Articles Posted in Immigration Documentation Requirements

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In true presidential fashion, President Trump tweeted over the weekend that his administration will begin to conduct “extreme vetting” of visa applicants under the pretense of improving national security.  This vetting process will be implemented through the consular officers’ use of the new Form DS-5535, which the Department of State approved last month.

Form DS-5535

The new form is essentially a supplemental questionnaire that consular officers who review applications for U.S. visas may require visa applicants to complete.  The questionnaire is three pages long and requests that applicants provide their passports and travel history (i.e., countries to which the applicants have traveled) for the past 15 years.  The questionnaire also requires the applicants to disclose the source of the funds that they used to finance those trips.  In addition to the travel history information, the form asks for the applicant’s past 15 years of addresses, employment positions, and spouses.  Perhaps the most widely criticized part of the new questionnaire is that it also asks for the applicant’s user names or user handles that they have used in social media accounts in the past five years.

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Next week, USCIS will begin to accept cap-subject H-1B petitions for the 2018 fiscal year.  Many immigration law firms, U.S. businesses, and foreign nationals have been preparing their petitions for several weeks in anticipation of the upcoming submission date.  To make sure you are ready to submit your petition to USCIS, go through the checklist below and confirm that all of your paperwork is in order.paper

H-1B Submission Checklist

1. All forms must be signed, and all correct fees must be submitted.  This may seem like a no-brainer, but it can be very easy for companies to accidentally forget to sign a form or to forget to include the correct fees with a petition, especially if that company is filing multiple petitions. (Some companies file more than 100 H-1B petitions each year.)  The following forms require a company representative’s signature (and an attorney’s signature if the company is using legal representation for the H-1B submission):  the Form G-28, the Form I-129, and the Form I-129 H Supplement.  It is important to note that the employer must sign the Form I-129 H Supplement in two places.  Additionally, a Form I-129 Data Collection must also be submitted but does not require a signature.

The Labor Conditions Application (LCA) must also be signed and submitted along with the aforementioned forms.  This document must be submitted to the Department of Labor (DOL) for approval before submitting it to USCIS with the H-1B petition.  It can take the DOL seven days to approve an LCA, so if you have not submitted the LCA for your case, you must do so immediately.

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There is never a lack of surprises in the immigration world.  Recently, in addition to the unveiling of the President’s new executive order, USCIS announced that the agency would be temporarily suspending the premium processing program for H-1B petitions.  Beginning on April 3, 2017, and continuing for as long as six months, USCIS will not accept premium processing requests for H-1B petitions.

What is the Premium Processing Program?

Premium processing is an optional service offered by USCIS for certain eligible applications for immigration benefits.  To make use of premium processing, the petitioner must request the service using the Form I-907 and provide USCIS with an extra fee of $1,225, which is in addition to any other filing fee the petitioner may have already paid.  Once USCIS receives these materials, the agency will adjudicate the underlying application within 15 business days.  Since the normal processing time for some petitions is more than one year, the premium processing option has become more and more attractive in recent years.

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U.S. Citizenship and Immigration Services, or USCIS, is the federal agency that processes applications for immigration benefits made in the United States.  USCIS reviews and adjudicates hundreds of thousands of applications for marriage and employment-based green cards, H-1B petitions, applications for asylum, and others every single year.  Almost every one of these applications will need to be accompanied by the appropriate filing fee.  These fees currently run from less than $100 for fingerprints to more than $1,000 for green card applications.

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The fees that USCIS collects are used to fund the agency’s operations, such as its payroll for the government employees who process the applications, and the facilities that house the different USCIS Service Centers.  Due to increasing costs of operations, USCIS recently announced that it will increase the required fees for many immigration applications.

The Fee Increases

Effective December 23, 2016, USCIS will require the affected applications to be accompanied by the new fees.  If an application is accompanied by the old (or otherwise incorrect) fee, USCIS will return the application to the person or company that filed it.  This is very important for time-sensitive applications, such as applications for extensions of immigration benefits, and therefore foreign nationals and companies are encouraged to pay close attention to the information provided by USCIS about the specific fee increases.

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It’s been a long wait from April 1 to October 1, but as of the first day of this month, those lucky 80,000 foreign nationals whose H-1B petitions were selected in the lottery became eligible to take up their employment with their U.S. employers.  Now that the H-1B employment has begun, employees and companies should take care to fulfill a number of responsibilities to make sure they are in compliance with the H-1B regulations.visa

Employers’ Responsibilities

The most important responsibility for the employer is making sure that all H-1B employees have completed I-9s on file with the employer’s place of business.  The I-9 contains biographic and work authorization information for each employee and is required for each employee, regardless of nationality or citizenship status.

The second-most important responsibility is maintaining the Public Access File (PAF). Each H-1B employee must have a Public Access File that contains specific information and documentation, such as a copy of the certified Labor Conditions Application that was filed with the U.S. Department of Labor, the source for the H-1B position’s prevailing wage, and a summary of the benefits offered to U.S. and H-1B workers.  The PAF should be readily accessible should USCIS visit the employer’s place of business in order to conduct a site visit.

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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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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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waste-paper-499987-m.jpgIn November, the entire world was shocked and saddened by the horrible terrorist attacks that were levied in multiple locations in Paris, France. In the wake of these tragedies, France and other countries are enhancing their security measures both domestically and with regards to international visitors. The United States has proven to be no different in this regard, as the White House recently announced that it will be implementing temporary changes to the current Visa Waiver Program (VWP), effective immediately, in the name of increased security.

The Visa Waiver Program

The VWP allows foreign nationals of certain countries to enjoy visa-free travel in and out of the United States, provided they do not intend to remain in the U.S. for longer than 90 days, and provided that they do not intend to work or attend school. Foreign nationals from many European and South American countries may qualify, including France, Italy, England, Ecuador, Spain, Chile, Germany, and others.

VWP entrants are still inspected at the U.S. border, but they do not have to present a valid visa or other documentation in order to be admitted. It is estimated that approximately 20 million foreign nationals come to the U.S. via the VWP every year.
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