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New Regulations for F-1 STEM OPT

The core education subjects known as STEM for science,technology,engineering and math in white text on stylized hands and arms on a square paper background

As of May 10, 2016 a revised STEM OPT program, that, inter alia, places new requirements on employers who have hired an international student on the F-1 visa, will go into effect. These new requirements are only required when seeking a grant of STEM OPT under the new regulations. In this article, we will focus on those requirements that concern employers.

What do the new changes mean for employers?

These new regulations require employers to keep training records for the students obtaining the OPT. Furthermore, employers will be required to complete a training plan for each F-1 on a STEM extension and update the plan if there are any changes to the F-1 program. The employer shall conduct evaluations of the F-1 through the STEM extension period and submit said evaluations to the DSO. The new rule provides for 24 months of STEM-OPT as opposed to 17 months that was allowed under the old rule.

These new requirements will only affect the employers of F-1s who are working on a STEM OPT that was approved under the new regulations. These new regulations will not be effective during the first 12 months of the F-1s OPT or during the 17 month STEM OPT if it was approved before May 10, 2016. Read More

L-1B Denials Particularly High for Indian Nationals

L-1B classification was initially created by Congress to allow multinational companies to easily transfer employers from foreign operations to intra-company offices in the United States. To receive L-1B classification the applicant must work abroad for the overseas arm of the US employer for one continuous year and demonstrate that he has “specialized knowledge” in relation to the employer’s organization.people-at-work-4-37060-m

When Congress created this classification, “specialized knowledge” was not well defined. The lack of guidance on the meaning of “specialized knowledge” has led to many denials.

L-1B denials are at an all time high The National Foundation for American Policy (NFAP) just released a report analyzing L-1B denials. The report revealed that L-1B denials have reached a staggering rate of 35% for the 2014 fiscal year. In 2006 the L-1B denial rate was only 6% but this rate climbed to 22% in 2008 and steadily increased each year.

 

Indian nationals experiencing high denial rate India is experiencing particularly high denials of L-1B visas. In its report NFAP reveals that between the fiscal years 2012 and 2014, Indian nationals were denied L-1B visa classification at a rate of 56%. During the same time period denials of L-1B visas all other countries besides India was 13%.

There are many speculated reasons why India is experiencing such a high denial rate. Many critics of the L-1B visa allege that Indian IT companies transfer employers to different offices in the United States in order to turn a larger profit in its company. This could mean that a qualified United States worker who could do the work of the Indian employee working in the United States is replaced any an Indian national in the United States on an L-1B visa.

However, many speculate that the lack of guidance on the meaning of “specialized knowledge” leads to denials because it is not clear what an applicant should highlight in his application to be considered for an L-1B visa. The new guidelines for L-1B visa clarifications will hopefully offer much needed insight and lead to more approvals.

New guidance on “specialized knowledge” released by USCIS expected to take effect in August USCIS released a Policy Memorandum this week that gives more insight into the meaning of specialized knowledge needed for L-1B approval. This memorandum will accept feedback until May 8, 2015 and is expected to go into effect on August 31 of this year if the USCIS does not further modify the guidelines. In the memo “special knowledge” is defined as knowledge of the “employer’s product, service, research, equipment, techniques, management, or other interests and its applications in international markets that is demonstrably distinct or uncommon in comparison to that generally found in the particular industry.” The USCIS also provides an alternative definition of advanced knowledge, which relates to expertise in the employer’s processes and procedures more advanced than generally found within the organization.

To breakdown this lengthy definition, the USCIS gives some examples of specialized knowledge. Some of those examples are:

1. The employee can contribute to the United States operation of foreign operations and his knowledge is not generally found in the United States office. experience with that employer.

2. Specialized knowledge can generally only be acquired through past

3. Knowledge of a process or product that is complex or high technical.

4. Employee has been employed abroad and conducted assignments that enhance the company’s productivity, competitiveness or image.

The new clarification in the L-1B nonimmigrant visa will take place in August at the earliest. Hopefully the further clarification into the meaning of “specialized knowledge” will guide employers through the immigration process and lead to more approvals in the following years.

