome every ground of inadmissibility and is not available to all non-immigrants

The 212(d)(3) waiver does not overcome inadmissibility grounds related to:

  • Security-related grounds (e.g. espionage, sabotage) [INA section 212(a)(3)(A)(i)(I) & (II), (3)(A)(ii), (3)(A)(iii)];
  • Foreign policy considerations [INA section (3)(C)];
  • Participation in Nazi persecutions [INA section 3(E)(i)]; or
  • Participation in genocide [INA section 3(E)(ii)]

Persons who are inadmissible under any of these grounds do not qualify for the 212(d)(3) waiver.

In addition, the 212(d)(3) waiver will not be given to K nonimmigrant visa applicants who are inadmissible under INA 212(a) grounds for which there is no immigrant waiver when they file for permanent residence. And if the INA 212(a) ineligibility ground may be waived after (or as a result of the) marriage to the petitioner, the K visa applicant must file a Form I-601, Application for Waiver of Ground of Inadmissibility, not a 212(d)(3) waiver request.

2. The waiver does not cover inadmissibility grounds that must be excused by a Form I-212 approval or grant of Consent to Reapply

Persons who have been previously removed from the U.S.  and are subject to a 5, 10 or 20 year-bar to re-entry [under INA section 212(a)(9)(A)(i) and (ii)] must file a Consent to Reapply or Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal. 

Furthermore, persons who face the lifetime bar under INA 212(a)(9)(C)(i)(II), i.e. illegal re-entry or attempted illegal re-entry, on or after April 1, 1997, following a removal order, may not use the 212(d)(3) waiver to be excused from this inadmissibility ground. Just like immigrant visa applicants, nonimmigrant visa applicants who are subject to the section 212(a)(9)(C)(i)(II) [9C2] bar must wait outside the U.S. for 10 years before they may file for the Consent to Reapply/Form I-212 waiver.

The Consent to Reapply or “I-212 waiver” must not be confused with the 212(d)(3) waiver. Compared to 212(d)(3) waiver applicants, CTR or Form I-212 applicants must meet higher eligibility standards and evidentiary requirements. For example, close family ties in the U.S. and unusual hardship to U.S. citizen or permanent resident relatives are strong favorable factors in an I-212 application, especially when it is connected to an Immigrant Visa request. These factors are not so important in a 212(d)(3) waiver application and might even work against a person seeking to visit the U.S. temporarily.

3. The grant of the waiver is completely discretionary

It is within the complete discretion of the Admissibility Review Office (ARO), which is part of the U.S. Customs & Border Protection (CBP), to grant the waiver. When you need to receive a visa from the U.S. Consulate, you also first need to convince this agency or the U.S. Department of State to recommend the waiver for the request to be forwarded to CBP.

Qualifying for the waiver doesn’t necessarily mean you will get it. The adjudications officer who weighs the 3 Hranka factors may find the negative factors outweigh the positive factors and deny the waiver request.

There is no formal appeal process. Typically, the only recourse it to file for the waiver again when circumstances change or when more supporting evidence is gathered.

Although the eligibility standards are flexible, the 212(d)(3) waiver is still hard to get, especially when the person is inadmissible due to serious criminal convictions and/or egregious immigration violations. The more recent the violation(s), the higher the obstacles in receiving the waiver.

In addition, to receive most nonimmigrant visas (such as B1/B2 visitor and F-1 student visa), you must overcome the presumption of immigrant intent under INA 214(b). In particular, you need strong ties to a residence abroad that will compel a timely departure from the United States and deter a violation of the terms of the visa. If the U.S. Consulate finds the INA 214(b) requirement is not met, it will not accept or review a 212(d)(3) waiver application.

Validity of the Waiver

The 212(d)(3) waiver may be issued for a maximum period of 5 years or up to the expiration of the visa, whichever is earlier. Normally, the waiver is valid for 1 year, especially for first-time applicants.

[UPDATE: In April 2016, the ARO announced it will generally approve 212(d)(3) waivers for a 5-year period, in both initial and renewal applications filed at the border entry points and at the U.S. Consulate, as of January 2017.  The one exception is for crewmembers whose granted waivers will be valid for two-year periods.]

In all cases, a waiver grant is not transferable to a new visa or to an extension or change of status. The waiver is valid for up 5 years or up to the visa expiration date, whichever is earlier. Once the visa expires, the person normally has to file for a waiver renewal (along with appropriate visa) to re-enter the U.S. as a nonimmigrant.

The authorized period of stay as a nonimmigrant — not the validity period of the waiver — determines when the person must leave the U.S. without violating immigration law.

