USCIS Announces Adjustment of Status Filing Dates for May 2018

May 4th, 2018

US Citizenship and Immigration Services (USCIS) has announced the filing dates for applicants for adjustment of status to legal permanent residency for May 2018. Applicants of family-based cases (beneficiaries of the approved Form I-130 immigrant visa petition) should refer to the “Dates for Filing” chart in the Department of State Visa Bulletin for May 2018. Applicants of employment-based cases must use the “Final Action Dates” chart in this Visa Bulletin.

USCIS Announces Adjustment of Status Filing Dates for March 2018

February 22nd, 2018

US Citizenship and Immigration Services (USCIS) has announced the filing dates for applicants for adjustment of status to legal permanent residency for March 2018. Applicants of family-based cases (beneficiaries of the approved Form I-130 immigrant visa petition) should refer to the “Dates for Filing” chart in the Department of State Visa Bulletin for March 2018. Applicants of employment-based cases must use the “Final Action Dates” chart in this Visa Bulletin.

Summary of Immigration Innovation Act of 2018, or I-Squared

January 29th, 2018

On January 25, 2018, Senators Orrin Hatch (R-UT) and Jeff Flake (R-AZ) introduced S. 2344, the Immigration Innovation Act of 2018, or I-Squared. It will increase H-1B statutory cap, provide for employment authorization for H-4 spouses and children, ease H-1B worker mobility, allow for greater immigrant visa number availability (thereby shortening the green card process for many), provide for greater mobility during the green card process, create conditional legal permanent residency for certain high-skilled workers and grant dual intent for F-1 students so that they may travel abroad while the green card process is pending.

The following is a summary of key points of S.2344.