Contact the Law Office of Sweta Khandelwal to discuss filing L-1B nonimmigrant visas in accordance with the new guidelines.

Cited Sources:

In boost to Indian companies, US to ease L-1B visas, March 25, 2015, Chidanand Rajghatta

Policy Memorandum, L-1B Adjudications Policy, March 24, 2015, USCIS

L-1 Denial Rates Increase Again for High Skill Foreign Nationals, March 2015, National Foundation for American Policy

L-1 Visa Alarm for Indian IT,March 26, 2015, Indian American Times

 

Employment Authorization for H-4 dependent spouses available in May.

woman-1134419-m-1Currently dependent spouses on H-4 visas cannot lawfully seek employment in the United States, but that will be changing soon! The USCIS has officially announced that certain H-4 dependent spouses of H-1B visa holders may seek employment in the United States starting May 26, 2015.

Those eligible are H-4 dependent spouses of H-1B holders who are the principal beneficiary on an approved I-140 or the H-4 dependent spouses who have been granted H-1B status under section 106(a) and (b) of the American Competiveness in the Twenty-fist Century Act of 2000 (amended by the 21st Century Department of Justice Appropriations Authorizations Act).

The Department of Homeland Security predicts as many as 179,600 H-4 dependent spouses may be eligible for employment authorization during the first year of the implementation. Each year after, the number of H-4 applicants expected to apply for employment authorization drops to 55,000.

The Department of Homeland Security reported on public comments it received about the new H-4 EAD status. Of the comments received about 85% of the comments were in support of the extension of EAD to H-4 dependent spouses. Additionally, more than 60 commentators stated that because of the change in H-4 employment authorization they canceled plans to leave the United States and will now stay and continue to pursue Legal Permanent Residence.

H-1B holders cancelling plans to leave the United States because dependent spouses can seek work illustrates the significance of this change. An additional income and an option for both spouses to pursue a career track can have a big impact on families. With significant public support for the addition of H-4 EAD’s it is evident that many families are eager for this change and it seems likely that many families will utilize the ability to bring in an additional source of income.

India, a country that utilizes a significant portion of H-1B visas will significantly benefit from the addition of H-4 EADs. In 2012, of the 262,569 H-1B beneficiaries, 168,367 of the beneficiaries were from India. Considering that many H-1B holders move to the United States with their families, Indian families will greatly feel the impact of this announced change, while benefiting the United States economy as well. Many highly skilled employees come to the United States from India each year and allowing dependent spouses to work may bring even more skilled workers into the United States and retain the skilled workers that are already in the United States.

After May 26th, dependent spouses can apply for employment authorization and, if approved, will receive an EAD card. The EAD card allows the spouses to work legally in the United States. Additional paper work and filing fees must be sent to the USCIS to apply for employment authorization.

To apply for employment authorization on an approved H-4 or to discuss any other immigration needs contact the Law Office of Sweta Khandelwal. Attorney Sweta Khandelwal is an experienced immigration attorney in the Silicon Valley area.

Cited Sources:

Characteristics of H1B Specialty Occupation Workers, Fiscal Year 2012 Annual Report to Congress, October 1, 2011- September 30, 2012, U.S. Department of Homeland Security

Employment Authorization for Certain H-4 Dependent Spouses, February 15, 2015, Department of Homeland Security

DHS Extends Eligibility for Employment Authorization to Certain H-4 Dependent Spouses of H-1B Nonimmigrants Seeking Employment-Based Lawful Permanent Residence, January 24, 2015, USCIS

 

Domestic Worker Visa Options

It is not uncommon for many families and business people to bring personal assistants with them while traveling to the United States. These people can be nannies, butlers, maids, cooks, chauffeurs, and others. These domestic workers may come to the United States under a B-1 visa if they and their employer meet certain qualifications.

The B-1 visa requirements for a domestic worker are tied to the immigration status of the employer. Unfortunately for legal permanent residents (green card holders), they may not bring a domestic worker under a B-1 visa under any circumstances. For U.S. citizen and nonimmigrant visa employers, however, the option is available to bring domestic workers under a B-1 visa if both they and their domestic worker satisfy certain requirements.

