On June 30, USCIS Ombudsman January Contreras released the annual ombudsman report. The report has some interesting findings and suggestions and I will discuss some of them in this and next few entries.
One interesting observation the Ombudsman report points out is that the demand for family-based immigrant visas is "very low" in the previous 15 months (p.32). In other words, immigrant visas available to petitioners who have a current priority date exceeds the number of petitioners who actually go to the consulate to apply for an immigrant visa. Why do not applicants, after waiting for so long to have their priority date to become current, go to apply for the actual visa when it becomes available?
Although the actual reasons are not clear, the ombudsman report makes a few guesses, such as change in health, employment, and family situations or financial and economic concerns (p.32). In addition, many petitioners choose not to leave the United States and return to their home country to go through consulate process because of their illegal or problematic immigrant status (p.33). Because many of the low demand, many visas number become unused.
This situation highlights the needs of a comprehensive immigration reform as soon as possible. It is obvious that the wait for these applicants, who have parents, siblings, and children that are citizens and legal permanent residents of the U.S., is simply too long. For example, according to the August Visa Bulletin released yesterday by the Department of State, unmarried children over 21 years old and born in Mexico to a U.S. citizen/legal permanent resident have to wait for about 18 years before they are eligible to apply for a green card. If they get married, they will have to wait in a different category or may even lose their eligibility to migrate to the U.S. (currently there is no immigrant visa category for married children of lawful permanent residents)!
Thus, we can see there is a real need to eliminate this backlog and allow family members of naturalized U.S. citizens and permanent residents to be reunited with them in a more effective manner. Of course some people will argue that those citizens do not need to choose to come to the United States at the first place. But given how many science and engineering graduates in our country are foreign-born and how many of these naturalized citizens gain their residency in the U.S. through jobs that need their advanced skills and knowledge, we simply cannot afford to tell them to all go home or stop coming, then expect our country to remain the same in innovation, technology research, and long-term development.
Meanwhile, it is wise for petitioners to remain alert to the monthly visa bulletin so they can apply for an immigrant visa at their local consulate as soon as a visa number is available to them. If there are concerns regarding prior violation of immigration status or change of family situation, it is a good idea to talk to an attorney instead of simply forgoing the chance to apply for a visa. Many attorneys are willing to give free initial consultation and will keep the content of their consultation confidential, so it would not hurt to talk to them.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not constitute attorney-client relationship. For specific inquiries, please contact my office for an appointment.
7/13/2010
7/08/2010
H-1B
Every summer, a lot of college graduates enter into the job market. Given the state of the economy, many of the graduates are having a hard time to find a job. This is particularly true for international graduates.
In most situations, prior to their graduation, international students usually apply for work authorization under the optional practical training (OPT) program and then seek employment with their OPT. However, an OPT authorization is only valid for 12 months (and an additional 17 months for students who have graduated from science, technology, and math majors). As a result, many employers are not willing to consider international students because they are not willing to hire someone who may have to leave the job in 12 months or simply do not want to pay the immigration fees to sponsor an international student.
To make things worse, a student under OPT cannot accrue more than 90 days of unemployment. Therefore, unless an international student can find some kind of work within 3 months of the start date of his/her OPT, the student may risk falling out of status. Thus, many international students would have to take low-skill and/or low-salary jobs during their OPT while they seek long-term employment.
For those who are lucky enough to find an employer who is willing to hire and sponsor their work visa petition (usually H-1B visa for college graduates), there is still no guarantee that they will be able to stay in the U.S. and continue to work after their OPT authorization expires. Prior to 2009, H-1B visa applicants usually had to file their petition on the very first day USCIS start accepting petition (usually April 1) because Congress has set a quota for the number of H-1B visas that can be issued in every fiscal year. If an applicant failed to do so, his/her application might not even be considered if USCIS had received sufficient petitions to meet the annual quota. Since 2009, fewer petitions have been filed because 1) fewer employment opportunities are available; 2) fewer employers have the resources to sponsor international graduates; and 3) companies that have received TARP money from the government may not sponsor H-1B petitions.
Although there are fewer petitions, that does not mean approval is automatic. In order to improve the chance of approval, an H-1B applicant should do the following:
A) an applicant should ensure the proposed employment requires a professional to fill it, such as someone with a college degree. If in doubt, it would be wise to check case law and BIA precedents to see whether there are any cases that can support the proposed employment to be qualified for H-1B.
