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Can’t get the H-1B? Try the O-1.
Posted on October 21, 2013 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney
Can’t get an H-1B? Try the O-1.
Posted on October 21, 2013 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney
The O-1: An alternative to the H-1B.
Question: I have years of experience, but cannot get an H-1B as they are used up. Are there any alternatives to the H-1B?
Answer: There is the option of the O-1. I normally do not used this as a first resort, but it most definitely is an option The O nonimmigrant visa is for people of “extraordinary ability.” The regulations also provide for O-2 visas for supporting workers. Eligibility for O visas is based on no nacademic achievements. There are no numerical limits on the O visas ussable each year and O petitions may be valid for up to three years, with extensions in one-year increments.
Question: What are the procedures for O-1 Visas?
Answer: An application for an O visa requires a U.S. employer to file a petition with a U.S. Citizenship and Immigration Services (USCIS) service center on Form I-129, with an O supplement, a “consultation,” an employment contract or letter describing the activities to be performed, documents proving the foreign national’s career achievements, and the filing fee. An itinerary is required for services to be performed in numerous locations. If the beneficiary will work concurrently for more than one employer, each employer must file a separate petition.
Question: Can I self-petition for the O-1?
Answer: A foreign national cannot self-petition for an O-1 visa. A U.S. employer is required. USCIS regulations permit an “agent” to act as an employer to sponsor the foreign national. The petition must be accompanied by a summary of the employment agreement’s terms (i.e., a letter from the petitioner). A Notice of Action (Form I-797) approving the petition is issued by the USCIS service center.
A foreign national outside the United States submits the approval notice to an American consulate with Form DS-160 5 (or DS-156 and, if necessary, DS-157 and/or DS-158), and the visa fee. If in legal status in the United States, the foreign national, at the time of filing the petition, may apply for change of status using Form I-129.
Question: What are the advantages of the O-1?
Answer: When a foreign worker does not qualify for an H-1B visa because he or she lacks a college degree or equivalent work experience, the job is not a specialty occupation, the salary is below the prevailing wage, or an H-1B visa number is not available, the O-1 visa may be a viable alternative. For example, a violin maker’s occupation is not an H-1B specialty occupation, as it does not require a degree. A violin maker of extraordinary ability, however, may be able to obtain an O-1 visa. Similarly, a chemist with a Ph.D., patents, and publications may be granted an O-1 visa when H-1B visas are not available. A foreign national who has exhausted the time permitted in H or L status may apply to change status to O-1 to remain working in the United States. Further, J-1 visa holders subject to the two-year foreign-residency rule under Immigration and Nationality Act (INA) §212(e) may be able to obtain an O-1 visa, which is exempt from INA §212(e) restrictions.
Question: What do you have to show to get an O-1 Visa?
Answer: There are several items that must be shown, but all of the following is not necessary. However, you should be able to provide at least three that are on the list:
(1) Documentation of the alien’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor; (2) Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields; (3) Published material in professional or major trade publications or major media about the alien, relating to the alien’s work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation; (4) Evidence of the alien’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought; (5) Evidence of the alien’s original scientific, scholarly, or business-related contributions of major significance in the field; (6) Evidence of the alien’s authorship of scholarly articles in the field, in professional journals, or other major media; (7) Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation; and (8) Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.
Thus, it is not easy to get an O-1, but is a very viable alternative to the H-1B and is always available.
Specialty occupation work visa
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Link to Follow on Linkedin Business Page for Immigration Updates
Posted on October 18, 2013 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney
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Got a deportation order you never knew about?
Posted on October 14, 2013 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney
Get an immigration deportation order to help you
Filed under: Deportation | Tagged: #hangoutsonair, #hoa, brian lerner, deportat order in absentia, Deportation, deportation attorney, deportation lawyer, Hangouts On Air, Immigration, Immigration Attorney, Immigration Lawyer, motion to reopen, motion to reopen attorney, MTR | Leave a comment »
Got a Deportation Order because you never received notice?
Posted on October 14, 2013 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney
I never got notice of my Immigration Court hearing. Now what?
Question: It seems years ago I supposedly received a notice to go to court, but never went because I never really received the notice. What can I do?
Answer: An in absentia order may be rescinded by the immigration judge upon the filing of a motion to reopen if the respondent did not receive proper notice of the hearing.
