Categories: General

What is the H-1B visa lottery and how does it work?

In 2014, USCIS received more than 172,000 H-1B visa applications on the April 1st deadline, exceeding Congress’s cap by 87,000 applications.  The cap has been reached in each of the last several years and in most of the years that the program has been in effect.

When USCIS receives more applications that they have visas, the agency conducts a random lottery.  The submissions are opened and assigned a random number.  A computer lottery is conducted.  USCIS begins processing the applications that are selected.  All other applications are rejected and returned to the employer, along with the filing fees.

Obviously, the time surrounding the submission of the H-1B packet is very stressful for the employer and the employee.  Employers spend money on attorney’s fees and filing fees, all in the hopes of being able to hire the employee that they wish to hire.  Foreign employees face the sad possibility of returning to their home country and leaving the U.S. if the computer does not select their application.

One way to minimize the frustration and delay associated with this program is to file for premium processing.  USCIS allows employers to pay an additional fee (currently $1,225) to have the application processed more quickly.  USCIS promises a 15-calendar day processing of H-1B petitions when premium processing has been selected.  The agency guarantees that within 15 days of receipt, it will issue either an approval notice, a notice of intent to deny or a request for evidence.  If the agency fails to do so, the $1,225 is supposed to be Those employers who opt for premium processing are also allowed to use a specially-designated telephone number and email address to ask questions or check case status.  Our office highly recommends the use of premium processing.

USCIS actually conducts two lotteries.  The first lottery is for visa applications filed on behalf of employees having advanced degrees – Master’s Degrees and PhDs.  If USCIS receives less than 20,000 advanced degree applications, no lottery is conducted for those applicants.  If the agency receives more than the 20,000 advanced degree H-1Bs, the applications that were not selected are included in the general 65,000 lottery.  The result of this is that foreign workers holding advanced degrees.

The system is antiquated and counterproductive.  America loses qualified engineers, doctors, accountants, professors and all sorts of experts in their field each year because of this arbitrary cap.  No one can explain why the number has to be capped at 65,000/85,000.  It simply makes no sense.

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May an unmarried son or daughter of a lawful permanent resident keep their F2B classification after their sponsoring parent naturalizes?

The immigration laws treat the adult, unmarried children of citizens differently than the adult, unmarried children of lawful permanent residents. Adult, unmarried children of U.S. citizens are placed in category F1 for family based visas (not to be confused with F1 student visas, a totally unrelated area of the law).  Adult, unmarried children of lawful permanent residents are placed in category F2B.

Whenever an immigrant visa application is filed, a priority date is assigned.  Think of a priority date as a line number.

Adult, unmarried children of lawful permanent residents v. adult, unmarried children of citizens

Sometimes, the priority date for adult, unmarried children of U.S. citizens (F1) is behind the priority date for adult, unmarried children of lawful permanent residents (F2B).  For instance, in the January 2015 Visa Bulletin, the State Department reported the processing of visa applications for the adult, unmarried children of LPRs (for all countries other than Mexico and the Philippines) with a priority date of April 1, 2008.  But the agency was processing visa applications for the adult, unmarried children of U.S. citizens bearing a priority date of July 8, 2007.  This means that the adult, unmarried children of LPRs are getting their visas about 9 months earlier than the adult, unmarried children of U.S. citizens.

The reason for this discrepancy is the cap on the number of available visas for each type of category.  The line is longer for adult, unmarried children of U.S. citizens than it is for adult, unmarried children of lawful permanent residents.

What happens if the sponsor naturalizes?

Our office is frequently contacted by sponsors of immigrant visas for their adult, unmarried children.  These people are considering becoming U.S. citizens but worry what would happen to their child’s place in the visa line.  They worry that moving their son or daughter from F2B to F1 family based visa category will slow down their child’s case.  Naturalization of the sponsoring parent automatically converts the F2B application to an F1 classification.

Luckily, the law allows a 2B son or daughter to opt out of transfering to the F1 preference category.  This is achieved by filing a formal request with the USCIS office having jurisdiction over the case.  The adult, unmarried child will be allowed to retain the original 2B priority date, assuming that the I-130 was properly filed.  Section 204(k)2) of the INA specifically allows for the alien beneficiary to opt-out of the automatic conversion to F1 classification.  This allows the beneficary to retain their original priority date.

USCIS has issued a memo which addresses this issue.

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What is the “newspaper of general circulation” for PERM job postings?

The Department of Labor requires employers to advertise positions that they intend to submit a PERM application on to publish the job position in the local newspaper of general circulation.  Generally, this means the largest newspaper in the given geographic area.