B) An applicant should show a strong connection between the applicant's college education and the proposed job duties. If an applicant is qualified to perform the job duties without his/her college education, then USCIS will likely reject the application. On the other hand, if the applicant's professional qualifications have nothing to do with the applicant's job duties, it is also difficult to get an H-1B visa approved. For example, if a student majored in chemical engineering but his proposed job duties are linguistic in nature, it may be difficult to get an approval by USCIS.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not constitute attorney-client relationship. For specific inquires, please contact my office for an appointment.
In most situations, prior to their graduation, international students usually apply for work authorization under the optional practical training (OPT) program and then seek employment with their OPT. However, an OPT authorization is only valid for 12 months (and an additional 17 months for students who have graduated from science, technology, and math majors). As a result, many employers are not willing to consider international students because they are not willing to hire someone who may have to leave the job in 12 months or simply do not want to pay the immigration fees to sponsor an international student.
To make things worse, a student under OPT cannot accrue more than 90 days of unemployment. Therefore, unless an international student can find some kind of work within 3 months of the start date of his/her OPT, the student may risk falling out of status. Thus, many international students would have to take low-skill and/or low-salary jobs during their OPT while they seek long-term employment.
For those who are lucky enough to find an employer who is willing to hire and sponsor their work visa petition (usually H-1B visa for college graduates), there is still no guarantee that they will be able to stay in the U.S. and continue to work after their OPT authorization expires. Prior to 2009, H-1B visa applicants usually had to file their petition on the very first day USCIS start accepting petition (usually April 1) because Congress has set a quota for the number of H-1B visas that can be issued in every fiscal year. If an applicant failed to do so, his/her application might not even be considered if USCIS had received sufficient petitions to meet the annual quota. Since 2009, fewer petitions have been filed because 1) fewer employment opportunities are available; 2) fewer employers have the resources to sponsor international graduates; and 3) companies that have received TARP money from the government may not sponsor H-1B petitions.
Although there are fewer petitions, that does not mean approval is automatic. In order to improve the chance of approval, an H-1B applicant should do the following:
A) an applicant should ensure the proposed employment requires a professional to fill it, such as someone with a college degree. If in doubt, it would be wise to check case law and BIA precedents to see whether there are any cases that can support the proposed employment to be qualified for H-1B.
B) An applicant should show a strong connection between the applicant's college education and the proposed job duties. If an applicant is qualified to perform the job duties without his/her college education, then USCIS will likely reject the application. On the other hand, if the applicant's professional qualifications have nothing to do with the applicant's job duties, it is also difficult to get an H-1B visa approved. For example, if a student majored in chemical engineering but his proposed job duties are linguistic in nature, it may be difficult to get an approval by USCIS.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not constitute attorney-client relationship. For specific inquires, please contact my office for an appointment.
5/27/2010
Can Money Buy a Visa to Live in the U.S.
EB-5 has traditionally been the visa category that allows foreigners to get a green card. However, many foreigners, especially small business owners and small investors, find it difficult to put so much money (at least 500k and 1 million USD in general) at risk in exchange for a visa. Congress has made different efforts to reform the investor visa category, such as the Start Up Visa Act that was introduced in February 2010. But before this bill becomes law, foreigners are bound by the current rules and regulations.
So the question is: what can small owners do to come and work in the U.S. RIGHT NOW? Some short term non-immigrant visas may worth taking a look if you are really interested in coming to the U.S. through investment. The most obvious choice would be the E-2 visa, which allows foreigners to come and work in the U.S. for 2 years if they can invest a substantial amount of money in the U.S. and benefits the economy of the U.S. However, to qualify for an E-2 visa, the applicant must come from a country that has a trade treaty with the U.S. Thus, for example, nationals of China (PRC) will not be eligible to come to the U.S. through an E-visa.
Another common way for investors to come to the U.S. is through the L-1A visa. Some foreigners may consider expanding their overseas companies into the U.S. by setting up a branch or an affiliate in the U.S. The government currently allows investors who act as executives to enter into the U.S. and manage their new branch or affiliate company. Executives for new entities will get a visa that is valid for 1 year and can be renewed for up to 7 years. In additional, current law allows an L-1 visa holder to have an immigrant intent while in L-status, i.e., may apply for a green card and/or adjustment of status while the investor is in L-1A status.
