When Immigration Matters

F-1 Student Visa Seminar : From F-1 VIsa to Green Card & Beyond

Posted by Karen-Lee Pollak on Mon, Sep 15, 2014 @ 3:01 PM

F-1 visa, green cardPlano Multicultural Outreach Roundtable to Present Fall Immigration Seminar

The F-1 Student Visa and Beyond: Creating a Game Plan for Working and Maintaining Status in the United States

    
       The Plano Multicultural Outreach Roundtable and Bell Nunnally & Martin, LLP will present their Fall Immigration Seminar, The F-1 Student Visa and Beyond: Creating a Game Plan for Working and Maintaining Status in the United States. This no-charge interactive seminar provides a comprehensive overview of immigration laws as applied to F-1 students. F Visas are a type of non-immigrant student visa that allows foreigners to pursue education in the United States.
       The keynote speaker at the seminar will be Karen-Lee Pollak. Pollak chairs Bell Nunnally & Martin’s Immigration Section. She was selected to D Magazine’s “Best Lawyers in Dallas 2014” list, featured as one of Newsweek’s Leaders in Immigration Law Showcase and listed as Texas Rising Star® by Texas Monthly, she provides full-service legal immigration counsel to large corporations, small businesses and individuals.

       F-1 students, prospective F-1 students and post graduate students are invited to attend. The seminar will help students develop a plan for maintaining immigration status and working in the United States. The seminar will cover various aspects about student visa status including:

  • Working while in F-1 status-when USCIS approval is and is not required
  • VISA Options after studying-DACA, H1B Petitions, “Cap Gap” relief and beyond
  • Avoid costly and often unfixable mistakes in maintaining Immigration Status
  • Develop strategies for maintaining status in the United States during and after study
  • Understand your options to remain in the United States after studying

      The seminar will be held on September 30, between 6 and 8 p.m. at Collin College, Spring Creek Campus, Room B124, 2800 E. Spring Creek Parkway, Plano, Texas 75074. Please RSVP to the event to [email protected]

 

DOJ Fines IBM for Discriminatory H1-B Hiring Practices

Posted by Michael Pollak on Thu, Oct 03, 2013 @ 10:48 AM

H1-B; H1; DOJ, USCISThe Justice Department announced that it reached an agreement yesterday with International Business Machines Corporation (IBM) resolving allegations that the company violated the anti-discrimination provision of the Immigration and Nationality Act (INA) when it placed online job postings for application and software developers that contained citizenship status preferences for F-1 and H-1B temporary visa holders.  F-1 visas are issued to foreign students studying in the United States, and H-1B visas are issued to foreign nationals with technical expertise in specialized fields.  

Under the INA, employers may not discriminate on the basis of citizenship status unless required to comply with law, regulation, executive order or government contract.  Although IBM’s job postings were for positions that would ultimately require the successful candidate to relocate overseas, the anti-discrimination provision of the INA does not permit employers to express or imply a preference for temporary visa holders over U.S. workers, such as U.S. citizens and lawful permanent residents, for any employment opportunity in the United States.

 Under the settlement agreement, IBM has agreed to pay $44,400 in civil penalties to the United States.  IBM further agreed to revise its hiring and recruiting procedures and train its human resources personnel to ensure compliance with the INA, and to be subject to reporting requirements for a period of two years.

 

How Do I Bring an Employee to Legally Work in the US?

Posted by Michael Pollak on Fri, Jan 18, 2013 @ 7:00 AM

Immigration attorney Karen-Lee Pollak explains how to legally bring a employee to work in the United States.

employment visaIn order to receive an immigrant visa through employment, you must have a job offer from a U.S. employer, specific education and/or work experience and in some cases there must be no American willing or able to take that particular job.

 

Thanks for your comments, questions, and suggestions regarding immigration topics.

What is an EB-1 Visa?

Posted by Michael Pollak on Thu, Jan 17, 2013 @ 7:00 AM

Immigration attorney Karen-Lee Pollak explains how to bring an employee to work in the United States with an EB-1 visa.

eb-1 visaThe EB-1 is a preference category for United States employment-based permanent residency. It is intended for "priority workers". Those are foreign nationals who either have "extraordinary abilities", or are "outstanding professors or researchers", and also includes "some executives and managers of foreign companies who are transferred to the US".  It allows them to remain permanently in the US.

 Thanks for your comments, questions, and suggestions regarding immigration topics.

How to Qualify for an EB-2 or EB-3 Visa?