Filing the 212(d)(3) Nonimmigrant Waiver  

The 212(d)(3) waiver application is filed either with the U.S. Consulate or with the CBP.

Waiver application at the U.S. Consulate

Applicants who need a nonimmigrant visa must file the 212(d)(3)(A)(i) waiver with the U.S. Consulate. When the 212(d)(3) waiver request is filed with the U.S. Consulate, no filing fee and no Form I-92 are required.

After the consular officer reviews your nonimmigrant visa application and makes an initial finding of inadmissibility, you may submit your waiver application on the day of the interview or days after the interview.

Assuming you are otherwise eligible for the visa, but for the inadmissibility bar, the consular officer ought to at least consider your waiver request. If the officer believes the waiver should be granted, he or she will make a favorable recommendation and forward the case to the CBP’s Admissibility Review Office for a final decision. If the officer does not recommend the waiver, the applicant may request review by the Department of State. (NOTE: The waiver application is not forwarded to the CBP’s ARO if the consular officer or Department of State determines the waiver request should be denied.)

If the ARO grants the waiver, the U.S. Consulate then decides whether to actually issue the nonimmigrant visa. Even when the 212(d)(3) waiver is granted, the U.S. Consulate may deny the visa for other reasons, e.g. the B-1/B-2 applicant failed to overcome the presumption of immigrant intent under INA 214(b). A waiver grant facilitates but does not guarantee the issuance of the visa.

Waiver application at the U.S. Port of Entry

Certain nonimmigrants do not require a visa to enter the United States for temporary visits. They include visa-exempt citizens of Canada, Palau, Federated States of Micronesia, and the Republic of the Marshall Islands.  [NOTE: Being visa-exempt is not the same as being a citizen of a Visa Waiver Program (VWP) country, where the applicant still has to receive authorization under ESTA. ESTA will not be granted to an inadmissible person.]

When a visa-exempt person files the 212(d)(3) waiver request with the CBP, a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant , plus the filing fee,  are required. The Form I-192 and accompanying documents should be filed in person with the CBP, months in advance of travel.

[UPDATE: Starting in mid-2019, eligible citizens of visa-exempt countries file the Form I-192 application through the online system, e-SAFE. Electronic filers need to go to the following ports of entry to complete the biometrics portion (fingerprints and photograph) of the waiver process: Blaine, Washington; Buffalo, New York; and Toronto Pearson International Airport. ] 

The CBP will forward the I-192 application and supporting documents to the ARO for further processing.

Exception

Inadmissible persons who are applying for T nonimmigrant status or U nonimmigrant status file the Form I-192 (waiver request) with U.S. Citizenship & Immigration Services (USCIS).

Processing Times

When the 212(d)(3) waiver request is filed with the U.S. Consulate, you can expect a normal processing time of 150 to 180 days before the ARO issues a final determination. The minimum processing time of 60 to 120 days is very rare.

When the 212(d)(3) waiver request is submitted directly to the CBP, you can expect a minimum processing time of 90 to 120 days, but it could be up to 150 to 180 days before the ARO issues a final determination.

Processing times are merely estimates and there can be long delays.

Work with an Immigration Attorney

The 212(d)(3) waiver, by itself, does not allow you to enter the United States. You still need the proper travel documents, including appropriate visa, to seek admission to the United States.

A 212(d)(3) nonimmigrant waiver request should include a cover letter/legal brief, affidavits and supporting evidence demonstrating why you are eligible for the waiver and deserve it as a matter of discretion. Having an experienced immigration attorney guide you through this process will make a positive difference.

For more information, watch the video:

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Changes to the Visa Bulletin: Understanding the Two Filing Charts

Posted on November 25, 2015 | Comments Off on Changes to the Visa Bulletin: Understanding the Two Filing Charts

queue

On October 1, 2015, the U.S. Department of State made changes to the monthly Visa Bulletin so there are now two different dates to track: the Application Final Action Dates (AFAD) and the Dates for Filing Applications (DFA).  The Bulletin revisions are meant to improve the backlog in the family-sponsored preference and employment-sponsored preference categories, where the demand for immigrant visas can – and often do – exceed the supply each year. In some categories, the wait for a visa to become available is as long as 5 to 10+ years.

Advantages with the New System

The priority date marks the applicant’s place in the visa queue. In the family-based categories, the priority date is the date USCIS received the Form I-130, Petition for Alien Relative or in certain cases, the Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant.