FOR U.S. CITIZEN EMPLOYERS

U.S. citizens themselves must meet a certain requirement before even considering bringing a domestic worker under a B-1 visa, which can be satisfied in one of two ways. One way to satisfy this requirement is to show that the U.S. citizen employer ordinarily resides in the U.S. and is traveling to the U.S. temporarily. Or, in the alternative, the U.S. citizen employer can satisfy this requirement by showing that he or she is subject to frequent international transfers lasting two years or more and who, as a condition of employment, is going to reside in the United States for a stay no longer than four years.

There is also a relationship requirement that must be satisfied between the U.S. citizen employer and the B-1 visa domestic employee. This requirement can be satisfied in one of two ways. One way this requirement is satisfied is by showing that the employer-employee relationship existed for at least 6 months prior to the employer’s admission to the United States. Or, in the alternative, the U.S. citizen employer has regularly employed a domestic servant in the same capacity while abroad;

The employee must also satisfy two requirements. First, the employee has had at least one year experience as a personal or domestic servant, which can be proven by producing statements from previous employers attesting to such experience. Second, the employee must have no other work, and will receive from the employer free room and board and round trip airfare as indicated under the terms of the employment contract.

FOR NONIMMIGRANT VISA EMPLOYERS

The above requirements apply only to U.S. citizens seeking to obtain a B-1 visa for their domestic workers. For nonimmigrant visa employers seeking to do the same, they have slightly different but still similar requirements to satisfy. As an initial matter, only nonimmigrant visa holding employers with the following visas are allowed to bring domestic workers under a B-1 visa in the first place: B, E, F, H, I, J, L, M, O, P, Q, or R visas.

The domestic worker must satisfy slightly different requirements than what would be required if the employer was a U.S. citizen. The first requirement is a relationship requirement and can be satisfied in one of two ways. One way to satisfy this relationship requirement is by showing that the domestic worker has been employed outside the United States by your employer for at least one year prior to the date of your employer’s admission to the United States. Or, in the alternative, the employer-employee relationship existed immediately prior to the time of your employer’s application, and the nonimmigrant visa employer can demonstrate that he/she regularly employed (either year-round or seasonally) domestic help over a period of years preceding the time their application

In addition, the domestic worker must satisfy two additional requirements. First, the domestic worker has at least one year’s experience as a personal or domestic employee as attested to by statements from previous employers. Second, the domestic worker will have no other work, and will receive free room and board and round trip airfare from your employer as indicated under the terms of the employment contract. This is very much similar to the requirements for domestic workers working for U.S. citizens.

ALL B-1 DOMESTIC WORKERS

Regardless of whether the B-1 domestic worker is employed by a U.S. citizen or a nonimmigrant visa holder, the domestic worker must show the following:

  1. The purpose of their trip is to enter the United States for work as a domestic employee;
  2. They plan to remain for a specific, limited period;
  3. Their employer meets certain qualifications as stated above;
  4. They have evidence of compelling social and economic ties abroad; and
  5. They have a residence outside the United States as well as other binding ties that will ensure their return abroad at the end of the contract.
  6. They are at least 16 years old.
  7. They are not related to the employer by family relationship.

The B-1 visa domestic worker cannot bring their family members as dependents. The family members must seek their own visa categories, such as a B-2 visa, and meet those requirements independently.

In addition to these requirements, the contract defining the relationship between the employer and the domestic worker must be carefully drafted to not only protect the rights of both the employer and employee, but also to meet USCIS requirements. In addition, the domestic worker must still obtain employment authorization.

If you have questions about visa options for your domestic worker or if you have general immigration questions, please contact our office today.

Special Visa Categories for Canadians

Despite the media attention surrounding immigration from Mexico, it’s important to remember that the United States shares a border to the north with Canada as well. Given Canada’s proximity to the United States, it is no surprise that there are some special requirements and restrictions for Canadians seeking entry into the United States, even though Canadians can receive status to all of the more common visa categories.