Posted by Michael Pollak on Tue, Jan 15, 2013 @ 7:00 AM

Immigration attorney Karen-Lee Pollak explains how to legally bring an employee to the United States. 

eb2 visaEB-2 is an immigrant visa preference category for United States employment-based permanent residency, created by the Immigration Act of 1990. The category includes "members of the professions holding advanced degrees or their equivalent", and "individuals who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States"

The EB-2 or EB-3 Employment-Based Visas allows an individual to enter and work inside of the United States based on an investment he or she will be controlling, while inside the United States. This visa must be renewed every two years, but there is no limit to how many times one can renew. The investment must be "substantial". Investor visas are available only to treaty countries, which include countries like Albania and Senegal, but do not include Brazil, Russia, India and China.

The EB-3 is an immigrant visa preference category for United States employment-based permanent residency. It is intended for "skilled workers", "professionals", and "other workers". Those are prospective immigrants who don't qualify for the EB-1 or EB-2 preferences. The EB-3 requirements are less stringent, but the backlog is much longer: typically 6 to 9 years, except for residents of India and China, for whom the backlog is even longer, sometimes more than 12 years.

 Thanks for your comments, questions, and suggestions regarding immigration topics.

How to Qualify for an EB-5 Investor Visa

Posted by Michael Pollak on Sun, Jan 13, 2013 @ 7:14 AM

Immigration attorney Karen-Lee Pollak explains how to get a green card by investing in the United States. 

eb-5 visaThe EB-5 or Investor visa is a United States visa created by the Immigration Act of 1990. This visa provides a method of obtaining a green card for foreign nationals who invest money in the United States and may be attained in three ways.

 Thanks for your comments, questions, and suggestions regarding immigration topics.

USCIS Publishes New Form I-140, Immigrant Petition for Alien Worker

Posted by Karen-Lee Pollak on Fri, Nov 02, 2012 @ 4:01 PM

A new Form I-140, Immigrant Petition for Alien Worker, is now available. We changed the format to improve intake processing and added Adobe fillable format features to make it easier for you to complete the form.  We encourage you to  docs/I140.pdf from our website and complete it on a computer to take advantage of these new features.  Editions dated Jan. 06, 2010, and later will be accepted until Dec. 30, 2012.  After this date, we will only accept the Oct. 1, 2012, edition." - USCIS, Nov. 2, 2012.

Visa Office Discusses Priority Dates for Employment Based Visas

Posted by Karen-Lee Pollak on Thu, Jun 28, 2012 @ 2:21 PM

visa bulletin, EB-2, priority datesOn Tuesday, June 19, 2012, Roberta Freedman, AILA Students & Scholars Committee member, discussed the Visa Bulletin, visa demand in the employment preference categories, and predictions for FY2012 and beyond with Charlie Oppenheim of the Visa Office (AILA INfonet Doc No. 12012349 posted 6/28/2012). Here are notes from that discussion:

2012 and 2013 News
  • "In October 2012 (beginning of the 2013 fiscal year), the EB-2 cut-off dates for China-Mainland born and India, which are currently "unavailable," will move to August or September 2007 (China may be slightly better). It is unlikely that the cut-off dates will move forward at all for the first two quarters of FY2013. If they do, it will only be if the Visa Office is convinced that there is insufficient demand for the rest of the year. Mr. Oppenheim's office already has 17,000 EB-2 cases for natives of India, China, and worldwide with priority dates after January 1, 2009, pre-adjudicated. There will be a lot of cases queued up for adjudication in October 2012, and it will take some time to get through them.
  • EB-2 worldwide will be current in October 2012.
  • If USCIS approves many pending cases during the month of June, the worldwide EB-2 category may retrogress or become unavailable for the rest of the year.
  • Why did the priority dates move ahead so far and then retrogress so drastically? USCIS encouraged Mr. Oppenheim's office to move the categories forward so much in January, February, and March of 2012. USCIS reported that they had a lot of approved petitions but they were not receiving enough I-485s. USCIS wanted the cut-off dates moved even more in March 2012, but DOS resisted, since there already appeared to be heavy demand. In February, the demand had already increased 50%. In addition, USCIS said that they believed that adjudication of EB-1 cases would be at the same rate as last fiscal year, and this was not the case. It could be due to the fact that many EB-1 cases had very long adjudication times with USCIS. In addition, EB-5 usage has been higher this year. Unused EB-5 cases fall into EB-1, and unused EB-1 cases fall into EB-2.
  • Applicants from China and India who filed will be waiting years for adjudication of their I-485s.
  • USCIS also advised a 4-6 month timeline in the processing of I-485s, and then they processed a lot of cases in 3 months, which increased the demand as well for visa numbers this fiscal year.
  • The group of cases that were filed in July and August of 2007, when all employment-based categories were made "current," were all completed by November 2011, and at that point, Mr. Oppenheim's office had to depend on USCIS estimates for adjudication of cases. Mr. Oppenheim's office had no pre-adjudicated cases that gave him a point of reference to determine what was left or pending.
  • Mr. Oppenheim's office has been very clear that they do not like retrogression.

