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J-1 Visa Host Organizations: Be Prepared!

Recently, the U.S. Department of State (DOS) announced that it had begun conducting visits to the host organizations of J-1 visa interns and trainees.

The J-1 visa program is designed to provide opportunities to international candidates who are looking to travel and gain experience in the U.S. across any one of a number of fields.  The exchange of culture and learning are the cornerstones of the program.

Interns and trainees primarily come to the U.S. to receive training and insight in U.S business practices in their chosen occupational field. Host organizations are responsible for ensuring that participants adhere to their approved training/internship placement plan and that they gain the desired level of skill, knowledge and cultural exposure. Moreover, host organizations are required to have sufficient resources, supervision, and equipment to not only facilitate these goals, but to ensure the safety and well-being of participants.

Without advance notice, the government is now visiting some host organizations/companies to verify that it is adhering to the training program described in the J-1 application.  This increased government oversight underscores the importance of a well-prepared application for J-1 interns and trainees.  If you would like further information in relation to the J-1 visa or programs, or if you have any concerns about possible site visits as a host, feel free to contact our office.

Nepal Relief Efforts May Include Immigration Benefits

USCIS has announced several immigration relief measures that may be available to Nepali nationals affected by the recent devastating earthquakes.

On April 25, 2015, a magnitude 7.8 earthquake struck Nepal. This was followed by a 6.7 magnitude aftershock on April 26, 2015 and another 7.3 magnitude earthquake and series of aftershocks on May 12, 2015. More than 8,000 people have been killed and countless more remain missing, injured, and without food and shelter.

While broader relief efforts are in full swing, the U.S. Embassy in Kathmandu, Nepal resumed normal operations on May 13, 2015. Those foreign nationals who had IV/DV appointments scheduled during the week from April 27 to May 1 will be contacted with a new appointment date. Asylum and refugee family inquiries can be addressed to: consktm@state.gov. All other general inquiries can be made by phoning 1-800-0910114 (703-988-3428 if calling from the U.S.).

Stateside, USCIS has also released measures that may assist eligible Nepali nationals during these difficult times, including:
• Accepting a change or extension of nonimmigrant status for an individual currently in the U.S., even if the request is filed after the authorized period of admission has expired;
• A grant of re-parole;
• Expedited processing of advance parole requests;
• Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
• Expedited adjudication of employment authorization applications, where appropriate;
• Consideration for waivers of fees associated with USCIS benefit applications, based on an inability to pay; and
• Assistance replacing lost or damaged immigration or travel documents issued by USCIS, such as Permanent Resident Cards (green cards).

USCIS has also issued a statement regarding the adoption of Nepali children by U.S. citizens and corresponding immigration benefits. In the event that adoption is being considered by a U.S. citizen, it is important to note that an intercountry adoption (or proposed intercountry adoption) does not, of itself, make the child a U.S. citizen or immediately eligible to immigrate to the U.S.  A child may immigrate to the United States as a result of an adoption if USCIS is satisfied that the child qualifies as an “orphan” under the immigration laws of the U.S., and that the adoptive parents are capable of providing proper care. The proper authorities in the child’s country of origin must also determine whether the child can be legally adopted under the country’s laws; therefore, the government of Nepal will need to be on board, and they will no doubt want to be completely satisfied that all efforts were made to reunite any child with their parents first. Accordingly, as is the case across the U.S. immigration spectrum, each case will be determined on its merits.

If any Nepali nationals require U.S. immigration assistance, please contact our office.

Green Card Wait Just Got a Whole Lot Longer for Philippines Nationals

As the May 2015 Visa Bulletin reveals, the 3rd employment-based preference category (EB-3) for nationals of The Philippines has just retrogressed significantly. In April 2015, Philippines nationals with priority dates of 1 October 2014 or earlier could file their green card applications. As of May 2015, the cut-off date fell way back to 1 July 2007.

Overview of Immigrant Visa Numbers

To explain briefly how this works, there are five employment-based preference categories for green cards. The 1st employment-based preference category (EB-1) is reserved for foreign nationals of extraordinary ability, outstanding professors and researchers, and multinational managers or executives. The 2nd employment-based preference category (EB-2) is for foreign nationals of exceptional ability, those who qualify under the “national interest waiver”, and those with advanced degrees (e.g. Ph.D., Masters) or its equivalent (Bachelors plus at least 5 years of progressively responsible work experience in the field). EB-3 is reserved for those foreign nationals who are skilled workers, “other” unskilled workers, or professionals (i.e. possessing a U.S. or foreign equivalent Bachelor’s degree in the field of the proposed role).

The EB-3 preference category first requires the employers of foreign nationals to test the U.S. labor market in the employee’s field and satisfy the U.S. Department of Labor (DOL) that there are no qualified U.S. workers available to fill the proposed role. The foreign national’s priority date is then determined by the date the employer filed that labor certification application with the DOL.

In addition, there is a 7% cap placed on green card allocations each year for each foreign country. The effect of this cap is that foreign nationals who are born in high U.S. immigration countries like China, India, Mexico, and The Philippines often have to wait a long time until they are allowed to file their green card applications, depending on the degree to which they have exhausted their annual green card allocations. Each month the U.S. Department of State releases a visa bulletin that reflects the current state of play.

Philippines Nationals

So, as mentioned above, in April 2015 those Philippines-born foreign nationals with a priority date of October 1, 2014 or earlier could file their green card applications. However, in May 2015, the U.S. Department of State pushed the cut-off date far back to July 1, 2007.

