IT’S TIME TO BEGIN PREPARING YOUR H-1B VISA APPLICATIONS

By Christopher A. Kerosky, Esq.

The H-1B visa is a very commonly used visa for foreign national professionals hired by a U.S. employer – covering everyone from IT professionals to winemakers. 

Under current law, no more than 65,000 H-1B visas can be issued each year.  This quota has been used up in the first week of the application process for each of the last 5 years.  So, in truth, applications are due on April 1^st and it’s time to consider your plans and get any H-1B applications ready soon so that they won’t be submitted too late.

What is an H-1B visa?

H-1Bs can be hired only for what the government calls "specialty occupations," -- jobs requiring the equivalent of at least a bachelor's degree in the field.  

This is a visa commonly used for IT professionals of all types – computer programmers, engineers, computer assisted design professionals.  It also includes all variations of other professionals such as doctors, engineers, professors, accountants, lawyers, physical therapists and a host of other jobs.

In order to qualify, the employer must demonstrate that the position requires a professional in a specialty occupation and that the intended employee has the required qualifications. Typically, the minimum qualification is a university (bachelor’s) degree or its equivalent.  

Employers must also pay a wage to every H-1B worker the “prevailing wage”, that is at least as much as what is typically paid in the region for that type of work   Employers cannot make the H-1B nonimmigrants work under conditions different from their U.S. counterparts.

The H-1B visa is issued for 3 years, but can be extended up to 6 years.  Presently, the processing of such visas takes between 4-6 months. 

What is required to obtain an H1B visa?

An H-1B visa requires that the job qualify as a “specialized occupation” which requires a bachelor’s degree.  The applicant must also have a bachelor’s degree in the same or similar field or its equivalent.

Am I eligible for an H-1B visa?

In order to qualify, the employer must demonstrate that the position requires a professional in a specialty occupation and that the intended employee has the required qualifications. Typically, the minimum qualification is a university (bachelor’s) degree or its equivalent.  

What can I do on H-1B visa?

·       May legally work in the U.S.

·       Travel to and from the U.S. and reenter as many times as you wish during the validity period of the H-1B visa, as long as you have a valid stamp in your passport.

·       H-1B visa holders may simultaneously seek Lawful Permanent Residency or a Green Card for themselves and for their family.

What are the limitations of H-1B visa?

·       If you change jobs you must reapply for a new visa, under the new position

·       You can only work for the company with petitioned for you.

Can I bring my dependents on H-1B visa?

Yes, you may bring your dependents on an H-1B visa. Your spouse and unmarried children are entitled to a H-4 visa and they can stay as long as you maintain valid H-1B status..

How long can I stay in the U.S. on an H-1B visa?

Generally H-1B visa is granted for three years. It may then be extended, up to six years total.

Can I transfer my H-1B visa to another company?

Yes, but a new petition must be filed by the company.

What if there is a change in my working conditions while I'm on  H-1B status?

As long as you continue to provide H-1B services to a U.S. employer, most changes will not affect your H-1B status. You may change H-1B employers without affecting status, but your new H-1B employer must file a new visa application before you start work.

Is there an annual quota on the number of H-1B visas issued?

Yes. The current annual quota on the H-1B category is 65,000 for each Fiscal Year.

Is everyone covered by the annual quota for H-1B visas?

There are certain exceptions to the annual cap:

• Persons who are employed, or who have received an offer of employment, by institutions of higher education or a related or affiliated nonprofit entity, as well as those employed, or who will be employed, by a nonprofit research organization or a governmental research organization are exempt from the cap.

• Also, there is a special allocation of H-1B visas for foreign workers with a Master's or higher level degree from a U.S. academic institution. 20,000 beneficiaries of H-1B petitions on behalf of persons who hold such credentials are statutorily exempted from the cap for each year.

****************************************************************

CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced immigration law for over 25 years.   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C. 

Mr. Kerosky has been recognized as one of the top lawyers in Northern California for 9 years by “Super Lawyers” Magazine.  See www.superlawyers.com. 

.

WARNING: The above is a summary discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

THINGS TO CONSIDER ABOUT GETTING A GREEN CARD AT A U.S. CONSULATE ABROAD…Before you go.

By Christopher Kerosky, Esq.

It has always been the case that many immigrants end their permanent residence process having to go to a U.S. Consulate abroad in their home country to finalize the case and get their green card.  This is a process known as Consular Processing. 