Although these two visas are non-immigrant visas, they may actually serve the interests of investors better. Some potential investors I have talked to actually do not have the intent to move and live in the U.S. permanently. As a result, getting an E or L visa may be a better alternative because the amount of money needed is significantly lower than an EB-5.
Disclaimer: information included in this post does not constitute as legal advice and receipt of this information does not constitute attorney-client relationship. For specific inquiries, please contact my office for an appointment.
So the question is: what can small owners do to come and work in the U.S. RIGHT NOW? Some short term non-immigrant visas may worth taking a look if you are really interested in coming to the U.S. through investment. The most obvious choice would be the E-2 visa, which allows foreigners to come and work in the U.S. for 2 years if they can invest a substantial amount of money in the U.S. and benefits the economy of the U.S. However, to qualify for an E-2 visa, the applicant must come from a country that has a trade treaty with the U.S. Thus, for example, nationals of China (PRC) will not be eligible to come to the U.S. through an E-visa.
Another common way for investors to come to the U.S. is through the L-1A visa. Some foreigners may consider expanding their overseas companies into the U.S. by setting up a branch or an affiliate in the U.S. The government currently allows investors who act as executives to enter into the U.S. and manage their new branch or affiliate company. Executives for new entities will get a visa that is valid for 1 year and can be renewed for up to 7 years. In additional, current law allows an L-1 visa holder to have an immigrant intent while in L-status, i.e., may apply for a green card and/or adjustment of status while the investor is in L-1A status.
Although these two visas are non-immigrant visas, they may actually serve the interests of investors better. Some potential investors I have talked to actually do not have the intent to move and live in the U.S. permanently. As a result, getting an E or L visa may be a better alternative because the amount of money needed is significantly lower than an EB-5.
Disclaimer: information included in this post does not constitute as legal advice and receipt of this information does not constitute attorney-client relationship. For specific inquiries, please contact my office for an appointment.
5/19/2010
Incentives to be Here Illegally
Immigration has definitely been a hot issue ever since Arizona passed SB 1030. However, we need a basic understanding of the law before we can engage in a civil and informed debate, regarless of which side you are on.
First of all, we need to understand who illegal immigrants are. There are three kinds of illegal immigrants: 1) foreigners who enter the U.S. without proper inspection by our custom and immigration officers; 2) foreigners who entered into the U.S. legally but have failed to leave the country after their authorized period of stay expires and 3) those who does not comply with their condition of stay in the U.S., such as students working off campus without authorization.
Second, we need to understand what it means to violate a law and the consequences of different violation. Obviously, there are different kinds of law. Laws that are enacted by the government to protect the society as a whole are generally criminal law. On the other hand, laws that are enated to protect a specific group of citizens and customers are generally civil laws, such as contract. Of course this is a pretty basic generalization and sometimes the two interwine with each other. When someone violates a criminal law, such as committing a murder, the government, i.e., district attorney, will file the charges against the suspect. If the government prevails, the defendant would usually serve time behind the bars. In contrast, violation of civil law does not impose jail time usually. Instead, the offending party would have to compensate the victim in monetary terms.
Third, our legal system has long been a balancing act between mercy and justice. A violation of the law does not automatically put the offending party into jail or impose a fine. Instead, the offending party can raise some so-called affirmative defenses to justify their violation. A classic example would be to kill someone when the defendant himself is in jeopardy of losing his own life if he did not kill.
Our immigration law is a very unique set of law. We punish those who violate our immigration law by expelling the violators from our country. No jail time or fine is imposed for violating our immigration law. In addition, we have allowed affirmative defenses and afford those who are in our country due process to present their case and why they should not be deported in most situations.
I think these are some of the facts we need to understand before we engage in a debate of what we should do with our immigration system. Some people say illegals are illegals and they should be deported. Saying so is simply to saying criminals are criminals and they should be jailed without trial. However, our system does not work this way. In fact, it is the Constitution, which we support and are proud of, that says we cannot put people in jail and expel them out of this country without due process.
