PROVIDING IMMIGRATION AND
BUSINESS SOLUTIONS WHEREVER YOU ARE.
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Employment-based immigration law can be quite tricky because one attorney is technically representing two parties:  the U.S. employer and the foreign national whom the employer is sponsoring for a work visa.briefcase

Normally (and hopefully!), the employer-employee relationship remains on good terms.  However, if the relationship sours, the U.S. employer has great power to negatively affect the foreign national’s current immigration status and future immigration opportunities.

These issues were recently reviewed by the United States Court of Appeals for the Seventh Circuit in the case of Srinivasa Musunuru v. Loretta E. Lynch, et al.  The court reversed a lower court’s decision and ruled that only an employer is empowered to have the notice and opportunity to respond to an employment-based immigration case.  Read on to learn more about this case and how it may affect future employment-based immigrant petitions.

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reportsIt should come as no surprise that foreign nationals make incredible economic contributions to our local and federal economies.  Foreign nationals fill many holes in the domestic U.S. workforce across the entire spectrum of the country’s industries.  Additionally, they pay taxes and contribute to their local and state communities in other immeasurable ways.

However, recent political events indicate that some groups may need to be reminded of this fact from time to time.

This week, three states (Michigan, Louisiana, and Nebraska) issued reports explaining the economic benefits provided to their economies by foreign workers in particular and foreign nationals in general.

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Around this time of year, many foreign workers and U.S. companies are faced with a dilemma:  the worker’s H-1B petition was not selected in the lottery.  Since there are only 85,000 H-1Bs awarded each year, and USCIS received more than 236,000 applications this year, it comes as no surprise that thousands of foreign workers and their employers are in this situation.flag

If your H-1B wasn’t selected in the lottery, you may have another option to stay and work in the United States.  Read on to learn more about these options and contact our office today to discuss your case in depth with an experienced immigration attorney.

1.  A different worker visa may be available.

There are many different types of employment visas.  The H-1B happens to be the most popular, but there are hundreds of thousands of foreign workers who are in the U.S. with another visa, such as the O-1 or the L-1.  The O-1 requires the foreign national to be particularly experienced and accomplished in his or her field.  Specifically, the worker’s U.S. employer must show the worker has extraordinary ability.

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children crossing borderImmigration and Customs Enforcement (ICE) is the federal agency administered by the Department of Homeland Security (DHS) that is largely responsible for the enforcement of many of the nation’s immigration laws. ICE officials, apparently acting on instructions from the Obama administration, are planning to conduct a series of immigration raids during May and June in order to locate, apprehend, and deport hundreds of women and children who recently entered the U.S. without authorization in order to escape gang violence, sex crimes, and other trauma in their Central American home countries.

The Immigration Raids

The summer raids come after the success of similar raids conducted in January that resulted in more than 100 deportations from North Carolina, Georgia, and Texas. Most of those deported during these raids were women and children, which resulted in vehement opposition and criticism by immigrant rights advocates and many Democrats, including presidential frontrunner Mrs. Clinton, who alleged that the raids have generated high levels of fear and anxiety in immigrant communities.

Notwithstanding this criticism, ICE has instructed its field offices across the country to launch a month-long surge in arrests of those who fled Central America and entered the U.S. in the last two years. Further details of the raids could not be obtained because an ICE spokeswoman stated that the agency does not provide such details in advance, but she added that its current deportation priorities include foreign nationals who entered the U.S. without immigration authorization after January 1, 2014.
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964707_capitol_place_2.jpgNebraska made headlines this week when the state took a pivotal step toward improving its economy by welcoming skilled undocumented foreign national professionals into their local businesses. The state senate voted to allow residents who were brought to the U.S. without authorization as children to obtain licensure to work in more than 170 job positions that require licenses in Nebraska. These professions include education and health care jobs, and it is estimated that the new law will benefit thousands of workers.

The Support and Opposition to the Bill

What makes the passage of the Nebraska law so groundbreaking is that the senate approved the bill over the veto of Republican Governor Mr. Pete Ricketts. The bill passed with a 31 to 13 vote, and those in favor of the bill’s passage included a number of the senate Republicans. For example, Republican Senator Ms. Kathy Campbell supported the bill, calling it “baffling” to not want to support an increased workforce in the state. Additionally, Republican Senator Les Seiler voiced his support after learning that a number of the undocumented foreign students were receiving a Nebraska education but then moving to Iowa in order to work and put their skills to use in that state’s economy.

The sponsor of the bill, Democrat Senator Heath Mello, stated that the intent of the law is to encourage these residents to stay in Nebraska and contribute to the multiple economic sectors that are hurting for workers, including pharmacists, martial artists, and tattoo artists.
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529484_desk_chair.jpgOptional Practical Training (OPT) is a program administered by the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) that allows foreign students who have been maintaining their lawful F-1 student status to apply for work authorization in order to gain employment experience after they graduate. The OPT employment must be related to their major. For example, a person who received a Bachelor’s degree in Computer Science should not use their OPT to seek employment as a waiter.

Normally, a foreign student is eligible for 12 months of full-time OPT at each educational level the student completes. Students with degrees in the STEM fields (science, technology, engineering, and mathematics) are also eligible for an additional 17 months of OPT work authorization.

