Lang Wallace LLC Blog

On October 5, 2011, the House Committee on the Judiciary, Subcommittee on Immigration Policy and Enforcement held a hearing  to discuss whether the U.S. should reform its immigration policies to retain more foreign graduates of American universities’ advanced degree programs in the “STEM” fields of science, technology, engineering and math.    

Inside Higher Ed’s article, “Reverse Brain Drain,” provides coverage of the hearing:  
...foreign students are dramatically outpacing their American counterparts in the STEM fields.  In 2009, half to two-thirds of all Ph.D.s in related fields and almost half of all engineering and computer science master’s degrees awarded by American colleges were earned by foreign students...
Because only 140,000 total employment-based immigrant visas are available each year, with only 7% of that number available to each country, the United States is not absorbing these foreign graduates into its workforce.  Backlogs have grown to the point that some green card seekers could spend a lifetime waiting for permanent residency.  According to the article:

Congratulations! You have received a notice from the USCIS (former INS) instructing you to appear at a local US immigration office for a green card interview!   Amidst the excitement of getting your green card, you might be worried about appearing in front of immigration authorities to answer questions about your relationship.  What if you or your spouse stumble? What if one of you doesn't recall what face cream the other one likes!?!  

Beyond what you say or don't say, know that government officials will look at the unspoken and largely be able to tell if the relationship is real, and whether you are happy or unhappy with each other that day.

When you receive the interview notice, put the time and date on the calendar for yourself AND your USC spouse, because your spouse will be required to attend the interview, too.  Review all the questions and answers to the application forms I-130, I-485, G-325 and I-864 that you filed.

UPDATE:  F, M, J Visa Issuance Has Resumed!

"Effective immediately, in order to ensure maximum data integrity and consistency, DoS has temporarily halted the issuance of ALL F, M and J visas at all U.S. Embassies and Consulates."

"SEVP plans to circulate additional broadcast messages upon receipt of any updates or changes regarding this issue."

This message impacts anyone seeking an F-1 (academic student); M-1 (vocational student); or J-1 (exchange visitor) temporary visa from a U.S. Consulate or Embassy located outside of the United States.

Question: I have 4 Yr Bach Deg in Comp Sci Engg and close to 10 yrs Exp in the same company out of which 4.3 Yrs was in India. I was transferred to the US (now on L-1 'A' visa) in Aug '06 to the US through the same Employer and have been here since then. My company is skeptical to file my GC in EB2 stating that 5 yrs experience has to be gained before I was transferred to the US (which is considered my petitioning employer branch).

I want to understand how I can file under EB2? Should I wait until 10 yrs exp since I see this as one of the clauses?? OR
Should I file now and PORT into EB2 after 10 yrs Exp in the same company (counting India + US exp in the company) OR
USE any of MY Client accolades or awards since I manage a very CRITICAL portfolio)

Overstay and Unlawful Presence provisions

In September 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which imposed penalties on those who stay in the United States beyond the period authorized by the Attorney General. Two new sections of the Immigration and Nationality Act were created to define these penalties:

• INA § 222(g) "Visa Overstays" and
• INA § 212(a)(9)(B) "Aliens Unlawfully Present"

Interpreting when and how these two provisions apply to a specific individual is complicated, but critically important. Regulations have not yet been written to fully define the applicability of the statutory provisions; however, the penalties that could apply are significant. DHS has not yet issued any guidance that supersedes prior INS guidance. Individuals needing legal advice should be referred to an immigration attorney.

The challenge of interpreting the law

Advising individuals on the applicability of INA § 222(g) and § 212(a)(9)(B) is particularly challenging because regulations have not yet published to comprehensively define when those two statutory provisions should apply. In the meantime, INS and DOS issued internal memoranda and cables to their field offices, to provide central office guidance on how field offices should interpret and apply the law. The explanations and interpretations of INA § 222(g) and § 212(a)(9)(B) found here are based principally on these internal agency communications. One should note, however, that although an agency's interpretation of a law that it is charged with enforcing or administering does carry great weight, these memoranda and cables are not considered law.

It’s time to gear up for H-1B cap season! The upcoming H-1B season looks to be an active one already, harkening us back to years when the economy is strong and employers are hiring.

Last April, the maximum allowable slots for 65,000 petitions plus the additional 20,000 for graduates of U.S. advanced degree programs were filled within days of USCIS accepting H-1B applications. So many petitions were filed in the first five days that USCIS used a lottery to pick the H-1B petitions that would make it to the finish line, while all others were rejected.

Thankfully, Lang Wallace successfully made the cap for every H-1B petition filed for our clients – owing to the luck of the draw, but also to a standard of meticulous care so that we do not get rejections.

No one can guarantee cap-subject H-1B acceptance, but to take a shot at the lottery, US employers must act now to onboard highly-skilled, foreign workers. 

