Friday, April 11, 2014

2015 H-1B Lottery Held; Winners get Receipt Notices Not Rejection

On April 10, 2014, the USCIS randomly selected 85,000 H-1B petitions in what is popularly called the H-1B lottery.    The random selection was necessary because the agency received approximately 172,500 new H-1B petitions.  The U.S. advanced degree petitions were selected first.  Any advanced degree petition that was not selected in the first round was placed in the general pool for the selection of the remaining randomly chosen 65,000 H-1B numbers.  The petitions not chosen in the lottery will be mailed back with their uncashed filing fee checks.
-Arnulfo Sanchez

Wednesday, April 9, 2014

2015 H-1B Cap to Be Determined By Lottery

On April 7, 2014, the USCIS  announced that the heavy volume of cap-subject H-1B petitions for fiscal year 2015, has required that the filing period close after five business days of receipts.  Due to the large number of cases received, the agency will complete a list of all filings received as of that date before placing them in a random selection process.

The H-1B petition cap is presently limited to 85,000 petitions, with 20,000 slots allotted to employer-sponsored individuals with U.S. advanced degrees and 65,000 petitions under the general cap for individuals with a bachelor’s degree or the equivalent.  The U.S. advanced degree petitions will be assigned to the lottery first.  Any advanced degree petition that is not selected in the first round will be placed with the general pool for the selection of the remaining randomly chosen 65,000 H-1B numbers.  The petitions not chosen in the lottery will be mailed back.  The agency has not released the date of the selection process. 

-Arnulfo Sanchez

Sunday, March 2, 2014

Book Excerpt: Employers sponsor foreign employees using the PERM application process

Foreign workers applying for permanent resident (green card) status under certain classifications, such as the employment based third preference classification (EB-3) and employment based second preference classification (EB-2), except for those filing under the National Interest Waiver provision, will require an approved labor certification.

We provide employers with an overview of the PERM process for that necessary labor certification with an excerpt from the CCH book Immigration Law in the Workplace ,  the leading national resource book for both immigration employment benefits and compliance information.

The distinguished attorney authors, Charles M. Miller, Marcine A. Seid, and S. Christopher Stowe, Jr. provide you with clear, concise explanations of the benefits that foreign employees may qualify for.

Tuesday, February 25, 2014

E-Verify fact sheet covers how to correct immigration records to resolve a TNC

On Feb. 23, 2014, E-Verify released an updated Department of Homeland Security (DHS) Tentative Nonconfirmation (TNC) Further Action Notice to include information on correcting immigration records. The Further Action Notice directs employees to the Fact Sheet: How to Correct Your Immigration Records after Resolving a Tentative Nonconfirmation in E-Verify for more detailed instructions. The Fact Sheet is available in 18 languages.
Please share the Fact Sheet with employees who receive a DHS Tentative Nonconfirmation (DHS TNC). However, do not reissue the DHS TNC Further Action Notice to an employee who previously received a DHS TNC.

Tuesday, December 31, 2013

Employment Authorization for E-2 Spouses does not require EAD

In an unpublished decision, the Board of Immigration Appeals reversed the immigration judge's denial of an adjustment of status application for unauthorized employment under INA 245(c).  The Board found that the E-2 dependent spouse did not engage in unauthorized employment.  

The Board found that INA §214(e)(6) of the Act, 8 U.S. C. § 1184(e)(6), provides that in the case of an E-2 dependent spouse who accompanies or follows to join the E-2 principal alien the "Attorney General shall authorize the alien spouse to engage in employment and provide the spouse with an "employment authorized" endorsement or other appropriate work permit (Emphasis added). 

The Board ruled that the DHS employment authorization regulation, 8 C.F.R. § 274a.12(c)(2), entitled "Aliens who must apply for employment authorization," provides that an alien spouse or unmarried dependent son or daughter of a nonimmigrant treaty trader (E-1) must apply for work authorization. However, the regulation does not specifically state that the spouse of a treaty investor (E-2) must do the same.   Do Kyung Lee, A089 047 352 (BIA Nov. 5, 2013).