There is good news for STEM students, since the DHS recently published its final rule that will allow STEM students to apply for a 24-month OPT extension. Read on to learn more about this exciting development.
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860272_paper_pile.jpgNext week, U.S. Citizenship and Immigration Services (USCIS) will begin to receive the H-1B petitions for the 2017 fiscal year. Although only 65,000 of these petitions may be approved (with an additional 20,000 reserved for applicants with U.S. Master’s degrees), USCIS projects that it will receive more than 100,000 petitions.

By statute, USCIS will accept H-1B petitions for the first five business days in April. If the 65,000 cap is reached during that period (which it certainly will be), any petition received after that timeframe will be returned to the employer. To help ensure that your case is successful if selected, read on for the answers to four of the most commonly asked questions about the H-1B process.

**Disclaimer: The following tips are for general knowledge and do not constitute legal advice.

1. How Do I Know If I Am Cap-Exempt?

Not every petition will be subject to that 65,000 cap, which means the petition could be filed at any time of the year regardless of how many H-1B visas have been approved. There are two main ways that a petition could be cap-exempt: the petitioner could be exempt or the foreign worker could be exempt. Cap-exempt petitioners are institutions of higher education or related, affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations.
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196716_files.jpgThe April 1 filing date for cap-subject H-1B petitions is fast approaching and companies all over the U.S. are working to make sure their petitions are ready to be filed. Since many companies file tens or even hundreds of petitions for foreign workers, it is easy to make mistakes when trying to get everything done in time to meet the deadline. However, like almost all immigration processes, the H-1B petition must be as close to perfect as possible – even a tiny mistake on a street address or zip code could mean the difference between an approval and denial. Read on for 5 tips on making your H-1B petition as strong as possible.

**Disclaimer: The following tips are for general knowledge and do not constitute legal advice. It may be worthwhile to retain the services of an attorney experienced in the intricacies of U.S. immigration law to ensure compliance with the often complex process of petitioning for an H-1B visa.

1. Sign, Sign, Sign

Every H-1B petition requires a Form I-129, Form I-129 H Supplement, Form I-129 Data Collection sheet, certified Labor Condition Application (LCA), and a support letter from the petitioning employer. Make sure to sign these documents before submitting them to USCIS. Importantly, the Form I-129 H Supplement requires two signatures (while the Data Collection sheet does not require any signatures).

2. Review, Review, Review

In immigration law, there is no such thing as too many reviews. Double and triple checking all documents is a must before submitting them to USCIS. Does the worksite address on the LCA match the address on the Form I-129? Is the Beneficiary’s date of birth and country of birth correct? These are just a few of the key details that must be confirmed on the petition.
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196716_files.jpgThe Department of Homeland Security (DHS) is constantly striving to implement programs that improve the speed and efficiency of immigration-related procedures. Its newest initiative, unveiled earlier this week, is called the Known Employer Pilot Program (KEPP), and DHS officials are hopeful that this program will assist employers during the foreign worker sponsorship process.

The Known Employer Pilot Program

The purpose of the KEPP is to provide employers with a better way to streamline their employment-based immigration process. This program will be particularly useful to those employers who file multiple immigration applications every year. The crux of the program focuses on modifications and changes to how U.S. Citizenship and Immigration Services (USCIS) reviews and adjudicates certain types of applications. DHS officials are hopeful that the full implementation of the KEPP will result in improved consistency in application adjudications, as well as significant reductions in costs, paperwork, and adjudication delays or mistakes.

The Current Review Process

USCIS adjudication officers currently examine several aspects of an employer’s application, such as the nature of the job offered to the foreign worker, the nature of the employer’s business or services, the offered job’s requirements, and the foreign worker’s qualifications. Right now, an employer is required to submit the same documentation pertaining to their business (such as licenses, tax returns, etc.) for each application it submits to USCIS, even though this documentation clearly does not change from one application to another in the same year.
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inside-the-esb-2-905831-m.jpgThe temporary (nonimmigrant) H-1B visa is a highly sought-after work visa. In general, in order to qualify for the H-1B, both the foreign worker and the offered job position must meet certain requirements. The foreign worker must possess a U.S. bachelor’s degree or its foreign equivalent, and the position must qualify as a “specialty occupation,” which means the job itself must require a U.S. bachelor’s degree in order to perform the job’s duties.

There is an annual limit on how many H-1B visas can be granted each year (although certain types of cases may be exempt from this limit). In each fiscal year, which begins on October 1, there are 65,000 new H-1B visas available, with an additional 20,000 that are set aside for applicants who earned Master’s degrees at U.S. universities. These limits are referred to as the H-1B Cap and the Master’s Cap, respectively. Due to these limitations, it is very important for employers and prospective employees to be prepared to submit the H-1B Petition on April 1.

Why Submit the H-1B Petition on April 1?

The April 1 submission date has arisen because an employer cannot submit an H-1B petition with a start date of employment that is more than six months in the future. Since all cap-subject H-1Bs must have an October 1 start date, employers must roll back the clock six months in order to file their petitions as soon as possible.
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