If USCIS issues a Notice of Intent to Deny after the onsite inspection, is there any way that an R-1 petition can still be approved?
If an onsite inspection yields derogatory information not known to the petitioner, USCIS will issue a Notice of Intent to Deny the petition. The petitioner may submit additional documentation to rebut the derogatory evidence. In addition, if the petition is denied, the denial may be appealed to the USCIS Administrative Appeals Office.
The employer who is going to sponsor my petition has told me that I will be working in more than one work location. Will USCIS see this as a problem?
The petitioner (your prospective employer) will need to submit a complete itinerary of services or engagements if you will be performing services in more than one work location. Furthermore, the petitioner must comply with Department of Labor regulations requiring that an LCA is filed specific to each work location for the beneficiary.
Transcript: Employment Authorization (EAD) for H-4 Holders Proposed
I was asked to comment about the proposed rule that would allow certain H-4 holders to get employment authorization. What I have opened on the screen is the current status as of December 16, 2012. This rule is currently being reviewed by the Office of Management and Budget’s sub-office OIRA, which is the Office of Information and Regulatory Affairs. The idea is that under Executive Order 12866--I am not giving you too many details just trying to keep it to the minimal--regulations before they move forward beyond a certain point, they need to be reviewed by the White House. It is not something that President Obama does himself, of course--you all know that--it is people who are experts in federal regulation within the White House under the office of OMB—OIRA. They are the people who are charged with the responsibility of making sure the regulations are sound in terms of policy, in terms of time, cost, compliance, etc.
I want to point out a few things. If you look at this, it says current action is NPRM (Notice of Proposal Rule Making). That means once this is okayed by the OMB, a Notice of Proposed Rule Making will be put out in the Federal Register. If you look at this right here, it doesn’t have a FR (Federal Register) citation right now, because it has not yet been published. So once it is approved and NPRM (Notice of Proposed Rule Making) would be published in the Federal Register, which basically means the government will formally notify everybody that we intend to make a rule and if you have any comments about that, let us have them. There is a lot of variation in regulations and how they are made. Let me get to that in a second.
But I want to point out this abstract to you. What does it say? It says we are going to allow those H-4 holders to get work authorizations whose husbands have crossed over six years of their H-1 and now they are in extended H-1 beyond six years, either three-year period or one-year period. These two periods are referred to as Section 104C and 106A. These two periods depend upon when the labor certification was filed. If the labor certification was filed a year ago, anyone who is on H-1 six-year term can get their H-1 extended on a year-to-year basis. So that year-to-year extension is tied in with your labor certification date. So, first anniversary of the labor certification allows one-year extension.
The second method of getting H-1 extension, which is the three-year method, is if your I-140 is approved regardless of when your labor certification was filed. So, if you are in any of these two categories and exceeded your H-1 and you’ve now extended your H-1 beyond six years, your spouse would be then entitled to get work authorization. I think it is very fair and, as the abstract notes, this is to encourage professionals with high-demand skills to remain in the country. Think about it. Somebody who is on H-1 has been here for six years--they have done everything by the book, they have done it legally--there is no reason for them to have to wait any longer for their spouses to work. It is just highly unfair, and we have been pointing this out--not only us but the entire set of stakeholders, the community, lawyers, agencies that are involved, non-profits that are involved in the process. It’s been pointed out to the government that people who have been waiting for their legal immigration for years--I mean typically what is the life-span—let’s just take for example, India or China. You enter USA typically on a student visa. You do your Master’s for a couple of years or your Ph.D. and your Ph.D. sometimes for five or six years. Then you get into H-1 six years after that. You will get this benefit. So that’s like 15 years for many of you, but definitely no less than six years.
If, on the other hand, government were to legalize folks who are here illegally. I am not saying they should not be legalized; I am saying that we’ve got to have some equity here and this is one step--very, very small step--towards equity. I personally feel like in L-2, H-1 visa holders, their spouses should be allowed to start working on the day they enter USA. Why is this distinction made between L-2 holders and H-4 holders? L-2 holders are allowed to work day one when they enter USA. There is no philosophical or policy difference between L-2 and H-4. In any case, we will take what we can get for the time being. At least this is a step in the right direction.