Wednesday, December 18, 2013

Employers Should Make H-1B Plans Now; The New Filing Season Starts April 1, 2014

The Miller Law Offices provide their ten best planning tips for employers and employees, in advance of the April 1, 2014 USCIS H-1B filing season.

Employers use the H-1B visa category to employ nonimmigrant foreign workers who possess the equivalent of a U.S. bachelor’s degree for professional jobs each year. The first date that H-1B petitions will be accepted by the USCIS for employer filing for October 1, 2014 employment is April 1, 2014.

Last year, U.S. Citizenship and Immigration Services (USCIS) reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period, which ended on April 5, 2013. USCIS also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption.  

Because USCIS received approximately 124,000 H-1B petitions during the filing period, the agency used a computer-generated random selection process or “lottery” to select petitions to meet the 65,000 cap for the general category and the 20,000 cap under the advanced degree exemption limit.
It is likely that the low cap numbers will be not be sufficient for this year's volume demand and that the cap will close quickly as it did last year.

To maximize your chances for H-1B employment authorization, your company should consider the following ten tips:

1. Use an immigration lawyer with experience in successful H-1B filing.

2. U.S. advanced degree recipients’ petitions are placed in a more favorable pool of an additional 20,000 cap exempt numbers. There is also competition for those additional numbers as that cap was also quickly reached last year.

3. Professionals from Chile or Singapore are given extra numbers, which are unlikely to be used up. Those H-1B1 petitions need special filing treatment and allow specialty professional jobs for qualified persons who have the threshold bachelors’ degrees.

4. Canadian and Mexican professionals also have specialty professional programs, allowing TN status without the need to compete for H-1B numbers. TNs are now eligible for a three year admission, providing flexibility for employers’ long-term employment strategy of the North American foreign professionals.

5. Australian professionals are eligible for E-3 professional visa status, a program which is not limited by the H-1B cap.

6. The O-1 category for aliens of extraordinary ability is a non-cap alternative for persons who have reached the highest level of accomplishment in their fields.

7. DHS now allows a 17 month extension of optional practical training from 12 to 29 months for F-1 students who major in specified science, technology, engineering and mathematics (STEM) SEVIS authorized programs. The accepted employment must be with employers enrolled and considered by the CIS to be in good standing in the E-Verify program. The successful STEM OPT extension, with the approval of the school’s DSO and the proper and timely filing of the extension, may represent a bridge to an opportunity for the unsuccessful applicant’s next opportunity for successful H-1B petition.

8. A qualified institution of higher education or research non-profit organization is exempt from the H-1B cap and can sponsor a H-1B visa at any time of the year.  If your employer an institution of higher education; related or affiliated to a higher education institution nonprofit entity, or a nonprofit research organization or a governmental research organization, you may expect favorable exempt treatment for your H-1B petitions.

9. Duration of status and any post-completion OPT work authorization is automatically extended for an F-1 student who is the beneficiary of a timely-filed H-1B petition requesting change of status and an employment start date of October 1, 2014.

10. Some foreign-based and educated persons will qualify for up to 18 months employment in qualified training programs through J-1 sponsorship.

For further information about the Miller Law Offices immigration benefit legal services, please contact Charles Miller or Terri Miller at (818) 508-9005 or direct your E-mail to Charles Miller

Friday, November 29, 2013

E-Verify Social Security Number Fraud Lock

A new employee whose employer uses the E-Verify system for employment authorization verification  may find that his or her Social Security Number has been locked.

Similar to method that credit card companies use to lock a card that appears to have been stolen, USCIS may now lock SSNs in E-Verify that appear to have been used fraudulently. USCIS will use a combination of algorithms, detection reports and analysis to identify patterns of fraudulent SSN use and then lock the number in E-Verify. The agency says that this step will help to deter and prevent fraudulent use of SSNs in the E-Verify system.

If an employee attempts to use a locked SSN, E-Verify will generate a “Tentative Nonconfirmation” (TNC). The employee receiving the TNC will have the opportunity to contest the finding at a local Social Security Administration (SSA) field office. If an SSA field officer confirms the employee’s identity correctly matches the SSN, the TNC will be converted to “Employment Authorized” status in E-Verify.