H-1B Visas

  • Increases H-1B visa numbers
    • Raises H-1B visa numbers (cap) from 65,000 to 85,000;
    • Creates a market-based escalator up to 195,000;
    • Provides that individuals who earn a US master’s degree or higher (regardless of the field) are exempt from the cap if the green card process is initiated within one year of beginning H-1B status (employee would obtain a one-year approval initially and then move to three-year increments);
    • Provides an additional 20,000 visa numbers for individuals who earn a US master’s degree or higher and who are not exempt based on the initiation of the green card process within one year;
    • Allows for additional H-1B numbers within any fiscal year, up to 195,000, as follows:
      • Cap met by May 15 – 30,000 added, available 10/1;
      • Cap met by September 30 – 20,000 added, available 10/2;
      • Cap met by November 29 – 10,000 added, available 12/1; and
      • Cap met by January 28 – 5,000 added, available 2/1.
  • Prioritization of H-1B cap petitions
    • If the H-1B cap is met within the first five business days of April 1st, the cap subject petitions will be selected as follows:
      • Beneficiaries with a US master’s or higher who are not counted against the 20,000 master’s pool (and not being sponsored for a green card within the first year of H-1B status);
      • Beneficiaries with a foreign doctorate that is equivalent to a US doctorate;
      • Beneficiaries with a bachelor’s degree in a STEM field; and
      • Remaining cap-subject petitions.
  • Raises H-1B filing fees
    • Raises the current ACWIA fee from $1,500 to $4,000 for companies with 25 or more employees;
    • Raises the $750 ACWIA fee to $2,000 for companies with fewer than 25 employees; and
    • Increases H-1B fees up to $8,000 depending on the size of the employer, extent to which the H-1B cap increases and when, if at all.
  • Grace period:  Creates a 60-day grace period for H-1B workers whose employment terminated so that they may change H-1B employers (already available in the regulations).
  • Deference for extensions:  Requires deference for H-1B extension petitions if there is no material change in eligibility or there was no substantial error in the prior approval.
  • Employment authorization for H-4 spouses:  Authorizes H-4 spouses of H-1B visa holders to obtain employment authorization if the H-1B spouse has a pending or approved/certified PERM labor certification application or I-140 immigrant visa petition.  The employer must pay the higher of the actual or prevailing wage.
  • Visa Revalidation in the US:  Allows certain foreign workers to revalidate their work visas in the US
  • Prohibition on replacing US workers:  Prohibits hiring an H-1B worker with the purpose and intent to replace an American worker.
  • Prohibition on training of H-1B replacements: Prohibits conditioning an employee’s pay or severance on training an H-1B replacement.
  • Raises the level one prevailing wage requirement:  The level one (entry level) wage requirement shall not be less than the mean of the lowest 50 percent of the wages surveyed.
  • Change in worksite location:  Allows for a change in job location without a new H-1B petition where:  (1) the petitioning employer is involved in a corporate restructuring (including a merger, a acquisition or consolidation); a new corporate entity succeeds to the interest and obligations of the original H-1B employer and the terms and conditions remain the same except for the identity of the petitioner; or the employer has a certified Labor Condition Application (LCA, ETA 9035) for the new work location before the nonimmigrant began working at such place of employment.
  • Exemptions for H-1B dependent employers:
    • When calculating whether an employer is H-1B dependent, and thereby subject to the additional recruitment and non-displacement requirements, the following are excluded:
      • Individuals who earn a US master’s degree or higher (regardless of the field) are exempt from the cap if the green card process is initiated within one year of beginning H-1B status (employee would obtain a one-year approval initially and then move to three-year increments);
      • 20,000 visa numbers for individuals who earn a US master’s degree or higher and who are not exempt based on the initiation of the green card process within one year;
      • H-1Bs and L-1Bs who are in the green card process are excluded from the calculation.  The employer must file Form I-140 immigrant visa petition for at least 90 percent of the workers who are the beneficiaries of certified PERM labor certification application cases; and
      • Those being offered an annual wage that is higher than either 105 percent of the mean wage or $100,000, or who have earned a PhD;
    • Eliminates H-1B dependent exemption for a company that has more than 50 employees with more than 50 percent in H-1B status.
  • Penalties for short duration of H-1B employment and withdrawals:
    • Imposes penalties on employers that obtain more than five H-1B cap-subject petition approvals where the H-1B worker does not spend at least 25 percent of his or her time in the US, unless the employer withdraws the petition because of unexpected circumstances; the employee enters the US in another visa status; or the alien worker quits or resigns.
    •  The employer must pay a fine if it obtained between 20 and 49 H-1B cap petition approvals, withdraws more than 25 percent of these petitions or withdraws more than 10 percent of such petitions because the foreign worker resigned before completing three months of employment.
    • The employer must pay a fine if it obtains more than 50 H-1B cap petition approvals, withdraws more than 20 percent of these petitions or withdraws more than five percent of such petitions because the foreign worker resigned before completing three months of employment.
    • The penalty for violating the above rules is $10,000 for each petition in the first fiscal year and $25,000 for each such petition after the first year of noncompliance.
    • If the employer violates this provision in three consecutive years then it is barred from filing H-1B petitions in the fourth year.
  • Reporting requirements: Each employer that has five or more approved H-1B cap petitions must submit an annual report to the DHS that notes the date on which each H-B worker approved during the most recent fiscal year started working for the employer in the US and the total period of employment for such worker during the first year.

Increased Portability for Applicants to Adjust Status (I-485)

  • Allows the beneficiary of a certified PERM labor certification application or approved Form I-140 immigrant to change jobs (including with a different employer) in the same or similar occupation of the original PERM or I-140 immigrant visa petition without losing his or her place in line for the green card (no 180-day wait as under current I-485 portability); and Allows the beneficiary of a certified PERM labor certification application or approved Form I-140 immigrant to change jobs (including with a different employer) in the same or similar occupation of the original PERM or I-140 immigrant visa petition without losing his or her place in line for the green card (no 180-day wait as under current I-485 portability); and
  • Allows a  foreign worker to file to adjust status to legal permanent residency (I-485) status regardless of whether an immigrant visa number is available ($500 fee).

Employment-Based Immigrant Visa Availability

  • Eliminates from the numerical limitation on employment-based visas:
    • The spouse and children of any employment-based immigration;The spouse and children of any employment-based immigration;
    • Aliens who have earned a master’s or higher degree in a STEM (science, technology, engineering, math) field;
    • Aliens who have an approved EB-1A immigrant visa petition (Extraordinary Ability EB-1A, Outstanding Researcher and Professor (EB-1B);
  • Eliminates per country quotas; and   Eliminates per country quotas; and
  • Recaptures unused immigrant visas from the prior year.

Employment-Based Conditional Legal Permanent Residency

  • Allows for up to 35,000 visas per year;Allows for up to 35,000 visas per year;
  • The alien must have earned a university degree and received an offer of employment from a US employer that has complied with all of the requirements of the I-140 immigrant visa petition;
  • The alien must receive an annual wage of at least $100,000 (including cash bonuses), which may be adjusted per the Consumer Price Index;
  • The alien may legal permanent residency in the US and not seek an immigrant visa abroad;
  • The employer must file a petition with USCIS attesting that the alien will not be paid less than similarly situated US workers, no US worker has been or will be displaced by the alien, the employer has completed at least three types of recruitment for a position requiring at least a bachelor’s degree and the employer is enrolled in E-Verify;
  • The employer may not be an H-1B dependent employer or debarred from any immigration program;
  • Requires an annual review of conditional permanent residents that mandates from the alien evidence of: (1) ongoing employment in the occupation the alien was originally granted a conditional employment-based visa; (2) payment of taxes; (3) at the first annual review, evidence of PERM labor certification application (or I-140 immigrant visa petition filed; at the second annual review evidence of a filed I-140 immigrant visa petition, unless the PERM labor certification application prevents it; (4) at the third and subsequent annual reviews, an approval of an I-140 immigrant visa petition;
  • An alien receiving conditional permanent resident status may change employers without affecting his or her status if the new employer complies with the immigrant visa petition rules.
  • Fees: $10,000 if the new employer hires the alien during the one-year period beginning on the date on which the alien obtains conditional permanent resident status; $5,000 if the new employer hires the alien during the one-year period beginning at the end of the first year of conditional residency status; $2,500 if the new employer hires the alien during the one-year period beginning at the end of the subsequent year; and $0 if the new employer hires the alien after the end of the subsequent year.
  • Termination of conditional permanent residency: Conditional permanent residency terminates if the alien fails to submit evidence at each annual review, has been unemployed or not employment in the requisite occupation for a cumulative total of 180 days while holding conditional residency, or does not seek the removal of conditions within one year of an immigrant visa number becoming available; or the employer fails to comply with the immigrant visa requirements.
  • Removal of conditions: Conditions may be removed on or after the date on which an immigrant visa numbers would be available.

F-1 Students and Dual Intent

  • Permits “dual intent,” which allows a nonimmigrant to have immigrant intent, for F-1 foreign students in Optional Practical Training (OPT) status so that the F-1 student may travel in and out of the US while a green card process (immigrant visa process) is pending.

Please contact my office with any questions about your H-1B or green card case.

New Legislation on H-1Bs and Green Cards: Immigration Innovation Act of 2018, or I-Squared

January 28th, 2018

On January 25, 2018, Senators Orrin Hatch (R-UT) and Jeff Flake (R-AZ) introduced S. 2344, the Immigration Innovation Act of 2018, or I-Squared. It will increase H-1B statutory cap, provide for employment authorization for H-4 spouses and children, ease H-1B worker mobility, allow for greater immigrant visa number availability (thereby shortening the green card process for many), provide for greater mobility during the green card process, create conditional legal permanent residency for certain high-skilled workers and grant dual intent for F-1 students so that they may travel abroad while the green card process is pending.

It should be emphasized that this legislation must still be passed in the Senate and then in the House of Representatives and signed by the President. Even if passed, it could look very different.

My office will be publishing a summary shortly. Please contact my office for specific questions about the legislation.

USCIS Announces Filing Dates for Adjustment of Status in February 2018

January 19th, 2018

USCIS has announced that for February 2018, adjustment of status applications based on a family-based preference must be filed using the Filing Dates chart and that for those based on employment the Final Action Dates chart must be followed.

The benefit of filing the adjustment of status application, even if not approvable at that time, is that the applicant may receive the employment authorization document (I-765) and the advance parole travel document (I-131).

How to Serve as a Financial Sponsor on the Form I-864 Affidavit of Support for a Green Card Case

October 29th, 2017

A sponsor on any family-based immigrant visa petition for legal permanent residency (also known as the “green card”) must file a contract with the government known as the Form I-864 ‘Affidavit of Support’. This affidavit demonstrates that the beneficiary foreign national has adequate means of financial support and is not likely to become a public charge. The sponsor must meet tax filing and income or asset requirements and agree to potentially significant financial obligations under the contract.

The sponsor must have filed his or her Federal tax returns for the last three years, if required to do so. The total income noted on the last three filed tax returns must be noted on the Form I-864, but only the most recent Federal tax return (or IRS transcript), including all schedules and Forms W-2 and 1099s, must be filed.

