Author Archives: Oscar Pena

Most issues governing U.S. immigration are handled at the federal level. States have little say in immigration, although a small number of immigration policies are a matter of international law. So for all intents and purposes, Washington dominates the discussion. And in Washington are the ‘Big 4’ players: Congress, USCIS, ICE, and CBP.

The latter three agencies are all part of the Department for Homeland Security (DHS), an agency that was formed in the years immediately following the 2001 terrorist attacks on New York, Washington, and Pennsylvania.

As a law firm specializing in business immigration, it is incumbent upon us to understand how all four players influence immigration policy and enforcement. Your company may never have direct interactions with any of the entities other than USCIS. Nonetheless, it is wise to have a good business immigration attorney you can turn to.

U.S. Congress

Everything relating to U.S. immigration starts with Congress, even business immigration. Only Congress has the authority to pass legislation relating to immigration matters. They also have the authority to create departments like DHS and give them regulatory authority. In essence, the other three players in immigration derive their authority from Congress.

This dictates that Congress exercises the most control over business immigration. Even though senators and representatives rarely get involved directly, their actions on Capitol Hill shape what the other players do and, by extension, the practical impacts of federal immigration policy.

The Immigration Service (USCIS)

The U.S. Citizenship and Immigration Service (USCIS) is the main administrative entity of national immigration policy. You have dealt with this agency if you’ve ever attempted to help foreign-born workers get H-1B visas prior to entry. The agency’s main priorities are:

• administering immigration benefits
• processing immigration and naturalization applications
• issuing green cards and checking on green card status
• issuing non-immigrant visas
• issuing work authorizations
• handling political asylum issues.

If something related to business immigration has to do with administration in any way, USCIS will be involved. Among the Big 4 players, this is the agency we deal with most often in our capacity as business immigration attorneys.

Immigration and Customs (ICE)

U.S. Immigration and Customs Enforcement (ICE) is one of two enforcement arms within the DHS. Its primary mission is to enforce federal laws at the border. ICE is active at both our northern and southern borders. They can also be found operating in other parts of the country.

ICE performs its functions from a public safety perspective. But their activities are not limited strictly to preventing illegal border crossings. They are also involved in customs and trade and immigration issues.

Border Patrol (CBP)

U.S. Customs and Border Protection (CBP) is often referred to colloquially as the ‘Border Patrol’. Their main priority is to prevent illegal admission of both people and cargo into the country. They have a huge responsibility in the fight against terrorism.

CBP agents are active at both U.S. borders. Patrol officers do just what their names imply: patrol the borders in order to control access. Other officers work in customs offices, checking travel documents when people arrive by land, sea, and air. Still other officers are tasked with inspecting cargo as it comes into the country. CBP is even responsible for inspecting exported cargo before it leaves the country.

The chances are that you and your company will never have to interact with immigration’s Big 4 players. But if you do, we can assist with qualified immigration attorney services. Graham Adair specializes in immigration law. We can assist with everything from immigration paperwork to expert legal representation.

The H-1B visa is a non-immigration visa awarded by the U.S. to foreign-born workers in specialty occupations who wish to work in this country. As experienced H-1B visa attorneys, we can tell you that this particular visa is not easy to get. It requires specific qualifications. It also has specific term limits.

For all intents and purposes, H-1B visas are only granted to foreign workers employed in what is considered a specialty occupation. This type of occupation is one that requires professional-level training and knowledge demonstrated through either a college degree or equivalent work experience. Software development and cyber security would be two prime examples.

Time Limits: H-1B Duration

Because the H-1B visa is a non-immigration visa, it does have a time limit attached to it. The standard duration is a six-year term. The initial H-1B petition is typically approved for a three-year period and can be extended for an additional three years.

Applying for an extension requires the worker’s employer to file a new H-1B petition with the U.S. Citizenship and Immigration Service (USCIS). The same eligibility requirements would apply, and similar documents would have to be furnished. Employers can generally handle it on their own. However, working with an experienced H-1B visa attorney can mean the difference between a streamlined process and delays, not to mention the possibility of denial.

Reapplying After Six Years

Under certain circumstances, USCIS will grant subsequent extensions. As such, H-1B visa holders wishing to stay beyond six years need to apply for a new visa before the current one expires. Unfortunately, federal law limits the number of H-1B visas issued every year. Visas are awarded on a lottery basis. This means there are no guarantees that a current visa holder applying for a new visa to continue their stay will be successful.

The USCIS also gives preference to those workers with master’s degrees. Almost one-third of all H-1B visas are set aside for them. A current visa holder with a bachelor’s degree can help their own cause by working toward a master’s degree even while employed full-time here. These individuals qualify for the 20,000 set-aside for those with advanced U.S. degrees, which means their chances of selection in the annual lottery is notably higher. 

Applicants Must Be Sponsored

All initial and H-1B extension applications must be filed on behalf of the foreign worker by a U.S. based employer. The employer essentially sponsors the worker. Sponsorship includes verifying the worker’s job and agreeing to take at least some measure of responsibility for the worker as long as they remain in the country.

We recommend planning ahead regardless of whether you are an employee looking to bring foreign workers here or a foreign-born worker hoping to come here to work. The sooner you start the process, the better it will be. Waiting until the last minute only creates opportunities to get bogged down in all the red tape.

An Attorney Makes Things Easier

Although the H-1B visa itself is not complicated, the process for applying can be. There are deadlines to pay attention to. There are numerous documents that need to be completed accurately and submitted to the right departments. It only takes one mistake to see an application mired in bureaucracy.

We say all this to recommend working with an experienced immigration attorney rather than going it alone. An attorney makes things easier by guiding applicants through the process step-by-step. Attorneys can answer questions, double check paperwork, and give recommendations as to how to complete the process with as few issues as possible.