Question: Where to File the Motion to Reopen?
Answer: The motion should be filed with the immigration court having administrative control over the record of proceedings. Typically, this will be the court where the in absentia order of removal or deportation was entered.
Question: What is the Time for Filing the Motion to Reopen?
Answer: A motion to reopen based on lack of proper notice can be filed at anytime. This also means that a motion may be filed even after a person has departed the United States.
Question: Will I get deported if I file the motion – or have a risk of deportation?
Answer: An automatic stay goes into effect when the motion is filed and remains in effect pending disposition of the motion by the immigration judge. In deportation cases, the stay remains in effect during the appeal to the Board of Immigration Appeals (BIA).
To alert the court and the U.S. Immigration and Customs Enforcement (ICE) to the applicability of the automatic stay provision, motions may indicate (in bold letters on the cover page and on the front page of the motion) that an automatic stay applies.
Question: What factors are considered in this type of motion?
Answer: Consideration of many different factors goes into this type of motion, especially that you did not have notice of the proceedings against you.
Question: What does proper notice mean?
Answer: Proper notice means that ICE must properly serve the respondent with a charging document at the outset of proceedings. The charging document is an Order to Show Cause (OSC) in deportation and exclusion proceedings and a Notice to Appear (NTA) in removal proceedings. Also, the court must properly serve the respondent with written notice of all hearings.
Question: What Information Must the Government Put in the Notice?
Answer: The charging document must include: the nature of the proceedings, the legal authority for the proceedings, the acts/conduct alleged to be in violation of the law, the charges against the respondent, notification of the right to be represented by counsel, and the requirement that the respondent must provide a change of address or telephone number. The notice also must inform the respondent of the consequences of not providing a change of address (i.e., that the he or she may be ordered removed or deported in absentia). The notice of hearing, whether contained in the charging document or as a separate notice, must state the time and place of the proceedings and must inform the respondent of the consequences of failing to attend the hearing.
Question: What are Proper Methods of Service?
Answer: There is a presumption of effective delivery where the evidence indicates that the notice was properly served. However, if the respondent can show that the notice was not served properly, the presumption of effective delivery should not apply and thus there is no need to rebut the presumption. The following are the service requirements:
The nature of the requirements have chnged over time. However, for Removal Proceedings Filed On or After April 1, 1997, the NTA and notice of hearing may be served in person or by mail, but there is no requirement that the NTA be mailed by certified mail. Regular mail is sufficient. Consequently, signatures of receipt are not required.
Question: How Does the “Change of Address” Requirement Affect Proper Service and Can the Notice Requirements Be Satisfied Without Actual Receipt?
Answer: ICE may mail the NTA to the last address on file for the respondent. This may be the address that was included in an affirmative application that was filed with U.S. United States Citizenship and Immigration Services (USCIS). However, respondents cannot be ordered removed or deported in absentia until they are warned (by receipt of the NTA or OSC) that they may be ordered removed or deported in absentia as a consequence of failing to inform the government of a change of address. Thus, individuals who failed to report a change of address and do not receive the NTA or OSC as a result, cannot be ordered removed in absentia.
Question: How Can the I Prove that I Did Not Receive Notice Even If the Record Shows that It Was Mailed to the Correct Address?
Answer: Some of this will depend when the deportation notice of your hearing was mailed. However,
the presumption of effective service can be overcome if the respondent demonstrates non-delivery or improper delivery by the U.S. Postal Service. Non-delivery or improper delivery can be established by submitting substantial and probative evidence, such as documentary evidence from the Postal Service and affidavits. For example, if there were ongoing problems with the mail delivery, you may want to provide details about the problems and affidavits from people with direct knowledge of the problem.
In determining whether the respondent has overcome this presumption, the immigration judge must consider both circumstantial and corroborating evidence, and may consider a variety of factors, including (but not limited) to: Respondent’s affidavit; Affidavits from family members and other individuals who are knowledgeable about the relevant facts; Respondent’s actions upon learning about the in absentia order and whether he or she exercised due diligence in seeking redress; Any prior affirmative application for relief or application filed with USCIS or prima facie eligibility for relief (to help establish an incentive to appear); Previous attendance at immigration court hearings; and Other circumstances or evidence indicating possible non-receipt.