By filing the Form I-864 Affidavit of Support, the financial sponsor must support the sponsored immigrant, if he or she is unable to support him or herself, at 125 percent of the federal poverty level for the sponsor’s household size based on the federal poverty guideline. The sponsor, or his or her household, must have a household income equal to at least 125 percent of the poverty level for his or her household size. One hundred and twenty five percent of the poverty level for a family of two in the contiguous United States is $20,300 (and an additional $5,225 for each additional household member). Income is determined by the sponsor’s total income noted on the most recently filed tax returns as well as by his or her current income. Also, if the sponsor is self-employed, his or her income may not be sufficient if not properly documented. If the income does not meet this standard then the assets or an affidavit of support from a joint sponsor can be used. Also, in certain instances the income or the assets of the sponsored immigrant may be used.

Only assets that can be converted into case within one year without considerable hardship or financial loss to the owner may be included. They must amount to five times the difference between the required income and the household income of the sponsor. In the case of sponsorship of a spouse, the assets must be three times the difference.

The joint sponsor must be at least 18-years-old who is a US citizen or legal permanent resident and who earns sufficient income for his or her household size or has sufficient assets. Household size is a specific legal term and is based on the number of certain family members living with the sponsor, dependents on his or her tax returns and the number of other immigrants sponsored pursuant to an I-864 that came into effect within ten years of the approval of the current immigrant visa or application to adjust status to legal permanent residency (I-485).

The sponsor’s obligation under the I-864 Affidavit of Support continues until the sponsored immigrant becomes a US citizen, can be credited with 40 qualifying quarters of work, departs the US permanently, or dies. Divorce does not terminate my obligation. In addition, the sponsor’s estate remains liable for repayment of benefits that arose before the support obligation ended.

Also, under the contractual obligations of the Form I-864 Affidavit of Support, the sponsor must support the sponsored immigrant financially and reimburse any government agency or private entity that provides the sponsored immigrant with Federal, State, or local means-tested public benefits. Agencies that provide means-tested benefits to intending immigrants will be able to sue the sponsor if he or she does not provide reimbursement for such benefits upon request. The sponsored immigrant may sue the sponsor to enforce the Affidavit of Support.

If any of the information on the Affidavit of Support is known by the sponsor to be false, he or she may be liable for criminal prosecution. The Government may pursue verification of any information provided on the form, including employment, income or assets, with the employer, financial or other institutions, the Internal Revenue Service, or the Social Security Administration.

The sponsor is required to report every change of my address to the US Citizenship and Immigration Service (“US CIS”) and the State(s) in which the sponsored immigrant resides, by filing Form I-865, Sponsor’s Notice of Change of Address, with the USCIS within 30 days of any change of address. Failure to give notice of any change of address may result in fines.

USCIS Adjustment of Status Visa Bulletin Filing Dates for October 2017

September 20th, 2017

USCIS has announced that for October 2017, the priority dates from the Filing chart must be used for family-based preference filings and the priority dates from the Final Action Dates chart must be used for employment-based preference filings.

USCIS to Expand In-Person Interviews for Certain Residency Applicants

August 30th, 2017

As of October 1, 2017, USCIS will begin expanding in-person interviews for certain applicants for legal permanent residency. In particular, as of October 1st, USCIS will start requiring interviews for (1) Form I-485 applicants for adjustment of status to legal permanent residency whose I-485s are based on employment and (2) refugees and asylees (Form I-730) who are in the US following to join a principal asylee or refugee.

USCIS states that this policy will strengthen the integrity of our immigration system and provide it with the opportunity to verify information. However, these interviews are not only unnecessary but will only exacerbate the already tremendous backlog for interviews for family-based applicants for adjustment and for those applying to naturalize. It can take approximately six to eight months for an I-485 applicant based on marriage to obtain an interview. The extent to which these new misguided policy could slow this process down further is very troubling. Also, for employment-based I-485 applicants, who currently are not interviewed unless there is an important issue that must be verified, this expansion will not assist in properly adjudicating whether the applicant is working at the sponsoring company, the key issue for such a case. If USCIS is serious about fraud issues, it should conduct ad hoc investigations to ensure such employment.

