BREAKING NEWS! DHS EXTENDS ELIGIBILITY FOR EMPLOYMENT TO CERTAIN H-4 DEPENDENT SPOUSES

According to a USCIS News Release:  “U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced today that, effective May 26, 2015, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS amended the regulations to allow these H-4 dependent spouses to accept employment in the United States.”

This is great news, however it is odd is that the dependent spouses will have far greater employment mobility and options than the principal H-1B beneficiaries.

It is important to note that not all H-4 spouses will be eligible for employment authorization.  In order to qualify, the principal beneficiary must either :  (1) have an approved I-140, Immigrant Petition for Alien Worker, or (2) have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (H-1B extended beyond six years).

Please visit our firm’’s websites at www.immigrantconnect.com and www.americaninvestorvisa.com.

H-1B CAP FILING: DO IT ONCE, DO IT RIGHT

The USCIS will begin accepting cap-subject H-1B petitions on April 1, 2015.  If the past few years is any indication, the 65,000 regular and 20,000 US Master caps won’t last long and will be subject to a random lottery.

There are so many traps that a novice H-1B filer needs to be aware of, just to be sure the H-1B petition makes into the lottery.  The USCIS is very unforgiving of seemingly minor errors and will reject a petition at the mail room stage before it even gets to be included in a lottery, let alone reach an adjudicating officer.  Once the petition has been accepted under the cap, the next step requires proving that the position is a Specialty Occupation and that the beneficiary qualifies for the position.  Again, there are many traps for the unwary.

Finally, behind the scenes, the employer is required to maintain a Public Information File (PIF).  The USCIS charges a $500 anti-fraud fee for all initial H-1B petitions.  A portion of these funds go towards inspectors who visit H-1B sites to ensure that employers are in fact abiding by the myriad of H-1B regulations including:  (1)  verifying that the beneficiary is indeed performing the duties of the offered position, (2) confirming the wage being paid to the beneficiary is the wage stated in the petition and LCA and is the greater of the actual or prevailing wage, and (3) ensuring the maintenance of the PIF file.

My suggestions?

1.  Hire an immigration attorney with H-1B experience.

2.  Start the process as early as possible, preferable before March 1, 2015.

3.  Gather all of the documentation requested.

4.  Ask lots of questions to ensure that, as an employer or beneficiary, you are doing things the right way.

It is too bad that qualified, talented foreign nationals need to first win a “lottery” before they can be considered to work in positions for which US companies need them.  The frequently propagated myth that  such beneficiaries take American jobs is unrealistic considering that employers must pay legal and filing fees, be subject to additional scrutiny and pay foreign nationals the often inflated “prevailing-wages” for these positions.

Please visit our firm’’s websites at www.immigrantconnect.com and www.americaninvestorvisa.com.

 

TEMPORARY INJUNCTION DELAYS IMPLEMENTATION OF DACA / DAPA

FLAG Immigration Protest

According to a USCIS News Release:  “…the Department of Homeland Security will not begin accepting requests for the expansion of DACA tomorrow, February 18, as originally planned. Until further notice, we will also suspend the plan to accept requests for DAPA.”

The injunction issued by a Texas District Court judge is temporary and is to allow time for the states that have filed a lawsuit objecting to President Obama’s Executive Orders on Immigration to argue their case.  This has no bearing on the final outcome of this matter and most legal scholars agree that the President’s order was well within his legal authority.

Please visit our firm’’s websites at www.immigrantconnect.com and www.americaninvestorvisa.com.

L-1 VISAS FOR INTRACOMPANY TRANSFEREES: A GENERAL OVERVIEW

By:  Emily Pierce, Associate Attorney at Maged Rost

L-1 visas for intracompany transferees are popular options for some foreign nationals who would like to work for a US affiliate of the foreign company temporarily.[1] This article provides a general overview of the L-1 visa and its eligibility requirements, while subsequent posts will delve deeper into some of the nuances of this non-immigrant option.

To be eligible for admission into the United States as an intracompany transferee, the petitioning employer first must establish that the foreign national beneficiary worked for a company outside of the United States continuously for one year.[2] This year of employment abroad must occur within the three years preceding the beneficiary’s application for admission into the United States.[3] For example, if a beneficiary submits his application for admission on January 15, 2015, his continuous year of employment abroad must have occurred between January 15, 2012 and January 15, 2015.

