Categories Department of State News & Updates

New Domestic Visa Issuance Pilot Program

The Department of State (DOS) previously announced an intent to issue visas within the US, which is now taking shape as the agency moves ahead with the implementation of a pilot program to allow nonimmigrant visa issuance domestically, potentially facilitating travel for thousands of workers in a work status such as H-1B and L-1.

In a recent interview, a DOS official has further clarified that the program is expected to start small, with only 20,000 visas to be issued in December, January and February, and will be available only to H and L visa holders initially (though other sources believe it will be limited only to principal H-1B beneficiaries).

Additionally, the pilot program is expected to initially benefit only those foreign nationals who would otherwise be eligible for a waiver of the in-person interview requirement and not subject to a reciprocity fee in the issuance of their visas.

We expect to know further details once the proposed rule, currently under review by the administration, is published in the federal register.

Please reach out to your Graham Adair attorney with any questions or contact us at info@grahamadair.com or 408-715-7067.

Understanding the H-1B Cap Makes the Petition Process Easier
Categories News & Updates USCIS

Understanding the H-1B Cap Makes the Petition Process Easier

It would be nice if filing an H-1B petition for business immigration were as simple as completing a two- or three-page application and waiting a few weeks to get approval. Unfortunately, that is not how it works. The H-1B system is among the most complex of all immigration and visa programs. Much of the misunderstanding related to H-1B visas is the direct result of a cap system.

Congress has intentionally limited the number of H-1B visas USCIS can issue every year through a hard cap. The cap currently sits at 65,000. There are an additional 20,000 visas available to certain exempt individuals. If all the additional visas are not used in a given fiscal year, they are carried over and added to the 65,000 ‘standard’ visas for the following year.

The Basics of How It Works

Due to the limits and the fact that the cap is almost always reached very early on in any given fiscal year, USCIS doesn’t even accept H-1B petitions from foreign nationals who haven’t been selected in the annual lottery. So how does a person get their name in the system? By way of electronic registration.

Interested individuals must first create an account on the USCIS website. Registration begins on March 1 and ends on March 17. It is up to the individual to log onto their account during that timeframe to complete the registration process. Applicants are selected randomly through a lottery, so it is not necessary that an individual be among the first to register on March 1. They just need to be sure their e-registration is submitted correctly and before the deadline to be included in the H-1B lottery. 

It does not take long for the number of registrations to exceed the total number of visas to be issued for the next fiscal year. Thus, the lottery system. If an individual is selected in the lottery, the next step is to submit the actual H-1B petition.

No Earlier Than Six Months Prior

H-1B petitions need to be filed soon enough to allow processing prior to the start of employment. However, the USCIS does not take petitions any earlier than six months ahead of time. That is generally not a big deal given that petitions can be processed in a few weeks. With an effective date of October 1st, which marks the beginning of the government’s fiscal year, new H-1B applications can be filed no earlier than April 1st. .

That’s a critical time given the fact that a typical petition package includes 14 different types of documentation. Packets must include a number of forms including I-129, supplement forms, and a G-28. They must also include a letter from the employer sponsoring the foreign national, and it is recommended to include a letter from the attorney preparing the application. Packets must include a variety of supporting documentation including personal identification documents, education documents, company documents, and translations as needed. The H-1B application must also demonstrate the candidate’s qualifications for the position being sponsored. 

The key to ensuring swift processing of an H-1B petition is to submit a correct packet. But note that a correct packet doesn’t just contain the right documentation: it should also be arranged in a specific order to make the process easier for the USCIS officer reviewing the case. In cases where an employer submits multiple packets in the same package, each packet should be in a separate envelope.

It All Starts With the Cap

This is simply a brief overview of a very complex and nuanced process. For many foreign-born individuals, their career in the United States starts with the H-1B lottery. The H-1B cap is purposely designed to limit the number of visas the U.S. issues to temporary workers. If you do not understand how the cap system works, you could find yourself easily frustrated by the H-1B process. Fortunately, we can help as business immigration attorneys. We make it our job to know and fully understand everything about the H-1B visa, cap, and lottery system. We have helped our clients successfully navigate the complexities of the H-1B cap for many years.