August 2017 Visa Bulletin: EB2 Worldwide Category Retrogresses

July 12th, 2017

The U.S. Department of State (DOS) released the August 2017 Visa Bulletin today showing a retrogression of the employment-based second preference EB2 worldwide category to April 1, 2015. It notes that it won’t become current again until October 1, 2017. The EB2 category for India is at July 22, 2008, and for China April 22, 2013. The EB1 category remains backlogged for India and China with a cutoff date of January 1, 2012, but the EB1 worldwide category remains current. The EB3 worldwide category remains current and the EB3 category for China is at January 1, 2012, and at July 15, 2006, for India.

Applicants for adjustment of status who have a priority date earlier than the date in the ‘Final Action Dates for Employment-based Preference Cases’ chart may file their Forms I-485. Applicants for immigrant visas may use the ‘Dates for Filing of Employment-based Visa Applications’ chart.

Maintaining Legal Permanent Residency

June 26th, 2017

Legal permanent residency can be abandoned if the foreign applicant is outside the US for long periods of time and/or does not treat the US as his or her primary home. If the legal permanent resident (LPR) leaves the country for more than six months there is a presumption that such status has been abandoned and the LPR must prove otherwise to US government authorities, including showing that the LPR has maintained the US as his or her primary home. Once the LPR has been outside the U.S. for more than one year, then the LPR will not be able to reenter with his or her alien registration card and the government will deem such status abandoned.

However, there are exceptions to this rule. First, if the LPR applies for a reentry permit before he or she leaves the U.S., then the LPR may reenter the U.S. with this document for up to two years from the date of his or her departure from the U.S. Second, if the LPR seeks readmission into the U.S. more than one year after his or her departure and did not apply for the reentry permit, then the LPR may be able to obtain a special immigrant visa at a U.S. consulate abroad. If the LPR will not return to the U.S. within two years, then the LPR will also need to obtain a special immigrant visa at a U.S. consulate abroad. When making an application for a special immigrant visa, the LPR must establish that he or she has not abandoned legal permanent residence and has still treated the US as his or her primary home while outside the U.S. Evidence of maintaining legal permanent residence in the U.S. includes filing resident tax returns; maintaining a valid driver’s license; holding credit cards and bank account/s and owning property.

The reentry permit does not guarantee the LPR’s readmission into the US. It merely certifies that the U.S. government has accepted the LPR’s trip as temporary, i.e., that the LPR maintained legal permanent residency despite a lengthy absence. As a result, if the LPR has a reentry permit, then the LPR cannot be denied readmission into the U.S. solely on the duration of his or her absence. However, the LPR may still be deemed inadmissible under some other ground of exclusion (e.g. commission of certain crimes). If the LPR fails to pay US residence income taxes (on his or her worldwide income, not just U.S. source income) during his or her period of absence, this demonstrates an intent contrary to the required intent of a legal permanent resident and the LPR may be considered to have abandoned legal permanent residency despite the reentry permit.

Also, if the LPR commits activity that deems him or her inadmissible to the US, then the LPR may be stopped at the border when trying to reenter the US. Grounds of inadmissibility include the commission of certain crimes. However, the LPR may be eligible for a waiver of the ground of inadmissibility. Also, after acquiring legal permanent residency, the LPR is still subject to removal (deportation) for certain activity, such as drug-related offenses, aggravated felonies, crimes of violence, etc. The LPR may be eligible for relief from removal should he or she be placed in removal proceedings. However, once the LPR becomes a U.S. citizen, then he or she will not be inadmissible at the border or removable for certain activity.

The LPR may apply for naturalization three months prior to five years after the approval date of your legal permanent residency. If the LPR obtained legal permanent residency based on marriage and continues to live with the spouse sponsor, then the LPR may apply three months prior to the three year anniversary. Applying for a reentry permit does not negate the effect of a lengthy absence on the LPR’s ability to meet the naturalization requirements. Two of the naturalization requirements are the maintenance of legal permanent residency during the requisite three or five-year period (maintaining the US as his or her primary home) and physical presence for at least half of the three or five-year period (with certain exceptions). An absence of fewer than six months does not break an LPR’s continuity of residence; an absence of six months or more but less than one year breaks the continuity of residence unless the LPR can provide a reasonable explanation for his or her absence (an overseas assignment is most uniformly accepted); and an absence of one year or more automatically breaks the continuity of legal permanent residence (with certain exceptions for employment abroad).

Finally, the foreign national should keep track of all trips made outside the US until becoming a US citizen. The naturalization application requires that the applicant note each and every trip made since becoming a legal permanent resident with the date the applicant left and the date the applicant returned and all of the countries visited.