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Can This Happen To Me?
|What Lawyers Aren’t Telling You!
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|Beat The Elusive H1B Cap in 2007!
A Checklist for EmployersThis correspondent recently overheard an immigration applicant complaining that it would be easier to get an Oscar then an H1B visa. While things may not be that bad, a limited number of visas and a high volume of immigrants are truly making the H1B seem very elusive.
But it is possible to beat the system, just by following this few pointers. But before we start, we would like to remind you quickly that petitions for new H-1Bs may be filed beginning April 1, 2007, for a start date on or after October 1, 2007. But before that, it is essential that the process leading up to the petition and the necessary documents are all in order.
Let’s Start the Checklist
Identify potential H-1B candidates immediately. Hire an Immigration Attorney to help you assess whether those candidates are qualified for the H-1B positions or not. We recommend that this process be completed by March.
Ensure that the candidates are in fact qualified for an H-1B visa. Candidates need to have a bachelor’s degrees or the equivalent (BE, BTech, or any PG will be equivalent to bachelors degree in the US. In case of B.Sc or any other 3 year degrees ensure that they have at least 1 year of full time Diploma in computers along with the transcripts).
Candidates who do not have US education need their credentials to be evaluated before filing the H-1B petition.
USCIS has given very clear guidelines that the candidates must have completed all the course requirements before the filing date. Masters Candidates will have to provide a copy of the Masters Degree award or course completion certificate before the filing. It is not advisable to file the H-1B petition in anticipation of the Masters completion. If the Masters degree cannot be completed, it is advisable to file the H-1B in the regular H-1B quota on the basis of their previous education.
Based on the past experience and using reasonable judgment, we at Immitips anticipate that the H-1B quota might reach the cap any time between end of April and 2nd week of May. We recommend you file your petitions starting April.
Getting A Caribbean Visa This January
A Guide for Cricket World Cup 2007 Enthusiasts!
A summary of the news and events from the previous month.
|January 2007 Visa Bulletin
|USCIS Memo on H &L Visa “Periods of Admission”
In its latest memo dated December 5, 2006, the U.S. Citizenship and Immigration Services (USCIS) has issued new guidelines for determining “periods of admission” for H1B and L1 visa holders, specially for those who have transferred from H4 and L1 status..
The Memo has issued guidelines that make for three significant differences in the way the time-limits are counted with H1B and L1 visas:
1. First, under the new guidelines the time spent by a alien on dependent status (either H-4 or L-2) will not be counted against the time limits set for H1B or L-1 (which is 6 years now), thus effectively separating the time spent in H-4 or L-2 status from the time spent in H1B or L-1 status, respectively.
2. Secondly, USCIS will now permit extensions beyond the six-year H1B limit even if the alien has not been maintaining H1B status or even if she is NOT IN the U.S . This will mean that aliens working abroad will now be afford short breaks without jobs, which previously would have meant failure to maintaining status. Now the individual simple has to prove he needs to continue his H1b status.
3. Thirdly, if an H1B holder left the US before completing six years and was away for more than a year, he or she can return for the time remaining of the six-year period without being subject to the H1B cap again.
In such cases, previously, the person could avail another six years but had to be counted against the cap, which meant a battle against backlogs and long queues. The memo, however, allows the individual to choose between returning for the remainder of the six years or applying for a six-year period again, as allowed previously.
Safety Window on Conversions to RIR
The Department of Labor (DOL) is going to launch a “window of safety” for employers who wish to convert their pending traditional labor certification applications to Reduction in Recruitment (RIR), reports American Immigration Lawyers Association (AILA).
Once the employers notify the DOL of a RIR request, the dept. will allow for a “window of safety”, during which the employer can conduct its recruitment campaign without concern about receiving the recruitment instructions and thus having the RIR recruitment be wasted. Read our ImmiDigest November 2006 Issue for more details.Copyright © 2006, Immitips.com. All Rights Reserved
The United States of America is going to experiment with a new format of its Citizenship Test starting from December 2006. The Citizenship test is mandatory for all aliens seeking citizenship. According to the U.S. Citizenship and Immigration Services (USCIS), the new naturalization test will be “more meaningful and less focused on trivial information”.
The new questions put more stress on historical facts like the cause of the Civil war, the Bill of Rights and more subjective questions like the meaning of democracy etc. It also features questions on Immigration forms and regulations. Changes are being made to the questions that test basic reading and writing skills in English as well, to include civic vocabulary words.