Moreover, as much as I hate to admit that, but I think our immigration system provides far too many incentives for people to disobey it. Take a married couple for example. I doubt how many of us would ask our date whether he/she has legal papers. Moreover, if you marry a legal permanent resident/green card holder, you are subject to immigrant visa quota and have to wait for a few years to gain residency in the U.S. Because of the wait, you may have to make a hard choice when your current visa or authorized period of stay expires: do you go home and leave your spouse behind or do you break the law but stay with your family? Why can't our law treat spouses and minor children of permanent residents the same as US citizens, namely giving them residency right away without imposing a quota system? Can you see why our immigration ststem helps create illegals?
Our immigration system does not punish employers who hire illegal aliens hard enough. This is simply a supply and demand calculation. The benefits and costs saved for hiring illegal workers simply outweigh the penalties of breaking the law. Although companies who hire illegals can be subject to criminal liabilities, the burden of proof is often so high that prosecutors simply cannot meet. Again, our system encourages people to break the law.
People often complain that our federal government fails to enforce our immigration law. But how is the federal government going to enforce the law when they do not have funds to hire agents and border patrols that could safeguard our coastline or our land border? Are we willing to pay more taxes and expand our government in the area of immigration?
I think we need to enforce our law, but I also think we need to enact laws that will not encourage people to disobey it. Also, I am not sure how much our country is willing to sacrifice to provide the resources that our immigration authority needs to enforce the law.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not constitute attorney-client relationship. For specific inquires, please contact my office for an appointment.
First of all, we need to understand who illegal immigrants are. There are three kinds of illegal immigrants: 1) foreigners who enter the U.S. without proper inspection by our custom and immigration officers; 2) foreigners who entered into the U.S. legally but have failed to leave the country after their authorized period of stay expires and 3) those who does not comply with their condition of stay in the U.S., such as students working off campus without authorization.
Second, we need to understand what it means to violate a law and the consequences of different violation. Obviously, there are different kinds of law. Laws that are enacted by the government to protect the society as a whole are generally criminal law. On the other hand, laws that are enated to protect a specific group of citizens and customers are generally civil laws, such as contract. Of course this is a pretty basic generalization and sometimes the two interwine with each other. When someone violates a criminal law, such as committing a murder, the government, i.e., district attorney, will file the charges against the suspect. If the government prevails, the defendant would usually serve time behind the bars. In contrast, violation of civil law does not impose jail time usually. Instead, the offending party would have to compensate the victim in monetary terms.
Third, our legal system has long been a balancing act between mercy and justice. A violation of the law does not automatically put the offending party into jail or impose a fine. Instead, the offending party can raise some so-called affirmative defenses to justify their violation. A classic example would be to kill someone when the defendant himself is in jeopardy of losing his own life if he did not kill.
Our immigration law is a very unique set of law. We punish those who violate our immigration law by expelling the violators from our country. No jail time or fine is imposed for violating our immigration law. In addition, we have allowed affirmative defenses and afford those who are in our country due process to present their case and why they should not be deported in most situations.
I think these are some of the facts we need to understand before we engage in a debate of what we should do with our immigration system. Some people say illegals are illegals and they should be deported. Saying so is simply to saying criminals are criminals and they should be jailed without trial. However, our system does not work this way. In fact, it is the Constitution, which we support and are proud of, that says we cannot put people in jail and expel them out of this country without due process.
Moreover, as much as I hate to admit that, but I think our immigration system provides far too many incentives for people to disobey it. Take a married couple for example. I doubt how many of us would ask our date whether he/she has legal papers. Moreover, if you marry a legal permanent resident/green card holder, you are subject to immigrant visa quota and have to wait for a few years to gain residency in the U.S. Because of the wait, you may have to make a hard choice when your current visa or authorized period of stay expires: do you go home and leave your spouse behind or do you break the law but stay with your family? Why can't our law treat spouses and minor children of permanent residents the same as US citizens, namely giving them residency right away without imposing a quota system? Can you see why our immigration ststem helps create illegals?
Our immigration system does not punish employers who hire illegal aliens hard enough. This is simply a supply and demand calculation. The benefits and costs saved for hiring illegal workers simply outweigh the penalties of breaking the law. Although companies who hire illegals can be subject to criminal liabilities, the burden of proof is often so high that prosecutors simply cannot meet. Again, our system encourages people to break the law.
