H-! B Alternatives

H-1 B’s – All Gone. Consider other options…

 

USCIS received about nearly 233,000 H-1B petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption. On April 13, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption.

 

In the near future many petitioners will be notified that their H-1B petitions were not selected for inclusion in the H-1B quota.

 

Here are some possible alternatives for some people, who do not qualify for H-1B status.

 

  1. TN Visa.

 

This option is available to Canadian and Mexican citizens, who have occupations or qualifications listed in the NAFTA (North America Free Trade Agreement)

A list of these occupations can be found at:

 

http://www.snaid.com/nafta-treaty-investor-visa-treaty-trader-visa.html

 

 

  1. Extraordinary Ability

Extraordinary ability the areas of science, art, education, business and athletics can lead to an O-1 visa.  It would also include aliens, who have demonstrated a record of extraordinary achievement in the motion picture and television industry.

http://www.snaid.com/o-visas-people-of-extraordinary-ability.html

  1. Investment or Purchase of a Business.

The Treaty Investor visa (E-2 visa) is available to citizens of many countries.

This requires a “substantial investment” in a trading business. An investment in real estate will not suffice, unless it is a hotel or other trading entity.

The amount of the required investment is not stated as a dollar amount, but depends on the type of business.

A business that requires significant equipment and/or inventory will require a greater investment than a service-type business that does not require equipment or inventory.

http://www.snaid.com/treaty-investor-e2-visa.html

  1. Intra company transferees (L-1 Visa)

 

If an employee is currently employed by a multinational company as a manager or someone with specialized skills, the employer may consider transferring the employee to a branch office in another country for a year. The employee may then qualify to return as an intra-company transferee. In any event the employer could petition again for an H-1B visa next year

 

http://www.snaid.com/intracompany-transferee-l-1-visa.html

 

 

  1. Religious Professionals (R-1 visa)

 

Some religious occupations are performed by professionals. The occupation must a traditional religious function and not merely an administrative position in a church, synagogue, mosque or temple.

 

http://www.snaid.com/religious-workers-r-visas.html

 

  1. Students

 

Some students may consider continuing with their studies, until the next lottery.

Attaining a Master’s or PhD degree from a U.S. university will give the student a double chance of being selected in the H-1B lottery next year. Firstly, they are in the lottery for the  U.S. advanced degree exemption and if they are not selected in that lottery they are placed in the general H-1B lottery.

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Work Authorization for H-4 Visa holders

From May 26, 2015 U.S. Citizenship and Immigration Services (“USCIS”) it will accept applications for work authorization for certain H–4 spouses married to H–1B workers.

The requirements are:

  1. The H–1B worker must have an approved Form I–140, Immigrant Petition for Alien Worker; alternatively
  2. The H–1B worker must have an approved H–1B extension beyond the 6th year because he or she is the beneficiary of a permanent labor certification application or an employment–based immigrant petition that was filed at least 365 days prior to reaching the end of the sixth year of H–1B status.

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Expired DACA Authorization

 

What Happens if a DACA Recipient’s Period of Deferred Action

Expires before his or her Renewal Request is Approved? 

Unless the individual was under age 18 at the time of submitting the renewal request, he or she

would be considered to be unlawfully present during the intervening period.

However, if the individual filed the renewal request 120 days before the expiration of the period of deferred action and employment authorization and USCIS was delayed in processing the request, USCIS may provide the individual with deferred action and employment authorization on a short-term basis while it completes processing.

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USCIS Expands the Definition of “Mother” and “Parent”

USCIS Expands the Definition of “Mother” and “Parent” to Include Gestational Mothers Using Assisted Reproductive Technology (ART)

USCIS issued a new policy clarifying the definition of “mother” and “parent” under the Immigration and Nationality Act (INA) to include gestational mothers using assisted reproductive technology regardless of whether they are the genetic mothers. USCIS and the Department of State (DOS), who exercise authority over these issues, collaborated in the development of this policy. USCIS and DOS concluded that the term “mother” and “parent” under the INA includes any mother who:

  • Gave birth to the child, and
  • Was the child’s legal mother at the time of birth under the law of the relevant jurisdiction.

Under this new policy, a mother who meets this definition but does not have a genetic relationship with her child (for example, she became pregnant through an egg donor) will:

  • Be able to petition for her child based on their relationship
  • Be eligible to have her child petition for her based on their relationship
  • Be able to transmit U.S. citizenship to her child, if she is a U.S. citizen and all other pertinent citizenship requirements are met.

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Visa Waiver-Security Enhancements

People seeking to travel to the United States from countries in the Visa Waiver Program (VWP) will be required to provide additional data fields of information in the travel application submitted via the Electronic System for Travel Authorization (ESTA).