Going forward:

Another problem with trying to predict the demand is that no one is keeping statistics on EB-3-EB-2 "upgrades." Upgrades continue to be a big "wildcard," as no one knows how many are being used per year and no one is tracking it. Mr. Oppenheim confirmed his previous comments that both cases for a person remain open (so it looks like two numbers are being used) if a person is upgrading from EB-3 to EB-2, and only when the green card is approved does the duplicate file number go away. At that time, Mr. Oppenheim's office is told by USCIS to cancel a pending EB-3 case.

Mr. Oppenheim's office believes that there are 10,000 to 15,000 numbers used for upgrades every fiscal year. In March 2012, alone, 3,200 numbers were used to approve China and India adjustments that were EB-3-EB-2 upgrades. The actual break down was 2,800 from India and 500 from China. All of these cases had priority dates before 2007, so clearly, they were upgrades. For example, 363 of the 2,800 EB-2 cases from India that were approved in March 2012, had a 2005 priority date. In March 2012, alone, over 1,000 numbers were used for applications from the worldwide quota that had priority dates before 2010, so these were likely upgrades as well.

USCIS previously insisted that the number of upgrade cases was insignificant.

Mr. Oppenheim's office tries to use 13,500 visas per quarter for all EB cases. This office already has more than 17,000 in line for FY2013.


 

On Thursday, January 19, 2012, Business committee chair Mike Nowlan and Students & Scholars committee member, Roberta Freedman, discussed the Visa Bulletin, visa demand in the employment preference categories, and predictions for FY2012 with Charlie Oppenheim of the Visa Office. Notes from that discussion are:

  • EB green card usage has been very slow in FY2012, so DOS is advancing the dates to see how many cases are out there. Mr. Oppenheim is relying on USCIS and their estimate. USCIS thought more would come in, but 50% their estimate have actually filed an AOS. This movement is due in large part to the clearing out of the EB-2 2007 AOS cases. Mr. Oppenheim reminds AILA that DOS cannot "see" the I-140 cases that are approved and for which adjustment of status had been requested prior to September 2010, though he can "see" cases for which consular processing is requested.
  • Mr. Oppenheim could not speculate why usage is slow/low. Economy? Foreign nationals lost jobs?
  • Low usage of EB-1 numbers is assumed again this year. A fall-down of 12,000 additional EB-1 numbers into EB-2 is calculated into Mr. Oppenheim's projections for 2012, although he thinks EB-1 number availability may be down by approximately 1,000 as compared to last year, due to heavier EB-5 usage since unused EB-5 numbers "spill up" to EB-1 and then down to EB-2.
  • Mr. Oppenheim is very surprised by the severe downturn in EB-1 numbers. We cited the impact of Kazarian on USCIS filings and demand for EB-1-1 numbers, and the fact that it is difficult for an owner-beneficiary to obtain approval of EB-1-3 petitions.
  • About 34% of the total number of permanent visas have been used this year, and 45% should be used by end of February.
  • Adjustment of status through USCIS accounts for 85% to 90% of all EB green card cases.
  • The impact on number usage of upgrades (EB-3 to EB-2) is still unknown. Upgrades were the reason the priority dates advanced so slowly in in the beginning of FY2011. For upgrades, the EB-3 case does not get cleared out of the system until the EB-2 for the same person is approved.
  • Mr. Oppenheim also wonders whether demand is weak for visas for dependent family members, and so fewer green cards are needed.
  • Mr. Oppenheim meets monthly with USCIS and the Ombudsman's office to review the receipt of cases. There was a recent meeting to discuss December numbers. There will be another review before he decides what he will do in March.


Prediction:

  • Employment-based priority dates will advance again with the March Visa Bulletin, likely by at least a few months. An advance of six months is possible, although an advance of one year is not likely. He will know as this month moves on. With normal USCIS adjustment of status processing times of four-to-six months, March is the last time for Mr. Oppenheim to get the AOS cases filed and possibly approved in FY2012. He will then probably hold the priority date over the summer, and then retrogress or advance it if needed. Mr. Oppenheim does not have enough data to predict demand and priority date changes in the last quarter of FY2012.
  • • USCIS is agreeing to the priority date advances, though significant advances are bit of a gamble for USCIS, because if they get inundated with adjustment filings, and subsequently there is priority date retrogression, USCIS will have to process EAD and advance parole extensions without additional fees. As we all know, retrogression causes chaos."

(AILA INfonet Doc No. 12012349 posted 6/28/2012)

Visa Bulletin for March 2012 is Out.

