Appealing an H-1B Visa Decision What It Looks Like
Categories USCIS

Appealing an H-1B Visa Decision: What It Looks Like

Although U.S. courts are not loaded up with appeals of H-1B visa decisions, appealing such a decision isn’t out of the question. Immigration officials are human beings. Sometimes they make decisions that need to be corrected. When such a decision involves an H-1B visa denial, it can be appealed.

We recommend utilizing the services of an experienced H-1B visa attorney. There are multiple reasons for this, the first of which being that immigration cases are handled mostly under an administrative law arrangement. Cases are also managed mostly on paper. Appealing an H-1B visa is nothing like the court dramas you see on TV.

Although every case is different, here is a description of what a typical case looks like:

1. A Denial Notice Is Issued

Having to appeal an H-1B decision begins with the USCIS issuing a notice of visa application denial. This document outlines the reason or reasons for the denial. It is imperative that the applicant or their attorney understand the specific reasons so that a successful appeal can be put together. This is yet another reason we recommend an experienced H-1B visa attorney.

2. Putting Together the Appeal

The government’s denial notice should make it pretty clear why the application was rejected. Now it is up to the applicant and his or her attorney to address the shortcomings identified by USCIS. Any shortcomings that can be adequately addressed should be.

This could be as easy as producing additional documentation. It could mean submitting detailed explanations for things that appear questionable. In many cases, appealing an unfavorable H-1B decision involves nothing more than providing additional information that proves the immigrant worker’s job qualifies as a specialty occupation under the H-1B rules.

3. Filing a Notice of Appeal

In order to appeal in H-1B visa decision, the applicant or her attorney must file Form I-290B, Notice of Appeal or Motion within 30 days of receiving the government’s denial notice. This form is the tool that facilitates the appeal process. It needs to be filled out completely and submitted within the deadline along with a filing fee.

In addition to the form, we strongly urge filing a legal brief explaining why the original decision should be overturned. This takes us right back to hiring an experienced H-1B visa attorney. The stronger the legal arguments in favor of overturning the original decision, the greater the chances of winning the appeal.

4. Official Government Review

Upon receipt of the documentation, the USCIS Administrative Appeals Office is compelled to conduct a review. Officials review both the appeal documents and the original application. They make a decision from there. In some cases, officials may ask for more information before rendering a decision.

One of two decisions will be reached:

  • Approval – Upon review, government officials could ultimately reverse the original decision, thereby approving the applicant’s H-1B visa petition.
  • Denial – Conversely, officials could uphold the denial. In such a case, it would be up to the immigrant worker and his attorney to figure out the next move. One possibility is filing a federal lawsuit. Another is looking to see if the applicant meets the requirements for another type of work visa.

Appealing immigration decisions is difficult by design. Workers whose applications have been denied should be aware that success is not guaranteed. Filing an appeal doesn’t mean you win.

If you or your employer is struggling to figure out what to do after your application has been denied, we invite you to contact Graham Adair. One of our experienced H-1B visa attorneys would be happy to look at your case and discuss the possibility of an appeal.

Be Advised That the New USCIS Fee Schedule Is Now In Force
Categories USCIS

Be Advised That the New USCIS Fee Schedule Is Now In Force

As you may know, the USCIS proposed a new fee schedule for 2024. That fee schedule, the first produced by the USCIS since 2016, went into effect on April 1. Most immigration forms requiring an application fee are subject to the new fees if postmarked on or after April 1.

It now costs more to file an immigration application. That much was expected. However, USCIS also implemented several significant changes along with the higher fees. We will outline the new fees and the most important changes below. If you have any questions about how the new fees or rules might affect your visa application, Graham Adair business immigration attorneys would be happy to help you figure things out.

A Summary of the New Fees

Looking over the new fee schedule reveals a missing component: biometrics fees. That is because USCIS will not be charging those fees separately. Instead, the biometrics fee is now rolled into the standard fee for each type of application.

