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H-1B Visa Important Information to know before Filing the H-1B

Posted on February 11, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I know that the doors for the H-1B Visas will open up on April 1, 2010. I’ve heard so much about the H-1B Visa Petition, but I just don’t know exactly what is the H-1B Visa. Can you let me know?

Answer:  The H-1B category is limited to alien workers filling positions in “specialty occupations” for which the alien workers have the necessary education and credentials. A “specialty occupation” is defined as the  theoretical and practical application of a body of highly specialized knowledge; and a minimum of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. It is possible to get an H-1B Visa without an actual bachelor’s degree, but there must be an equivalent of a bachelor’s degree for the H-1B Visa through either work, experience and/or a combination of education and work.

Question: What are the major requirements for the H-1B Visa Petition?

Answer:  Foreign Nationals seeking to perform services in an H-1B specialty occupation must show that they have the necessary qualifications to undertake the services required for that H-1B specialty occupation. At a minimum, the foreign national in a specialty occupation must document that he or she has full state licensure to practice in the occupation, if such licensure is required to practice. This licensure must be shown at the beginning of the petition or the submission of the H-1B Petition, not at a later point.  The foreign national  must also establish that he or she has completed the degree required as the minimum standard for entry into the occupation in the United States, or has experience in the specialty equivalent to the completion of such degree and recognition of expertise in the specialty through progressively responsible positions in the occupation.

Question: Is there a limit on the number of H-1B visas available?

Answer: The 1990 Immigration and Nationality Act imposed an annual limit on the number of new admissions in the H-1B category. An H-1B number must be available at the time a new petition is adjudicated. Immigration will not approve an H-1B petition once the cap has been reached during a fiscal year if the petition has a date for commencement of employment that falls within that fiscal year. The Service counts petitions for initial H-1B employment in determining compliance with the annual cap. Petitions for sequential H-1B employment, concurrent H-1B employment, extensions of stay, and amended petitions are not counted against the cap.

The annual H-1B cap is set at 65,000. However, overall H-1B numbers are reduced by the U.S.-Chile and U.S.-Singapore Free Trade Agreements (FTAs), which set aside 6800 H-1B numbers for professionals from those two countries each fiscal year. In practical terms, therefore, just 58,200 H-1B numbers are available in the standard H-1B pool, though some unused FTA visas from a prior fiscal year may be recaptured and made available in the first six weeks of the following fiscal year. While the economy was in recession last year and the H-1B’s actually lasted much longer than in previous years, the H-1B Petition should be submitted as soon after April 1 as possible in case they are used up quickly.
Question: Should I hire an Immigration Attorney or an H-1B Immigration Attorney to help?
Answer: There are many different parts to a successful H-1B. It would be in your benefit to hire an Immigration Attorney who has done a lot of H-1B Visa Petitions and has a track record of success.

Filed under: H-1B, H-1B Visa Attorney, Immigration, Immigration Attorney, Immigration Law | Tagged: , , , , , , , | 2 Comments »

How can I get a Humanitarian Parole to get into the United States

Posted on January 28, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I must get into the U.S. and have been denied at every corner. Is there anything I can do?

Answer: U.S. Citizenship and Immigration Services (USCIS) provides a number of humanitarian programs
and types of protection for individuals in need of shelter and/or aid from disasters, oppression,
emergency medical issues and other urgent conditions. Humanitarian parole is one such
program.

Humanitarian parole enables an otherwise inadmissible individual to enter the U.S. temporarily
due to a compelling emergency. USCIS may grant humanitarian parole based on urgent,
compelling reasons, or to promote a significant public benefit. This parole does not confer any
permanent immigration status, but does enable a recipient to apply for and receive employment
authorization.

Humanitarian parole is typically granted for the duration of the emergency or compelling situation
at issue. Anyone granted humanitarian parole must depart the U.S. prior to its expiration date or
risk negative immigration consequences. It is possible, however, to request while in the U.S., a re-
parole of a previously accorded humanitarian parole period.