People often complain that our federal government fails to enforce our immigration law. But how is the federal government going to enforce the law when they do not have funds to hire agents and border patrols that could safeguard our coastline or our land border? Are we willing to pay more taxes and expand our government in the area of immigration?
I think we need to enforce our law, but I also think we need to enact laws that will not encourage people to disobey it. Also, I am not sure how much our country is willing to sacrifice to provide the resources that our immigration authority needs to enforce the law.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not constitute attorney-client relationship. For specific inquires, please contact my office for an appointment.
4/19/2010
Arizona's Pending Immigration Bill
The Bill
By now most people have heard about the pending legislation regarding illegal immigration in Arizona. The most controversial features of S.B. 1070 include the following:
- allows a state, county, or town official/agent to inquire the immigration status of an alien if the official/agent has reasonable suspicion that the alien is not in the U.S. legally;
- makes it a criminal trespass if an alien fails to carry proof of his/her legal status in any private or public land in Arizona;
- makes it a crime to transport an illegal alien in Arizona, if the government can prove that the driver knows or reckless disregards of the alien's immigration status;
- allows private citizens to sue the state, county, city, or town for not enforcing federal immigration law.
Problems
While I think we should enforce our federal immigration law, I am very concerned on the negative effects this bill has on people who are in the U.S. LEGALLY.
Vague Definition
First of all, there is no clear definition of "reasonable suspicion." Is speaking English with an accent good enough to cast reasonable suspicion on the immigration status of a person? If yes, then I may be stopped a lot by police officers when I visit Arizona!
Second, how do you define "reckless disregard" of an alien's immigration status? If someone at school/church asked me to give him a ride, should I inquire about his immigration status before saying yes? For example, if a boy who came from Australia had overstayed his visa in the U.S. since age 2 and speaks English with no accent, I probably would not know or check his illegal status and I could get arrested for giving him a ride. What about driving an alien who had overstayed his visa because his flight to go home was cancelled due to natural diasters like earthquake or volcanic ash? Because I knew of his illegal status, I could be arrested when I drove him to the airport and sent him home!
Big Inconvenience, Could Even Be Unconstitutional
It is even more problematic to require an alien to carry proof of legal status whenever he/she is in Arizona. It is true that federal law requires permanent residents to carry their green cards with them wherever they go. But what about citizens? Do all citizens need to bring their birth certificate, naturalization certificate, or passport when they go to shop at a local grovery store or their neighbor's home? If yes, then it would be a big inconvenience for any citizen who lives or visits Arizona. If only naturalized citizens need to do that, then we are definitely making them second-class citizens and it is a clear violation of the equal protection clause of the 14th Amendment. What about non-immigrant visa holders like students or H-1B workers? Do they need to bring their passports or USCIS documents with them wherever they go in Arizona? This could particularly affect those who are visiting from other states. For example, it is totally possible for an H-1B worker who worked in the U.S. after graduation to drive to Arizona to visit the Grand Canyon and got arrested for not carrying his H-1B approval notice to prove his current legal status when he stopped at a gas station! To make things even worse, because it is a crime for not carrying his proof of legal status in Arizona, the poor guy could be deported and barred from entering the U.S. in the future! That does not make sense to me and I hope it will never happen.
Now some people may argue that a driver's license would be a good enough proof for legal status. However, as of 2009, four states still issue driver's license to illegal aliens. Moreover, many states have issued driver's license to students and temporal visitors as long as they can prove their legal status at the time of issuance. Therefore, aliens who have overstayed their visas can nonetheless hold valid driver's license.
Hurting Arizona Financially
Needless to say, allowing private citizens to sue their local government for not enforcing immigration law and attaches civil penalties to it would drain the financial resources of the local government in Arizona. Can a resident of Arizona sue the city officials for not arresting my neighbor who has overstayed his visa? If yes, then people who are running out of money could find a new way to make some.
This legislation could potentially hurt tourism in Arizona as well. Aliens, legal or not, may want to avoid Arizona to ensure they are safe. Would that be a good thing for towns who rely on the millions of tourists who visit the Grand Canyon and other scenic places in the state? I think so.
Conclusion
I know some of the examples I have used are a bit extreme, but those are possible and undesirable effects of the AZ legislation. We should not tolerate any violation of law, but this particular Arizona legislation is going to create more problems than solving them.