Since 2013, thousands of undocumented immigrants have been able to obtain permanent residence after obtaining a "provisional pardon" (I601a) within the United States and then traveling for a consular interview in their country of origin.

Now, even more immigrants are therefore going abroad to finish the process at a U.S. Consulate.

This process, which also includes a family petition and an affidavit of support, should be prepared with great care given that the final decision on eligibility is issued outside the country, so a procedural problem could delay or even prevent issuance of the Immigrant Visa ( Green Card).

Here’s some important tips to know and consider before going abroad:

Issues and Documents Important to Success at the Interview.

·       Information related to contacts with immigration authorities: Immigration and Customs Enforcement (ICE) arrests or deportations within the United States or by Customs and Border Patrol (CBP) at the border of the country may cause an applicant to be ineligible for this process.

Share all this information with your attorney, as well as any records you may have related to these incidents.

·       Criminal Record: The immigrant who seeks a pardon is seeking permanent residence so the moral character of this person will be evaluated by the US Citizenship and Immigration Service (USCIS) before issuing a decision. Any criminal arrest and / or conviction either within the United States or outside the country must be made known to the lawyer.

·       Multiple entries: Those who entered the United States illegally more than once must be careful as they may not be eligible for this pardon.  These rules, covered by the law known as the “Permanent Bar”, are complicated and whether they would make you ineligible for permanent residence depend upon the dates of exits and entries into the U.S.  Please discuss all trips outside the U.S. and into the U.S. carefully and honestly with your lawyers.

·       245i Eligibility. Those immigrants who have filed a labor certification or family petition before April 30, 2001 should consider the possibility of applying within the U.S. for a green card and paying a $ 1,000 fine rather than using the pardon process and seeking their status at a Consulate.

The Consular Interview.

Once the pardon is approved, the applicant should complete an Affidavit of Support with the National Visa Center, which will eventually send the case to the applicant's Embassy or Consulate.

The interview process consists of several stages and certain factors must be considered:

·       Potential penalties for those who crossed the border illegally with children: Applicants who at some point brought their children across the border illegally could be charged with “alien smuggling”, which would delay the process and require a new pardon to be obtained outside the country.

·       Death or divorce and the family petition.The relationship upon with the Family Petition was based must continue to exist: if the marriage or other relationship no longer exists at the time of the interview, the applicant may not qualify for the visa. Examples are divorce or separation of those who petitioned their spouses or death of those who sponsored their parent or children.  Under certain circumstances, a waiver is available.  Consult an attorney. 

·       Alcohol or drug abuse can be an impediment to consular processing.  Each applicant will undergo a medical examination in their home country, and it is possible that the process will be delayed if the applicant has had drug or alcohol abuse problems.

·       Gang Tattoos can cause obstacles to permanent residence: Any tattoo that can be interpreted as belonging to and / or affiliated with a gang could delay or even eliminate the possibility of obtaining residence.

·       Record with Immigration and / or Criminal Authorities: the Embassy and / or US Consulate in the home country will also review records of any criminal charge or arrest and any prior contacts with immigration, so discuss with your attorney if there are any changes in the information you shared with your representative before sending the pardon application.

************************************************************************

CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced law more than 25 years and has been recognized as one of the top immigration lawyers in Northern California for 9 years by“Super Lawyers” www.SuperLawyers.com .   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C.  His firm has offices in San Francisco, Los Angeles and six other locations in California. 

WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

T’WAS THE WEEK BEFORE CHRISTMAS: an Ode to the Dar

This last week, we welcomed the majestic Polish tall ship Dar Młodzieży to San Francisco. I adapted the famous poem and had the honor to read it to the crew at the welcoming ceremony this Wednesday. Later we presented the poem to the Captain to great fanfare. Here is the text:

T’was the Week before Christmas, And all through the town, 

San Francisco was quiet, There was nothing going down.

The harbor was ready, the welcome prepared  

In hopes that the Dar Młodzieży would soon be there

The young ladies were snuggled all warm in their beds

While visions of Polish sailors danced in their heads.

And the Mayor in her kerchief and the Governor in his cap,

They were all ready to listen to some fine Polish rap.

Then out of the Bay, I heard such a clatter

I sprang from my office to see what was the matter.