The practical effect of this retrogression is that those Philippines-born nationals with pending green card applications but EB-3 priority dates after 1 July 2007 will likely have another long wait before their green card applications are processed. The Nebraska Service Center, which processes the vast majority of green card applications, has stated that cases are generally processed on a first-in, first-out basis, and that it will make every effort to review all adjudication-ready employment-based green card applications each month. However, they have indicated that unless an EB-3 Philippines case is approvable based on the May cut-off date (i.e. a priority date of July 1, 2007 or earlier), the case will be placed on hold until the priority date becomes current again.

There are rumblings that the long-stalled comprehensive immigration reform legislation may include changes to the employment-preference category system and the country-specific allocation cap, but in the meantime, those affected Philippines nationals waiting anxiously for better news in future Department of State visa bulletins should contact our law firm to discuss the possibility of alternative strategies to obtaining U.S. permanent residence.

L-1B Denials Hit an All Time High, But There Is Hope

A National Foundation for American Policy report has found that the denial rate for L-1B applications to transfer high-skilled employees to the U.S. has increased to an historic high of 35% in 2014 based on data obtained from the government. This is up from a denial rate of just 6% in 2006.

The L-1B visa category requires a U.S. employer to establish that their employee has worked with one of their qualifying entities abroad for at least one year in the past three years, and that they have “specialized knowledge” of the company’s product or an advanced level of knowledge of processes and procedures of the company. The reasons for denial are varied and constantly changing, making it difficult to identify patterns that can then be addressed in new L-1B applications. In response to this uncertainty and inconsistency, the government recently issued its long-awaited policy guidance on the adjudication of L-1B applications. While there are concerns that their latest memo does not entirely resolve the issues, we hope that stakeholder comments (being accepted until May 8) will help. The government intends to apply the policy memorandum as of August 31, 2015.

In the meantime, those clients looking to transfer Indian national employees in particular should be most wary of the current state of play. The rate of denials for Indian nationals was an astounding 56% between 2012 and 2014 compared to just 13% for other country nationals.

Interestingly, the number of L-1B applications dropped 23% from 2012 to 2014. L-1B denials can have a real impact on the workforce, innovation and production of our clients and their ability to compete in an increasingly global economy. Unfortunately, some employees are now staying put in their home countries rather than coming to the U.S. to work alongside their U.S. colleagues. This not only hurts our clients specifically, but the U.S. economy as a whole.

Additionally, time-consuming Requests for Evidence (RFE) were issued on almost half of all L-1B applications in 2014. While employer groups say their members generally find cases are approved after complying with the RFE, the cost and delay can hurt services delivery and product development, and cause great anxiety for affected employees.

Surprisingly, the majority of L-1B denials also occurred on the adjudication of L-1B extensions (41% in 2014) rather than initial applications (32% in 2014).

Despite the apparent doom and gloom, we hope that the government’s policy memorandum, once settled, will go a long way to reducing the number of RFEs and denials in this much-needed visa category. In the interim, Dayzad Law Offices continues to employ successful strategies for clients considering an L-1B transfer for employees. We will work with you to fully assess each case and determine the best approach, whether that be an L-1B application or a stronger alternative.

H-1B Season Update: 233,000 Petitions Filed in April 2015

U.S. Citizenship and Immigration Services (USCIS) received a record-breaking 233,000 H-1B cap-subject petitions during the filing period, which began April 1.  USCIS has already conducted its computer-generated random selection process (the “lottery”), and Dayzad Law Offices is beginning to receive notifications of cases that were selected for an H-1B visa number this year!  The staggering number of submitted petitions represents a 35 percent increase over last year’s 172,500 applications.

According to USCIS’s recent tallies, about 63.5 percent of the H-1B petitions received will be rejected for processing due to lack of H-1B visa numbers.  Individuals with U.S. Master’s degrees may have had slightly better chances because 20,000 H-1Bs are set aside each year for these applicants.

Applicants that won an H-1B visa number in the lottery will receive notification from USCIS in the coming weeks.  Petitions that were not selected for the lottery will be returned in the next few months.  Until the receipt notice or rejection package is received, it is not possible to know whether any particular case has been accepted for processing.

On April 27, 2015, USCIS will begin premium processing for cap-subject H-1B petitions. Applicants who paid the additional premium processing fee and requested this service will receive a response from the government regarding their applications within 15 calendar days of April 27.

USCIS will continue to accept and process petitions that are exempt from the cap (for example, petitions submitted by U.S. universities). Petitions filed on behalf of current H-1B workers who have already received an H-1B visa number will also not be counted towards the congressionally mandated H-1B cap. For example, USCIS will continue to accept and process the following types of petitions:

  • Petitions to extend the amount of time a current H-1B worker may remain in the United States
  • Petitions to change the terms of employment for current H-1B workers
  • Petitions to allow current H-1B workers to change employers
  • Petitions to allow current H-1B workers to work concurrently in a second H-1B position
  • Visas very similar to H-1Bs are also available for citizens of Australia, Chile, and Singapore

The annual H-1B cap is set by Congress.  The record-breaking number of H-1B petitions submitted this year show that many U.S. employers need talented foreign nationals to contribute to the growth of their organizations.  We hope that this momentum will put the task of raising the H-1B cap on the to-do list for Congress in order to meet the overwhelming H-1B demand.