Get the facts of the H-1B Visa by an Expert Attorney.

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Coffee talk with Immigration Attorney Brian D. Lerner, A Professional Corporation on Immigration and Naturalization Law and specifics on how you can find solutions to immigration problems, visas, work-permits, deportation and other areas of immigration law. Find out about the H-1B Specialty Occupation Work Visa. Immigration Lawyer Brian D. Lerner explains this area of immigration law so that it is clear and in normal and plain English. The Law Offices of Brian D. Lerner is happy to give you a free 10 minute consultation at http://ping.fm/AIbIU Additionally, call us at 562-495-0554 or send a Skype to ‘briandlerner’.
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Can I get an H-1B finally?

Question: I have an employer willing to sponsor me. What is a ‘specialty occupation’ and can I get an H-1B?

Answer: The job must meet one of the following criteria to qualify as a specialty occupation:
Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position. The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree. The employer normally requires a degree or its equivalent for the position. The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

Question: How must I qualify for the H-1B?

Answer: For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria: Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university. Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation. Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment. Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty. Of course this last option would be used only when there is no B.S degree.

Question: Must I file the Labor Condition Application?

Answer: Yes. The prospective employer must file an approved Form ETA-9035, Labor Condition Application (LCA), with the Form I-129, Petition for a Nonimmigrant Worker.

Question: Is there a limit on H-1B’s per year?

Answer: Yes, there are only 65,000 for regular H-1B’s and 20,000 for advanced degree H-1B’s. U.S. Citizenship and Immigration Services (USCIS) today announced it continues to accept H-1B nonimmigrant petitions that are subject to the fiscal year (FY) 2013 cap. The agency began accepting these petitions on April 2, 2012.

USCIS has received approximately 17,400 H-1B petitions counting toward the 65,000 cap, and approximately 8,200 petitions toward the 20,000 cap exemption for individuals with advanced degrees.

USCIS will provide regular updates on the processing of FY 2013 H-1B petitions. These updates and helpful filing information can be found at USCIS’s website highlighting the H-1B program. Should USCIS receive the number of petitions needed to meet the cap, it will issue an update advising the public that the FY 2013 H-1B cap has been met as of a certain date, known as the “final receipt date.” The date USCIS informs the public that the cap has been reached may differ from the actual final receipt date.

If necessary, USCIS may randomly select the number of petitions received on the final receipt date that will be considered for final inclusion within the cap. The agency will reject petitions subject to the cap that are not selected, as well as those received after the final receipt date. Whether a petition is received by the final receipt date will be based on the date USCIS physically receives the properly filed petition, not the date that the petition is postmarked.

Cases for premium processing (faster processing of certain employment-based petitions and applications) of H-1B petitions filed during an initial five-day filing window are undergoing a 15-day processing period that began April 9. For all other H-1B petitions filed for premium processing, the processing period begins on the date that the properly filed petition is physically received at the correct USCIS Service Center.

Meanwhile, petitions filed by employers who are exempt from the cap, as well as petitions filed on behalf of current H-1B workers who have been counted previously against the cap within the past six years, will not count toward the cap.

U.S.businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise. Such workers include scientists, engineers, and computer programmers, among others.

The bottom line is to get your H-1B filed right away so you are included in this years cap.

Can I get an H-1B finally?

Can I get an H-1B finally?

Question: I have an employer willing to sponsor me. What is a ‘specialty occupation’ and can I get an H-1B?

Answer: The job must meet one of the following criteria to qualify as a specialty occupation:
Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position. The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree. The employer normally requires a degree or its equivalent for the position. The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

Question: How must I qualify for the H-1B?

Answer: For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria: Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university. Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation. Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment. Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty. Of course this last option would be used only when there is no B.S degree.

Question: Must I file the Labor Condition Application?

Answer: Yes. The prospective employer must file an approved Form ETA-9035, Labor Condition Application (LCA), with the Form I-129, Petition for a Nonimmigrant Worker.

Question: Is there a limit on H-1B’s per year?

Answer: Yes, there are only 65,000 for regular H-1B’s and 20,000 for advanced degree H-1B’s. U.S. Citizenship and Immigration Services (USCIS) today announced it continues to accept H-1B nonimmigrant petitions that are subject to the fiscal year (FY) 2013 cap. The agency began accepting these petitions on April 2, 2012.

