Litwin & Smith | Immigration Lawyers

Does the EB5 Visa Program Need A Tune-Up?

2022-01-12T00:44:01Z

Congress created the EB5 visa program in 1990 as a tool to encourage foreign investments while giving immigrant investors the ability to attain lawful permanent residency and boosting the U.S. economy. However, critics say the program’s backlog discourages foreign investment.

While the program’s aim to spur economic activity remains, the backlog – caused by increasing petition processing periods and the lack of a sufficient number of available visas each year – has discouraged potential investors from participating.

The backlog affects Asian investors the most

The EB5 backlog creates the most difficulties for investors from China, India and Vietnam facing “retrogression” – meaning visa applicants from those nations sometimes wait up to 16 years to receive a permanent green card.

Some experts warn the problem will get worse, predicting retrogression is likely to affect investors from South Korea, Taiwan and Brazil. The former director of the U.S. Citizenship and Immigration Services (USCIS) says it’s in America’s best interest to resolve this, as EB5 is directly linked to job creation in the U.S.

Legislative proposals fall flat

While some legislators have taken notice and proposed solutions to reduce the backlog, none has met with approval from industry participants. Some companies believe action is necessary to ensure the EB5 program’s long-term viability.

One solution calls to implement what many believe was Congress’ original intent to admit 10,000 investor families each year instead of 10,000 individuals – meaning granting visas to the investors plus all their family members who are listed on the 10,000 I526 petitions each year.

Untapped visas could also provide relief

Since 2014, all available EB5 visas have been granted. However, before that, many went unused, and some believe awarding those as well as “borrowing” from other categories, such as underutilized employment-based visas or lottery-based diversity visas, could drastically reduce the EB5 traffic jam.

While even proponents of the system aren’t certain about how to fix the problem, both political and industry advocates say the EB5 program is beneficial to the nation’s economy and that some form of legislative solution must be implemented.

3rd 2022 H1B Lottery Selection

2022-01-12T00:37:13Z

USCIS recently determined the need to select additional registrations to reach the fiscal year (FY) 2022 H-1B numerical allocations, including the advanced degree exemption. On Nov. 19, USCIS selected additional registrations from among previously submitted electronic registrations using a random selection process. The petition filing period based on registrations selected on Nov. 19 will begin on Nov. 22, 2021, and close on Feb. 23, 2022. Individuals with selected registrations will have their myUSCIS accounts updated to include a selection notice, which includes details about when and where to file.

HELPING YOU THROUGH EVERY STEP OF THE H-1B PROCESS

Our attorneys are experienced and knowledgeable in all opportunities and requirements associated with non-immigrant H visas. The immigration law firm of Litwin & Smith assists United States employers and foreign nationals in obtaining H1B visas. These visas enable foreign professionals to work in the U.S. temporarily on a short- or long-term basis. Contact us if you are a foreign professional seeking an H1B visa or an employer wishing to hire a non-U.S. citizen for employment.

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The H-1B visa is one of the most coveted non-immigrant visas. It is an appealing visa option due to foreign nationals’ ability to have dual intent (the intent to enter the U.S. on a temporary work visa and obtain an adjustment of status to an immigrant visa eventually). The efficient, accurate filing of your visa application is paramount to the success of your case.

For more information see: USCIS Conducts Third Random Selection from Previously Submitted FY 2022 H-1B Cap Registrations

Court Rules in Favor of L-2 and H-4 EAD

2022-01-12T00:31:48Z

On September 23, 2021, Plaintiffs filed a putative class action alleging, pursuant to the Administrative Procedure Act (“APA”), that USCIS unlawfully withholds employment authorization incident to status to L-2 Plaintiffs. The suit also alleged that USCIS unlawfully withholds automatic extensions of employment authorization for H-4 Plaintiffs.

The court’s decision issued on November 10, 2021, states the following:

H-4 Nonimmigrants Receive EAD

USCIS will interpret 8 CFR § 274a.13(d) such that certain H-4 nonimmigrants who timely file their I-765 EAD renewal applications and continue to have H-4 status beyond the expiration date of their EAD qualify for the automatic extension of their (c)(26)-based employment authorization and EADs. Such auto-extensions terminate the earlier of the end date of the individual’s H-4 status as noted on Form I-94, the approval or denial of the Form I765 EAD renewal application, or 180 days from the “Card expires” date on the face of the EAD. Such guidance will state that EAD auto-extensions apply to qualifying H-4 nonimmigrants who continue to have H-4 status after their (c)(26) EAD expires. Within 120 days of the Effective Date, USCIS will amend the receipt notice currently issued to applicants to detail the EAD auto-extension eligibility for those holding H-4 status based on the validity period provided on a Form I-94 in combination with a facially expired EAD and the Form I-797C receipt notice for a timely-filed I-765 EAD renewal application.