Anyone can file an application for humanitarian parole, including the prospective parolee, a
sponsoring relative, an immigration attorney, or any other interested individual or organization. Requests for
humanitarian parole may only be accepted for individuals who are outside the U.S.; unless such
request pertains to a re-parole of a prior humanitarian parole granted at USCIS headquarters in
Washington, D.C.

Question:  Where can I find the law about humanitarian parole?

Answer: The legal foundation for humanitarian parole comes from the Immigration and Nationality Act
(INA). Section 212(d)(5)(A) of the INA states USCIS has discretion to parole an individual into the
U.S. temporarily under certain conditions for urgent humanitarian reasons or significant public
benefit on a case-by-case basis.

Question:  Where do I file a request for humanitarian parole?

Answer:  You file a request for humanitarian parole using Form I-131, Application for Travel Document,
with the Form I-134, Affidavit of Support, to:
Department of Homeland Security, USCIS
Attn: Chief, Humanitarian Affairs Branch
20 Massachusetts Avenue, NW Suite 3300
Washington, DC 20529-2100

Question: How long does it take to adjudicate an application?

Answer:  Humanitarian parole applications are generally adjudicated within 90-120 business days from
the time USCIS receives the application.

Question:  How can I find out the status of my application?

Answer:  To check the status of your application, contact the Chief of the Humanitarian Affairs Branch at
the above address. Please provide specific information about your application, such as the case
number of the humanitarian parole application, the name, and date of birth of the petitioner, the
date of application, and a brief explanation of the reasons for seeking parole.

Question:  Can USCIS adjudicate humanitarian parole applications for individuals currently in the
United States?

Answer:  Requests for humanitarian parole can only be accepted for individuals who are currently
outside the U.S. However, where USCIS Headquarters has already granted parole for
humanitarian reasons, an individual in the U.S. may file a request to for re-parole.

Question:  How will I be notified if my request is approved?
Answer:  If you are the applicant, you will receive a written notice when your application has been
adjudicated.

Question:  For what period of time will I be granted humanitarian parole?
Answer:  Humanitarian parole is typically granted for the duration of the emergency or compelling
situation at issue. It is seldom granted for longer than one year.

Question: Who can file an application for humanitarian parole?

Answer:  Anyone can file an application for humanitarian parole, including the prospective parolee, a
sponsoring relative, an attorney, or any other interested individual or organization.

Question:  What can I do if my case is not approved?

Answer:  The denial of a request for humanitarian parole is a discretionary determination based upon a
complete review of all of the circumstances described in the documents submitted in each case.
The law does not provide for appeal of a denial. However, if there are significant new facts that are
relevant to your application for humanitarian parole, you may submit a new Form I-131 to the
address above with a new fee and supporting documentation.

Of course you need to be sure all medical documentation and any other supporting documentation for the Humanitarian Parole is submitted.

Filed under: humanitarian parole, Immigration, Immigration Attorney, Immigration Law, Immigration Lawyer | Tagged: , , , | 10 Comments »

Can an illegal alien become legal by marrying an USC?

Posted on January 28, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Can an illegal immigrant become legal by marrying an us citizen ? – Immigration – Avvo.com http://ping.fm/8SaSE

Filed under: Immigration, Immigration Attorney, Immigration Law, los angeles immigration attorney, USCIS | Tagged: , | Leave a comment »

Do you fall under The Child Status Protection Act?

Posted on December 28, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am very confused if I fall under the Child Status Protection Act (CSPA.) I have heard various things and just do not know if I qualify. Can you shed some light on this subject?

Answer: Yes it is true that there has been some confusion as to whether or not certain cases apply to the Child Status Protection Act. Within the last week, the Bureau of Citizenship and Immigration Services (BCIS) has issued some new interpretations of the CSPA. Unfortunately, some of the regulations limit what and who can fall under the CSPA.

First, the BCIS now states that the terms of the CSPA are not retroactive. Hence, persons whom age-out and would possibly fall under the CSPA must age-out after August 6, 2002 in order to qualify.

Question: Are there any exceptions to this age-out rule?

Answer: Yes. If you aged-out after August 6, 2002, but the petition has not yet been adjudicated or ruled upon. Also, if the petition has been ruled upon, but the adjustment of status application is still pending you would qualify for this exception.