Navigate the process correctly and obtaining an H-1B visa becomes very possible. Remember, the standard duration of an initial H-1B is three years. Extending it to six years is usually not a problem if an employer is willing to continue sponsoring you.

The typical business immigration attorney is very familiar with the concept of H-1B applicants failing to score their visas due to not being picked in the annual lottery. Whether or not the current lottery system is the best way to determine winners and losers, those who do not get their visas often feel hopeless and helpless. But there are other options for lottery losers.

Visas come in all shapes and sizes, so to speak. The H-1B visa is limited in terms of the number awarded each year because it is considered a specialty visa. But it’s not unusual for H-1B lottery losers to be eligible for other types of visas. Just because an applicant does not get past the lottery doesn’t mean their chances of coming to the U.S. are completely lost.

Only 85K Visas Annually

Immigration attorneys are quick to point out that the number of H-1B visas awarded annually is not very high compared to the total number of visas issued. Federal law limits H-1Bs to 85,000 annually. Of that number, 20,000 are reserved for workers with master’s degrees.

In the unlikely event that there are fewer applications than available lottery slots, every applicant in that particular year would be awarded a visa. Trust us when we say that this doesn’t happen very often – if it has ever happened at all. Nonetheless, workers need to get their applications in just to be considered for the lottery.

What to Do After the Lottery

Annual lottery winners are good to go. They get their visas and start work right away. As for lottery losers, it is a matter of figuring out where a worker stands and what other options might be available.

As an immigration law firm with many years of experience, we have advised countless numbers of H-1B visa applicants on the next course of action following a losing lottery. Here is just a small sample of the possibilities:

• B-1 in Lieu of H-1B – The B-1 visa is similar to the H-1B. It is designed for workers in specialty occupations who need to come to the U.S. to work as an official employee of a foreign company. Some rejected applicants are eligible for a B-1 in lieu of the H-1B.
• L-1 Intracompany Transfer – The L-1 can be utilized by foreign workers needing to transfer to the U.S. to work in an American office owned and operated by a foreign company. Certain conditions, like the specialty occupation requirement, apply.
• Country-specific work visa, such as TN, H-1B1, or E-3.
• J-1 visa for interns and trainees.
• F-1 visa for students, who can work while being enrolled in school.
• Investor visa, such as E-2.

There are still other options that time and space do not allow us to discuss in this particular post. Perhaps they will be topics of future posts. At any rate, the main thing to understand is that there are other options to look into when H-1B visa applicant doesn’t make it through the annual lottery. Losing out on the lottery does not necessarily mean giving up.

We Are Here to Help

Graham Adair specializes in U.S. immigration law. We are immigration attorneys who give our full attention to assisting employers and foreign-born workers as they navigate immigration laws and policies. We are here to help.

If you are an employer or an H-1B applicant needing advice after losing out on the annual lottery, do not hesitate to contact us.

There may be other avenues we can utilize to get around H-1B limits. There are no guarantees, but there are also no solutions if you don’t at least try.

Recent changes to the rules governing the Form I-693 medical form could be helpful to business immigration applicants who plan to eventually file for permanent residency. The changes give green card applicants more time to file the form following a medical exam.

The changes should not have a significant impact on foreign-born workers not planning to seek permanent residence. But for those who do want to stay in the U.S., including those who might be here on visas other than the H-1B visa, the change is significant.

More About Form I-693

Gaining entrance into the U.S. as an immigrant involves a ton of paperwork. The same goes for applying for a green card. One of the forms green card applicants must submit is the Form I-693 Report of Medical Examination and Vaccination Record. Why is the form required?

It is required to prove that an immigrant seeking a green card is not otherwise inadmissible to the U.S. due to public health concerns. It is filed by immigrants already in this country on any type of temporary visa.

The thinking is this: a foreign-born national who would be denied admission to the United States for medical reasons might not have any issues when first coming to this country to work or visit. Perhaps a worker comes on at H-1B visa while in perfectly good health. But after arriving, that person develops some sort of medical condition that makes them inadmissible.

The form is proof that no such condition exists. It needs to be completed and signed by a civil surgeon and submitted along with the applicant’s green card forms. The form simply attests to the fact that a medical doctor has examined the patient and determined that there are no health concerns that would prevent issuing a green card.

60 Days to 2 Years

With all the formal stuff out of the way, let us talk about the big change. In the simplest possible terms, the U.S. Citizenship and Immigration Service (USCIS) has changed the timeframe for completing and submitting Form I-693. Gone is the 60-day requirement. Applicants can now file the form within two years of completion.

This is extremely helpful for those who get their medical examination completed, but then have their case delayed for one reason or another. Instead of needing to redo the medical exam, applicants can use the one previously acquired so long as it is less than two years old.

Changing from 60 days to two years is pretty significant. Immigrants no longer need to scramble to see a doctor and get the form submitted within such a short window. Given the amount of time it now takes just to get a doctor’s appointment, 60 days is cutting it close anyway.

Extending the timeframe to two years also helps in the sense that immigrants here on work visas might not always stay in the same place during their entire tenure. That can make finding a civil surgeon capable of completing the form somewhat challenging. With the change, an immigrant can start looking for a civil surgeon the moment the decision is made to apply for green card status. A completed form is now valid for two years.

We Are Here to Help

We do not expect the Form I-693 change to affect the vast majority of immigrants in the U.S. on H-1B visas. Still, it could have an impact on those who choose to apply for green cards.

As an immigration law firm, we are here to help employers and their foreign workers in whatever way we can. Immigration law is complex and quite difficult to navigate. Our immigration attorneys are here to answer questions, assist with form completion and submission, and more. If you would like to know more about how Form I-693 could impact you, feel free to contact us. Our doors are always open.