Now what happens after this process? Well, you know, some of my colleagues are predicting it could be as little less, as you know, three months or six months. I don’t think it is that simple, because remember typically what happens is first a notice of the rulemaking is provided or the rule itself can be provided as a proposed rule and then public is invited to comment for 30 to 60 days. Then the government goes back and analyzes those comments. This whole process can take a while. Then they can issue another revised version asking for more comments. Sometimes the comment period can be extended to 180 days. Then, on top of that, and during the Congressional review time, which is while the regulations are still not implemented, they are finalized. Congress can come back and overrule the regulations. It’s difficult for them to do that at this point of time, but you know all these things are still uncertain so by no means can we say that this is certain to be implemented and when it is certain to be implemented. But it appears that for the first time in the last four or five years, some formal acknowledgment has been made by the Obama Administration and some acknowledgment has been made that there is a set of legal professional workers in the United States who have been much ignored.
Feel free to send us emails through the Contact Us form on our website. Send us an email if something is unclear. I will be happy to address as much of it as I can.
I also wanted to add one thing as an afterthought. You do know that, of course, once you file your I-485 Adjustment of Status, your spouse on H-4 is entitled to their EAD. This is an addition to that right. So even if you are--obviously I think it is quite clear, but just in case it isn’t--even if you are not in the I-485 step of the process, you can still get employment authorization for your H-4 spouse if this rule were to be implemented. I just thought I will add that. Thanks.
I have received a couple of questions from a client and a member of the community.
First--What is the exact process?
Well, the process is quite variable. From here on, a lot of things can be done differently. In fact, the government can publish a rule without giving a notice and comment period, if they want, because if the rule is urgent enough or they want it to be implemented--or it is not necessary or useful to have notice and comment--it can be implemented without notice and comment. It is unlikely. So the process is actually quite amorphous. It can have many variations. It is very difficult to pinpoint exactly what is going to happen. But a lifetime once it moves out of the OMB is typically about 180 days or six months or so. Another great variable is how long does the agency think the notice and comment period should be kept open. Like I said, sometimes, it can be as much as 180 days.
An interesting question was asked--Does this have to go to the Senate or House for approval?
The answer is no. This is not a law--this is a regulation. Regulations are dealt with entirely on the side of the administration by the government. It does not go to the legislature. The only way the legislature can overrule it is if both the sides—the Senate as well as House of Representatives--passes a resolution overruling the regulation, and the President signs it. If the President doesn’t sign it, then I guess what they have to do is override his veto, which is very, very difficult--if I remember correctly with a two-third majority of the two houses--so that is very unlikely to happen. I guess that should also clarify things for you folks a little bit more. Keep the questions coming. I will answer them as quickly as I can.
[Federal Register Volume 77, Number 242 (Monday, December 17, 2012)]
[Notices]
[Pages 74687-74688]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30340]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Citizenship and Immigration Services
[OMB Control Number 1615-0040]
USCIS performance data on petitions for Form I-129 Temporary Agricultural Worker (H-2A) by state and company through the fourth quarter of fiscal year 2012 (FY2012).
Please check the attached file to view the statistics.
I was in H-1B status for three years, then changed to H-4 status. If I want to change back to H-1, will I need to wait to file under the new quota?
If your previous H-1B petition was counted against the cap, you should not be subject to the quota and should be able to file an H-1B petition at any time. However, if your prior H-1B employer was cap-exempt, you will be subject to the quota.
The 2011 Annual Report presents information on the Prevailing Wage Determination Process, Permanent Labor Certification and Temporary Nonimmigrant Labor Certification for FY 2011. The report also contains State Employment-Based Labor Certification Profiles, information on STEM-related occupations in the labor certification programs, H-2A Agricultural Certification Statistics, and Country Employment-Based Immigration Profiles. Click the here to view the Annual Report.
E-Verify Employers Search Tool
The search tool covers currently enrolled employers and federal contractors in E-Verify through December 15, 2012. Federal contractors self report whether their contract has the E-Verify FAR clause. The search tool contains the following:
Why is Premium Processing not available to multi-national executives and managers? To exclude this group of aliens seems arbitrary and counter-intuitive.
USCIS has not yet finalized the system and has not announced when it will begin.
What is the process for responding to USCIS’ concern about inability to pay in an I-140 petition?
According to USCIS, a letter is acceptable from a financial officer validating 100 employees and ability to pay. However, further information can be requested in case there are other reasons that show an inability to pay. Please keep in mind the employer in the RFE should be given the reason for the request. It is also important to know that USCIS might take the letter from the financial officer due to discretion.