The US Administration insists the new test is not intended as a deterrent for immigrants but rather to make sure that soon-to-be citizens understand the American society and its values as defined by the U.S. Constitution and the Bill of Rights. According to the administration, the existing test stresses simply on the facts involved and doesn’t really require the immigrant to have any “knowledge” of these values.
The new exam will be given to volunteers beginning this winter in Albany , N.Y. ; Boston ; Charleston , S.C. ; Denver ; El Paso , Texas ; Kansas City , Mo. ; Miami ; San Antonio ; Tucson , Ariz. ; and Yakima , Wash. The program will be tested with volunteers throughout 2007. More cities may be added. Depending on the feedback, the test may be made mandatory in 2008 and not before.
The test will have 125 new questions eventually narrowing it down to the standard 100 questions, as on the current exam. To pass, immigrants must correctly answer six of 10 questions given. Volunteers who fail the new test during the trial period can give the old test. Copyright © 2006, Immitips.com. All Rights Reserved
To read more about this test, visit the USCIS website http://www.uscis.gov/portal/site/uscis
To read the list of new questions click on http://www.uscis.gov/files/pressrelease/NatzTestQs113006.pdf
The U.S. Department of Labor (DOL) recently made some changes to the data entry process for PERM , which will now flash warning messages when certain typical case problems appear. The move will probably make the process a bit more error-free. With the system being completely online, human errors often are the reason for cases being rejected.
The warnings messages are designed to address typographical errors and inadvertent omissions mainly. For instance, if a date entered on a column doesn’t tally with the information previously inserted, a warning message will inform the user of that discrepancy.
The message will also direct the user on how to correct such errors before submitting. There is also option to by-pass these messages without making any changes, if the user chooses to do so. Also, since the warning notices appear at the end of the each section, in case of sections with multiple steps, the warning may not appear until the very end.
Hopefully, by making it easier to spot errors the Department will able to avoid denials and rejections and resulting backlogs. However, the user needs to still fill the forms carefully and not depend on the warning system.Copyright © 2006, Immitips.com. All Rights Reserved
In an effort streamline the visa processing service, the U.S. Citizenship and Immigration Services (USCIS) has proposed a record-based Background Check Service.
At present, the USCIS conducts background checks on petitioners and applicants who are seeking immigration related benefits. To improve efficiency, the Background Check Service has been developed as a centralized repository that will contain the consolidated data on all background checks done by the USCIS. This repository will be accessible to USCIS officials to request background files from the Background Check Service.
The new system is tentatively scheduled to go online from January 3, 2007.Copyright © 2006, Immitips.com. All Rights Reserved
The U.S. Citizenship and Immigration Services (USCIS) issued a notice on December 5, 2006 stating that it has reached the congressionally mandated H-2B cap for the first six months of Fiscal Year 2007.
The notice also states that USCIS has chosen November 28, 2006 as the “final receipt date for new H-2B worker petitions requesting employment start dates prior to April 1, 2007″. That means the agency has received enough applications to reach the H2B cap of 33,000 the first half of FY 2007.
Now, USCIS will apply its computer-generated random selection process to the petitions which were received on the final receipt date. The rest of the applications will be rejected.
The “Returning Worker” Petitions do not count towards the cab and the USCIA will continue to receive these petitions. In order to qualify or “Returning workers” mandate, the worker must have counted against the H-2B numerical cap between October 1, 2003 and September 30, 2006. Also, this has to mentioned in the petition. Otherwise the petition will be counted against the cap.Copyright © 2006, Immitips.com. All Rights Reserved.
|Can This Happen to me ?
We devote this section to highlighting specific cases where you as an immigrant might find yourself in. If you have a related problem or feel the case study does not answer your question, you are welcome to post your question on our forum section.
Mr X filed an EB-2 PERM application requiring a Master’s degree or Bachelor’s degree in Computer Science plus 5 years of experience. The employer also stated that the employer would consider any suitable combination of education or training or experience in lieu of the alternative qualification requirement. This PERM application was approved and the employer filed EB-2 I-140 petition with the Nebraska Service Center , the employer has just received a denial of I-140 petition that the job was not an EB-2 job and not qualified for EB-2 petition approval.