It is important to note that there is a difference between a visa and a status. A visa is merely a placeholder in the line to obtain status. A visa is much like a plane ticket –you have a seat reserved on the plane, but a person can be stopped or prevented from boarding the plane for a number of reasons. Similarly, applying for a visa means a person is applying for a spot in line into the US, and receiving a visa that means the spot in line is secure. However, that same person may not be granted status despite having a visa and can still be turned away.

Thus, for Canadian citizens, they do not need a visa unless they are seeking E, K, S, or V nonimmigrant status. However, they must still obtain the status necessary. For example, although a Canadian citizen need not seek an F-1 visa to study in the United States, they must still satisfy all of the F-1 status requirements in order to study in the United States.

Also, under the Visa Waiver Program, Canadians can seek entry into the United States without a visa if they meet certain conditions. The travelling Canadian must be a Canadian citizen, not a permanent residence or other status under Canadian laws. If travelling by air or sea, the Canadian citizen must also show proof of a return ticket. The Canadian citizen must also be traveling to the United States for transit, tourism, or a short term business visit. They cannot seek extensions of their stay past the approved stay period, but can adjust status if based on marriage to a US citizen or an application based on asylum.

There is also a special TN status available to Canadians and Mexicans as well.

The TN status is similar to the H-1B status, but there are some advantages and disadvantages. The advantage is that receiving TN status can be much faster as it can be dealt with at the border and not through USCIS. Also, it is not subject to any visa limitations, while the H-1B visa is subject to its visa cap. However, one disadvantage is that the TN status does not allow for the Canadian citizen to adjust status to a green card, while an H-1B visa does.

 

If you are a Canadian citizen and have questions about seeking entry in the United States or have general immigration questions, contact our office to consult with attorney Sweta Khandelwal.

Advanced Parole or H-1B?

It is a stressful, but rewarding, time when a noncitizen finally begins their adjustment of status process to obtain a green card. Not only are many of the visa restrictions lifted, but it also allows for more frequent travel in and out of the United States. This article will explore some of the issues, however, of traveling with a pending I-485 adjustment of status application with USCIS.

The old law required a foreign national to obtain an Advance Parole document to travel outside the US while the I-485 was filed and still pending adjudication with USCIS. However H-1B, L, and K-3/K-4 (but not K-1/K-2) visa holders with a pending I-485/Adjustment need not seek advanced parole before travel. However, there is no harm in obtaining one, and in fact a memorandum put out by USCIS states that it is the alien’s prerogative to present either the advanced parole document or their H-1, L, or K-3/K-4 visa papers to evidence proper entry into the United States. If the noncitizen presents both, however, the reviewing officer should take the visa papers instead of the advanced parole document and inform the noncitizen that they don’t need the advanced parole document.

If the noncitizen re-enters the United States by using the Advanced Parole document instead of his or her visa papers, it does not negate their H-1B status. Thus, when a nonimmigrant is attempting to adjust status to obtain a green card, there is no break in the requirement to continuously maintain valid nonimmigrant status. For all intents and purposes, the H-1B status is continuously maintained and H-B beneficiaries have gone on to successfully obtain extensions premised on a valid underlying H-1B visa. Even if there were to be some question about this, the Act specifically creates a safe harbor exception for “technical violations,” which this situation would fall under. It would be incongruous for the noncitizen to be considered “out of status” when using an Advanced Parole document to re-enter the United States, but still allow him or her to obtain extensions on that H-1B visa.

If you have questions about your visa and the effect of obtaining an Advanced Parole document, contact our office today for more information or to speak with an attorney.

Visas and Residency for UC Tuition Purposes

It is no secret that many immigrants are young students seeking to attend the United States’ top universities. Many of these universities are in California, but California universities’ out-of-state tuition rates can be prohibitively expensive. What is considered a “resident” for California university tuition purposes has some interplay with immigration laws. This article will explore some of them here, based on the University of California tuition guidelines.

For UC tuition purposes, California has two requirements to satisfy: a physical presence requirement and an intent requirement. However, for noncitizens who hold nonimmigrant visas (H-1B, F-1, etc.) there are a specific list of visas that will not be able to satisfy either of these requirements. Some common examples are B-1/B-2, F-1, F-2, or H-1B visas. These nonimmigrants must change their status to another visa type or adjust status to obtain legal permanent residence status (i.e., a green card).