The sunshine on the breast of the new fallen rain

Gave a luster to the Pier 15 still waiting in vain

When, what to my wondering eyes should await

But a magnificent vessel passing the Golden Gate

With a distinguished Ship Master and a crew without par

I knew in a moment—it must be the Dar

The ship, it was splendid, from its stern to its bow

It navigated through the dense fog – I still don’t know how

Its deck was immaculate, it’s sails all unfurled

I couldn’t imagine, it had just crossed the world

The students and sailors, all happy and gay

They had arrived for 3 fun days in San Francisco Bay

They were all dressed in fur, from their head to their feet

As it was colder here than the coldest Warsaw street

Then as I drew in my hand, and was turning around,

Up to the deck, the Ship Master came with a bound

A wink of his eye and a twist of his head

Soon gave me to know, I had nothing to dread

His uniform was impressive, his stature immense.

And he said with authority: “Let the festivities commence”

The chefs brought the pierogi, the szynka and ziemnaki

The food was so tasty – how could I be so lucky!

And then the Master gave a toast, as he got up from the table:

“Wesolych Swiat to all, and to all: “Smacznego!”

All present were joyful, so full of good cheer

There could only be one reason: the mighty Dar is here!

FIANCÉE VISAS: HOW TO BRING YOUR LOVED ONE TO THE U.S.

By Christopher Kerosky, Esq.

A U.S. citizen can sponsor their future spouse to come to this country on a fiancée visa known as a K-1 visa.  If the visa is approved, the couple must marry within 90 days to the person who sponsored their visa in order to qualify for adjustment of status to permanent residence in this country. 

How to apply.

To start the process to obtain a fiancée visa, an application is submitted to the Bureau of Citizenship and Immigration Services (USCIS) of the Department of Homeland Security.  In order to prove that the relationship is valid, it is necessary to provide certain documentation with the application such as evidence of the past relationship, correspondence, travel records, other evidence of their time spent together and their courtship.  It is helpful to submit photographs of the couple together, including photos with family members if possible.  We recommend that clients also submit statements from family members confirming that the relationship exists.

It is also necessary to submit financial documents proving that the petitioner US citizen can support the fiancée in the United States financially.  This usually includes tax returns, W2s from an employer and a letter confirming present employment.

Upon submission of the application, the Immigration Service attempts to determine if the relationship is bona fide.  Once approval in the U.S. occurs, there is a consular interview at the Consulate overseas at which the applicant may be asked questions about the relationship.  Usually only the intending immigrant attends this interview.  At the end of the interview, if the officer is satisfied the relationship is bona fide, and all other requirements for the visa are met, the visa is approved. 

Adjustment of status in the U.S.

Once the person comes to the United States, the couple must marry within 90 days.  At that point, there is another procedure known as Adjustment of Status required to obtain permanent residence for the immigrant.  There are more forms to file and documents to submit, with an interview at the end of the application process, which both spouses must attend. 

If the officer is satisfied the marriage is bona fide, and all other requirements for permanent residence are met, the adjustment of status application is approved.  If the marriage is less than two years old, the immigrant is given conditional permanent residence.  This status gives the immigrant all the same rights as a permanent resident except that it expires after 24 months. 

Two years after the granting of conditional permanent residence, a new application must be submitted to the immigration service, documenting that the marriage still exists. 

U.S. law does not allow the individual to switch to a different U.S. visa under any circumstances. If the marriage does not occur, the foreign national generally must return to their home country.  So the fiancée visa is not a good option unless the couple are relatively sure they will be married.

Pluses and minuses of the K-1 visa.

The fiancée visa is useful for persons who cannot obtain a tourist visa and are not eligible for a visa waiver; they often have no other way of coming to the U.S. to spend time with a future spouse.  The visa has the benefit of allowing the foreign national to spend up to 3 months with their fiancée living in the U.S. to “test the waters” of their relationship before actually getting married.

One problem with the fiancée visa: it can be a long process, especially now during the Trump Administration.  And once the petition is filed, it is often difficult for the intending immigrant to visit the U.S. on a tourist visa or visa waiver (ESTA).  The U.S. Consulates are often unwilling to grant a tourist visa if a foreign national has a fiancée visa application pending; likewise even if the fiancée has a tourist visa or is eligible to enter the U.S. without a visa, U.S. border officials might turn the fiancée  away at the airport because of the pending application. 

Therefore, Clients should carefully consider their future travel plans before filing the visa application and be prepared for the possibility of being apart for long periods of time.  In the next segment, we will discuss the alternatives to the fiancée visa for couples, and the advantages and disadvantages of each.