Moreover, the year of employment abroad must be in a capacity that is “managerial, executive, or involves specialized knowledge.”[4] Practically speaking, managers and executives often have similar roles within in a business, and the particular job title may not hold significance. However, these job titles and, more importantly, job descriptions are terms of art in immigration law, and therefore the words “managerial,” “executive,” and “specialized knowledge” have very particular meanings that must be understood when applying for an L-1 visa.[5]

Second, the petitioner must prove that the beneficiary’s foreign employer and proposed U.S. employer are “qualifying organizations”[6] A foreign employer and a U.S. employer are qualifying organizations if they are a parent, branch, affiliate, or subsidiary of each other.[7] Additionally, the U.S. employer must be “doing business” in the United States and in at least one other country directly or through a parent, branch, affiliate, or subsidiary for the duration of the beneficiary’s stay in the United States.[8]

The third requirement is that the beneficiary’s proposed employment in the U.S. must also be in a capacity that is “managerial, executive, or involves specialized knowledge.”[9] A future blog post will discuss the definitions of these terms of art.

When the beneficiary is coming to the United States as a manager or executive to open or to be employed in a new office, the petitioner must provide evidence that it satisfies three additional requirements.[10] First, the petitioner must establish that it has secured sufficient physical premises to house the new office.[11] Second, the petitioner must demonstrate that the beneficiary’s employment abroad was in an executive or managerial capacity.[12] Third, the petitioner must prove that within one year of the approval of the petition, the new U.S. operation will support an executive or managerial position.[13]  A new office is one that has been doing business for less than one year in the United States.[14]

Finally, if the beneficiary is an owner or major stockholder of the company, the petitioner must establish that the beneficiary’s services are to be used for a temporary period only, and that the beneficiary will be transferred to an assignment abroad upon the completion of the temporary services in the United States.[15]

This article is a general overview of L-1 visas and it is not meant to replace the advice of an attorney. If you are interested in learning more, please consult with an experienced immigration attorney. Please return to www.immigrantconnect.com for future posts containing more information about L-1 visas.

[1] INA § 101(a)(15)(L).

[2] INA § 101(a)(15)(L), 8 C.F.R. § 214.2(l)(1)(i), 8 C.F.R. § 214.2(l)(1)(ii)(A).

[3] Id.

[4] 8 C.F.R. § 214.2(l)(3)(iv).

[5] 8 C.F.R. § 214.2(l)(1)(ii)(B) – (D).

[6] INA § 101(a)(15)(L), 8 C.F.R. § 214.2(l)(1)(i).

[7] 8 C.F.R. § 214.2(l)(1)(ii)(G).

[8] 8 C.F.R. § 214.2(l)(1)(ii)(G)(2), 8 C.F.R. § 214.2(l)(1)(ii)(H).

[9] INA § 101(a)(15)(L), 8 C.F.R. § 214.2(l)(1)(i).

[10] 8 C.F.R. § 214.2(l)(3)(v).

[11] 8 C.F.R. § 214.2(l)(3)(v)(A).

[12] 8 C.F.R. § 214.2(l)(3)(v)(B).

[13] 8 C.F.R. § 214.2(l)(3)(v)(C).

[14] 8 C.F.R. § 214.2(l)(1)(ii)(F).

[15] 8 C.F.R. § 214.2(l)(3)(vii).

NOW IS THE TIME TO START CAP-SUBJECT H-1B PLANNING FOR FY-2016

It is that time of year again. On April 1, 2015, the USCIS will again begin accepting petitions for cap-subject and Master-cap H-1Bs for FY-2016.

The fiscal year for 2016 begins October 1, 2015, the earliest start date that may be requested for such cases.  The USCIS will accept 65,000 cap-subject petitions plus an additional 20,000 petitions where the beneficiaries are graduates of US colleges or universities who have earned at least a Master degree.

This year our office has once again seen an increase in demand for new H-1Bs.  Although anecdotal, this trend suggests that numbers may not be available for very long.  The good news is that when we see demand for H-1Bs increase, it is usually a good barometer for how the country’s economy is doing as it means that employers are not only hiring, but are seeking some of the best and brightest foreign nationals as well.  Last year the cap was quickly exhausted and a lottery was conducted from among petitions that were received.  It is generally a good idea to get the process started early to avoid any last minute glitches during the busy H-1B season.

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