Disclaimer: Information included in this post does nto constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquries, please contact my office for an appointment.
By now most people have heard about the pending legislation regarding illegal immigration in Arizona. The most controversial features of S.B. 1070 include the following:
- allows a state, county, or town official/agent to inquire the immigration status of an alien if the official/agent has reasonable suspicion that the alien is not in the U.S. legally;
- makes it a criminal trespass if an alien fails to carry proof of his/her legal status in any private or public land in Arizona;
- makes it a crime to transport an illegal alien in Arizona, if the government can prove that the driver knows or reckless disregards of the alien's immigration status;
- allows private citizens to sue the state, county, city, or town for not enforcing federal immigration law.
Problems
While I think we should enforce our federal immigration law, I am very concerned on the negative effects this bill has on people who are in the U.S. LEGALLY.
Vague Definition
First of all, there is no clear definition of "reasonable suspicion." Is speaking English with an accent good enough to cast reasonable suspicion on the immigration status of a person? If yes, then I may be stopped a lot by police officers when I visit Arizona!
Second, how do you define "reckless disregard" of an alien's immigration status? If someone at school/church asked me to give him a ride, should I inquire about his immigration status before saying yes? For example, if a boy who came from Australia had overstayed his visa in the U.S. since age 2 and speaks English with no accent, I probably would not know or check his illegal status and I could get arrested for giving him a ride. What about driving an alien who had overstayed his visa because his flight to go home was cancelled due to natural diasters like earthquake or volcanic ash? Because I knew of his illegal status, I could be arrested when I drove him to the airport and sent him home!
Big Inconvenience, Could Even Be Unconstitutional
It is even more problematic to require an alien to carry proof of legal status whenever he/she is in Arizona. It is true that federal law requires permanent residents to carry their green cards with them wherever they go. But what about citizens? Do all citizens need to bring their birth certificate, naturalization certificate, or passport when they go to shop at a local grovery store or their neighbor's home? If yes, then it would be a big inconvenience for any citizen who lives or visits Arizona. If only naturalized citizens need to do that, then we are definitely making them second-class citizens and it is a clear violation of the equal protection clause of the 14th Amendment. What about non-immigrant visa holders like students or H-1B workers? Do they need to bring their passports or USCIS documents with them wherever they go in Arizona? This could particularly affect those who are visiting from other states. For example, it is totally possible for an H-1B worker who worked in the U.S. after graduation to drive to Arizona to visit the Grand Canyon and got arrested for not carrying his H-1B approval notice to prove his current legal status when he stopped at a gas station! To make things even worse, because it is a crime for not carrying his proof of legal status in Arizona, the poor guy could be deported and barred from entering the U.S. in the future! That does not make sense to me and I hope it will never happen.
Now some people may argue that a driver's license would be a good enough proof for legal status. However, as of 2009, four states still issue driver's license to illegal aliens. Moreover, many states have issued driver's license to students and temporal visitors as long as they can prove their legal status at the time of issuance. Therefore, aliens who have overstayed their visas can nonetheless hold valid driver's license.
Hurting Arizona Financially
Needless to say, allowing private citizens to sue their local government for not enforcing immigration law and attaches civil penalties to it would drain the financial resources of the local government in Arizona. Can a resident of Arizona sue the city officials for not arresting my neighbor who has overstayed his visa? If yes, then people who are running out of money could find a new way to make some.
This legislation could potentially hurt tourism in Arizona as well. Aliens, legal or not, may want to avoid Arizona to ensure they are safe. Would that be a good thing for towns who rely on the millions of tourists who visit the Grand Canyon and other scenic places in the state? I think so.
Conclusion
I know some of the examples I have used are a bit extreme, but those are possible and undesirable effects of the AZ legislation. We should not tolerate any violation of law, but this particular Arizona legislation is going to create more problems than solving them.
Disclaimer: Information included in this post does nto constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquries, please contact my office for an appointment.
2/26/2010
H-1B Process: Are You Ready to File?
As April 1 is only a few weeks away, those who are lucky enough to have a job offer and find an employer that is willing to petition an H-1B application should start putting their application together NOW. The following is a brief explanation on the process of filing an H-1B application.