***************************************************

CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced law since 1984 and has been recognized as one of the top immigration lawyers in Northern California for 8 years by“Super Lawyers” www.SuperLawyers.com .   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C.  His firm has offices in San Francisco, Los Angeles and six other locations in California. 

WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

WHAT IS THE DIVERSITY GREEN CARD LOTTERY?

By Susanna Bogue, Esq.

The Diversity Visa green card Lottery was sponsored by the late Senator Edward Kennedy and is now conducted each autumn. The application period for Fiscal Year (FY) 2020 just ended last month.

Although President Trump has constantly criticized the green card lottery and has supported legislation to eliminate the program, the only way to end it would be for Congress to change the Kennedy-era law. In August 2017 President Trump said that “for decades” our legal immigration system has been and is a ‘low-skilled immigration system … issuing record number of green cards to low wage immigrants, … which is not fair to our people.” President Trump must not be seeing the same signs I’m seeing; all across this nation “help wanted” signs appear in every industry and every occupation. The Senate bill he supported which would have done away with the lottery was not passed.

As President Trump correctly pointed out, for more than 20 years the US government has given out 50,000 green cards in a lottery to people from “underrepresented” countries, including Ireland and Northern Ireland (but not the rest of the UK). But don’t think for a minute that the Irish get anywhere near 50,000, for many years now the numbers have hovered consistently around 100 winners. Last year there were 14.3 million (under the record 14.7m in 2012) qualified entries down from 14.6m a year ago. Over 87,000 applicants were randomly selected from the registrations for the 50,000 green cards. Only 60 Irish born applicants (52 southerners and only 8 northerners – less than half last’s year’s 139!) were notified that they had been selected. Tiny Fiji got 396 and Australia got 777. Poland got 461, Venezuela 1,282, and Israel 214. The “big” winners who got over 3,000 were Democratic Republic of Congo, Egypt, Ethiopia, Iran, Nepal, Russia, Ukraine, and Uzbekistan, so that’s 31,186 of the winning letters issued to just eight countries (and they call this the “diversity” lottery!). In Europe, in addition to the countries named above, the big winners were Albania with 2,503 and Turkey with 2,411.

This year’s lottery DV-2020 was very similar to last year’s with no changes in the eligibility requirements. The UK (except for those born in Northern Ireland), Canada, Brazil, Mexico, and Vietnam are among the countries which were not eligible to apply unless they fall into one of the limited exceptions. When nationals of a country take up too many green cards in the proceeding years, they are disqualified from entering the annual lottery. 

If you submitted an application this year,  a notice of receipt will be issued with a confirmation number and starting May 7, 2019 through at least September 30, 2020, you will be able to check to see if you were chosen by going to Entrance Status Check at www.dvlottery.state.gov/ESC/.  If you’ve misplaced your DV lottery confirmation number, you may be able to use the retrieval tool in Entrant Status Check to recover it if you know which email you used to register. Check again in September 2019 as more numbers may be chosen. If you applied last year and have your confirmation number you can check again to see if you won or not as more numbers may have been chosen on October 1^st.  Note that there is only ONE submission per person and each submission has a confirmation number. Married couples should both apply separately for two chances. If your spouse is born in New Zealand or Australia don’t apply under Ireland as your odds are much better using countries down under! Winning letters will NOT be mailed and you will need your confirmation number that you get when you apply to see if you have won. Green card interviews begin October 1, 2019 and everyone who is selected must be processed prior to September 30, 2020. Two years ago the green cards were gone by September 12^th.

If you are selected…
Consult an attorney to give yourself the best odds. Being selected as a winner does not guarantee you a green card.  Past immigration violations such as “unlawful presence” or “misrepresentations” can lead to a denial at the interview. For those who apply, good luck, and hope if you win you really win!

RESTRICTIONS ON ASYLUM BLOCKED.  A San Francisco judge issued a temporary restraining order last night, preventing the Trump Administration from implementing its new limitations on asylum.  Those regulations sought to deny access to asylum to many refugees at our Southern border.  Judge Michael Tigar of the U.S. District Court held that the law appears to violate the U.S. Refugee Act of 1980, as well as other provisions of law.