L-2 Nonimmigrants Receive EAD

USCIS will issue policy guidance that states that L-2 spouses are employment authorized incident to status and, in cooperation with CBP, change the Form I-94, within 120 days of the Effective Date, to indicate that the bearer is an L-2 spouse so that it can be used as a List C document for Form I-9 purposes. USCIS will interpret 8 CFR § 274a.13(d) such that certain L-2 nonimmigrant spouses who timely file their I-765 EAD renewal applications and continue to have L-2 status beyond the expiration date of their EAD qualify for the automatic extension of their (c)(18)-based EADs. The auto-extension would terminate the earlier of the end date of the individual’s L-2 status, the approval or denial of the I-765 EAD renewal application, or 180 days from the “Card Expires” date on the face of the EAD. USCIS will issue appropriate guidance to employers and benefit granting agencies to state that EAD auto-extensions apply to L-2 nonimmigrants who continue to have L-2 status after their (a)(18) EAD expires.

For more details on this settlement see Shergill v. Mayorkas, No. 21-1296 (W.D. Wash.).

Presidential Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-⁠19 Pandemic

2022-01-03T20:57:11Z

The Biden Administration’s policy is to implement science-based public health measures across all areas of the Federal Government to prevent the further introduction, transmission and spread of COVID-19 into and throughout the United States, including from international air travelers. These measures include testing and mask-wearing, which are critical strategies to limit the spread of COVID-19 from asymptomatic and pre-symptomatic individuals, as well as self-quarantining and self-isolating.
The Administration will also move away from the country-by-country restrictions previously applied during the COVID-19 pandemic and adopt an air travel policy that relies primarily on vaccination to advance the safe resumption of international air travel to the United States.
The Administration is suspending the entry of unvaccinated noncitizen nonimmigrants traveling to the United States by air, except in limited circumstances. The entry of unvaccinated noncitizen nonimmigrants now includes a requirement that, where appropriate, such individuals agree and arrange to become fully vaccinated against COVID-19 upon their arrival.
For more information see: A Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-⁠19 Pandemic

November 2021 Visa Bulletin

2022-01-03T20:57:11Z

The Visa Bulletin is a publication that provides an updated waiting list (also known as Priority date) published by the United States Department of State. This bulletin summarizes the availability of immigrant numbers during November for: “Final Action Dates” and “Dates for Filing Applications,” indicating when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center.

Applicants for immigrant visas who have a priority date earlier than the application date in the chart may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The application date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file, regardless of priority date.

Employment Based EB-2 India advanced. Both the China-mainland born and India Employment Third preference final action dates retrogressed.

For more details please see Visa Bulletin For November 2021

COVID-19 VACCINE ADVISORY

2022-01-03T20:57:11Z

Individuals submitting Form I-693, Report of Medical Examination and Vaccination Record, on or after October 1, 2021, must provide proof of vaccination against COVID-19. Most applicants filing for adjustment of status to become a lawful permanent resident with U.S. Citizenship and Immigration Services (USCIS) or an immigrant visa application with Department of State (DOS) must submit Form I-693 completed by a designated civil surgeon. Certain other applicants may also be required to submit Form I-693.
If the Form I-693 is completed before October 1, 2021, and remains valid, the applicant will not be required to have the vaccine. The civil surgeon must physically inspect and confirm the documents proving the applicant received the COVID-19 vaccine. Review of vaccination documentation will require:

A vaccination record,
Copy of a medical chart with physician, or
Review by appropriate medical personnel

Self-reported vaccine doses will not signify proper proof. Additionally, the Form I-693 must be completed by the civil surgeon and must document the doses and the formulation of the vaccine.
Blanket exceptions to the vaccine requirements include:

Applicants who are too young to receive the vaccine,
Individuals who have a medical contraindication to the vaccine, or
Foreign nationals who live in an area where approved vaccines are “not routinely available.”