A 2012 decision by the Board of Alien Labor Certification Appeals supports this analysis.  In that case, the employer Intercontinental Enterprises, Inc., filed a Form 9089 Application for Permanent Employment Certification.  The company ran two Sunday newspaper advertisements in something called the Washington Examiner.  The Certifying Officer denied certification of the PERM application, finding that the Examiner was not the newspaper of general circulation.

The CO concluded that workers would look to the largest classified section in town when looking for a job.  The regulations provide that the posting appear ““in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the
workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers.”  The BALCA noted that the Washington Post was the newspaper of general circulation for Washington, D.C.

This case stands for the clear rule that the employer must use the largst newspaper in town.  So don’t try and use a smaller, alternative newspaper when posting the position.

Is there such a thing as expedited removal of an immigrant and, if so, what is it?

Most people believe that removal orders or “deportation” orders only happen when you go to the immigration court and see an immigration judge. Unfortunately, this is not the case. There is a special type of removal order that is issued at the border by a U.S. Custom and Border (CBP) patrol officer. You never see a judge and you never see an attorney. This type of order is called an “expedited removal” order and here’s what you need to know in order to protect yourself.

How Is an Expedited Removal Order Issued?

A CBP officer can only use the expedited removal order process when a non-citizen presents themselves at the border and they believe:

  1. That the immigrant has committed some sort of fraud or misrepresentation. See INA § 212(a)(6)(C)(i)-(ii).  Some examples are if an immigrant lies about being a U.S. citizen or claims to be a visitor to this country when in fact they already live here or intend to live in the U.S.
  2. That the immigrant is not in possession of valid documents to enter the U.S. See INA § 212(a)(7)(A)(i)(I).  The most common example is when someone does not have a valid visa to enter the U.S.

CBP officers are limited in their ability to use the expedited removal process because there is no chance for the immigrant to speak to an attorney or see a judge. Therefore, it is a process that is meant to be used only in specific situations.  However, the CBP officer is required to advise you of the charges against you and give you an opportunity to respond to those charges in a sworn statement. See 8 C.F.R. § 235.3(b)(2)(i).

When an immigrant is at the border and is being processed for expedited removal, there are two situations in which the CBP officer must stop the expedite removal process and allow the immigrant a chance to appear before either a judge or an asylum officer. Those situations are:

  1. If the immigrant expresses a fear of returning to their home country. In this situation, the CBP officer must give the immigrant the chance to be interviewed by an asylum officer to see if they might have a way to stay in the U.S. through asylum. However, the immigrant will usually be placed in a detention center during this time.
  2. If the immigrant claims that they have lawful status in the U.S. For example, if the immigrant is already a U.S. citizen or won asylum in the U.S. In this case, the CBP can allow an immigrant to enter the U.S. in order to retrieve proof of their status and return it to them. This is called “deferred inspection.”

In some circumstances, an immigrant could also ask that CBP allow them to “withdraw their admission” instead of issuing an expedited removal order. Basically, this means that you no longer want to enter the U.S. and you would like permission to return to your country.  Such a request is completely up to the CBP officer and does not have to be granted.

What Are the Consequences?

The consequences of an Expedited Removal Order can range from a temporary bar to entering the U.S. all the way to a life-time ban.  The following are typical consequences:

  1. All expedited removal orders carry with them a 5 year ban on re-entering the U.S.
  2. An expedited removal orders will carry a life-time ban on re-entering the U.S. if it was issued because the immigrant was found to have committed fraud or misrepresentation.
  3. If you illegally re-enter after being issued an expedited removal order, then you could be barred from obtaining any lawful status in the U.S. for ten years. See INA § 212(a)(9)(C)(i). This is sometimes called the “Permanent Bar.”

What Can You Do After An Expedited Removal Order is Issued?

In some situations, you can apply for permission to re-enter within the 5 year ban by submitting an application for permission to re-enter (Form I-212).

If you were charged with fraud, some people are eligible to apply for a waiver of that fraud if they can show that a U.S. citizen or Lawful permanent resident spouse or parent would suffer extreme hardship if they are not permitted to obtain lawful status in the U.S. See INA § 212(a)(6)(C)(iii). There is also a waiver due to fraud for certain victims of domestic violence. See INA § 212(i). However, if your fraud was claiming to be a U.S. citizen, there is no waiver (unless very narrow exceptions apply such as the fact that you were a minor at the time).

There is no waiver for most people of the 10 year ban if you return to the U.S. illegally after being issued an expedited removal order. Some victims of domestic violence in very narrow situations can obtain a waiver of the 10 year ban.