However, even if one has a green card or have a qualifying nonimmigrant visa, it does not mean they automatically qualify for “residence” status under the UC tuition guidelines. They must still satisfy the two requirements set out above: physical presence and an intent to be a California resident. Sometimes, nonimmigrants and green card holders may spend significant amounts of time abroad for many reasons. Even if such a noncitizen buys a home in California and pays California taxes, the existence of other homes in other states or abroad may cause the University of California to question whether the student and his or her family intend to make California their home.

More specifically, a person must spend at least 366 days (1 day and 1 year) in California to satisfy the physical presence requirement. Some breaks for travel are acceptable, but large breaks in the 366 day requirement may cause problems with obtaining California residence status. Also, for the intent requirement, this is a fact specific inquiry that depends on each individual case. Some examples of documents that will help satisfy the intent requirement are sale records of previous homes, evidence of a place of residence in California, receipts, employment records, having a California driver’s license, and registering to vote in California. These are again just examples and an attorney should assess the entirety of the situation.

Another issue for young noncitizens attempting to become California residence for UC tuition purposes is the relationship they have with their parents. Often, even if the student lives in California, if the parents are residing elsewhere then it may prevent being considered a California resident. One way around this is to show that the student is wholly financially independent and need not depend on his parents for financial assistance, but this is a rare exception.

If you have questions about the effect your visa or your immigration plans may have on attending a University of California school, or if you have other immigration questions, contact our office today so that we may assist you.

Dealing with 221(g) Issues from the Consulate

In this week’s article, we explore one common issue that happens to non citizens seeking entry into the United States from abroad. For those non citizens who have received an I-130 or I-140 approval and have a current priority date, many of them have to undergo processing at a U.S. consulate or embassy in their home country. One issue they may run into is a hold under 221(g) of the Immigration and Nationality Act.
In some ways, an administrative hold under 221(g) of the Act is similar to a Request for Evidence (“RFE”) response that USCIS utilizes when a visa petition lacks supporting evidence. The consulate or embassy can use 221(g) to place an administrative hold to request documents related to statements made in the support letter, information made on the USCIS Forms, or for other reasons. For example, some H-1B visa seekers may have to explain projects they have worked on, large spans of unemployment in their work histories, or specific projects they intend to work on for other reasons. In other cases, a 221(g) hold may be placed for medical or criminal reasons.
The first step the noncitizen should do is to seek the advice of a competent immigration attorney, especially for complicated 221(g) issues. The noncitizen should then contact the embassy that issued the 221(g) hold to find out what the exact procedure is to alleviate that hold. Sometimes, this can be resolved mostly through email. Other times, more specific instructions must be followed, such as an interview or awaiting for processing from another government agency. Also, every embassy is different in their procedures and can differ from country by country or
even by local region. It is important that the noncitizen and his or her immigration attorney remain fully informed and work together to resolve the 221(g) issue.

Once the procedures have been clarified, it is up to the client and the attorney to marshal the appropriate documents together and draft an appropriate response. Assembling the documents may take months in situations where the attorney and/or noncitizen have to coordinate with employers, medical professionals, police departments, courts, federal government agencies, or any other third-parties that may have records relating to the 221(g) issue. The immigration attorney may then draft an appropriate response summarizing all of the information.

If you have questions about your 221(g) hold or if you have immigration questions in general, contact our office today to speak with attorney-at-law Sweta Khandelwal.

CIR’s Renewed Strength

Although it may seem like Comprehensive Immigration Reform (“CIR”) has lost some steam, the push for CIR has continued its momentum and, if anything, has picked up more. Silicon Valley’s tech companies have recently renewed is support for CIR in the wake of the government shutdown.

Well known tech figures like Mark Zuckerberg of Facebook, Steve Balmer of Microsoft, Rupert Murdoch of News Corp, Drew Houson of Dropbox, Andrew Mason of Groupon, and Reid Hoffman of Linkedin have formed a political advocacy group called “FWD.us” to use the power of technology in order to persuade Congress to get behind CIR. Part of their campaign includes trips to Washington, social media campaigns and a hackathon headlined by industry leaders. FWD.us has also partnered with a diverse array of other groups to rally support for CIR, including the U.S. Chamber of Commerce, Bibles Badges and Businesses, and the Partnership for a New American Economy.