Question: If I qualify for some other nonimmigrant visa, can I use the sections of CSPA?

Answer: No. Especially listed are the K (for fiancée related beneficiaries) and V (for persons with family petitions pending for over three years.)

Question: When is it actually determined if a person “ages-out”?

Answer: This occurs on the date of the visa number availability. Therefore, you would need to find out exactly when the visa became available and then find out exactly how old the beneficiary was on that date. This will apply not only to the beneficiary, but to the derivative beneficiaries as well.

Question: I have a friend who would have a current visa number available, but his father (the petitioner) became a U.S. Citizen and now the visa number availability is years off. Can he do anything?

Answer: Yes. A simple letter to the BCIS will suffice to show that he wants to retain the old preference. His visa number will become current, and he will be able to adjust his status.

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Filed under: cspa, Immigration Law, immigration provisions, Nonimmigrant Visa, USCIS | Tagged: , | 1 Comment »

Can you immigrate to the United States?

Posted on December 28, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I would like to know if I am eligible to come to the United States and immigrate so I can get my Green Card. I am very confused and am unsure of the possible ways. Can you shed some light on this subject?

Answer: Through family-based immigration, a U.S. citizen or LPR can sponsor his or her close family members for permanent residence. A U.S. citizen can sponsor his or her spouse, parent (if the sponsor is over 21), children, and brothers and sisters. An LPR can sponsor his or her spouse, minor children, and adult unmarried children. As a result of recent changes in the law, all citizens or LPR’s wishing to petition for a family member must have an income at least 125% of the federal poverty level and sign a legally enforceable affidavit to support their family member.

Through employment-based immigration, a U.S. employer can sponsor a foreign-born employee for permanent residence. Typically, the employer must first demonstrate to the Department of Labor that there is no qualified U.S. worker available for the job for which an immigrant visa is being sought.

Through various special related visas for religious persons or multinational managers.

As a refugee or asylee, a person may gain permanent residence in the U.S. A person located outside the United States who seeks protection in the U.S. on the grounds that he or she faces persecution in his or her homeland can enter this country as a refugee. In order to be admitted to the U.S. as a refugee, the person must prove that he or she has a “well-founded fear of persecution” on the basis of at least one of the following internationally recognized grounds: race; religion; membership in a social group; political opinion; or national origin. A person who is already in the United States and fears persecution if sent back to his or her home country may apply for asylum in the U.S. Like a refugee, an asylum applicant must prove that he or she has a “well-founded” fear of persecution based on one of the five enumerated grounds listed above. Once granted asylum, the person is called an “asylee.” In most cases, an individual must apply for asylum within one year of arriving in the U.S. Refugees and asylees may apply for permanent residence after one year in the U.S.

Question: How many immigrants are admitted to the United States every year?

Answer: Family-based immigration is limited by statute to 480,000 persons per year. There is no numerical cap on the number of immediate relatives (spouses, minor unmarried children and parents of U.S. citizens) admitted annually to the U.S. as immigrants. However, the number of immediate relatives is subtracted from the 480,000 cap on family-based immigration to determine the number of other family-based immigrants to be admitted in the following year (with a floor of 226,000). Employment-based immigration is limited by statute to 140,000 persons per year. The United States accepts only a limited number of refugees from around the world each year. This number is determined every year by the President in consultation with Congress. The total number of annual “refugee slots” is divided among different regions of the world. For fiscal year 2003, the number of refugee admissions was set at 70,000.

The numbers may sound like a large amount. However, since so many people want to come into the U.S., there are many people who have to wait 10 to 20 years to have their turn to enter the U.S. as a Lawful Permanent Resident.

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Filed under: Family Petition, Immigration Law, immigration provisions, Labor Certification, USCIS | Tagged: , | Leave a comment »

Will the war affect my application?

Posted on December 28, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I wish the best for the troops of the U.S. in Iraq. My concern is that I have an application going forward with the Bureau of Citizenship and Immigration Services and am wondering if that will be affected. Also, I am having a friend coming into the U.S. for a visit. Will the war affect him?