In employment-based categories, it’s the date the U.S. Department of Labor (DOL) received the application for alien labor certification or the date USCIS received the Form I-140, Immigrant Petition for Alien Worker (if no alien labor certification is required). In certain cases, it’s the date USCIS received the Form I-360 petition (EB-4, fourth preference category) or the Form I-526, Immigrant Petition by Alien Entrepreneur (EB-5, fifth preference category).

The AFAD chart is consistent with previous Visa Bulletins under the old system. AFADs are the cut-off dates that determine when an immigrant visa becomes available to Form DS-260, Immigrant Visa applicants or Form I-485, Adjustment of Status applicants, depending on their priority date, preference category, and country of chargeability.

The DFA chart is part of the new system and was first introduced in the October 2015 Visa Bulletin. DFAs are the cut-off dates that determine when Immigrant Visa applicants – depending on their priority date, preference and category – should receive notice from the DOS’ National Visa Center (NVC) instructing them to submit their documents for consular processing.

Each month, U.S. Citizenship & Immigration Services (USCIS) also determines whether eligible applicants in the U.S. may use the DFA chart, instead of the AFAD chart, for filing their I-485 applications. Current information is posted on the USCIS website at www.uscis.gov/visabulletininfo. When USCIS finds there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will state on its website that I-485 applicants may use the DFA chart in the Visa Bulletin.

In most cases, the DFAs are later than the AFADs. Example: In the December 2015 Visa Bulletin, the DFA for the family-sponsored, second preference, F2A category is March 1, 2015 (“01MAR15”). Meanwhile, the AFAD for this same category is June 15, 2014 (“15JUN14”). If the applicant’s priority date is April 30, 2015, or otherwise earlier than the DFA, he may file the I-485 with USCIS in December 2015, even though an immigrant visa is not yet available. Under the old system, the applicant’s priority date must have been June 14, 2014, or otherwise earlier than the AFAD, before he could file the I-485 in December.

In most cases, the new system allows Immigrant Visa applicants and sometimes Adjustment of Status applicants to get a head start on filing for permanent residence.

Even if the priority date is not current in the AFAD chart, an Immigrant Visa applicant may use the DFA chart to submit required forms and documents following receipt of instructions from the NVC.

If USCIS determines the DFA chart may be used in a particular month, it will accept I-485 adjustment applications when the applicant’s priority date is earlier than the cut-off date in the DFA chart. I-485 applicants may also file for and receive an employment authorization document (EAD) and advance parole (travel document).

Those who are stuck in the employment-based backlog have greater job mobility with an EAD that is based on a pending I-485. In particular, once an employment-based I-485 application is pending 180 days or more, “portability” rights generally allow the individual to change employers, as long as the new job is in the same or a similar occupation.

Limitations of the New System

Unless otherwise stated on the USCIS website, individuals seeking green cards within the U.S. must normally use the AFAD chart for determining when they may file their I-485 applications. When USCIS finds there are fewer immigrant visas available for the fiscal year than there are known applicants for such visas, I-485 applicants must use the AFAD chart, instead of the DFA chart, to file their applications.

All applicants still have to wait for the AFAD to become current before the green card or immigrant visa can be issued.

USCIS will not adjudicate or approve the I-485 until the priority date becomes current or is earlier than the cut-off date in the AFAD chart. Even if the applicant filed early under the DFA chart, it could be another year or so before he receives an I-485 decision or green card. A final decision on Immigrant Visa applications also cannot be taken until the AFAD becomes current.

When applicants file their I-485 or Immigrant Visa application early under the DFA chart, material changes may occur while they are waiting for the AFAD to become current. They might get arrested, charged and convicted of a crime that affects their eligibility for a green card. Waivers are available for only certain criminal-related grounds of inadmissibility in only some cases.

Furthermore, failure to report material changes in one’s case to USCIS or the U.S. Consulate may be construed as fraud or willful misrepresentation to gain immigration benefits. This is a lifetime bar to obtaining permanent residence. Fraud/misrepresentation waivers are available only to applicants with a U.S. citizen or permanent resident spouse or parent who would suffer extreme hardship if the applicant was not admitted to the U.S.

Generally, all I-485 applicants must submit a Form I-693, Report of Medical Examination and Vaccination Record, completed by a designated U.S. civil surgeon.

If the Form I-693 is filed with the I-485 under the DFA chart, it may expire by the time the AFAD is current and USCIS can issue a final decision on the I-485. To avoid re-doing the immigration medical examination, I-485 applicants might want to wait until receiving a Request for Evidence (RFE) or until the I-485 interview to submit the Form I 693.