A few interesting facts about cap-subject H-1Bs …

• Filing may occur no sooner than April 1st (however, no later than April 1st either, given foreseeable lottery conditions);

• New H-1Bs cannot start their new status on payroll (or on the Form I-9) until October 1st;
• People who use new, cap-subject H-1Bs are typically F-1 Students, sometimes prior J visa holders, sometimes G-4 employees, and L-1s moving to a new job, among others;
• F-1s who graduate in the spring may qualify for the “cap-gap” letting them stay on US soil until their H-1B start date on October 1st;  if not,  plan a longer summer overseas and process for the visa stamp 10 days prior to October 1st ;
• An advanced degree earned on US soil allows the Petition to go into the second lottery for selection out of the additional 20,000;
• F-1 Students who are STEM graduates may ask their prospective employer to help them qualify for 29 months of OPT so they can try for H-1B status twice;

• Employer viability is still problematic with US CIS, notwithstanding the fact that US CIS should be fostering entrepreneurs and new business. A US entity that is less than 2 years old or which is operating in the red will require additional evidence of current and projected business flow.

So, as you prepare for the H-1B season, remember these extra points:

• Begin early.  Ideally, cases should be initiated with the law firm by mid-February in order to allow for any unanticipated delays or problems.  Beginning your case early allows us to file on “Day 1” which is April 1, 2014—giving your petition the best chance possible of being selected for processing. 
• See if your employees might be cap-exempt, if the filing organization is an entity that is
• an institution of higher education
• a nonprofit entity related to or affiliated with an institution of higher education
• a nonprofit research organization or government research organization

– or if the place of employ for an employee is a qualified government research organization pursuant to an existing contract.

Spring 2014 will be a real nail-biter for the many U.S. employers who need highly-skilled foreign-born workers.  Call one of our business immigration attorneys for a consultation to see if you may be eligible to file a cap exempt petition and to strategize for the upcoming H-1B cap season.

Christina Wallace, Suzette Blackwell and Christine Faller contributed to this article

Try to get a referral. Do you have friends or professional colleagues who have had immigration issues?? Chances are they used a lawyer and have an opinion on the quality of their work.  

If you can’t get a referral from reliable person, go a different direction. We suggest using an AILA member ONLY.  AILA stands for American Immigration Lawyers Association, and it’s the world’s largest association of attorneys and law professors who practice and teach in the area of US immigration law.

After you have schedule a consultation, you have to come to the table prepared with facts and information that the lawyer needs, to get the most for your money.

We need five types of information in a consultation:

(1)  Where you are and where you want to go, ie, where are you physically residing in the world? Where do you want to go (to the US)?

What employer do you have, if any? Which one do you want to join and at which location?

(2)  When you want to arrive to the destination – Ideally (fastest) and realistically (slowest, ie when it’s a game-changer). Notably, we normally provide the fast/slow during the consultation if you don’t know.

(3)  Age of the person who wants to relocate.

(4)  Current visa status under the rules of the destination country, if any.

(5)  Dates and outcomes of any official paperwork ever given to the person by the destination country – ie approval notices, receipt notices, visa stamps, refusals.
 
In our office, a consultation with an attorney helps even if you never hire us, because we spend several (free) minutes and usually 20-60 (paid) on the phone asking questions and giving answers - so that you can start shaping an immigration strategy to help you achieve your goals.  If we’re not the ones for the job, we end a call with some advice and send you to a reputable “AILA” firm which matches your needs.
 
If you have a complex case, getting a second opinion is advisable. Take a look at my blog post titled, “Choosing Immigration Counsel” to help you know what to look for when shopping around: http://ryvinimmigrationblog.blogspot.com/2010/09/how-do-i-choose-best-corporate.html.

IMPORTANT TIP: If I were looking for a work-based visa (temp visas like: H-1B, E-1/2/3, TN, L-1, O-1; immigrant visas in most popular employment based [EB] preference categories [EB-1, EB-2, EB-3, EB-5]  - I would start with a consultation process with at least 2 business immigration lawyers recommended (for good work) who have background in small- to mid-sized business immigration, with 8+ years experience to be able to develop a complex strategy covering multiple options, as needed.
 
Ask each lawyer which visa they recommend off the facts discussed in the 30-45 minute session, including possible back-up plans, and ask each for some examples of their recent similar cases (they should provide a 2-minute fact scenario).
 
IMPORTANT TIP: If the lawyer stalls during the conversation because their sub-focus is really in large/easy corporate immigration work (where complex issues are the exception rather than the rule), deportation or another immigration area. Hopefully they will hint at this potential weakness and then you simply ask them to recommend another business immigration lawyer they know and trust.

In August 2011, we posted a link and some background related to the current administration’s efforts to attract and retain high-skill entrepreneurs. Specifically, a USCIS press release dated 8/2/2011 confirmed an intention to use current immigration law [including H-1B visas and National Interest Waivers] to fuel the nation’s economy and stimulate investment, by attracting foreign entrepreneurial talent who can create jobs, form start-up companies, and invest in areas of high unemployment.

Back on April 27, 2011, shortly after the FY 2012 H-1B Cap opened, Iposted that H-1B visa usage statistics going back to 2007 demonstrated that U.S. employers were not hiring as much as some reports would like us to believe. 

Looking at the numbers going back to 2007, it was clear that H-1B usage was WAY down, and we estimated - based on usage for the first two weeks - H visas would be available until March 2012. 
  

Many of our readers are working in the United States pursuant to H-1B status, and have established their place in the green card line, by having an approved labor certification (PERM) application, and I-140 petition for immigrant worker.

Question: I stayed in the US on H-1B for six years plus, based on having an approved I-140 petition, and then left the US for more than one year. I now want to return to work for a different employer in H-1B status. Am I subject to H-1B Quota Limitations? Can I use my previously established Priority Date, even though I left the employer that sponsored my I-140?