Finally, there is no appeal available of expedited removal orders. However, it is possible for an immigration attorney to request that CBP review the order to determine if it was properly issued. If the CBP officer made a mistake in issuing the expedited removal order, it is sometimes possible for CBP to take away the expedited removal order form an immigrant’s record.

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Are the vaccinations for a green card mandatory or can I get a waiver?

Every person applying for lawful permanent residence (“green card”) is required to complete a Medical Exam which includes vaccinations. Here’s what you need to know if you do not wish to receive vaccinations for moral or religious reasons:

1. The medical exam and vaccinations are required for all persons regardless of age. Some immigrants may only be required to do a part of the exam since they would have completed a medical exam oversees (for example, K-1 fiancees, refugees, V non-immigrant visa).
2. You will be required to submit a waiver of the vaccination requirement. You must show that you objection on religious or moral grounds, you object to all vaccinations in any form, and your beliefs are sincere. The waiver is filed on Form I-690 and has a $200 filing fee.
3. In some instances, vaccinations can be waived for medical reasons or if a person received the vaccination but does not have the documentation.

What is ELIS and when will my spouse receive their green card?

The U.S. Citizenship & Immigration Services’ Electronic Immigration System (USCIS ELIS) is an online system set up by USCIS to give customers a better way to track and update their applications for immigration benefits. ELIS users will need to set up an account in order to make payments, submit applications, and receive notices.  Launched in May 2012, it currently allows you to pay the new USCIS Immigrant Fee and file certain Change of Status Applications (I-539). You must use either Microsoft Internet Explorer versions 6 and higher or Mozilla Firefox versions 3 and higher.

New USCIS Immigrant Fee

This is the final step in getting your Permanent Resident Card in a long journey that started when you or your family member filed a visa petition.  After you or your relative has received their immigrant visa package from the U.S. Embassy or Consulate, you will need to remember to pay the USCIS Immigrant fee of $165 in order for you or your relative to receive their Permanent Resident Card (“green card”) in the U.S.

In order to pay this fee, you will need to create an account on USCIS ELIS. Your attorney cannot create an account for you, however, they can create an account for themselves if you wish for them to represent you.  There is no filing fee waiver available. You will need to have your alien number and your Department of State Case ID number ready in order to pay the fee.  This information should be in the immigrant visa package you received from the Consulate or Embassy.

You can use a credit, debit card or pay through a U.S. bank account transaction.  Don’t forget to print out a copy of your receipt as proof of your payment as it cannot be re-generated.

Using the USCIS ELIS for Application to Extend/Change Nonimmigrant Status (I-539).

You can know use ELIS to change or extend your status if you are a:

  • Nonimmigrants in B-1, B-2, F-1, M-1 or M-2 visa categories to extend their stay;
  • Nonimmigrants who want to change their visa status to the B-1, B-2, F-1, F-2, J-1, J-2, M-1 or M-2 nonimmigrant status; and
  • F and M nonimmigrants to apply for reinstatement of status.

Other categories will need to use the paper filing application process. Forms are available at uscis.gov.

What are biometrics?

You may be wondering what – exactly – are biometrics?

Biometrics is just a fancy word for an appointment at USCIS for you to be fingerprinted and photographed.  In some ways, the photographing is silly because you have to submit multiple copies of passport-style photographs when you file your spouse visa application.

Even so, USCIS will not begin processing your application until you get digitally photographed at one of their service centers.

The fingerprints are another important part of the process.  In order to conduct a background check, USCIS hires civilian contractors to conduct a fingerprint examination.

After your fingerprints are obtained, they are sent to the FBI for a complete criminal background check.  This check can take several months so it is usually a good idea to get your fingerprints taken as soon as it is requested.

As always, if you have any questions about any of this, feel free to pick up the phone and give us a call.  (314) 961-8200

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Is the asylum interview supposed to be an adversarial interrogation?

Federal regulations require that an asylum interview not be adversarial.  That means that the officer is not supposed to be battling with, nor antagonizing, the person being interviwed.

Several good reasons exist for this approach.  First, the interview is the first and best opportunity for the asylum seeker to make their case.  If they are intimidated or yelled at by the asylum officer, they will not be able to thoroughly present their case.

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If the asylum officer makes a mistake and denies a case that should have been approved, very real world consequences may arise – the person may be deported to a place where he or she would be killed.  They could also be placed in removal proceedings which is not a pleasant experience.