COVID-19 Vaccine Requirements for Air Passengers to the United States

Beginning November 2021, all foreign travelers will be required to provide proof of being fully vaccinated (with very limited exceptions that may differ than those enumerated above) before boarding a plane to the United States. If you have not yet been vaccinated, you should consider getting vaccinated in accordance well in advance of any anticipated travel. Moreover, all passengers arriving in the United States by air are required to show a negative COVID-19 test obtained within three days of departure, or documentation of recovery from COVID-19 in the past three months.
The COVID-19 vaccine requirements, particularly for air passengers, will be changing as the new policy is implemented. If you have questions, we encourage you to contact our office at (650) 588-7100.

Considerations when seeking an employment-based adjustment of status

2022-01-03T20:57:11Z

EB backlogs have long wait times for applicants around the world. Applicants from India and China, in particular, may have been caught in a decades-long wait. While you’re waiting for your priority date to become current, it is important that you maintain nonimmigrant status. You may be considering an employment-based adjustment of status.

Options

The American Competitiveness in the 21^st Century Act (AC21) makes H-1B extensions available beyond six years. The L-1A offers a seven-year limit, while the L-1B offers a five-year limit. The O-1 can be renewed indefinitely. In order to pursue these adjustment of status options, applicants will have to file an I-485 application. Here are some key considerations to keep in mind in this process:

Priority date

The priority date is established when a labor certification or petition is first filed. Title 8 of the Code of Federal Regulations allows for the retention of priority dates between EB-1, EB-2 and EB-3 petitions. If you are subject to multiple approved positions in EB-1, EB-2 and EB-3, you are entitled to the earliest priority date. There are also certain instances where your priority date could be lost – for instance, if there’s any form of fraud or misrepresentation in the petition, or if the Department of Labor revokes the labor certification.

Upgrading and downgrading

Some applicants may choose to upgrade their petition (e.g., from EB-2 to EB-1) or downgrade their petition (e.g., from EB-2- to EB-3). It is worth understanding that you can file for an upgrade or downgrade I-140 with a concurrent I-485, even if the original labor certification was filed with an I-140 for previous visa type. In such cases, the United States Citizenship and Immigration Services (USCIS) will approve your I-485 based on whichever Final Action Date becomes current under the “Transfer of Underlying Basis.”
Employment immigration is one of the most complex areas of U.S. immigration law. Attempting to navigate the process alone will likely lead to missteps – and denial of your petition. Working with an experienced business immigration attorney can be an invaluable asset.

USCIS Conducts 2nd H1B Lottery

2022-01-03T20:57:11Z

The Filing Window for Registrations Selected in the 2nd H1B Lottery ends Nov 3

USCIS recently determined that additional registrations we needed to reach the FY 2022 numerical allocations. On July 28, USCIS selected previously submitted electronic registrations using a random selection process. The petition filing period based on registrations selected on July 28 will begin on Aug. 2 and close on Nov. 3. Individuals with selected registrations will have their myUSCIS accounts updated to include a selection notice, which includes details of when and where to file.

HELPING YOU THROUGH EVERY STEP OF THE H-1B PROCESS

Petitioners filing H-1B cap-subject petitions, including those petitions eligible for the advanced degree exemption, must still establish eligibility for petition approval at the time the petition is filed and through adjudication, based on existing statutory and regulatory requirements. Selection in the registration process does not relieve the petitioner from submitting evidence or otherwise establishing eligibility, as registration only pertains to eligibility to file the H-1B cap-subject petition.
Our attorneys are experienced and knowledgeable in all opportunities and requirements associated with non-immigrant H visas. The immigration law firm of Litwin & Smith assists United States employers and foreign nationals in obtaining H1B visas. These visas enable foreign professionals to work in the U.S. temporarily on a short- or long-term basis. Contact us if you are a foreign professional seeking an H1B visa or an employer wishing to hire a non-U.S. citizen for employment.

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We have a history of successful experience
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For more information see: USCIS Conducts Second Random Selection from Previously Submitted FY 2022 H-1B Cap Registrations

Foreign students not selected in H1B cap lottery still have options

2022-01-03T20:57:11Z

In recent years, the U.S. Citizenship and Immigration Services (USCIS) has implemented a program whereby a randomized lottery determines which applicants will be eligible for H1B cap petitions. The initial selection process for fiscal year 2022 has now come to an end. If your name was not selected in this lottery, what can you do?
Fortunately, there are still many other options that may work for your situation:

Temporary work visas

Depending on your situation, you may be eligible for any of the following work visas:

L1 visa: This could be an option for you if you are working for a company with offices in the U.S. and abroad.
TN visa: You may be eligible for this option if you are a citizen of Mexico or Canada.
E visa: This visa applies to Australian nationals who are specialty occupation workers.
H1B1 visa: This visa applies to Singaporean or Chilean nationals who are specialty occupation workers.
O1 visa: This visa applies to people with demonstrated “extraordinary ability” in science, education, business or athletics.

