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USCIS Increases Premium Processing Fee

November 6, 2019 Leave a comment

The U.S. Citizenship and Immigration Services (USCIS) announced that beginning on December 2, 2019, it is adjusting the filing fee to request premium processing for certain employment-based petitions.  The premium processing fee will increase to $1,440 from the current fee of $1,410 for Form I-129, Petition for a Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker.

October 2019 Visa Bulletin – Employment-Based Visa Numbers – Eligibility to File Adjustment of Status Applications

September 26, 2019 Leave a comment

For Employment-Based Preference Filings:
You must use the Dates for Filing chart in the Department of State Visa Bulletin for October 2019.

Employment-
based
All Chargeability
Areas Except
Those Listed
CHINA-
mainland
born
EL SALVADOR
GUATEMALA
HONDURAS
INDIA
MEXICO 
PHILIPPINES 
1st
01JUL19
01SEP17
01JUL19
15MAR17
01JUL19
01JUL19
2nd
C
01AUG16
C
01JUL09
C
C
3rd
C
01MAR17
C
01FEB10
C
C
Other Workers
C
01AUG08
C
01FEB10
C
C
4th
C
C
15AUG16
C
C
C
Certain Religious Workers
C
C
15AUG16
C
C
C
5th Non-Regional Center
(C5 and T5)
C
01JAN15
C
C
C
C
5th Regional Center
(I5 and R5)
C
01JAN15
C
C
C
C

ICE Commences On-Site Inspections for STEM OPT Employment

September 26, 2019 Leave a comment

Our office has learned that ICE (http://www.ice.gov) has started to conduct on-site inspections for STEM Optional Practical Training (OPT) employment.  The site visits are aimed to address how the salary of STEM OPT employees is determined, whether there is sufficient structure to provide supervision and training of the employee, and the nature of the employer/employee relationship at any third-party worksites.  According to https://studyinthestates.dhs.gov/: Site visits will be limited to checking information related to student STEM OPT employment and ensuring that students and employers are engaged in work-based learning experiences that are consistent with the information supplied on the student’s Form I-983.

The length of the site visit appears to be about 1-2 hours but it could take up to five hours.  ICE normally gives two days’ notice via email to the STEM OPT employee’s manager/supervisor unless such visit is pursuant to a complaint in which case a notice would be unlikely.  It is important to note that in order to qualify for a STEM OPT extension, the student and the employer must complete Form I-983, providing specific information about the training program and agreeing to notify the Designated School Official (DSO) if there are any material changes to the training program. In addition, the Form I-983 must be regularly updated with the student’s progress in the training program.  However, the I-983 is not included with the application for STEM OPT, and as a result, it is generally not reviewed by USCIS or ICE at all (unless requested by USCIS via a Request for Evidence (RFE).

In light of the inspections, we remind you that employers as well as the students must carefully review the I-983 and instructions, and update it as needed.  Moreover, both the employer and the student should be familiar with the content of the I-983, and be prepared to describe the training opportunity to an ICE officer.  Even without a site visit, compliance is extremely important. The I-983 creates obligations certified by both the student and the employer. Violations could result in termination of student status, or impact future adjudications if USCIS or consular officers note discrepancies between the I-983 and online information or resumes submitted. There are also reports that the USCIS Vermont Service Center has started asking STEM OPT employers to email the I-983 plan as part of I-765 adjudication.  As with any site visit, front-line employees, such as security officers or administrative staff, should ask the ICE officer for a business card, and ask the officer to wait until a designated person at the worksite is called.  The ICE officer may want to tour the worksite, but best practice is to have the officer accompanied by the designated person on site.

 

Denial without an RFE or NOID (Currently in Effect)

October 11, 2018 Leave a comment

Recently, the U.S. Citizenship and Immigration Services (USCIS) guidance pertaining to denial of certain petitions or applications without first issuing an RFE (Request for Evidence) or NOID (Notice of Intent to Deny) went into effect.  It became effective on September 11, 2018.

What is the guidance about:    The guidance empowers USCIS adjudicators with the discretion (total free will) to deny an application, petition, or request without first issuing an RFE or NOID if initial evidence is not submitted or if the evidence in the record does not establish eligibility.

When and what type of cases is it applicable: Starting September 11 when the policy went into effect, the USCIS adjudicators now have complete discretion to deny cases without issuing an RFE or a NOID first. This includes any filing in which the applicant, petitioner, or requestor has no legal basis for the benefit/request sought or submits a request for an immigration benefit or relief under a program that has been terminated.  Moreover, if all required initial evidence is not submitted with the petition or application, USCIS in its discretion may deny for failure to establish eligibility based on lack of required initial evidence.  What is considered “required” can be very subjective and arbitrary in interpretation of adjudicators.  Types of cases include pretty much all immigration benefits – H-1B, H-4, L-1/L-2, green card cases, family based cases, waiver applications etc.