The purpose of the interview is two-fold: (a) gather information and (b) disseminate information.  The asylum officer has the affirmative duty to “elicit all relevant and useful information bearing on the applicant’s eligibility” for asylum.  This means more than simply asking questions – it means having a dialogue without any pre-conceived notions of what the outcome should be.

The asylum officer should also disseminate or provide information regarding the process.  Asylum is an intimidating and complicated set of procedures.  One role the officer has is to make sure the person going through the process has a good understanding of what is happening.

Unlike in deportation court, there is no one at the immigration interview arguing that the alien should be deported or that asylum should be granted.  There is no formal cross-examination and the officer is “not an advocate for either side; rather the asylum officer is a neutral decision-maker.”

We hope this information helps you understand what an asylum interview is supposed to be like.  If you have questions or concerns regarding an updcoming asylum case or filing, please be sure to call as at (314) 961-8200. 

How long do I have to file my asylum application with USCIS?

Most people who come to our office to talk about asylum are unaware of the strict filing deadlines that govern asylum cases.  Since 1998, the rule at USCIS has been that an applicant for asylum must file within one year of his or her arrival into the U.S.

The one-year period is calculated from the date of the last arrival.  The day of arrival does not count – the first day is the day after the last arrival.  The filing date is the date that USCIS receives the I-589 asylum application.

It is your burden to show that you met the one-year deadline.  You have to establish timely filing by “clear and convincing” evidence.  You do this through testimony and through documentary proof of your last arrival.

If the asylum office has concerns about whether or not you filed within one year, you will still have your asylum interview.  However, your affirmative application for asylum (which is really your best chance for asylum), will be denied.

Your case will be sent to the immigration court, where you will face deportation, but may raise asylum as a defense to being sent overseas.

One exception for this rule is if there are “changed circumstances which materially affect his or her eligibility for asylum, or extraordinary circumstances relating to the delay in filing.”

Here are some examples of “changed circumstances”:

  • changed conditions in the applicant’s country of nationality
  • changes in applicable U.S. law
  • changes in the applicant’s personal circumstances, such as recent political activisim, religious conversion, etc.
  • the ending of the applicant’s relationship to the principal applicant in a prior asylum application.

The only other exception to the deadline is for “extraordinary circumstances,” which are events or factors in the applicant’s life which cause them to miss the filing deadline.  To prove this exception, the asylum applicant must:

  • show the extraordinary circumstance;
  • establish that the extraordinary circumstance caused the delay in filing;
  • not have intentionally created the extraordinary circumstance, through action or inaction, for the purpose of causing the delay; and,
  • must have filed within a “reasonable” period given the circumstances that related to the failure to timely file.

Extraordinary circumstances usually involve serious injury, death of a loved one or other similar situations.

We hope this helps you understand the one-year deadline and the narrow exceptions that apply.  If you have any questions, please give us a call at (314) 961-8200.

Committed to your success in the asylum process.

Why does USCIS take so long to process my spouse visa application?

In most spouse visa cases, several months go by between the initial filing/biometrics appointment and the actual interview.  People often wonder why that is. 

Let me explain what’s happening to your application:

1.  Initial processing

First, your package is received by contractors working for USCIS.  They accept and review the paperwork for an initial determination as to whether the required forms and supporting documents have been filed.

These contractors work with a checklist to help them review each document carefully.  The submitted filing fees are converted to ACH (automated clearing house) and deducted directly from the bank.

The applications are then forwarded to the National Benefits Center in Lee’s Summit Missouri.

2.  National Benefits Center (NBC)

The NBC was created by USCIS in 2001.  The NBC’s mission is to process applications that are to be sent to a local service center for interview.

Each application (work authorization, travel document, spouse visa and green card application) is assigned a case number.  The NBC was originally called the Missouri Service Center, so the first three letters of the case number are always MSC.  The non-citizen spouse also receives an alien identification number (A#).

The NBC conducts a more thorough review of the application.  If information or evidence is missing, the NBC sends out a request for evidence (which we discussed in an earlier email).

 

3.  FBI Name Check

The third piece of the puzzle before an interview is scheduled is the FBI name (or background) check.  After biometrics are conducted, the fingerprints are sent to the FBI for a check of local and national criminal databases.

The check is very thorough.  Serious traffic, misdemeanor and felony arrests and convictions are identified.  This is important because all arrests and convictions will be discussed at the interview.

We generally obtain the same records BEFORE filing so that we are adequately prepared for whatever may come up.  It also demonstrates why it is important that you tell us everything regarding any interaction that you have ever had with the law.

These are the three stages that must take place before you and your spouse attend the green card interview.  If you have any questions, please give us a ring at (314) 961-8200.