Please contact us at info@grahamadair.com or 408-715-7067 if you would like our help.

H-1B and EB-1 Different Visas With Different Purposes
Categories Immigration and Customs Enforcement News & Updates USCIS

H-1B vs. EB-1, EB-2 and EB-3: Nonimmigrant Visas vs. Immigrant Visas

Immigration law is complicated. There are no two ways about it. One of the things that makes it complicated is the fact that there are so many different kinds of visas people can obtain in order to gain authorized entry into the U.S. For example, consider the H-1B and EB-1 visas. They are two distinctly different visas with different purposes. Yet that doesn’t prevent confusion among both employers and their foreign-born workers.

As immigration attorneys specializing in business immigration, it is our responsibility to understand the different types of visas that employers might need for their foreign-born workers coming into this country. We pass on our knowledge as we assist both employers and potential employees in their attempts to navigate U.S. immigration law.

The H-1B Visa Is Temporary

The biggest difference between the two visas relates to how long a valid visa holder can remain in this country. Under the H-1B visa program, an employee’s stay is temporary. H-1B visas are typically granted for an initial term of three years. Foreign born workers can renew their visas for another 3 years, providing them with up to six years total. After that, a worker must either change to another status or leave the country.

Statute dictates that the H-1B visa is a non-immigrant visa. In other words, a company is may not be hiring an H-1B visa holder with the goal of making them a permanent resident in the country. Although, in our experience, most companies that are willing to sponsor someone for an H-1B are likely to eventually sponsor them for an immigrant visa down the road. It is important to remember that the H-1B is for temporary work status only.

Foreign Nationals With Special Skills

It is also worth noting that the H-1B visa is not for just anyone. The program is intended to give employers access to foreign nationals with special skills. The skills in question are limited in scope. They are often science, technology, engineering, and mathematics (STEM) related. At a minimum, the position must require a bachelor’s degree. If it’s a foreign degree, it must be evaluated as being equivalent to a U.S. bachelor’s degree. A person may also qualify through a combination of education plus experience that equates to a U.S. bachelor’s degree. 

Employers hoping to bring in foreign nationals under the H-1B program, who then wish to sponsor the employee for an immigrant visa,  typically must demonstrate that they cannot find sufficient talent here at home to fill open positions. They must attest to the fact that an offer of employment under the H-1B program is temporary only. However, H-1B status is considered “dual intent,” which means the person can be in a nonimmigrant status such as H-1B, while also intending to become a lawful permanent resident. 

The EB-1, EB-2, and EB-3 Visas Are Permanent

Where the H-1B visa is technically temporary, the EB-1, EB-2, and EB-3 are permanent. They are immigration visas that give the holder the legal right to live and work in the U.S. indefinitely. They are essentially permanent resident visas. But like the H-1B, the EB-1, EB-2, and EB-3 are not available to everyone. They are specifically designed for foreign nationals with extraordinary ability, skills in the national interest of the United States, professional-level employees, and other skilled workers.

These are typically people with skills that are hard to come by. They are professors, scientific researchers, senior executives, and other types of business professionals that are in short supply in this country.

Employers should understand that EB-1, EB-2 and EB-3 visas can take several months to process, at minimum. More complex applications could take years. EB-1, EB-2, and EB-3 visas are also highly competitive and require a significant amount of documentation. Many categories are oversubscribed, so the employee may potentially need to wait years before receiving lawful permanent residency. This is why having another work status such as H-1B is so critical because it enables them to live and work in the United States while waiting for an immigrant visa. 

EB-1 Visa

The EB-1 is so designated because those who qualify for it are at the top of the list of preferences. Each subsequent EB visa is designated by a number indicating order of preference. There are five EB visas in total. In this article we covered only EB-1, EB-2 and EB-3 because they are the most common. 