The revised procedures in the Visa Bulletin does not change eligibility requirements for I-485 and Immigrant Visa applicants. For example, individuals must still be in lawful nonimmigrant status (e.g. H-1B or F-1) when they file an I-485 application in the family-sponsored or employment-based category. Those who are out of status in the U.S. normally do not qualify for adjustment of status. Instead, they must depart the U.S. to apply for an immigrant visa.

If they depart the U.S. after accruing more than 180 days to less than 1 year of unlawful presence, they trigger a 3-year bar to re-entry. The bar is 10 years if the unlawful presence lasted 1 year or more. To be excused from the 3/10 year bar so they may obtain an immigrant visa before the 3/10 years pass, they must apply for and receive an I-601 waiver. Getting the waiver requires them to show a U.S. citizen or permanent resident spouse or parent will suffer extreme hardship if they are not admitted to the U.S.

A pending I-485 generally provides “authorized stay” even if the person falls out status – as long as the I-485 is non-frivolous and was timely and properly filed with USCIS. But when possible, it is best to maintain or extend lawful nonimmigrant status (e.g. H-1B or L-1) until USCIS approves the I-485. Failure to maintain status leaves the person with no safety net if USCIS later decides to deny the I-485 or revoke the approval of the underlying visa petition.

The Visa Bulletin Matters to Green Card Applicants in the Family-Sponsored and Employment-Based Preference Categories, But Not to Immediate Relatives of U.S. Citizens 

The Immigration and Nationality Act (INA) limits the number of immigrant visas that may be issued, each year, to foreign nationals seeking to become lawful permanent residents in the family-sponsored and employment-based preference categories. Visas in these preference categories are not always available.

When demand exceeds supply of visas for a given year in a given category or country, a visa queue (backlog) forms. The DOS distributes the visas based on the applicant’s priority date, preference category, and country of chargeability.

When the priority date is earlier than the cut-off date in the AFAD chart, or the AFAD is “current” (“C”) for the preference category and country of chargeabilty, prospective immigrants can receive a final decision on their I-485 or immigrant visa applications.

If the Visa Bulletin shows “U” in a category, immigrant visas are temporarily unavailable to all applicants in that preference category and/or country of chargeability.

Immigrant visas for “immediate relatives” of U.S. citizens, however, are unlimited. An immigrant visa is always available to:

  • Spouses of U.S. citizens
  • Unmarried, minor children (under age 21) of U.S. citizens
  • Parents of adult U.S. citizens (age 21 or older)
  • Widows or widowers of U.S. citizens if the U.S. citizen filed a Form I-130 immigrant petition before his or her death or if the widow(er) files a Form I-360, self-petition within 2 years of the citizen’s death

When Possible, It’s Better to File When the DFA Is Current, Instead of Wait for the AFAD to Become Current

You don’t have to file your I-485 or Immigrant Visa application when the DFA is current. But there are several advantages to getting an early start. Filing under the DFA chart helps to ensure cases are ready to be approved when the AFAD becomes current.

Like AFADs, DFAs can roll back instead of move forward. Still, filing early provides some protection against visa retrogression. This is when a priority date that is current one month will not be current the next month, or the cut-off date will move backwards to an earlier date. Visa retrogression occurs when the visas have been used up or is expected to run out soon in the fiscal year. A new supply of visa numbers become available at the start of the fiscal year, October 1, but the priority dates might still take a while to return to where they were before retrogression.

While the new system does not involve any substantive changes in immigration law, it includes procedural changes that help to ease the backlog and provide some advantages to prospective immigrants.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Watch Out for Potential Delays and Snafus in H-1B Cap Filing

Posted on March 9, 2015 | Comments Off on Watch Out for Potential Delays and Snafus in H-1B Cap Filing

Every year on April 1, USCIS begins accepting H-1B cap petitions from U.S. employers. Congress sets an annual limit on the number of new H-1B visa petitions that can be approved each year. During the last several years, the regular cap of 65,000 visas and master’s cap of  20,000 visas has been reached in the first week of April.

Unless an exemption applies, employers should plan on filing their H-1B cap petitions on April 1, instead of relying on the filing window. An experienced immigration lawyer can help with identifying potential H-1B employees, resolving issues within the petitions, and preparing the forms and supporting documentation well in advance.

Although there’s still time for employers to prepare H-1B cap petitions for an April 1 filing, they need to watch out for potential delays and snafus.

1. Proving that the Foreign National Qualifies for an H-1B

To qualify for an H1B, the foreign national must normally have a bachelor’s degree in a particular field in or related to what USCIS will consider a “specialty occupation.”