For example, the old fee schedule for N-400 included a $640 application fee and a biometrics fee of $85 for a total of $725. The new, all-inclusive fee is $760. Likewise, the combined I-485 fee of $1,225 was increased to a single $1,440 fee as of April 1.

In a series of FAQs regarding the new fee schedule, the USCIS made it clear that most of the fee increases are limited to “no more than the increase in the Consumer Price Index since 2016, which is 26%. Many such fees will increase by well under 26%.” This essentially means that the fees were adjusted for inflation.

A Summary of the New Rules

As for the new rules accompanying fee increases, rolling biometric fees in with standard fees is just the start. Applicants should also be aware that more types of applications now qualify for automatic fee exemption. These include applications for special immigrant juveniles, human trafficking victims, and those subject to domestic violence. No waiver application is necessary.

Additional rule changes include the following:

  • Temporary Protected Status applicants will be an exception to the biometric fee change. They will still pay a separate $30 fee.
  • Rule changes will now allow a larger number of low-income applicants to get a 50% discount on application fees.
  • Filing applications online could mean a $50 discount. However, not all applications can be filed online at this time.

There are other rule changes the time and space will not allow us to deal within this post. Needless to say, there is a lot to know and learn about immigration application fees. It is yet another reason to work with an experienced immigration attorney.

Why Fees Have Gone Up

It is worth noting why USCIS has implemented their new fee schedule. It boils down to administrative costs. The government agency is funded almost exclusively by application fees. Their costs have gone up just like everyone else’s. The fact that they have managed to toe the line for the better part of eight years is noteworthy. But in the end, the USCIS needs additional funding to do what it does.

If you have any questions about business immigration or need help navigating the system, Graham Adair immigration attorneys stand ready to assist. Business immigration is our specialty. We can help you complete paperwork, prepare supporting documentation, and even understand a complicated filing fee system. Given the complex nature of U.S. immigration law, working with an experienced attorney is your best bet for successfully getting through the system.

Categories News & Updates USCIS

Form I-693 Validity Period: Unlimited

Adjustment of Status applicants do not have to worry about validity of medicals anymore. On April 4th, 2024, USCIS announced that any Form I-693, Report of Immigration Medical Examination and Vaccination Record, that was properly completed and signed by a civil surgeon on or after November 1st, 2023, does not expire and can be used indefinitely as evidence to show that the applicant is not inadmissible on health-related grounds.

While there is no expiration date for medicals anymore, here are some important considerations to keep in mind:

1.    USCIS officers have discretion to request more evidence or a new or updated Form I-693 if they have reason to believe the applicant’s medical condition has changed since the civil surgeon signed the Form I-693, or that the Form I-693 submitted does not accurately reflect the applicant’s medical condition and the applicant may be inadmissible on health-related grounds.
2.    If an applicant’s immigration medical examinations were completed before November 1st, 2023, the prior policy still applies. These medicals continue to retain evidentiary value for two years from the date of the civil surgeon’s signature.

Please ensure your medicals are properly completed in order to avail their unlimited validity. If you have any case specific questions, please contact your Graham Adair attorney or write to us at info@grahamadair.com.”

Exciting News for EAD applicants
Categories News & Updates USCIS

Exciting News for EAD applicants!

On April 4, 2024, USCIS announced a temporary final rule that increases the automatic extension period for employment authorization and EADs available to certain EAD renewal applicants from up to 180 days to up to 540 days.

This temporary final rule will apply to two categories of EAD applicants: (1) applicants who timely and properly filed their Form I-765 applications on or after Oct. 27, 2023, if the application is still pending on April 8, 2024; and (2) applicants who timely and properly file their Form I-765 application on or after April 8, 2024, and on or before Sept. 30, 2025.

Are you interested to know if you are eligible for the automatic EAD extension? Below is a series of questions to help you assess whether you qualify for automatic EAD extension.

1.    Did you file Form I-765 for renewal of your employment authorization before your current EAD expired?

¨    If yes, proceed to the next question.
¨    If no, you are not eligible.