What are the documentary examples of initial evidence in the context of H-1B:  USCIS has recently provided examples of what it regards as initial evidence to be filed with a H-1B petition:

  • Evidence the beneficiary maintained status if seeking a change of status or extension of stay
  • Evidence showing the proposed employment qualifies as a specialty occupation
  • Evidence showing the beneficiary is qualified to perform the specialty occupation
  • A copy of any required license or other official permission for the beneficiary to perform the specialty occupation in the state of intended employment (if applicable)
  • A copy of any written contract between the employer and the beneficiary or a summary of the terms of the oral agreement under which the beneficiary will be employed.
  • An itinerary showing the date and places of assignment if the petition indicates that the beneficiary will be providing services at more than one location.
  • A corresponding Labor Condition Application (LCA) that has been certified by the Department of Labor (DOL) and signed by the petitioner and attorney/representative, if applicable.

What you can do to potentially avoid a denial without an RFE/NOID:  In addition to the above, for the past several years, our office has been providing clients with and using a comprehensive list of documents as a guide in H-1B filings.  This has helped us get overwhelmingly positive results in our filings for many years.

It is highly imperative to note that the process has become quite arbitrary leaving to each USCIS adjudicator the decision/discretion to approve or deny a case with the evidence submitted.  For instance, if a H-1B petition is filed without an end client letter in a client site placement situation (we believe this piece of document is extremely critical), one adjudicator may not consider this as part of initial evidence and may issue an RFE or an NOID while another adjudicator may simply decide to deny the case for failing to prove proper corporate relationship/proof of placement at the end client.  Thus, this highly arbitrary and subjective process will further complicate matters for H-1B employers.  Please consider providing as much information and documents as possible with each filing.

House Judiciary Committee Holds Hearing on H-1B Visa Program

March 31, 2011 Leave a comment

The U.S. House Judiciary Committee holds hearing on H-1B visa program.  The hearing is focussed on designing an H-1B visa program that meets the needs of U.S. economy and U.S. workers.  The hearing began with an opening statement by the Committee’s Chairman Rep. Lamar Smith (R-TX).  There were views and arguments presented by proponents and opponents of H-1B visa program.  In the Committee Chairman Rep. Smith’s words, “The H-1B visa program plays a vital role in our economy.  It allows American employers to hire talented foreign students graduating from U.S. universities with degrees in science, technology, engineering and math fields…The 65,000 base annual quota of H-1B visas is going to come under more and more pressure as the economy improves.  If Congress doesn’t act to increase the H-1B cap, then we may need to examine what sort of workers qualify for H-1B visas.” However, Rep. Smith’s comments did not come without words of caution.  He highlighted the fraud and abuse in the H-1B program as well as abuse in the L-1 and B-1 visa programs and that necessary checks should be in place and also highlighted the importance of not displacing the American workers.

This is a good start of a healthy debate surrounding the H-1B visa program to address issues such as disadvantages of having a numerical cap each year especially when the U.S. economy needs more qualified foreign professionals; addressing the fraud in the H-1B system; and more importantly ensuring that the H-1B adjudication process is fair and reasonable as opposed to being arbitrary and burdensome.  More updates on this will be posted as and when they become available.  Rep. Smith’s statement may be accessed by clicking http://judiciary.house.gov/news/03312011.html

H-1B Quota Alert

January 6, 2011 Leave a comment

The USCIS announced that the H-1B Advanced Degree Holders quota of 20,000 has reached the cap as of December 31, 2010.  In the H-1B regular quota, 57, 300 have been received as of December 31.  Even though the regular quota is 65,000 visas each year, 6,800 visas are set aside for nationals of Singapore and Chile.  This means the regular quota is in fact 58,200 each year.  Any unused Singapore and Chile visas from the previous fiscal year get added to the current fiscal year (October 1, 2010 – September 30, 2011).  USCIS has not released information as to how many, if any such unused visas have been added or will be added to the current fiscal year’s regular quota.

To take a conservative view of the above, it is prudent to assume that the quota will in fact be 58,200 or a number close to that.  Employers planning to file H-1B petitions in the current fiscal year should expedite their filings in order to make it in this year’s quota.  If the regular quota also reaches the cap, note that employers will have to wait until April 1, 2011 to file new H-1B petitions but the foreign nationals will not actually be able to work earlier than October 1, 2011.  Thus, it is highly imperative to file the H-1B petitions as soon as possible if the employers have an immediate need (i.e. between now and September 30) for foreign professional employees.

H-1B Quota is Still Open But Use Caution When Filing H-1B Petitions

November 5, 2010 Leave a comment

The H-1B quota is still open and does not appear to reach the cap in at least the next two months.  However, employers should use great caution in filing an H-1B petition.  It is highly recommended to file an H-1B only when there appears to be an absolute need for the services of a foreign national.  In the absence of such a need, the U.S. Citizenship and Immigration Services (USCIS) is likely to regard the H-1B filing as “speculative” and could deny the petition.  Employers should be prepared to demonstrate with evidence the need for the services of a potential foreign national employee to its organization.  In this regard, please refer to an earlier blog post

https://krishnapalagummi.wordpress.com/2009/11/26/h-1b-speculative-employment-dont-file/

H-1B Dependent Employers: If you are an H-1B dependent employer within the definition of the U.S. Dept. of Labor’s regulations, you must make good faith efforts to find an able, willing, and qualified U.S. worker to fill the position before offering the position to a foreign national.  However, dependent employers desiring to hire foreign nationals with at least – 1) Master’s degree, or 2) offered salary of at least $60,000 – may simply file the H-1B petition as soon as the need arises.    It is important to confer with an attorney to understand the legal requirements and to ensure full compliance.

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