A specialty occupation “requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation and which requires the attainment of the equivalent of an American bachelor’s degree or higher in a specific specialty as a minimum for entry into the United States.”

If the employee does not have the equivalent of a U.S. bachelor degree, he must show progressive work experience in or related to the H-1B position to meet the requirements for bachelor degree equivalency.

Obtaining Credentials Evaluation 

Foreign nationals who did not obtain their degree from a U.S. educational institution must show that their education is equivalent to a 4-year U.S. bachelor’s degree. This requires a “foreign degree/education evaluation” from a qualified credential evaluation service.

Obtaining the credential evaluation can take several days or weeks, especially during the months leading up to the H-1B filing season, when the demand for qualified credential evaluators is really high. The result of the evaluation often determine if the foreign national is eligible for an H-1B.

The credential evaluation service generally needs the foreign worker’s resume, transcripts, degree certificates and all other documents related to education in the specialty occupation.

Proving Progressive Work Experience

In some cases, the foreign national might need to prove that he has the equivalent of a bachelor’s or master’s degree based on the combination of the credential evaluation and proof of relevant work experience.

This includes situations where:

  • the person has a four-year degree from a foreign college or university, but the degree is not in the same field as the “specialty”
  • the person has some college education or related coursework, but did not obtain a degree
  • the person has no college education, but has many years of experience.
  • the person has a “bachelor’s” diploma, but it involved less than four years of post-secondary academic study

Standard proof of work experience includes a letter from a previous employer, academic adviser, or professor, stating the job title, hours worked per week, dates of employment, and description of duties.   The letters must show that the person’s experience has been progressively more responsible and demonstrates expertise in the field, either during the employment at a single company or at successive employers.

Although USCIS has not clearly defined  “progressive” experience, the experience letters must show that the person “progressed” in his specialty during his employment, taking on more duties and responsibilities over time.

2. Submitting Labor Condition Application

The employer must first submit a Labor Condition Application (Form ETA 9035) to the U.S. Department of Labor and get it certified before it files the H-1B petition. USCIS will reject or deny an H-1B petition that does not include a an LCA certified by the DOL and signed by the petitioning employer.

The DOL typically takes at least 7 days to process the LCA, but could take longer during the busy filing season. The DOL may reject LCAs that are not properly filled out. The rejection notice includes a list of problems that the employer must correct before it resubmits the LCA.

The LCAs are currently filed through an electronic system, iCert, which is vulnerable to breakdowns and technological glitches.

Furthermore, if the petitioning employer is relatively new or has not previously filed H-1B, it is possible that the iCert system will not recognize the FEIN. In that case, the employer might need to be pre-certified, which will add several days if not more to the timeline.

3. Filing the H-1B Petition

Avoid multiple or duplicative H-1B petitions

To ensure fair distribution of available H-1Bs, USCIS prohibits employers from filing multiple or duplicative H-1B petitions for the same employee. This means employers must not file both a master’s degree cap petition and a bachelor’s degree cap petition for the same employee.  The employer should also avoid filing multiple H-1B petitions using multiple jobs for the same employee.

USCIS will deny or revoke multiple or duplicative petitions filed by an employer for the same person and will not refund the filing fees.

Submit all required forms and supporting documents

USCIS has tips for filing H-1B petitions on its website. The critical steps are to:

  1. Complete all sections of the Form I-129 petition, including the H Classification Supplement and the H-1B Data Collection and Filing Fee Exemption Supplement.
  2. Include original signatures on all required forms, preferably in black ink.
  3. Provide all required documentation and evidence with the petition at the time of filing.
  4. Mail the petition to the correct USCIS service center.

Include required filing fees

In addition to submitting the required forms and supporting documents, the employer must also provide signed checks or money orders payable to U.S. Department of Homeland Security, signed and dated within the last six months, and include the proper amounts.

Employers should avoid submitting unnecessary excess fees and, more importantly, provide the required fees so that USCIS will accept the case and process the petition. USCIS will reject all petitions submitted with the incorrect filing fees.

The applicable filing fees are:

Base filing fee

  • $325

American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee: (see H-1B Data Collection and Filing Fee Exemption Supplement, Part B)

  • $750 for employers with 1 to 25 full-time equivalent employees, unless exempt
  • $1,500 for employers with 26 or more full-time equivalent employees, unless exempt

Fraud Prevention and Detection Fee

  • $500 to be submitted with a request for initial H-1B status or with a request for an employee already in H-1B status to change employers. (This fee does not apply to Chile/Singapore H-1B1 petitions.)