Do not let the complex nature of business immigration and visas scare you. If you are looking to bring foreign nationals into the country on a temporary or permanent basis, Graham Adair is here to assist. We can help you navigate the system, complete documentation correctly and on time, and do everything else required to secure those visas.

Categories News & Updates USCIS

Proposed H-1B Change Would Regulate Duplicate Filings

DHS’s proposed rule on revising the H-1B regulations was published on October 23rd, 2023. This is not the final rule and is open for public comment until December 22nd, 2023.

The proposed rule entails 3 areas of focus:-

  • First, amend the definition of specialty occupation for purposes of a position qualifying as an H-1B position;
  • Second, provide flexibilities to F-1 students and broaden the definition of cap exempt organizations; and
  • Third, address H-1B cap registration abuse by changing the way USCIS selects registrations.

 

SUMMARY

 

H-1B Specialty Occupation

  1. A position will not qualify for H-1B if it solely requires a general degree, such as business administration, or liberal arts without further specialization. Similarly, the position will not qualify as specialty occupation if it requires a general degree without further specialization. For example, if the role requirement is any engineering degree instead of a specialization such as Electrical Engineering.
  2. A petitioner may list multiple disparate fields of study as the minimum entry requirement for a position, so long as they can establish how each of those different fields of study are directly related to the job duties. Clarify that “normally” does not mean “always” within the criteria for a specialty occupation.
  3. Codify the existing requirement to file an H-1B amendment prior to any material change taking effect. For instance, if the beneficiary is moving to a location outside the MSA, an amendment must be filed prior to the move.
  4. For off-site placements where a beneficiary is staffed to a third party, the requirements of that third party, and not the petitioner, are most relevant when determining whether the position is a qualifying specialty occupation.
  5. Eliminates itinerary requirement for H-1B petitions.
  6. Update regulations to expressly require that evidence of maintenance of status must be included with the petition if a beneficiary is seeking an extension or amendment of stay.
  7. Codify the existing deference policy to cover all nonimmigrants using form I-129, stating that if there has been no material change in the underlying facts, adjudicators generally should defer to a prior determination involving the same parties and underlying facts.
  8. H-1B beneficiaries who are owners of a petitioning entity may be eligible for H-1B status, subject to some conditions where the beneficiary owns a controlling interest in the petitioner. For a petitioner that is more than 50% owned by the H1B worker, the beneficiary would be permitted to perform duties directly related to owning and directing the business – including duties that are non-specialty occupation duties – so long as more than half of the individual’s time will be spent performing specialty occupation duties. Such petitions will be limited to an initial validity period of 18 months, and the first extension will be limited to another 18 months. Subsequent extensions would be permissible in up to 3-year increments.
  9. Allow H1B petitions to be approved or have their requested validity period dates extended if USCIS adjudicates and deems the petition approvable after the initially requested validity period end-date, or the period for which eligibility has been established, has passed.

 

F-1 & H-1B Cap Exempt Organizations

  1. Provide flexibilities such as automatically extending the duration of F–1 status, until April 1st of the relevant fiscal year, rather than October 1st of the same fiscal year, to avoid disruptions in lawful status and employment authorization for F–1 students changing their status to H–1B.
  2. Broaden the definition of “non-profit research organization” and “governmental research organization” to include organizations that conduct research as a fundamental activity. This creates more flexibility for nonprofit and governmental research organizations and beneficiaries who are not directly employed by a qualifying organization

 

