H-1B Layoffs: Filing for a Tourist Visa as a Last Resort
Categories Immigration and Customs Enforcement

H-1B Layoffs: Filing for a Tourist Visa as a Last Resort

Although the H-1B visa program affords the opportunity to work in the U.S. for tens of thousands of workers annually, things do not always go as planned. H-1B workers can, and do, get laid off from time to time. We saw a wave of layoffs in 2022 and again in 2023. Although laid off H-1B workers can file for a different U.S. immigration status, many don’t have that option. 

The 60-Day Grace Period

A laid off H-1B worker is not required to leave the country immediately. Instead, they are automatically afforded a 60-day grace period. During that time, the worker can assess their options before making a choice. The three options are:

  1. H-1B Transfer – A worker’s H-1B visa can be transferred to a new employer without having to put the worker back into the lottery system. The employer still needs to file a petition which must be approved by USCIS.
  1. New Visa – A worker laid off from an H-1B-eligible job can apply for a new (different) visa during the grace period. This is where the idea of applying for a tourist visa comes in sometimes, although it should really just be considered an option of last resort.
  1. Leave the Country – The final option is to tie up loose ends and leave the country. Although unfortunate, some former H-1B workers find they are left with no other choice.

The most important thing to remember here is the 60-day grace period. A laid off worker really needs to take advantage of this time if they hope to stay in the U.S. A bit longer.

Transferring an H-1B Visa

Although a new employer looking to hire a laid off H-1B worker is not starting over from scratch, a transfer approval results in a new H-1B visa being granted – at least procedurally. But making all this work requires that the new employer files the transfer petition within the 60-day window.

What if the employee has already applied for a tourist (B1/B2) visa? A transfer petition can still be filed for consular processing, in which case it would be considered pending. Meanwhile, the tourist visa application is also pending. The employee in question would have to leave the country and re-enter should their H-1B petition be approved.

Sometimes the easiest way to do this is to take advantage of a process known as Third Country National (TCN) processing. The worker would leave the country and perhaps go to Canada for example, then head to the consulate to get an H-1B stamp.

The Tourist Visa Option

Laid off workers can begin looking for new jobs within their grace periods. Grace periods begin immediately following the last pay period applicable to the laid off worker’s job. Let us say the grace period is quickly closing and a laid off worker still has not found work. Some have opted to apply for a tourist visa to get up to six more months of time to search for new employment. During those six months, the laid off worker agrees to not work without authorization.

The worker must also certify that:

  • The layoff was unexpected and new work has not yet been found;
  • He or she has enough money to remain self-sufficient; and
  • He or she has not broken any laws while in the United States.

It should be obvious at this stage that applying for a tourist visa is not the best scenario after being laid off from an H-1B job. However, it is an option some have considered when all others fail. Here is hoping that you or your foreign-born workers never have to figure all of this out.

Everything You Need to Know About the H-1B Cap Season
Categories News & Updates

Everything You Need to Know About the H-1B Cap Season

Another H-1B Cap Season has come and gone. This year, it ran from March 6-25 after getting a slight extension due to technical difficulties. The next Cap Season will not occur until next year. Do you understand the H-1B Cap Season and how it applies to you as an employer looking to hire nonimmigrant workers under the H-1B program?

We highly recommend working with an H-1B visa attorney if your company and HR department are unfamiliar with immigration law. Although the H-1B program is not difficult to understand in principle, it can be particularly challenging to navigate. Indeed, it can be a nightmare for practical purposes.

The Basics of the Program

The H-1B visa program allows U.S. employers to bring in foreign workers on a temporary basis. Said workers are for specialty occupations requiring a bachelor’s degree (or equivalent) at minimum. It is not for more general occupations requiring little to no college education.

Also note that the program has participation limits. The current limit is 65,000 annually, with an additional 20,000 H-1B visas going to applicants who qualify under one of several exemptions. For example, some workers are eligible for the advanced degree exemption because they possess a master’s degree.

Annual Registration Period

Obtaining an H-1B visa requires applying with the United States Customs and Immigration Service (USCIS). Applications are filed as a joint effort between employer and prospective employee. They are accompanied by program registration, which is where the annual Cap Season comes into play.

The Cap Season is that brief window of time when the USCIS accepts H-1B visa applications. It is typically held in the spring and lasts for about a month. However, USCIS is allowed to modify the schedule, as they did this year.

Despite the limited amount of time applicants have to register, USCIS typically gets more applications than it can approve. In the event there are fewer applications than available visas, registration can either be extended or the unused visas can be carried over to the following year. This has not happened for many year. Demand always exceeds supply, at least in recent history. 

Registering This Year for Next Year’s Visas

Applying for an H-1B visa in 2024 does not mean getting a visa this year. Rather, applying in 2024 is for obtaining a 2025 visa. USCIS is always working a year ahead. This gives them time to review and process all the applications. The government’s fiscal year starts in October, so new H-1Bs for FY 2025 will begin in October 2024. 

Following Up with a Petition

Once registration officially closes, USCIS begins selecting applications for approval. Selected applicants then follow up with either an online or paper petition. This year, the petition period began on April 1 and will close at the end of June. 

Filing a petition includes a fee designed to pay for processing. Note that there are a number of forms to file including Forms I-907 and I-129. Forms can generally be filed online, though there are some exceptions to that rule.

If a prospective employee’s application is not accepted, there is no point in filing a petition. An applicant can try for another visa or wait until next year’s Cap Season comes around. There is no guarantee that waiting for next year will result in obtaining an H-1B Visa.

We Are Here to Help

Although there is plenty to dislike about the H-1B lottery system, particularly the low number of 85,ooo new H-1Bs annually, it is still a system that works fairly well. Yet it is a complicated system in terms of paperwork, deadlines, etc. We are here to help if you or your HR department feel overwhelmed by it all.

Graham Adair employs highly skilled and experienced H-1B visa attorneys. We can help you navigate the system to what is hopefully a successful conclusion. Just contact us to learn more.

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.”