2.    If you are an H-4 dependent spouse, do you have an unexpired Form I-94 indicating H-4 nonimmigrant status?
¨    If yes to both Q.1 & 2, you are eligible for the automatic 540-day extension. Congrats!

3.    Did you request any of the following eligibility category on your Form I-765 renewal application?

a(3); a(5); a(7); a(8); a(10); a(12); a(17); a(18); c(8); c(9); c(10); c(16); c(19); c(20); c(22); c(24); c(26); c(31)

¨    If yes to Q.1 & 3, you are eligible for the automatic 540-day extension.
¨    If no, you are not eligible.

Individuals with a TPS-based EAD may receive an automatic extension of their EAD either:

Through publication of a Federal Register notice extending the TPS designation of the individual’s country, if the Federal Register notice also authorizes an automatic extension of covered individuals’ existing EADs; or
Through this automatic extension.

For case specific questions, please reach out to your Graham Adair attorney or contact us at info@grahamadair.com.”

The EB-5 Visa Perfect for Investors Looking to Create Jobs
Categories USCIS

The EB-5 Visa: Perfect for Investors Looking to Create Jobs

Our posts tend to focus a lot on the H-1B visa simply because it is one of the most popular for companies trying to bring in foreign born workers. But truth be told, there are dozens of employment and business immigration visas in play. Because companies cannot apply for an EB-5 on behalf of an employee, one that does not get a lot of attention is the EB-5 visa for foreign investors.

The EB-5 Immigration Investor Program represents a pathway to permanent residency by way of a green card. The U.S. makes this pathway available to foreign investors willing and able to make substantial investments in businesses that create jobs. A successful investor can secure green cards for him or herself and all immediate family members.

As with all things in business immigration, successfully applying for an EB-5 visa requires knowing your way around U.S. immigration. Even the best investors need help, which is why we always advise retaining the services of a business immigration attorney. Attorneys specializing in immigration law are the most qualified to help with the EB-5.

Minimum Requirements for Investors

U.S. immigration law sets some minimum standards for the EB-5 Immigration Investor Program. They include minimum investment amounts. In order to obtain an EB-5 visa, a foreign investor must meet one of the following two requirements:

  1. Invest a minimum of $1.05 million in urban areas with low unemployment; or
  2. Invest $800k in rural areas or areas with high unemployment.

Those areas with high unemployment are also known as Target Employment Areas (TEAs). Furthermore, in addition to meeting one of the two conditions, the business a foreign investor puts money into must either create or preserve a minimum of ten full-time jobs for people already authorized to work in this country. Such workers include citizens, permanent residents, and authorized immigrants.

Direct and Indirect Investment

The next thing to know about the EB-5 visa for immigrant investors is how qualifying investments can be made. The first method is through direct investment. The immigrant investor either starts a new business or invests in an existing company. With either option, the investor must directly manage the job creation aspect. Another way to look at it is that the investor must be directly responsible for creating or maintaining the required number of jobs.

A second way to qualify for the visa is to invest through a regional business center. How does it work? A number of investors pool their financial resources into a regional center approved by the USCIS. That center manages a portfolio of qualifying businesses. It is responsible for managing the job creation aspect.

The indirect investment option is a good choice for foreign born investors not looking to become directly involved in the day-to-day operations of a company on U.S. soil. It still requires a significant investment from the immigrant seeking the visa but without requiring that the applicant have considerable business skill or experience.

Other Things to Know

In closing, there are a couple of additional things to know about the EB-5 visa. First of all, the law doesn’t require any minimum education or work experience. As long as an investor has the financial resources and can meet the other conditions, permanent resident cards can be issued.

Completing EB-5 paperwork and meeting program deadlines can be complicated. Because applying for the visa is so complex, we recommend working with an immigration attorney. Graham Adair can help. Contact us to learn more about this unique visa and how we can help you complete the application process. The EB-5 could be the pathway to permanent residency for you and your family.