H-1B Cap Registration

  1. To significantly reduce fraud and abuse, and to make the lottery system fairer, USCIS would select registrations by unique beneficiary, instead of registration so that each foreign national would be entered once in the lottery, regardless of the number of registrants that submit a registration on his or her behalf. If the beneficiary’s registration is picked, each registrant that submitted a registration on the beneficiary’s behalf would be notified of the selection and be eligible to file the petition on the beneficiary’s behalf.
  2. Clarify that related entities are prohibited from submitting multiple registrations for the same beneficiary, similar to the prohibition on related entities filing multiple cap-subject petitions for the same beneficiary for the same fiscal year’s numerical allocations.
  3. Codify USCIS’s authority to request contracts, work orders, and/or related documents to establish the contractual relationship between all parties, the terms and conditions of the beneficiary’s work, and the minimal education requirements to perform the work.
  4. Clarify the requirements regarding the requested employment start date on H–1B cap-subject petitions to permit filing with requested start dates that are after October 1st of the relevant fiscal year, consistent with current USCIS policy.
  5. Codify USCIS’s authority to deny or revoke an H-1B petition if the underlying registration contained a false attestation or was otherwise invalid.

 

CONCLUSION

It should be noted that this is not the final rule. It must go through the standard rulemaking process, which includes a 60-day comment period. Once DHS makes any changes and finalizes the proposals contained in this rulemaking through one or more final rules, it would likely do so in time for the fiscal year (FY) 2025 cap season that will open in March of next year.

The Immigration System Itself Is Why You Need an Attorney
Categories Immigration and Customs Enforcement

The Immigration System Itself Is Why You Need an Attorney

We immigration attorneys practice law on behalf of immigrants, their families, and companies hoping to employ them stateside. We work within a system that can be difficult to navigate and even harder to understand. The system itself is why we say you need a business immigration attorney if you are hoping to bring foreign nationals here to work.

It is not our job to judge the U.S. immigration system as being right or wrong from a moral or ethical standpoint. The law is what it is. But we can say that satisfying immigration law is time-consuming. It involves a tremendous amount of paperwork that needs to be completed and submitted correctly. Immigration law is governed by a lot of rules and regulations, some of which are so mundane that they are easy to miss.

A Buffet of Visa Options

One of the first issues foreign nationals run in to when considering immigration for work purposes is figuring out what type of visa to apply for. Needless to say that our system allows for a veritable buffet of options. We have dozens of different visas all defined by their own criteria. How does a worker know which one is most appropriate?

One of the visas we specialize in is the H-1B work visa. It is for skilled laborers in very specific industries. Qualifying for an H-1B is not easy. And even if a worker does qualify, H-1B visas are limited in number and offered on a lottery basis. Qualifying does not guarantee approval.

Unfortunately, even being considered for an H-1B is impossible if paperwork is not completed correctly and submitted on time. It is not difficult for someone who doesn’t understand the system to fall behind and eventually find himself with his back against the wall as the deadline approaches.

A System-Wide Problem

We do not want to give the impression that the only challenge in U.S. immigration is applying for a visa. Indeed, the time-consuming and complex nature of the immigration process is a system-wide problem. Even foreign nationals attempting to seek asylum in the U.S. can struggle.

Take the case of a Nicaraguan immigrant profiled a few months ago by NBC News. He was exiled to the U.S. for political reasons. He is now seeking political asylum in this country. He has already been here five years and his case has stalled.

It is not that the man has done anything wrong. He hasn’t. It’s just that the system has been overwhelmed by backlogs. There are so many people needing help and far too few resources and personnel to help them. Meanwhile, this individual must continue maintaining records of his past to support his case when it is eventually heard.

It is Okay to Need Help

We mention all of this to say that it is okay to need help. Business immigration is not easy. It is certainly not simple. If your company is hoping to bring workers into the U.S. from other countries, your best bet for navigating the system as easily and efficiently as possible is to work with a business immigration attorney.

Business immigration is our specialty here at Graham Adair. We work with clients to get paperwork completed and submitted. We educate foreign nationals about the visa process. We can even help prepare them for their immigration exams.

We cannot make the process any simpler for you. However, we can work alongside you to help you do everything by the book. Needless to say that our system is difficult to work. But that is why you need an immigration attorney.