Thus, there is a significant amount of work to be done on a Motion to Reopen a deportation order issued in absentia, but if done properly, it can work and proceedings can be reopened.
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How to pass immigration reform and the reasons for the Government Shutdown
Posted on October 7, 2013 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney
Comprehensive immigration reform
Filed under: Immigration Reform | Tagged: boehnor, Brian D. Lerner, brian lerner, california immigration, Congress, deportation attorney, deportation lawyer, governmente shutdown, Immigration Lawyer, Immigration Reform, Law, Law Offices of Brian D. Lerner, los angeles deportation attorney, los angeles immigration, obamacare, Speaker of the house | Leave a comment »
Are you an Australian Citizen? Try the E-3
Posted on September 23, 2013 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney
Filed under: e-3 | Tagged: australian visas, Brian D. Lerner, brian lerner, california immigration, deportation attorney, deportation lawyer, e-3, E3, Immigration Lawyer, Law Offices of Brian D. Lerner, los angeles deportation attorney, los angeles immigration, visas from australia, work visa australia | Leave a comment »
Are there any work visas from Australia?
Posted on September 23, 2013 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney
Are there any special visas from Australia?
Question: I’m an Australian Citizen. Are there any special visas from Australia that I might be able to qualify for as an Australian Citizen?
Answer: Yes. The E-3 nonimmigrant classification is for Australian citizens who will perform professional “specialty occupation” assignments in the United States. E-3 status may be valid for up to two years and may be renewed indefinitely. The foreign national may apply for an E-3 visa at a U.S. consulate abroad or request a change of status or change of employer from U.S. Citizenship and Immigration Services (USCIS). Dependent spouses and children of E-3 professionals hold E-3D status. E-3D spouses are eligible for employment authorization documents. An extension of E-3 status may be filed with USCIS, or the foreign national may apply for a new period of E-3 status at a U.S. consulate abroad. There is an ample annual numerical limitation of 10,500 E-3 visa numbers, and E-3 extensions and E-3D dependents are not counted towards the quota. The E-3 is actually similar to the H-1B, but is for people only from Australia.
Question: What is basically needed for this type of visa?
Answer: You must be a citizen or national of Australia. There must be a professional assignment in the United States. You need a Bachelor’s degree. You need a professional license, if required for the assignment by federal, state, or local law.
Question: What documents basically are needed?
Answer: The U.S. job description. Copies of the foreign national’s educational degrees, including transcripts. Copies of the foreign national’s professional licenses, if applicable. Foreign national’s experience letters, if applicable. A Copy of foreign national’s résumé. Basic information about the company. A Copy of biographic page(s) of passport(s) of the foreign national and any dependent spouse and children.
Question: Is there a numerical limitation on E-3 Visas?
Answer: There is a numerical limitation of 10,500 E-3 visas that may be issued annually, but “[o]nly E-3 principals who are initially being issued E-3 visas, or who are otherwise initially obtaining E-3 status,” are counted towards this cap. Neither Australian citizens who seek E-3 extensions with the same employer nor E-3D dependents are subject to the quota. Unused E-3 visa numbers “do not carry over to the next fiscal year.” The Department of State (DOS) tracks usage of the visa numbers used by the U.S. consulates and by USCIS, so if it appears that the quota will be exhausted, DOS “will instruct posts to cease E-3 issuances for that fiscal year.” It seems unlikely, however, that the cap will be reached.
Question: If I do not have a Bachelor’s Degree, can I still get the H-1B?
Answer: Generally you cannot. However, you can try to get the equivalent of the Bachelor’s Degree. There are different ways that you can try to do this. They are as follows: 1) “An evaluation” from a specific type of educational official; 2) A credentials evaluation of education prepared “by a reliable credentials evaluation service which specializes in evaluating foreign educational credentials”; 3) “The results of recognized college-level equivalency examinations or special credit programs, such as the College Level Examination Program (CLEP), or Program on Noncollegiate Sponsored Instruction (PONSI).” 4) Recognition from a professional association; or 5) USCIS determination.
However, keep in mind that even if you successfully show that you have a college degree equivalence, the position itself in the United States must require the use of that college degree.
Immigration Work visa Lawyer: finding a good Lawyer
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Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog 