USCIS TO RESUME PREMIUM PROCESSING FOR FY2019 H-1B CAP PETITIONS ON MONDAY

USCIS announced that it will resume premium processing on Monday, January 28, 2019, for all FY2019 H‑1B cap petitions, including those eligible for the advanced degree exemption (the "master's cap"). The previously announced temporary suspension of premium processing remains in effect for all other categories of H‑1B petitions to which it applied.

LAWSUIT CHALLENGES TRUMP LIMITATIONS ON SPECIAL IMMIGRANT JUVENILE STATUS (SIJS)

By Christopher A. Kerosky, Esq.

Since the beginning of 2018, the Trump Administration has been rejecting immigration applications from certain immigrants, despite state court orders finding that they were entitled to Special Immigrant Juvenile Status.  That Trump policy was the target of a lawsuit filed last year.  In October, a U.S. District Court in Northern California issued an injunction preventing the Trump Administration from deporting any immigrant pursuant to this restricted policy.

This Trump policy was directed at certain states like California which passed laws to permit young immigrants to obtain the required status up until their 21^st birthday. 

What is the Special Immigrant Juvenile Status program?

Special Immigrant Juvenile Status (“SIJS”) is a program that grants legal status to certain minors without parents in the United States and, in some cases, without one parent if they meet certain conditions.   Typically this is an application appropriate when a child is in the U.S. as a refugee or else loses a parent through death or other loss.  It can be a path to lawful permanent residence in this case that is often a good alternative to lengthy asylum or adoption proceedings.

How does one qualify for SIJS?

In order for a child to qualify for Special Immigrant Juvenile Status, a state juvenile court must appoint a guardian to the youth involved and make initial findings for SIJS related to the child involved.  The required findings are as follows:

·                 The child is “dependent” upon the juvenile court within the meaning of 8 U.S.C. §s 1101(a)27(J) and 8 C.F.R.  § 204.11 (a) and (d)(2)(I);

·                 The child is “eligible” for long term foster care” due to abuse, neglect or abandonment within the meaning of 8 U.S.C. §1101(a)27(J) and 8 C.F.R.  §204.11 (a) and (d)(2)(I); and

·                 it is not the “best interest” of the child to be “returned to her country of origin” within the meaning of   8 U.S.C. § 1101(a)27(J) and 8 C.F.R. § 204.11 (a) and (d)(2)(I).

How does one apply to Immigration for SIJS?

Once the state court order with the factual findings required is obtained through the state Court, the child can apply for Special Immigrant Juvenile Status (SIJS) with the U.S. Citizen and Immigration Service (“USCIS”). See 8 C.F.R. § 204(d). The USCIS has discretionary authority to approve or deny the child ’s application.

This petition generally is made with supporting documentation highlighting the child’s abandonment by his or her parents and status as a dependent of the state, as well as the interest in the child not returning to his or her country of origin.

Once the CIS grants Special Immigrant Juvenile Status (“SIJS”), the last step is an application package submitted to obtain the child permanent residence.  This involves a large packet of application forms, medical examination, photos and related application materials.  The process culminates in an interview of the applicant and any caretakers at the Immigration Service (CIS) office. 

Change in state law prompted this Trump policy.

In 2015, the California Legislature changed existing law to allow courts to appoint guardians for people 18 to 20 years old for the purpose of applying for SIJS. In approving the bill, the Legislature wrote that it was “particularly necessary in light of the vulnerability of this class of unaccompanied youth, and their need for a custodial relationship with a responsible adult as they adjust to a new cultural context, language, and education system, and recover from the trauma of abuse, neglect, or abandonment.”

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

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 article above is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

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!