What is the process for I-140 expedite requests?
Expedite requests are received through the USCIS NCSC customer service number. In cases of emergency where an AP is required, an INFOPASS appointment will be made possible at the local office. Usually, for expedite issues on I-485 applications for religious workers, the biometrics takes about 14 to 30 days. The lockbox, on the other hand, takes seven to ten days to issue a receipt.
How many photos are required for the I-765 combo card?
USCIS has made it clear that only two photos are required for the I-765 combo card.
What is the procedure for filing the I-824?
The I-824 needs to be filed concurrently. Once the I-485 approval is done, the I-824 must be adjudicated. Any further delays should be reported to USCIS.
CBP Highlights What to 'Know Before You Go' for Holiday Travel
(Wednesday, December 19, 2012)
Washington — With the holiday travel season upon us, U.S. Customs and Border Protection is reminding travelers that there are several important things they can do to ensure smooth and efficient processing upon arrival in the U.S.
1. My employer filed my I-140 and it was approved. They refused to provide me the approval notice but through InfoPass I was able to get my receipt number and Alien #. To port my priority date, I would like to request USCIS for the duplicate copy of I-140 approval notice.
2. Is it possible to request USCIS a duplicate copy of my I-140 approval notice using either G-639 (FOIA) or I-824 (Action on an approved application or petition) or any other method as I have my receipt#?
FAQ Transcript
Answer 1. People typically file a FOIA request. File the Form G-639 (Form G-639 - USCIS). Often you get copies of all kinds of documents. Government gives you copies of documents they have on you. It is not consistent but people have got copies of their 140 approval notices, copies of their H-1 approval notices, the entire perm package. So it is worth filing a FOIA and it doesn’t cost you anything. It can take a little bit of time a couple of months maybe three months but do file it if you don’t have documentation. You can port the Priority Date with your alien number itself and receipt number as well. It should not need a I-140 approval notice. Remember the government has that information already. They don’t specifically need it from you.
Answer 2. By all means file the form. File G-639 and not I-824. File G-639 and let’s see what they give you.
I have been laid off by my current employer, with severance paycheck coming at regular pay intervals until mid January-2016. Finding a new employment is taking time. I am on H-1B which first started on October 01, 2013, latest I-797 valid until December 2017.
1. How long do I legally have, before I become unauthorized to stay? What constitutes as unlawful presence?
2. My I-94 admission validity is until October 2016; with no employment, does this mean anything?
3. Before I transition into a new H-1B, can I travel outside and into the country, without a Change of Status? Can I use severance pay checks if asked, for entry purposes?
4. Can I use my severance pay stubs as pay stubs when my next employer applies for new H-1B?
5. I am hesitating to inform my next employer about my termination, thinking that this may impact my hiring decision or my ability to negotiate. But not indicating terminated employment, is it possible that my H1B transfer or new petition may be considered unethical?
6. In your experience, how long does the USCIS take to update a revoked H-1B petition in their systems?
7. If my new employer files for H-1B transfer before the update but with pay stubs older than 30 days, do I have to mandatory leave the country for new H-1B stamping before starting to work?
8. If such is the case, is it best to change to a B-2 status and have my next employer apply for new H-1B? If yes, I would assume that I will be cap exempt until September 30, 2019 plus the days spent on B2; would this be a fair assumption.
9. Can my employer continue to pay severance checks when I am on B-2 status?
10. What happens if my new employer applies for H-1B transfer with severance paychecks, after USCIS has updated their records?
11. In your experience, what gap in unemployment is generally ignored by USCIS when filing for new H-1B or transferring new H-1B?
12. What other words of wisdom do you have for me?
If you get laid off on H-1B there is no grace period. You get laid off today tomorrow you are out of status.
Answer 1. Not even one day. However when you are getting paid can you not make the argument that since you are getting paid you are still maintaining status. That’s a slightly unpredictable argument. It can cut both ways. An example: I did a consultation on garden leave. Garden leave is very common in the financial industry. The employer lets you resign or if they lay you off they will pay you for the couple of months but they don’t want you to join another employer. The idea is you should not be able to take their information which is current and apply to a competitor. So in that case those pay checks are strongly set to keep you in status because it is full salary and they are maintaining control over you and they are not letting you do what you please . And that’s the assumption.