The United States Refugee Act (Public Law 96-212) was passed by Congress in 1980 to provide an established procedure for the admission to the United States of refugees of special humanitarian concern to the U.S.   That statute guarantees individuals the right to seek asylum whether at the U.S. border, a port of entry or even from the interior of the country. https://www.thoughtco.com/united-states-refugee-act-1980-1952018

Many of the refugees arriving as part of the caravans seek to apply for asylum at the U.S. border port of entry.   As reported in the Washington Post, some of those and others have gone to the wrong port of entry or crossed the border in desperation when they were turned away at a port of entry.  The U.S. Customs and Border Patrol has limited access to ports of entry and closed lanes of access routinely, greatly restricting the numbers of asylum seekers who may apply through the port of entry.   

The Trump Administration was attempting to limit access to asylum to only those persons applying at the port of entry.  Those who crossed the border at other points would be ineligible.   But the judge held that this limitation runs contrary to the express terms of the 1980 law.

 “If what Defendants intend to say is that the President by proclamation can override Congress’s clearly expressed legislative intent, simply because a statute conflicts with the President’s policy goals, the Court rejects that argument also,” the judge found

“This ban is illegal, will put people’s lives in danger, and raises the alarm about President Trump’s disregard for separation of powers, “ stated the ACLU lawyer who brought the case.   “There is no justifiable reason to flatly deny people the right to apply for asylum, and we cannot send them back to danger based on the manner of their entry. Congress has been clear on this point for decades.” https://www.washingtonpost.com/nation/2018/11/20/blow-trumps-immigration-agenda-federal-judge-blocks-asylum-ban-migrants-who-enter-illegally-mexico/?utm_term=.10c4a89558a2

HOW DO I GET MY GREEN CARD IF I MARRY A U.S. CITIZEN?

Under present law, a person who came to this country on a valid visa can apply for permanent residency if they marry a US citizen.  If the person came to the US on a fiancee visa, they must marry within 90 days to the person who sponsored their visa in order to qualify for adjustment of status to permanent residence in this country. 

All other persons can apply for adjustment of status to permanent resident in this country based upon marriage to a U.S. citizen, as long as they entered the United States on a valid visa and have not committed a crime or some other act which makes them ineligible. 

Of course, the marriage must be a valid and bona fide one.

Also persons who qualify for a special law called Section 245i can also file for a green card here in the U.S. based on marriage – even if they came here without a visa.  You only qualify for Section 245i if you had a family member or employer file to sponsor you for permanent residence before April 30, 2001.  Many persons who have been sponsored by parents or siblings and have been waiting many years for their case to be “current” can file instead through a U.S citizen spouse under Section 245i.  (However, it is very important to get good legal advice before filing to make sure you are eligible.)

There are many necessary forms and documents necessary to submit with the marriage petition, including photos, birth and marriage records and other immigration forms.   It generally takes only 9-15 months to finish the adjustment of status process.  There is an interview at the end of the application process, which both spouses must attend. 

In order to prove that the marriage is valid at the interview, it is necessary to provide certain documentation.  This includes financial records such as leases with both spouses names, joint bank account statements, joint credit cards, utility bills and other evidence that the couple is living together.  It is also helpful to bring photographs of the couple together, including photos of the wedding.  Other personal documents such as correspondence before marriage or even personal mementos can be helpful to show the immigration officer.

The interviews generally last approximately one hour or less and are intended to determine whether the marriage is legitimate or not.  If there is any significant doubt about whether the marriage is real, the applicants are required to come for a second, more intensive interview.  In these second interviews, the spouses are separated and questioned at greater length by trained officers. 

If the officer is satisfied the marriage is bona fide, and all other requirements for permanent residence are met, the adjustment of status application is approved.  If the marriage is less than two years old, the immigrant is given conditional permanent residence.  This status gives the immigrant all the same rights as a permanent resident except that it expires after 24 months. 

Two years after the granting of conditional permanent residence, a new application must be submitted to the immigration service, documenting that the marriage still exists. 

For those persons who came here without a visa and do not qualify to change their status here under 245i, there is a possibility to apply at the U.S. Consulate in your home country, and request a pardon of the penalty for being here illegally.  One should definitely seek legal advice before applying in this manner for a pardon.

************************************************************************

CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced law more than 25 years and has been recognized as one of the top immigration lawyers in Northern California for 9 years by“Super Lawyers” www.SuperLawyers.com .   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C.  His firm has offices in San Francisco, Los Angeles and six other locations in California. 
WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.