USCIS has received approximately 17,400 H-1B petitions counting toward the 65,000 cap, and approximately 8,200 petitions toward the 20,000 cap exemption for individuals with advanced degrees.

USCIS will provide regular updates on the processing of FY 2013 H-1B petitions. These updates and helpful filing information can be found at USCIS’s website highlighting the H-1B program. Should USCIS receive the number of petitions needed to meet the cap, it will issue an update advising the public that the FY 2013 H-1B cap has been met as of a certain date, known as the “final receipt date.” The date USCIS informs the public that the cap has been reached may differ from the actual final receipt date.

If necessary, USCIS may randomly select the number of petitions received on the final receipt date that will be considered for final inclusion within the cap. The agency will reject petitions subject to the cap that are not selected, as well as those received after the final receipt date. Whether a petition is received by the final receipt date will be based on the date USCIS physically receives the properly filed petition, not the date that the petition is postmarked.

Cases for premium processing (faster processing of certain employment-based petitions and applications) of H-1B petitions filed during an initial five-day filing window are undergoing a 15-day processing period that began April 9. For all other H-1B petitions filed for premium processing, the processing period begins on the date that the properly filed petition is physically received at the correct USCIS Service Center.

Meanwhile, petitions filed by employers who are exempt from the cap, as well as petitions filed on behalf of current H-1B workers who have been counted previously against the cap within the past six years, will not count toward the cap.

U.S.businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise. Such workers include scientists, engineers, and computer programmers, among others.

The bottom line is to get your H-1B filed right away so you are included in this years cap.

I’m 17 and abandoned. Now what can I do?

I’m 17 and abandoned. What can I do?

Question: I’m 17 and my mother died and my father abandoned me. What can I do? Is there any help for me?

Answer: Yes, There is what is known as a Special Immigrant Juvenile Petition A special provision of the Immigration and Nationality Act allows certain qualifying minors to petition for immigrant status as a Special Immigrant Juvenile. This provision is for the benefit of those aliens under 21 years of age who have been declared dependent on a juvenile court or placed under the custody of a government agency, who are eligible for long-term foster care and in whose best interest it is not to return to their home country.  

Question: What are the Requirements to Qualify as a Special Immigrant Juvenile?

Answer; To qualify as a Special Immigrant Juvenile, the applicant must meet the following criteria: First, you must be under 21 years of age. This requirement must be met not only at the time of filing but also at the time of adjudication of the immigrant petition. You must be unmarried and be present in the U.S. A special immigrant juvenile will be deemed to have been paroled regardless of how he entered the country. You must be declared dependent on a juvenile court, or placed under the custody of an agency or department of the State according with the state law. You must be deemed eligible by the juvenile court for long-term foster care due to abuse, neglect or abandonment and have received a determination through an administrative or judicial proceeding that it would be in the best interest of the alien not to be returned to his/her home country.

In addition to the requirements listed above, the Department of Homeland Security (DHS) must consent to the jurisdiction of the juvenile court as it relates to the court determinations.

Question: So what does the Court in Juvenile Court have to order?
Answer: To file a petition as a Special Immigrant Juvenile, the alien must have a supporting Court Order that establishes that: The juvenile has been declared a dependent of the juvenile court or the court has placed the juvenile under the custody of a State agency or department, and the juvenile has been deemed eligible for long-term foster care due to abuse, neglect or abandonment. The Court Order will also preferably establish a specific finding of fact in support of the Order, sufficient to establish a basis for the USCIS express consent, and that it would be in the alien’s best interest not to be returned to the alien’s home country.  

SIJ Petition cannot be granted unless a determination has been made that it would not be in the best interest of the child to be returned to his home country.  This determination may be made by the juvenile court.  The USCIS strongly encourages juvenile courts to address this issue and to make such a determination.  Nevertheless, the law contemplates that other judicial or administrative bodies authorized or recognized by the juvenile court may make such a determination. If a particular juvenile court establishes or endorses an alternate process for this finding, a ruling from that process may satisfy the requirement.

Question: What does ‘long-term foster care’ mean?
Answer: Eligible for Long-Term Foster Care means that a determination has been made by the juvenile court that family reunification is no longer a viable option.  A child who is eligible for long-term foster care will normally be expected to remain in foster care until reaching the age of majority, unless the child is adopted or placed in guardianship situation.

Question: How is the petition filed?