Answer: It is hard to say what effect the war will have on the immigration processes. The reality is that if you or your friend are from a Muslim related country, you will most likely have to go through more security checks and will have more difficulty in obtaining the visa. Of course this is not always true, but a person whom wants a Visitor Visa from Syria will have a harder time obtaining that visa than one whom obtains a Visitor Visa through the Philippines.

As for an application you currently have, it should not be affected. For example, if you have a work permit petition through an employer, as long as you qualify for the petition and are not inadmissible under any grounds, there should not be a problem.

Question: This sounds like ‘profiling’ by the U.S. government. Is that legal?

Answer: In some respects you are correct. The U.S. government has targeted persons of Muslim countries to special register. They have deported many people who have specially registered, but are out of status. They have expelled diplomats from Iraq and have sought to detain persons from Muslim related countries who are seeking asylum.

The U.S. government does not seem to be targeting persons whom are not from Muslim related countries. However, as we are seeing, in wartime, many of the due process rights and constitutionally protected rights of certain persons are abrogated and diminished. That is why we have to constantly fight to keep the rights of those persons who are least able to fight for themselves. Yes, the U.S. government should do what it needs to do to protect its national security. However, in many cases, in the name of national security, measures are taken which end up violating certain civil liberties and constitutional protections. These violations unfortunately do nothing to protect the national security. Thus, we must fight for the rights of all immigrants in the U.S. Otherwise, what appears to be limited and small infractions of constitutionally protected rights on a few select people could eventually be directed to the more general population of the U.S.

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Filed under: B1/B2 Visas, Immigration Law, immigration provisions, USCIS, Work Visa | Tagged: , | Leave a comment »

BCIS, BICE, and BCBP – What does it all mean?

Posted on December 28, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am trying to follow the updates since the Immigration and Naturalization Services ceased to exist. However, I am having a very difficult time understanding all the new departments. Can you please explain?

Answer: Yes, on March 1, the INS ceased to exist. All of the agency’s immigration functions were divided and transferred into three bureaus within the Department of Homeland Security. The transition affects everything from bringing in international employees for business meetings, to the processing of pending cases that were sent to the INS, to the work authorization and visa documentation foreign nationals currently hold.

Question: Can you explain what these new departments are within the Department of Homeland Security?

Answer: The three bureaus (the Bureau of Citizenship and Immigration Services (BCIS), the Bureau of Immigration and Customs Enforcement (BICE), and the Bureau of Customs and Border Protection (BCBP)) are now responsible for all the immigration services and enforcement functions. This does not include the Immigration Court.

Question: What does the Bureau of Citizenship and Immigration Services do?

Answer: The Bureau of Citizenship and Immigration Services (BCIS) is responsible for immigration services and benefits including: the adjudication of family- and employment-based petitions; issuance of employment authorization documents; asylum and refugee processing; naturalization; and implementation of special status programs such as Temporary Protected Status. At least during the transition phase, the bureau’s structure and functions will remain fairly similar to the old INS. The former INS District Offices (newly titled local BCIS offices); Application Support Centers (ASC), Service Centers and Asylum offices will remain open and in the same locations for this transition period.

This bureau will continue to process pending applications previously filed with the INS, and will maintain the validity of documentation issued by the former INS, such as: green cards, certificates of citizenship, employment authorization documents, travel and advance parole documents, Form I-94 Arrival and Departure Records, and others.

Question: What does the Bureau of Immigration and Customs Enforcement do?

Answer: The BICE handles the investigative and interior enforcement functions of the former INS, U.S. Customs Service, and the Federal Protective Services. The bureau is responsible for the detention and removal of criminal aliens, dismantling smuggling operations or trafficking of aliens, building partnerships to solve local problems, minimizing immigration benefit and document fraud, and conducting INS raids.

The bureau consists of approximately 14,000 employees, and is headed by an Assistant Secretary, who reports directly to the Undersecretary for Border and Transportation Security.

Question: Finally, what are the functions of the Bureau of Customs and Border Protection?