Starting from this year, the Department of Labor (DOL) has centralized the process of prevailing wage determination (PWD) for H-1B. You should file ETA Form 9141 through iCert (icert.doleta.gov), a website run by the Department of Labor. Applicants should expect to get the prevailing wage determination back in about 60 days. That means if your employer has not filed a PWD yet, you most likely will not be able to file your H-1B application by April 1.
While your are waiting for your PWD, your employer should inform other U.S. workers that you, an international worker, will be hired. Usually a notice on the company's bulletin board or an email is sufficient (hard notice of soft notice), depending on the usual channel of communication between the employer and the employees. You should receive a copy of the LCA as well.
After informing the U.S. workers about the intent of hiring an international worker and getting the PWD back, your employer should file a Labor Condition Application (LCA) with the DOL through iCert. A LCA will generally be approved within 7 business days unless something in the LCA is inaccurate or incomplete, which will require the employer to correct the information and resubmit the LCA.
After the LCA is approved, you may submit your I-129 application with H-supplement pages filled out and other supporting evidence, such as documents that prove your qualifications.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please contact my office for an appointment.
Starting from this year, the Department of Labor (DOL) has centralized the process of prevailing wage determination (PWD) for H-1B. You should file ETA Form 9141 through iCert (icert.doleta.gov), a website run by the Department of Labor. Applicants should expect to get the prevailing wage determination back in about 60 days. That means if your employer has not filed a PWD yet, you most likely will not be able to file your H-1B application by April 1.
While your are waiting for your PWD, your employer should inform other U.S. workers that you, an international worker, will be hired. Usually a notice on the company's bulletin board or an email is sufficient (hard notice of soft notice), depending on the usual channel of communication between the employer and the employees. You should receive a copy of the LCA as well.
After informing the U.S. workers about the intent of hiring an international worker and getting the PWD back, your employer should file a Labor Condition Application (LCA) with the DOL through iCert. A LCA will generally be approved within 7 business days unless something in the LCA is inaccurate or incomplete, which will require the employer to correct the information and resubmit the LCA.
After the LCA is approved, you may submit your I-129 application with H-supplement pages filled out and other supporting evidence, such as documents that prove your qualifications.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please contact my office for an appointment.
2/01/2010
Advance Parole
If you are applying for adjustment of status (AOS) and need to leave the U.S. before the AOS application is approved, please remember to apply for and obtain an advance parole before you leave the country. The fee of applying an advance parole is included in your adjustment of status application, so you do not have to pay extra to apply for it. However, you need to file an I-131 along with your I-485 to take advantage of this fee arrangement.
If you are a legal permanent resident but need to leave the country for longer than 180 consecutive days, you may also need an advance parole to return to the U.S.
Before an advance parole application is granted, you need to complete a biometric, i.e., have your fingerprint taken by the Application Support Center. If you fail to attend your biometric appointment, your advance parole application may be denied based on abandonment.
Usually an advance parole application would be processed by USCIS within 90 days. If you have not received a decision within 90 days, you may contact the local office of USCIS to follow up on your application.
What if you have an emergency and cannot wait for 90 days? You need to bring documentations to your local USCIS office and show why your advance parole application should be expedited. If the local USCIS office determines that you have a legitimate need to get an advance parole right away, it will likely process and issue an advance parole to you within a few hours.
In short, please remember you have to apply for an advance parole while you are in the U.S and do not leave the country until you have obtained the advance parole.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please contact my office for an appointment.
If you are a legal permanent resident but need to leave the country for longer than 180 consecutive days, you may also need an advance parole to return to the U.S.
Before an advance parole application is granted, you need to complete a biometric, i.e., have your fingerprint taken by the Application Support Center. If you fail to attend your biometric appointment, your advance parole application may be denied based on abandonment.
Usually an advance parole application would be processed by USCIS within 90 days. If you have not received a decision within 90 days, you may contact the local office of USCIS to follow up on your application.
What if you have an emergency and cannot wait for 90 days? You need to bring documentations to your local USCIS office and show why your advance parole application should be expedited. If the local USCIS office determines that you have a legitimate need to get an advance parole right away, it will likely process and issue an advance parole to you within a few hours.
In short, please remember you have to apply for an advance parole while you are in the U.S and do not leave the country until you have obtained the advance parole.
Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please contact my office for an appointment.
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