Public Law 111-230 Fee

  • $2,000 to be submitted by a petitioner that employs 50 or more employees in the United States, if more than half of those employees are in H-1B or L-1 nonimmigrant status (must be submitted with a request for initial H-1B status or a request for a beneficiary already in H-1B status to change employers).

Premium Processing Fee (optional, but generally recommended)

  • $1,225 for employers seeking Premium Processing Service

With premium processing, the employer receives a decision on the H-1B petition within fifteen days of the receipt notice , rather than wait several months for USCIS to process the H-1B petition.

Next Filing Season is in April; Other Visa Alternatives are Limited

H-1B visas are for foreign workers in specialty occupations, including scientists, engineers, computer programmers, accountants and teachers.

If the H-1B filing season is missed in the current year, employers will not be able to file H-1B cap petitions until April 1 (or earliest business day of April) in the following year, and cap-subject foreign workers will not be able to start employment in H-1B status until October 1 of that year.

Employers must prepare to file their H-1B cap petitions in early April to increase their chances of hiring foreign talent this year. Otherwise, they might need to look into other visa options, which are few and far between.

Get Help from an Experienced Immigration Attorney

Employers should get help from an experienced immigration attorney to avoid potential delays and snafus in their H-1B filings.

An experienced immigration attorney helps streamline the process by identifying whether a foreign national is eligible for H-1B; providing advice on the required information, forms and documents to submit; obtaining a foreign credential evaluation if needed; submitting the Labor Condition Application to the DOL; preparing the H-1B filing packet, and timely submitting a properly prepared petition to the appropriate USCIS office.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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H-1B Filing Season Begins April 1 (visas expected to run out in first week)

Posted on March 6, 2015 | Comments Off on H-1B Filing Season Begins April 1 (visas expected to run out in first week)

On April 1, USCIS begins accepting H-1B cap petitions for employment in each fiscal year (October 1 of the current year through September 30 of the next year).

Employers who wish to have cap-subject foreign workers start employment in the new fiscal year should prepare to file their H-1B petitions on April 1.

F-1 student visa holders using Optional Practical Training (OPT) work authorization and foreign nationals who have never held H-1B status are subject to the H-1B cap.

What is the H-1B Cap? 

Congress sets an annual limit on the number of new H-1B petitions that USCIS can approve each fiscal year. This is known as the H-1B cap. 

Although Congress may increase or lift the cap, the current annual cap for new H-1B visas is 65,000. There is an additional 20,000 H-1B visas set aside for employees with a U.S. master’s degree or higher. Thus, the annual quota is 85,000 H-1B petitions.

Of the 65,000 H-1B visas, 6,800 are reserved for foreign workers from Chile (1,400) and Singapore (5,400), due to free trade agreements.  This effectively reduces the number of regular H-1Bs available to 58,200 for most visa applicants.

How Long is the H-1B Cap Filing Period?

USCIS accepts H-1B cap petitions until the annual quota is met.  In many recent years, the quota has been filled within the first five business days of April.

In fiscal year 2014, the regular H-1B visa cap of 65,000 was reached on April 5, 2013 (5 days). The U.S. master degree H-1B visa cap of 20,000 was reached on April 5, 2013 (5 days). 

In fiscal year 2015, the regular H-1B visa cap of 65,000 was reached on April 7, 2014 (5 days). The U.S. master degree H-1B visa cap of 20,000 was reached on April 7, 2014 (5 days).

Due to economic growth and increased demand for H-1Bs, the annual cap will likely be reached in the first few days of April this year.

What is the H-1B Visa Lottery?

USCIS monitors the number of H-1B filings and notifies the public of the date on which it receives enough petitions to reach the cap. This date is known as the “final receipt date” (final day of acceptance).

If USCIS receives more H-1B petitions than it can accept, it will use a visa lottery system to randomly select the number of petitions required to reach the annual cap. This involves a computer-generated random selection of H-1Bs from the pool of petitions received on the final day of acceptance.

USCIS labels and identifies each of the petitions with a unique number that is used for random selection. The lottery allows USCIS to apply the remaining number of H-1B visas to the petitions received on the final receipt date.

USCIS first conducts the random lottery of the 20,000 H-1B cases eligible for the master’s cap exemption. Those cases not selected under the H-1B masters cap will then be included in the random lottery for the regular 65,000.

USCIS sends the list of all selected petitions numbers to the service centers. The USCIS service centers will then process and adjudicate the selected petitions.

Cap-subject H-1B petitions that are not randomly selected, as well as those received after the final receipt date, will be rejected and returned to the attorney or employer with the filing fee(s).  If there were duplicative or multiple filings for an employee by the same employer, no fee will be returned.