Posted by Karen-Lee Pollak on Mon, Feb 13, 2012 @ 11:42 AM

Dallas Immigration lawyerVisa Bulletin Dates – Employment – March 2012

Great News.  EB2 for India and China moves ahead to May 2010. 

EMPLOYMENT-BASED PREFERENCES

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Employment- Based All Chargeability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01MAY10 01MAY10 C C
3rd 15MAR06 01JAN05 22AUG02 15MAR06 15MAR06
Other Workers 15MAR06 22APR03 22AUG02 15MAR06 15MAR06
4th C C C C C
Certain Religious Workers C C C C C
5th
Targeted
Employment Areas/
Regional Centers
and Pilot Programs
C C C C C

*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

6. The Department of State has a recorded message with visa availability information which can be heard at: (202) 663-1541. This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

USCIS Starts Accepting H-1B Visa Applications on April 1, 2012

Posted by Karen-Lee Pollak on Tue, Feb 07, 2012 @ 6:00 PM

H1-B, H1-B, visa, USCISOn April 1, 2012, the United States Citizenship and Immigration Service (USCIS) starts accepting H-1B visa applications for the 2013 fiscal year (which starts on October 1, 2012).

The H-1B  visa program enables U.S. employers to hire highly educated foreign professional workers for “specialty occupations” — jobs that require at least a bachelor’s degree or the equivalent in the field of specialty.  These foreign workers provide needed specialized or unique skills, fill a temporary labor shortage and/or supply global expertise.  Holders of these visas can stay in theUnited Statesfor up to six years.

In 2008, U.S. Citizenship and Immigration Services (USCIS) received approximately 163,000 petitions during the five-day filing period and conducted a random lottery to select the 65,000 petitions that would be eligible for processing.  In 2007, the USCIS reached its H-1B visa quota in one day.  Last year, with the down turn in the economy, the cap was only reached in November.  Although we keep hearing about economic recovery, we do not expect the crazy rush of past years.   

 That does not mean prudent employers should not start planning ahead.  There are certain aspects of the application process which are beyond the employer’s control which may delay the timely filing of an application.  First, obtaining a certified Labor Condition Application (LCA) is no longer immediate upon submission online.  The LCA contains several attestations by the employer including an attestation that they will pay the H-1B employee the prevailing wage for the job position.

Now employers have to submit the LCA to the Department of Labor and wait up to seven days if not longer to obtain an approved LCA.  Many employers have already experienced delays in obtaining an approved LCA where the Department of Labor cannot verify the employer’s tax identification number and requests additional documents before providing an approved LCA. 

USCIS will also continue to use its web-based tool Validation Instrument for Business Enterprise (“Vibe”).  This tool uses public information including Dunn & Bradstreet reports and previously accumulated third-party data to validate data about Petitioners filing employment-based immigrant and non-immigrant petitions. 

Careful consideration should be given to employees in Optional Practical Training (OPT) status that may expire in May or June 2012.  In past years, Congress provided relief in the form of a “cap-gap” to allow an employee who has an H1-B approved at the time that their OPT expired to stay and work in the United States until October 1 when they could first work in H-1B status. 

Employers may also be able to extend OPT for Science, Technology, Engineering and Mathematics students (STEM).  However, in order to be eligible for these extensions, employer must be registered with E-Verify. 

WHY THE H-1B VISAS CUT-OFF?

H1-B visas are limited to 65,000 per year.  However, certain cases are exempt from the cap.  This numerical limit is further reduced by free trade agreements that specifically allocate 6,800 H1-B visas for nationals ofSingaporeandChilemaking only 58,200 visas available in the standard H1-B pool.  After the H1-B cap is reached, private employers cannot hire new temporary professional workers in H1-B status for the 2013 fiscal year. 

 WHO IS EXEMPT FROM THE H1-B CAP?

 The following cases are exempt from the H1-B cap: 1) extensions for current H1-B workers, whether for a new or existing employer in sequential employment situations; 2) concurrent employment in a second H1-B position; 3) amended petitions; 4) H1-B employment for nationals of Chile or Singapore, 5) petitions for new employment at an exempt organization such as a nonprofit research organization, an institution of higher education or an affiliated non-profit entity and 6) 20000 H1-B visas for graduates of U.S. universities who have earned a Master's or higher degree.

 MAKING THE H1-B CUT-OFF FOR FY 2013

The diligent employer will be well-served in starting to consider their employment needs for the upcoming fiscal year.  Because the USCIS generally works on petitions in the order they were received, it may be worthwhile to pay the extra $1,225.00 premium processing fee to have your H1-B visa applications adjudicated in fifteen days. 

 For more information visit our immigration website at www.immigrationbn.com

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