Newsletter 18: January 2014

Newsletter 18: January 2014

Dear Friends of the Firm:

Happy New Year! I hope your year is off to a wonderful and prosperous start. The following are some important immigration updates for you.

Opportunity for H-1B Work Visas

Attention employers and professionals: H-1B visa numbers will become available again soon! The H-1B classification is the most popular temporary work status for professional positions. This news is important for both employers who plan on hiring foreign-national professionals and foreign-nationals who have a U.S. job offer and a Bachelor’s degree. The application should be submitted April 1, 2014 (the government will reject applications submitted earlier.) If approved, work authorization will begin October 1, 2014. It is important to prepare these applications packages thoroughly. To ensure timely filing of an H-1B application and avoid a rush service fee, we should start by February 5, 2014.

The government will hold a lottery to determine which applications will be adjudicated for one of the coveted H-1B visa numbers. Last year, 30% of applications were rejected after losing this lottery. As the economy improves and demand for H-1B visas increases, the odds of obtaining an H-1B visa number will decrease. If your employee is in a temporary work status that will end in the next few years, it may be advisable to apply for an H-1B visa this year.

We recommend that you request premium processing. For an additional fee, the application is more likely to be adjudicated by a more senior officer, and a decision will be made in approximately 1 month. (Last year, approximately 4,000 H-1B applications were not adjudicated by the October 1 start date. Many of these applicants ended up requesting premium processing anyway.) Anecdotal evidence suggests that premium processing results in a higher chance of winning the H-1B visa number lottery—though officially premium processing should not affectthe lottery.

Visitors Beware: Productive Work in U.S. Becoming More Risky

One of the most common questions we receive is, “I need to work in the U.S. for a short period. The Visa Waiver Program or B-1 visa is an easy way to do that, right?” Wrong.

Visitor status permits only very limited work-related activities like attending seminars or negotiating contracts; nearly all productive work is prohibited. Immigration inspectors are becoming savvier, examining password-protected smart phones and luggage for any sign of intent to work in the U.S. If an officer is suspicious, they can detain individuals, question them, and deny entry to the U.S.

Employers face serious risks too. Recently, a tech company, Infosys, was accused of having workers perform impermissible work using B-1 visas. The company agreed to pay $34 million, the largest settlement ever paid in an immigration case. This episode highlights the importance of obtaining a proper work visa.

New California Laws Affect Employers and Undocumented Immigrants

California recently enacted a series of laws related to undocumented immigrants. The following is a list of notable provisions of these new laws:

  • Undocumented immigrants will be able to obtain driver’s licenses as long as they meet the other requirements for a driver’s license, including proving their identity and residency in California. The licenses are expected to become available sometime in late 2014 or early 2015. These licenses will be marked differently, but it will be unlawful to discriminate against individuals because they hold such licenses.
  • For minor crimes only, local law enforcement will be prohibited from detaining immigrants to transfer them to federal authorities for deportation proceedings.
  • Employers are prohibited from using the threat of reporting an employee’s undocumented status to stop workers from complaining about workplace abuses, unsafe working conditions, or wage theft. Such threats could result in the suspension or revocation of a business license or criminal penalties.

We will continue to keep you informed about the constantly changing immigration laws.

Visa Number Availability for Green Cards

  • Demand for EB-2 visa numbers for Indian nationals has increased, especially because of requests for “upgrades” where the employee had established a priority date in the EB-3 category and now qualifies for the EB-2 category.
  • EB-3 visa numbers are increasingly available for nationals of all countries, except India, China, Mexico, and the Philippines. However, as demand builds over the fiscal year, the government may limit the availability of these visa numbers, resulting in the priority date moving backward in time (“retrogression”).

Post-DOMA Update for LBGT Bi-National Couples

  • I am happy to report that our green card applications and fiancé/e petitions for gay and lesbian couples have been running smoothly and successfully. Last year, we celebrated the green card approval—in less than 3 months after submission—for the first of many of our gay and lesbian couples.
  • As Vice Chair for the LGBT Committee of the American Immigration Lawyers Association, Navid Dayzad and committee members have identified and are working to resolve a significant issue for LGBT immigrants. U.S. Customs and Border Protection, which inspects and admits immigrants into the U.S., is one of the only agencies that has not yet issued updated guidance for officers in light of the Supreme Court decision that overturned DOMA. In the absence of formal policy, strong advocacy by your attorney is critical.
  • In addition, the committee is drafting recommendations for USCIS, urging not only sensitivity training but also educating officers that certain fraud indicators, such as the lack of joint tax returns, is not probative for gay and lesbian couples.
  • The privacy, safety, and security of LGBT visa applicants are very important—especially in countries which criminalize homosexuality. When our clients have such a concern, through our advocacy, we can request that an applicant have an interview through a different consulate than their home country. Fortunately, the State Department is also training officers on the sensitive issues involved in LGBT immigration cases.
  • While officers have acted appropriately in our experience, beware that there are reports of officers asking inappropriate questions. In addition, some officers have incorrectly issued green cards with an early expiration date. Having an immigration attorney present can avoid these harsh consequences.

Travel Tips

  • CBP Expands Filing of Joint Customs Declarations:
    U.S. Customs and Border Protection (CBP) announced that they have expanded the definition of “family” to allow more households to file family declarations when entering or returning to the U.S. The new rule allows persons in domestic relationships (including two adults who are in a committed relationship and are financially interdependent) to file family declarations. The rule means less paperwork for families and the government: a real win-win!

  • Preventing Mistakes on the New Automated Form I-94:
    Form I-94 plays a central role in documenting proper admission and maintenance of status for foreign-nationals with temporary U.S. immigration status. Since April, the government has replaced the former I-94 cards with electronic I-94s on the government website. Despite the new automated I-94, mistakes continue to plague travelers. Is there anything that a nonimmigrant alien can do to maximize the probability of accurate or consistent data entry?

    Yes. The traveler can confirm that the information provided to the airline carrier at the time of admission is correct, including the passport number. Travelers should make sure that the information they have stored in their frequent flyer programs is up to date.

    To be proactive, our law firm also offers to prepare in advance an “I-94 Travel Letter” for individuals to use each time they enter the Unites States. It explains to the officer what should be written on the specific individual’s Form I-94 and the legal basis for it.

Note: This publication serves only as general information and is not a substitute for consultation with an attorney who can assess the specifics of your case and inform you of the constant changes in law and policy. No attorney-client relationship is formed by the transmission of this information until a legal service contract has been signed by both of us.