[UPDATE: On December 6, 2019, USCIS announced it would implement the electronic registration process for the fiscal year 2021 (FY 2021) H-1B cap. Prospective petitioners seeking to file H-1B cap-subject petitions, including for beneficiaries eligible for the advanced degree exemption, must first electronically register and then pay the associated $10 H-1B registration fee for each beneficiary. Only selected registrants may file an H-1B cap-subject petition.]

Who is Exempt from the H-1B Cap?

The H-1B cap does not apply to cap-exempt employers or cap-exempt foreign workers. Cap exemptions apply if:

  • Your employer is an institution of higher education (e.g. a college or university)
  • Your employer is a non-profit organization affiliated or related to an institution of higher education (e.g. a hospital or research facility)
  • Your employer is a non-profit research organization or government research organization
  • Your employer (third party petitioner) is  not cap-exempt, but your employment is at an H-1B exempt institution (i.e. you will physically work at the institution of higher education or related or affiliated nonprofit and there is “nexus” between the work performed and the normal purpose of the nonprofit).
  • Your employment is concurrent with exempt employment
  • You were previously counted against the H-1B cap in the last six years (i.e. you were the beneficiary of an approved cap-subject H-1B petition with an effective date within the preceding six years, whether you are in the U.S. or abroad).   [UPDATE, July 2017: USCIS has taken the position that you must have entered the U.S. under the previously approved petition and actually held H-1B status to qualify for this cap-exemption. See, e.g. Matter of T-S-,INC., AAO Decision.] If you worked in the U.S. on H-1B for under 6 years and have been outside the U.S. for more than 1 year, but less than 6 years, a cap-exempt petition may be filed at any time. But you would be eligible to receive only the remainder of the time left from the original 6-year maximum. Otherwise, if selected in the annual lottery, a cap-subject petition may be filed as early as April, which would make you eligible for a new six-year maximum.
  • You have a U.S. master’s degree (until the 20,000 master’s cap runs out)
  • You are a physician with a Conrad 30 J-1 waiver, regardless of the nature of your employer

The H-1B filing period does not apply to employees who already have H-1B visa status, either with their current employer or with a previous employer. An H-1B petition that is not subject to the cap may be filed at any time and not be subject to the annual quota.

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The filing date is when USCIS receives the H-1B petition (required forms, supporting documents and correct filing fees), not the date that the petition is postmarked.

Employers and foreign workers need to be aware of potential delays and snafus, such as when obtaining a foreign credential evaluation and submitting the Labor Condition Application.

An experienced immigration lawyer can help with identifying potential H-1B employees, resolving issues within the petitions, and preparing the forms and supporting documentation well in advance.

If employers miss the current year’s H-1B filing season, the next earliest date they may file their H-1B cap petitions is April of the following fiscal year, in which case employment may not begin until October 1 of that year. This might require them to consider other visa options (e.g. O-1, L-1 and TN), which have drawbacks and limitations.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Risks of H-1B layoff or job loss (and how to overcome them)

Posted on December 12, 2014 | Comments Off on Risks of H-1B layoff or job loss (and how to overcome them)

Corporate restructuring and downsizing are not unusual in today’s business climate.

H-1B employees who face layoffs or job loss can change employers to keep their status and avoid departing the U.S. to apply for a new visa overseas.

Below are the main risks and consequences of an H-1B layoff or job loss and the steps the employee and employer can take to overcome them:

Risks and Consequences

Falling Out of Status

H-1B status through the sponsoring employer ends on the employee’s last day of work. Upon termination, employers must send a Notice of H-1B termination to U.S. Citizenship & Immigration Services (USCIS). USCIS may then decide to revoke the H-1B approval. The employee loses H-1B status upon termination of employment, not upon revocation.

There is no grace period following the layoff. Employees are out of status the day following their last day of work.  [UPDATE: November 18, 2016 – DHS published a final rule, effective January 17, 2017, granting a 60-day grace period allowing a terminated H-1B employee to leave the U.S. or find a new employer to file an extension petition, without violating their nonimmigrant status.]

Even if the employee receives severance pay following termination of employment, he is still out of status because he is not working under the terms of the H-1B petition. Receiving paychecks beyond the termination date is different from negotiating an extended termination date. Loss of lawful H-1B status means the employee is subject to removal from the United States.

Extension of status or change of status

In general, the employee must be in valid status to qualify for an extension of status (EOS) or change of status (COS). This means USCIS must receive the request to extend or change nonimmigrant status on or before the final day of the H-1B employment.