The Hackathon in particular is of interest. Dubbed the DREAMer Hackathon and hosted at Linkedin’s Mountain View, California headquarters, it is specifically aimed at bringing together undocumented youth to work on tech projects under the advisements of Zuckerberg, Hoffman, and other tech executives.

On a separate front, the Consumer Electronics Association (“CEA”), one of America’s leading tech trade groups, is also planning a lobbying campaign for immigration reform.

There have been mixed signals coming from Congress about where the CIR bill is headed. In a speech on Thursday, October 17, President Obama said that CIR should be addressed by the end of his year. However, some tech figures believe that the fight for CIR may spill into 2014, and President Obama did admit that immigration reform may take a backseat to some of the ongoing fighting in Congress. The following Friday, President Obama announced his nomination for former Pentagon lawyer Jeh Johnson as the head for the Department of Homeland Security, which houses USCIS and other immigration-related agencies. We hope that Johnson, as a known Democrat, will be a positive addition to the push for CIR.

As of now, the House Judiciary Committee has already approved a set of four immigration bills that dealt with issues ranging from E-Verify improvements to the SKILLS Visa Act to the agricultural guest-worker program. These isolated bills do more harm than good to address the problems of our immigration system.

Our office hopes that CIR will pass and will be a substantial step towards reforming America’s broken immigration system. As a nation of immigrants, it is only fair to reward those who have come to this country and have worked hard to work for America’s benefit. If you have any questions about CIR or if you have any other immigration issues, contact our office so that we may assist you.

The Government Shutdown’s Effect on US Immigration

The government shutdown has been the leading story in the news over the past week. The effects of the shutdown cannot be understated, especially on the American immigration system. This article will explore the numerous consequences the government shutdown has on the various aspects of the American immigration system.

Fortunately, USCIS operates based on the filing fees paid with each application or petition. Thus, the lack of authorized funding from Congress (which is the cause of the government shutdown) will have little effect on USCIS directly. In fact, the Department of Homeland Security in its entirety will continue to operate, which includes Customs and Border Protection, the Coast Guard, Immigration and Customs Enforcement, and of course USCIS. However, the good news may end there.

The Department of Labor and its Employment and Training Administration (“DOL-ETA”) relies significantly, if not entirely, on appropriated funds and thus any visa petition that DOL-ETA must first process before reaching USCIS is stalled indefinitely throughout the government shutdown. The shutdown of the DOL-ETA affects many nonimmigrant visa petitions, including H-1B, H1B1, and E-3 visas and affects new visa petitions, visa transfers, and extensions and amendments by USCIS or the US Department of State (“DOS”) for those employers who have not secured a certified LCA prior to the shutdown. Those seeking green cards may also be affected. The shutdown of the DOL-ETA means that those employers sponsoring green cards may seek further backlogs if the DOL-ETA has not yet certified recruitment efforts through the PERM Labor Certification process. The PERM Labor Certification process was already experiencing a six month backlog before the government shutdown. This is sure to cause significant and disruptive delays for many businesses.

The Immigration Courts as well as the DOL’s Office of Administrative Law Judges with be slowed down or shutdown. Activities at the Immigration Courts will also be slowed down, and the DOL’s Office of Administrative Law Judges will be unable to perform any case-related activities.

E-Verify is also unavailable, including enrollment, verification, viewing or taking action on any case, terminating accounts, running reports, and other key functions of E-Verify. E-Verify Customer Support will also be closed, which includes telephone and email support.

Visas that require processing solely through USCIS and/or the DOS will continue to function as normal. Examples include the L, TN, O, and H-3 visa categories. However, it is unclear how much of a ripple effect the shutdown will have and eventually disrupt USCIS or DOS operations as the shutdown drags on.

If you have questions about how the shutdown can affect your immigration plans or your current immigration case, contact our office today.





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