Temporary visas

There may also be other temporary visas that fit your situation. For instance:

B1 visa: This visa would allow you to enter the country for certain purposes, including attending conferences or conducting research.
B2 visa: This visa would allow you to remain in the U.S. for six months. Under this visa, you would be able to enroll in recreational courses, but you could not attend courses that earn you credits toward a degree.
H4 visa: You may be eligible for this visa if you have a spouse with a valid H-1B visa.
F1 visa: This is a student visa that would enable you to continue your studies – but does not automatically grant you work authorization.
F1 visa – Optional Practical Training (OPT): This visa could be an option for you if you have already completed your studies. This is a 12-month visa that allows you to remain in the U.S. to work in a field related to your degree.
F1 visa – STEM OPT: If you have a degree in science, technology, engineering or math, and you’ve already used the above F-1 OPT visa, this visa would enable you to extend your stay in the U.S. for an additional 24 months.
F1 visa – Curricular Practical Training (CPT): This visa gives you a 12-month work authorization for work that is integral to your degree program.

Permanent visas

Applying for a permanent visa may be an option for you, if you have a qualifying circumstance:

K1 visa: If you become engaged to an American citizen, you may be eligible to apply for this fiancé visa – which would be a pathway to permanent residency.
K3 visa: Similar to the K-1 visa, this is a visa for spouses of American citizens.
Permanent employment: If you receive a promise of future employment, you may be eligible to apply for a green card. This can be an option regardless of whether you are currently in the U.S. or abroad.
National Interest Waiver: If you are pursuing employment in an area or project that is of national importance to the U.S., you may be eligible for this option.
EB1A visa: Similar to the nonimmigrant O visa, this is a permanent visa for individuals with proven extraordinary abilities that meet certain qualifications.

The immigration process is extraordinarily complex, and any small misstep could lead to the denial of your petition. Attempting to navigate the process alone is unadvisable. An experienced immigration attorney can help you weigh each option carefully, pick the option that’s best for your situation and even assist you in the application process. Professional guidance in this process can make all the difference.

Give Us A Call Now To Discuss Your Options

3 steps you can take early on to improve your odds of I-140 acceptance

2022-01-03T20:57:11Z

Most people seeking an employment-based visa have to follow similar steps in the application process. The first step is labor certification. The second step, in most cases, is filing the I-140 petition.
You may make it through the labor certification phase without a hitch, only to face denial at the I-140 phase. This can be extremely disappointing. However, there are steps you can take prior to labor certification that can put you in better standing for the I-140 petition.

Qualifying visa category

U.S. Citizenship and Immigration Services (USCIS) will scrutinize the requirements of the visa category for which the applicant is applying. Exact wording of the job description on the labor certification could make or break things for the applicant at the I-140 stage.
For example, one requirement of the EB-2 employment visa is a U.S. – or foreign equivalent – Bachelor’s or Master’s degree. If the job description listed in an EB-2 applicant’s labor certification states that a requirement of the job is a Bachelor’s degree – and that the employer will accept a three-year Bachelor’s degree – then this wording alone could be grounds for denial at the I-140 stage. This is because a U.S. Bachelor’s degree is a four-year degree, so a three-year Bachelor’s degree earned in another country would not be considered a foreign equivalent.

Qualifying experience

Work experience is another factor that will need to be adequately proven. An applicant will need to provide evidence that they satisfy the work experience requirement outlined in the labor certification. Letters from former employers can often be useful in proving that this criterion has been met. However, if a former employer’s letter does not provide enough detail about how the applicant met the necessary requirements, this could be grounds for denial.

Appropriate wages

The employer must list the sponsored employee’s pre-offered wage in the labor certification. From the date of the labor certification filing onward, the employer is responsible for demonstrating that they will – and have the means to – pay the wage stated. The USCIS will do their due diligence to ensure that this is possible by examining the employer’s net income as well as other financial and tax records. If the employer pays the sponsored employee less than the wage listed in the labor certification, it could lead to a Request for Evidence – and perhaps a denial.
The employment visa application process is multi-faceted and extraordinarily detailed. The omission of even one small detail that could hinder the USCIS in making an unequivocal assessment could result in a disappointing outcome. This is why it’s so important to seek the help of an experienced immigration professional in the application process.