In limited circumstances, USCIS may exercise favorable discretion and overlook short gaps between the loss of status and filing of the EOS or COS request, especially if the layoff or job loss was unexpected.

Accumulating Unlawful Presence

Unlawful presence begins when the employee’s authorized period expires (i.e. the expiration date of the I-94 or upon USCIS’ issuance of notice ending the status, whichever is earlier). The timely filing of a new H-1B petition or request for change of status (e.g. to F-1 student or B-1/B-2 visitor) can also extend the authorized period.

3-year/10-year bar of inadmissibility

Foreign nationals who accumulate 180 days to 1 year of unlawful presence after April 1, 1997, and then depart the U.S., are barred from re-entering the U.S. for 3 years (unless they qualify for a waiver).

Foreign nationals who accumulate 1 year of more of unlawful presence after April 1, 1997, and then depart the U.S., are barred from re-entering the U.S. for 10 years (unless they qualify for a waiver).

Steps the Employee and Employer Can Take

1. Employee: File a new sponsoring employer and qualifying job

Advance notice of the layoff provides time to look for a new job prior to termination of employment. The job must qualify as a specialty occupation and the employer must be willing to file the Form I-129, H-1B extension petition.

If a new employer files a new H-1B petition prior to the H-1B revocation or prior to termination of employment, the employee will be in an “authorized period of stay” while the new petition is pending.

H-1B portability allows the employee to change to a different job with a new employer without the risk of being out of status.

2. Employer: File the H-1B extension petition as quickly as possible, preferably before the employee is terminated from the old job

Normally, an application to change status (e.g. H-1B to F-1 student or B-1/B-2 visitor) or extend status (e.g. transfer or porting of H-1B to a different employer) must be filed while the foreign national is still in lawful status.

To obtain an H-1B extension, the new H-1B petition with approved labor condition application must be filed with USCIS before expiration of status, revocation of status, or termination of employment (whichever is earliest). USCIS typically requests paystubs to verify when employment with the prior employer ended.

An employee can have multiple H-1B visas, so the new employer does not have to wait until the old job is lost.

The regulations, however, indicate that USCIS may, in its discretion, excuse a late filed petition when there are extraordinary circumstances beyond the employee’s control or the petitioning employer’s control.

The delay in filing must be commensurate with the circumstances; the foreign national must not have otherwise violated his nonimmigrant status; the foreign national must be a bona fide nonimmigrant; and the foreign national must not be in removal proceedings.

NOTE: USCIS may approve the new H-1B petition even if it denies the extension of status. In that case, the employee would need to depart the U.S. to consular process the H-1B visa overseas. If the 3-year/10-year bar applies, the visa applicant will also need to obtain a 212(d)(3) waiver.

3. Employer: Request Premium Processing of H-1B petition

The employee does not officially have H1B status and work authorization until USCIS actually approves the new petition. The employer may request premium processing (i.e file Form I-907) to receive a quicker decision.

4. Employee: Start working only after USCIS receives the new H-1B petition or, better yet, after USCIS approves it

H-1B portability generally allows  the employee to work for a new employer without needing to depart the U.S. for a new H-1B visa.

The H-1B portability criteria are: (1) the foreign national was lawfully admitted; (2) the new H-1B petition is “nonfrivolous”; (3) the new H-1B petition was filed before the date of expiration of authorized stay period (as stated on the I-94 card); and (4) subsequent to lawful admission, the foreign national has not been employed without authorization before the filing of the petition.

When the H-1B change of employer petition is timely filed, the employee is generally eligible to work when USCIS issues the receipt notice. But the employee should wait for the H-1B approval rather than rely on H-1B portability when the new petition is untimely (i.e. filed after the employee is terminated by the prior employer and falls out of H-1B status).

If the H-1B extension request is denied, the denial is retroactive to the date the petition was filed. Although portability allows the employee to work for the new employer until the date of denial, once the petition is denied, the employment is no longer authorized and the employee is out of status.

If USCIS approves the H-1B extension petition, the “interim” work authorization ends. USCIS may do one of two things:

(1) use its discretion and approve an extension of status, permitting the employee to stay in the U.S. in H-1B status and continue working for the new employer; or (2) deny the extension of status request and require the employee to depart the U.S., and obtain an H-1B visa at the U.S. Consulate.

(If the employee already has a valid H-1B visa from the old employer, he may present that visa with the new Form I-797, H-1B approval notice to request re-entry into the U.S. But it’s better to get a new visa with a new expiration date. )

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H-1B extensions beyond the normal 6 years require the employee and employer to consider other risks and take additional steps. Look out for a future article on this issue.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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