Blog

Finding Solutions to Government-Created Headaches

As many of our clients know and as we have reported previously, the government is taking much longer than it has in the past to adjudicate most application types. Between these major backlogs, and what seem like annual government shutdowns, the immigration process can be one long waiting game. Some folks do not have the luxury of time to wait for the government to process their applications, and may require expedited services. We are proud to have helped our clients find success with this complex and difficult expedite process.   While we do not have control over how quickly the government works, we aim to provide our clients with in-depth analysis and creative solutions where possible.5 star avvo

Navid and his team helped me with my F1 post-completion OPT process. They helped expedite the process as it was taking longer than expected and all along the way he was super helpful, responded quickly to my questions, and talked through the tricky parts. He was also very supportive when the process slowed to a crawl with the govt shutdown, year-end holidays and I was freaking out. Thank you for the great experience and service!

Try Your Luck with This Year’s Green Card Lottery!

The Department of State has opened up online registration for the 2021 Diversity Immigrant Visa Program, more commonly known as the “green card lottery.”  The electronic entry/registration window is open between noon (EDT) on Wednesday, October 2, 2019 and noon (EST) on Tuesday, November 5, 2019. Do not wait until the last week of the registration period to enter, as heavy demand may result in website delays.

Eligibility to enter the lottery is based primarily on country of birth. People born in the following countries – which are deemed to be already well represented in the U.S. – are not eligible to enter: Bangladesh, Brazil, Canada, China (mainland born), Colombia, Dominican Republic, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible to enter. Even if an individual is born in one of the excluded countries, one may still be eligible to enter based on one’s spouse’s country of birth.  In some circumstances, one can also enter based on a parents’ country of birth.  In addition, there are minimum education/work experience requirements in order to register.

To enter the lottery, go to www.dvlottery.state.gov.  Entering the lottery is free, but be very careful to read all the specific requirements, directions and guidelines — each year thousands of applicants are disqualified for failing to follow the correct registration procedures. Individuals with more than one entry will be disqualified. For detailed instructions, visit the Department of State website.  New this year, applicants must enter the their passport number, country of issuance, and expiration date.  There are a few narrow exceptions.

Beginning May 5, 2020 applicants will be able to check the status of their entry by returning to www.dvlottery.state.gov. Once there, click Entrant Status Check and enter your unique confirmation number and personal information to see if you have been selected.  The government will not send winners a direct, separate notification. Checking your status online is the only way to determine if you have been selected. From there, you will be given further instructions on how to proceed with your application.

Importantly, “winning” the lottery does not guarantee a green card. If successful, all winners must then wait for their allotted number to become available and then submit by the deadline a full green card application, including evidence of their background, qualifications and eligibility. We therefore strongly recommend that winners retain legal counsel to help navigate the complex process to apply for a green card.

Good luck to all who dare to take a shot at the American dream!

On-Site Inspections of Recent Graduates with STEM Employment Authorization Documents

Recent reports indicate that ICE has started to conduct employer inspections regarding F-1 Students who have STEM Employment Authorization Documents. STEM employment authorization is offered to eligible students in F-1 status who hold a bachelor’s degree or higher in an eligible STEM field (science, technology, engineering, and mathematics). To qualify for a STEM Employment Authorization Document, the student and employer must complete Form I-983. This form details specific information about the student’s training program with the employer. However, the I-983 is not included with the application for the STEM Employment Authorization Document, so USCIS generally does not review it at all (unless requested via a Request for Evidence). Therefore, the site visits allow the government to ensure both the student and employer are complying with the training program as laid out on Form I-983.

The site visit will address how the salary of STEM Employment Authorization Document employees is determined, whether there is sufficient structure to provide supervision and training of the employee, and the nature of the employer/employee relationship at any third party worksites. Site visits should ensure that students and employers are engaged in work-based learning experiences that are consistent with the information supplied on the student’s Form I-983.

Based on recent reports of the few inspections conducted thus far, the length of the site visits has been in the range of 1-2 hours. The government has typically given two days’ notice by emailing the employee’s manager.

In light of the inspections, both the employer and the employee should carefully review the I-983, and update it as needed. Moreover, both the employer and the student should be familiar with the content of the I-983. They should be prepared to describe the training opportunity to an immigration officer.  As we have often explained to our clients, even without a site visit, compliance is extremely important. The I-983 creates obligations certified by both the student and the employer. Violations could result in termination of immigration status.  Violations could even affect future applications if USCIS or consular officers see discrepancies between the I-983 and their biographies on the internet or resumes.

As with any site visit, front line employees, such as security officers or administrative staff, should ask the immigration officer for a business card, and ask the officer to wait until the designated HR at the worksite is called. The immigration officer may want to tour the worksite, but best practice is to have the officer accompanied by the designated person on site. Furthermore, we ask that our current clients contact us immediately if an immigration officer requests an on-site visit.

Department of Labor’s New FLAG Software Required for H-1B Labor Condition Applications

We wrote earlier this summer about the Department of Labor’s new software rollout. The Foreign Labor Application Gateway, or FLAG, is the government’s new cloud-based portal designed to serve as an application filing and case management solution for all foreign labor certification processes.  The first part of the rollout required employers to submit Prevailing Wage Requests on the platform. Now employers must also submit the Labor Condition Application (“LCA”) for Nonimmigrant Workers using this system.

The LCA is an integral part of the H-1B, H-1B1, and E-3 application processes.  Many temporary work visa applications will require this new software, which has experienced significant technical issues throughout the rollout process. This software will also make it easier for the government to crosscheck information between the temporary work visa application and the green card process. We have anticipated this change. We will ensure that the transition is smooth and the information provided is consistent across application types for all of our clients.

Government Focuses on Immigrants’ Financial Health

The Department of Homeland Security (“DHS”) issued a new rule to determine eligibility for temporary work status, a green card, or admission to the United States. The rule changes the standard used to decide how likely an applicant is to become a financial burden on the government (“public charge”).  To make this determination, adjudicators apply a totality of the circumstances test. This test weighs the applicant’s age, health, family status, education and skills, assets, resources, and financial status.  The rule will go into effect on October 15, 2019, but the government will not consider benefits received prior to this date

Family-Based Green Card Applicants: If an applicant received certain public benefits, such as food stamps, during a designated time period, the applicant might not be eligible for a green card.

Temporary Work Status: Furthermore, DHS will conduct a more limited public charge determination for nonimmigrants seeking a change or extension of status. In these cases, the government will only consider whether the applicant has received designated benefits for a certain period since obtaining the nonimmigrant status they seek to change from or extend.  Fortunately, the government will not weigh other factors in determining if the applicant will be a public charge in the future.

Asylum: Notably, this new rule does not apply to asylum applicants and refugees.

Though this rule is much more restrictive than current policy, we will continue to prepare our clients so they are able to demonstrate they will not become a public charge.  As we previously wrote, the government has been taking aim at this ground of inadmissibility for some time, but with the proper documentation and preparation, we know our clients will continue to be successful in their immigration matters.