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Does paying for premium processing on an H1B case mean I will find out sooner if our case was selected in the lottery?

Premium processing is an add-on service that USCIS offers for a variety of immigration cases, primarily in the employment-based visa categories. Premium processing costs an additional $1225 in USCIS filing fees.  USCIS promises to adjudicate premium processing cases in 15 calendar days of the receipt date, unless they issue a request for additional evidence.  The clock stops while the request for evidence is pending.

We often recommend that our clients pay the extra money for premium processing.  This allows for a higher quality of scrutiny from more seasoned immigration officers and results in a faster answer.

The one thing it does not do is guarantee a faster answer on the question of whether an H1B case made it through the visa lottery.  In 2015, USCIS received 223,000 applications for 85,000 visas.  This led to significant delays in the agency opening the packages and selecting the possible visa recipients through a lottery.

One of our clients who paid for premium processing recently asked why it was taking so long to hear on their case even though they paid for premium processing.  We suspect it is because their case was not selected in the lottery.  But we emphasized that getting selected is not dependent on premium processing and that paying the extra fee does not necessarily mean that you find out the lottery results any more quickly than everyone else.

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.

Can I apply for citizenship if my green card is lost or expired?

In the past, USCIS and some immigration attorneys believed that you could not become a naturalized citizen if you did not have a valid green card (LPR) card to bring with you to your naturalization interview. This is in error. USCIS will allow someone with an expired or lost green card to naturalize and become a U.S. citizen.

So save yourself the time and expense associated with filing the I-90 to get a replacement green card. If you are eligible for naturalization, this issue will not derail your application.

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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