Answer: The BCBP is responsible for the Border Patrol, immigration investigations, and the inspections process at the borders. Prior to March 1, the ports of entry were supervised by several distinct chains of command and inspections personnel for the U.S. Customs, INS and other federal agencies. As of March 1, BCBP became the sole governmental presence along the border and at the ports of entry. The new bureau fused the old agencies’ chains of command at each port of entry into one common chain and put all inspectors under a single port director. The bureau also put the former INS enforcement personnel at the border in a supervisory position above former INS investigators. This is the first time that the immigration investigations functions are subordinate to enforcement. However, it still remains unclear how this change will affect admissions to the U.S. The bureau consists of 30,000 employees.

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Filed under: Department of Homeland Security (DHS), Immigration, Immigration Law, immigration provisions, USCIS | Tagged: , | Leave a comment »

So many Student Visa Regulations! What do I do?

Posted on December 28, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am a foreign student, but am finding it difficult to maneuver around the new Student Visa Regulations. Can you help to clarify?

Answer: On January 1, 2003, “Retention and Reporting of Information for F, J, and M Nonimmigrants; Student and Exchange Visitor Information System (SEVIS)” went into effect. There are many changes for students.

Question: Under SEVIS, are they any changes for practical training?

Answer: F-1 students now become eligible for a new one-year period of post completion optional practical training (“OPT”) when a student changes to a higher educational level. Under the new rules, a student could receive one year of OPT upon completing a Bachelors, then get an additional one year OPT for Masters, and then, if the student newly enrolls in a Doctoral program, the F-1 can get a third year of post completion OPT once the Ph.D. is completed.

Question: What about my spouse who is on F2? Can she continue to go to school?

Answer: The new rule states that F-2 dependents may not be enrolled full-time in a degree granting course of post-secondary study. F-2 dependents may be enrolled in elementary and secondary school or any a vocational or recreational studies. There is no grandfathering of current F-2s enrolled in college, and all such F-2s must have applied for a change of status to F-1 by March 11, 2003.

Question: What is the obligation of the school at this point under SEVIS?

Answer: The school must report the following within 21 days: failure to maintain F-1 status or complete educational program, change in address or name, graduation early or prior to program end date on SEVIS I-20, disciplinary action taken by school. Each semester and no later than 30 days after the deadline for class registration, schools must report the following: whether the F-1 student has enrolled, identification of any F-1 student who has dropped below a full course of study without authorization, the current address of the F-1 student.

Question: What if I go out of status? Can I be reinstated?

Answer: There is a new rule for getting reinstated. Now, the student must apply for reinstatement not more than 5 months after being out of status. Or, if the application is outside of the 5-month limit, the student must establish that failure to timely file was the result of exceptional circumstances. To have a reinstatement approved, the student must show either that the violation of status resulted from circumstances beyond the student’s control or that the violation relates to a reduction in the student’s course load that would have been within a Designated School Official’s power to authorize and that failure to approve reinstatement would result in extreme hardship to the student.

Question: What if I cannot finish my coursework by the end of the date on the I-20?

Answer: The new rule requires that program extension must be requested by the student prior to the end date on the I-20. Any student who is unable to complete the educational program before the end date on the I-20, and does not request a program extension prior to the end date on the I-20, is out of status.

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Is the U.S. engaging in Racial Profiling?

Posted on December 28, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

December 16, 2002 was the first “special registration call-in” program deadline. The program deadline required all males 16 years of age or older, who are citizens or nationals of one of five designated countries, and who entered the US as non-immigrants before September 10, 2002, to have registered to be fingerprinted and photographed.

A subsequent January 10, 2003 deadline applies to nationals from 13 more countries, and a February 21, 2003 deadline applies to nationals from another two countries.

This measure is yet another false solution to a real problem. Call-in registration offers us little protection because it targets people based on national origin, race and religion, rather than on intelligence information, and alienates the very communities whose cooperation we need. To make matters worse, the registration process is being wrongly applied. Instead of identifying terrorists, the INS in some local offices has used the special registration procedure to identify and detain people who are on the path to permanent residence, but are “out of status” — sometimes through no fault of their own. It makes no sense from security or resource perspectives to target people who eventually will be granted lawful status.