Answer: When seeking DHS’ consent for the dependency order, the party should present to the District Director the following: Juvenile date and place of birth; Date and manner of entry to the U.S.; Current immigration status; Information re: whereabouts and immigration status of parents and other close relatives; Evidence of abuse, neglect or abandonment; Reasons why it would not be in the best interest of the child to return to country of nationality; and the type of proceeding before the juvenile court.

Question: Who can file the SIJ?
Answer: The child or any person acting on the alien’s behalf can file the SIJ petition.  

Question: What to file?
Answer: Form I-360, SIJ Petition, supported by the following documents: Court order declaring dependency on the juvenile court or placing juvenile under the custody of an agency or department of a State; Court order deeming the juvenile eligible for long-term foster care due to abuse, neglect or abandonment; Determination from an administrative or judicial proceeding that it is in the best interest of a child not to be returned to his/her country of nationality and proof of juvenile’s age.

In addition to Form I-360, the following petitions may also be filed: Form I-485, Application to Adjust Status to Permanent Resident, can be filed concurrently with Form I-360; Form I-601, Application for Waiver of Ground of Excludability, when the ground of admissibility is not automatically waived under INA §245(g)(2)(A) andForm I-765, Application for Employment Authorization, based on the pending I-485 Application to Adjust Status.

Question: What are the supporting documents for Form I-485 (Application to Adjust Status to Permanent Resident)?

Answer: Birth certificate or other proof of identity; Sealed medical examination; Two photographs; Evidence of inspection, admission or parole (an individual with SIJ classification is deemed to be paroled for purposes of adjustment of status); Form G-325A (Biographic Information) for applicants over 14 years old and if the juvenile has an arrest record, he/she must also submit certified copies of the records of disposition. If the juvenile is seeking waiver of a ground of inadmissibility that is not otherwise automatically waived under INA §245(h)(2)(A), he/she must submit Form I-601 (Application for Waiver of Ground of Excludability) and supporting documents establishing that waiver is warranted for humanitarian purposes, family unity or the public interest.

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The New Waiver Procedure

What about the new Waiver Law?

Question: I have been married for 12 years to a U.S. Citizen, but have always been afraid to file anything. I heard that I will have to file the Waiver of the 3/10 year bar, but did not want to chance leaving the U.S. What is the current status of the new Waiver regulations?

Answer: U.S. Citizenship and Immigration Services (USCIS) posted a Notice of Proposed Rulemaking (NPRM) in the Federal Register that would reduce the time U.S. citizens are separated from their spouses, children, and parents (i.e. immediate relatives) who must obtain an immigrant visa abroad to become lawful permanent residents of the United States. This rule would allow certain immediate relatives of U.S. citizens to apply for a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship. The proposed rule will not alter how USCIS determines eligibility for a waiver of inadmissibility or how an individual establishes extreme hardship.

Question: Does this mean it will make it easier to get the Waiver?

Answer: No. Definitely not. Rather, it will change the procedure upon where the Waiver is filed and how it is adjudicated. It is just as hard as before to get the Waiver approved, so you should have it prepared professionally and support it with lots of evidence.

Question: Why is this happening now? What is the purpose of the new regulations on the Waiver of the 3/10 year bar?

Answer: “The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this proposed rule will more effectively achieve,” said USCIS Director Alejandro Mayorkas. “The current process can subject U.S. citizens to months or years of separation from family members who are waiting for their cases to be processed overseas. The proposed change will have tremendous impact on families by significantly reducing the time of separation.

USCIS also proposes creating a new form for immediate relatives of U.S. citizens who choose to apply for a provisional unlawful presence waiver. Once in effect, this form would be used for individuals filing an application for a provisional unlawful presence application before he or she departs the United States to complete the immigrant visa process at a U.S. Embassy or consulate abroad. The streamlined process would only apply to immediate relatives who are otherwise eligible for an immigrant visa based on an approved immediate relative petition.

Keep in mind that the form will be different, but the supporting documentation and declaration and evidence will all remain the same. In fact, many times, I suggest getting a hardship evaluation from a qualified psychologist.

Question: Are the regulations in effect?

Answer: The proposed process outlined above is not in effect and is not available until USCIS publishes a final rule with an effective date in the Federal Register. USCIS will consider all public comments on the proposed rule announced before publishing the final rule in the coming months. Individuals at this time should not to submit an application for a provisional unlawful presence waiver, or allow anyone to submit one on their behalf because it will be rejected.

However, the case can be started now and then submitted as soon as the regulations become final.

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