However severance pay… government has at one point said that they don’t consider severance pay to maintenance of status because severance pay seems to be a part of an arrangement were this is not salary you are basically just getting paid sought of a bonus to part company and I have doubts about that . I do not believe that to be a very good legal opinion from the government. I feel as long as my salary amount is getting paid, my deductions are being made, it is does not matter if I have a job or not. So you can certainly argue that. Severance pay doubtful, something like garden leave or regular leave coming out your way is probably ok to maintain status.
Answer 2. Not really. Understand the difference between out of status and unlawful presence. These are two different concepts. If you are on H-1 and you get laid off you are out of status the next day. But you are not unlawfully present until your H-1 is revoked or until your 1-94 expires. For sure unlawful presence begins when 1-94 expires. So unlawful presence and out of status are two different things. You are out of status the following day but you may not be unlawfully present until you’re I-94 expires or revocation of the H-1 occurs. Consequences of being out of status and unlawful presence are quite different. You are out of status that is no bar from getting another H-1B visa, another H-4, L-1, L-2 maybe a problem for F-1 or B-1 visas that have rather weak basis but for H-,4 H-1, L-1, L-2 or even O-1 or E-3 this is not a problem. On the other hand if you are unlawfully present for 180 days you are barred from green card or work visa for three years to ten years if you are unlawfully present for one year. So you can’t come back without a waiver and waivers are limited.
Answer 3. No because you don’t have a job. If you use the same visa to come back in, that could be fraud.
Answer 4. The answer is yes and why not. Government has never made a formal announcement that they will not accept severance as indicative of violation of status. So definitely use them.
Answer 5. That’s between you and your new employer. Immigration law does not require you to inform your new employer about termination by the old employer.
Answer 6. It can be many months but revocation should be retroactive so if your employer sent a revocation request which reaches USCIS today even if they act on it three months down the line they will back date it to today. Revocation is effective on the date revocation request is received.
Answer 7. It is up to USCIS, they might allow you status if the facts of your case is such that they require some sympathetic consideration but normally if you are out of status even one day government is well within its right to refuse to issue you status within the country. In these cases I always advice people to file premium processing soon so you know rather quickly were you stand.
Answer 8. B-2 application to maintain status is acceptable sometimes and also objectionable by the government. You can try, you can tell them that you were laid off unexpectedly and you have enough money to support yourself and you will not work without authorization, and that as soon as you find another employer you will immediately apply for an H-1. When all these things are said and done I think you can make a case for a B-2.
Sometimes government has come back and said we cannot give you a B-2 but as long as you get it filed before your current H-1 expires at least you have the right to stay in the US. You can argue in what is called authorized period of stay. But the problem is this. Something you need to be aware of. Let’s say your status is expired you have filed for B-2 and it is pending now you found a job remember an H-1 transfer within US will be approved only (most cases) if the pending B-2 has been approved in your favor by the time USCIS decides the H-1 transfer. If the case is still pending they will not give you status within USA, they will ask you to go for visa stamping. That is not a problem. You can do that but be mindful of that. If the B-2 is still pending or the B-2 is denied you will have to leave USA. The only time you get H-1B within USA is if by the time they decide your second H-1and your B-2 is already approved in your favor.
You will be cap exempt. That is not a problem because cap just says if you have been approved anytime in the last six years you are not subject to the quota.
Answer 9. Why not. On the one hand we are arguing that’s keeping you in status. On the other government could take the position that means you are violating status and I would say “no” because that is payment for work already done. They are giving me severance not because I am working for them; it’s because I already worked for them and this is either a payment for work already done or part of the arrangement while I was working. In order for employment to be unauthorized there must be a payment or remuneration as well as work. If there is payment without work or work without payment I think that is a good argument that’s not an unauthorized employment.
Answer 11. There is no consistency. I have seen them ignore not even one day they will come back and say no you were out of status for one day, in some situations they have done for two or three months. Most of the times they are not tolerant of this issue at all.
Answer 12. I think B-2is a good idea as long as you understand the implications of a B-2.
I have answered my H1B Extension RFE with Rajiv's office. They were great in getting the work done and respond back quickly from their side. They will also answer very promptly for any immigration or rfe document related questions. I would like to say specially thanks to Jagbir... who did a great job on his part and answered all the questions in detail. His timely updates & and his timely emails reminding the timelines are really very appreciable. Thanks for all the effort --- Venkat