Not only is the call-in registration program ill-conceived, it also is being wrongly and ineffectively implemented and diverts law enforcement resources from initiatives that effectively enhance our security. The Department of Justice has not given the INS the necessary staff and resources to do its job and has not effectively disseminated information about the program. The paucity of information will make it likely that otherwise law-abiding people will not register or will fail to comply with program requirements and, therefore, be considered “per se” guilty of a criminal misdemeanor, deportable, and permanently barred from ever reentering the U.S.

Right now, it is only people from the designated countries that are targeted for this type of Special Registration. However, maybe next month, it will be another 10 countries and the month after another 10 countries. Eventually, the U.S. government might start having people who have relatives born in certain countries register. Eventually, the U.S. government might have U.S. Citizens register.

We must fight for civil liberties and constitutional due process for people here in the U.S. Of course no one wants there to be another terrorist attack. However, it is not real likely that a terrorist is going to go and Special Register. Therefore, the people whom are most likely to commit the terrorist acts are the very ones who will most likely not comply with the Special Registration requirements.

For many people in the U.S., this Special Registration is of no concern to them and they simply paint with a broad brush and state that we must prevent terrorism and that this is necessary. The critical concern is that it is the liberty and freedom of the United States that makes this country the best place on Earth to live. If that freedom and liberty is chipped away at, then the foundation of our country begins to erode.

We must do what is necessary to fight terrorism, but not impinge upon the duly protected constitutional rights of people. We must keep our civil rights and help those that are simply trying to make better lives for themselves. We must not target people and treat them unfairly simply because the color of their skin is different or there national origin is different. Otherwise, the terrorists have won.

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Can I be deported?

Posted on December 28, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been out of status for a number of years. Currently, I have a couple different petitions going forward. Once is a sibling based family petition, and the other is an employment based Labor Certification. I was told that it would take about another three to four years to be able to adjust my status to that of a Lawful Permanent Resident. There have been many news stories of people begin picked up by INS and deported, I am afraid for myself, my wife and my children. Can I just be deported?

Answer: Under most circumstances, the answer is no. Because you are here in the United States, you are allowed the opportunity to go in front of an Immigration Judge. Only if you had a previous deportation order can INS just take you and deport you without giving you a hearing. It is your constitutional right. Unlike many other countries around the world, even if you are not a citizen or a lawful permanent resident of the United States, you are entitled to due process. This means that you have an opportunity to present your case, to question witnesses, to cross examine witnesses who testify against you, to apply for relief or ways of staying permanently in the United States and to appeal decisions of the Immigration Judge that you are not satisfied with.

Question: What exactly might happen?

Answer: Each case is different. However, if you are targeted by INS, you should be served with what is known as a Notice to Appear. This is the beginning of the process. You might be taken into custody upon which you would be able to try to get a Bond Redetermination Hearing to get bonded out or become free while the immigration case is going forward. Then, over the next six months to two years, you will present your case in front of the Immigration Judge with the hope of winning.

Question: Am I entitled to an attorney?

Answer: Yes. You have every right to have an attorney represent you through these proceedings. However, unlike criminal cases, you must pay for the attorney to help you. The State will not provide one free of charge.

Question: How can the U.S. Constitution protect someone in my position?

 Answer: Because the U.S. Constitution gives people their rights as free persons in this country. If the U.S. Government were to just pick someone up and deport them, there would not be any safeguards against possible mistakes they may make. Also, the law allows people who are out of status to obtain their Green Cards based upon certain criteria. The government allows you to present that evidence. Just remember that this is the best country in the world to live in (no offense to those people elsewhere) and one reason it is such a great place to live is because individual rights are valued and treasured by our Constitution.

 However, the United States Government seems to be taking various rights away from certain immigrants. Therefore, you will have to make certain that you contact an immigration attorney right away in order to protect your rights and not be wrongfully deported.

Filed under: Deportation, Immigration Law, immigration provisions, Labor Certification, USCIS | Tagged: , | Leave a comment »

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