Analysis: The PERM regulation requires that when the alien is qualified for the application only through the alternative qualification requirement, unless the employer opened the job opportunity to anyone who has a suitable combination of education, training or experience, the PERM will be denied. Accordingly, in order to satisfy this requirement in the PERM regulation, the employer considered a suitable combination of education, training or experience when the alien employee can be qualified for the job only through the alternative qualification requirement. Such EB-2 I-140 petitions have been approved without any challenges by the Service Centers. However, we see growing number of I-140 petitions denials lately where such facts are involved. It is thus imperative that people work very closely with their legal counsels not to be trapped by the technicality in the PERM regulation and USCIS I-140 EB-2 petition rule.
Recently, Mr X received the approval of the RIR labor certification application from DBEC. However, his application has a mistake as to what city he was born, it shows a different city. Would he experience denial of I-140 petition or I-485 application if the USCIS learns from the passport and birth certificate the information on the place of birth city?
Analysis: Once the labor certification is approved, the DOL cannot amend the certified labor certification application. Before the certification, you should have detected the error and requested the DOL to amend the error by fax request. You will have to deal this problem with the Service Center . The information on the place of birth is related to the “identity” of the alien beneficiary. Should the error was made with the country of birth, it could have been much more complicated, but when it comes to the city or village of birth, people from time to time make a mistake.
Your lawyer should collect evidence to establish that the two persons with different places of birth represent same person. The USCIS is likely to accept such evidence of identity and accept the correct city of birth in the I-140. The evidence of identity is very important to prevent fraud in the immigration proceeding. The identity is also very important from the perspectives of the government for security and criminal clearance. You can communicate our sponsor’s International Legal and Business Services Group should know how to develop the evidence. Copyright © 2007, Immitips.com. All Rights Reserved
|WHAT LAWYER’S AREN’T TELLING YOU?
In this section, we will reveal the exceptions to the rules and the ambiguities in the law-information that most lawyers won’t reveal but that can save you a lot of time and headache.
Background of the Issue
A foreign national holding a degree from a foreign country applying for either an H-1B nonimmigrant visa or an employment-based immigrant visa petition (Form I-140) needs to establish that he or she has an equivalency of a US bachelor’s degree. However, equivalency is defined differently under both these petitions.
In many countries, a bachelor’s degree is awarded after the completion of a 3-year college program as opposed to the 4-year program, as is generally the case in the United States . For an H-1B petition, the regulations allow the foreign national to combine education and work experience to establish the equivalency of a US bachelor’s degree.
Unfortunately, with respect to a Form I-140 filing under the Employment-based Third Preference (EB-3), the USCIS insists on the foreign national being able to demonstrate a single foreign degree that equates to a US bachelor degree when the underlying labor certification requires such a bachelor’s degree. Here, the USCIS relies on the EB-3 definition of “professional” under 8 C.F.R. 204.5(1)(2)(c), which requires the demonstration of a “baccalaureate or a foreign equivalent degree” to qualify as a “professional” under the EB-3 preference.
In a recent decision, Snapnames.com, Inc. v. Chertoff, 2006 U.S. Dist., the court affirmed USCIS properly exercised its authority in concluding that a single foreign degree or its equivalent is required for EB3 Professionals or EB2 petitions.
The District Court held that the USCIS did properly conclude that experience should not be considered because the plain language of the labor certification requirements as written by the employer indicated that a specific educational background was required; therefore experience should not have been considered.
This decision and USCIS’ application of the rule profoundly impacts many people who have a three years degree from their country. Therefore, while the foreign national can combine the 3-year degree with work experience or with a one year post-baccalaureate diploma program for an H-1B petition, the USCIS will not accept it as being an equivalent to an US degree on the I-140 petition.
The first option is to take advantage of the fact that the EB3 category includes both Skilled Workers and Professionals. Now, there is no apparent advantage to filing an I-140 petition as a Professional rather than a Skilled Worker. The petition will have the same priority date either way. Therefore, in cases where a I-140 beneficiary has a three years foreign degree, then an employer can require a Bachelors Degree “or foreign equivalent” on the labor certification and then submit the I-140 requesting EB3 Skilled Worker classification. However, though in this case the USCIS should give deference to the employer’s understanding of its degree requirement, there is no guarantee that the USCIS will accept this argument.
If the case is already applied for and a request for further evidence (RFE) is issued, then properly documenting the case using course by course evaluation, Expert Opinion letter and a supporting documentation may be helpful.Copyright © 2007, Immitips.com. All Rights Reserved
|Disclaimer: The information provided on this newsletter is not legal advice. Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. Readers must not act upon any information without first seeking advice from a qualified attorney. Copyright © 2007, Immitips.com. All Rights Reserved|
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