The new information sought includes additional passport data, contact information, and other potential names or aliases. DHS is taking this step to enhance the security of the Visa Waiver Program.

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Israeli Investor (E-2) Visas Update

President Obama signed legislation on June 11, 2012 that would add Israel to the list of countries eligible for non-immigrant investor visas in the United States.

However, the implementation of this visa category would not become effective until the terms and conditions of the final agreement were determined between the two countries.

Initially the delay in the implementation of the investor visa was that the Israel had not approved a reciprocal arrangement that would allow U.S citizens to invest in Israel and receive visas to work there.

In August 2014, the Knesset Interior Committee approved a landmark visa decision, allowing for US citizens to receive investor visas in Israel, and for Israeli citizens to receive E-2 investor visas to the USA.

The visa agreement is aimed at encouraging economic growth in both countries and strengthening relations between the two countries.

Now the visa is on hold until President Barack Obama and other Administration officials can solidify the final terms of the visa.

The current atmosphere at the U.S Embassy in Israel has been strained. In April, Secretary Kerry announced an internal review of claims that hundreds of young Israeli’s were being barred from entering the USA for political reasons. An initial investigation found that the rejection rate of visa applications for young Israelis ages 21-26 had doubled, from 16% in 2009 to 32% in 2014. The Embassy stopped processing tourist visas for Israelis in June for a while

It is anyone’s guess, when the final terms of the E-2 visa will be announced.

For details of the requirements for (E-2) Investor visas see:

http://www.snaid.com/treaty-investor-e2-visa.html

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K-3 Visa-A Good Idea Gone Wrong

There are two parts to getting a green card through a marriage to a U.S citizen:

  1. A petition by the U.S citizen for the foreign spouse (I-130) which establishes that the foreign spouse is eligible to get a green card and

 

  1. Either an Adjustment of Status Application (I-485) if the foreign spouse is in the U.S. (and is entitled to apply for Adjustment) OR an Application for an Immigrant Visa, if the foreign spouse is outside the U.S. This second step establishes that the spouse is entitled to permanent residence. A person may not be entitled to a green card if he/she is a terrorist, committed a serious crime, or a number of other situations, which would stop the foreign born spouse from getting residency.

For many years if a U.S citizen married a foreign born spouse abroad, the spouse would have to wait abroad until a petition for permanent residence was approved and an immigrant visa was issued to enter. This took ages sometimes well in excess of a year.

The immigration laws were changed to allow the alien spouse of a U.S. citizen and his or her minor children to be admitted to the United States as K-3 nonimmigrants while they were awaiting the adjudication of a Form I-130 Petition.

By using the K-3 Visa process it was possible to get the foreign spouse to the USA fairly quickly, thereby avoiding a long separation between the spouses, while the immigrant visa was being processed.  Once the spouse came to the USA, the final steps to get the green card were completed in the country.

Limitation of use of K-3 visa

If the K-3 visa approval by the USCIS reaches the Department of State at the same time as the approval of the I-130 petition for Alien Relative, he or she is no longer eligible for K-3 nonimmigrant status, because an immigrant visa is immediately available to him or her and the foreign spouse must wait to immigrate as lawful permanent resident.

Since the time for adjudications of petitions changes from time to time, the K-3 may not be dead and may spring back to life in the future. It all depends on whether the USCIS will adjudicate K-3 quicker than they adjudicate I-130 petitions for spouses.

For more on this topic see:

http://www.snaid.com/marriage-green-cards.html

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Can a Family Relative get a Labor Certification for You?

An approved labor certification is necessary before an employer can petition for permanent residence for an employee.

 

There is a question in the Application whether there is a relationship between the employer and the alien worker.

 

A familial relationship between the alien and the employer does not prove that there is not a genuine job available. Ultimately, the question of whether a bona fide job opportunity exists in situations where the alien has a familial relationship with the employer depends on “whether a genuine determination of need for alien labor can be made by the employer corporation and whether a genuine opportunity exists for American workers to compete for the opening.”

Therefore, the employer must disclose such relationships, and the Department of Labor must be able to determine that:

  1. there is in fact a job available,
  2. the job opportunity is available to U.S. workers, and
  3. there has been no undue influence and control in the selection and interview process.

When the employer discloses a family relationship, and the application raises no additional denial issues, the employer will be given an opportunity to establish, to the Department of Labor’s satisfaction, that the job opportunity is legitimate and, in the context of the application, does not pose a bar to certification.

http://www.snaid.com/labor-certification.html#

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Failure to Register for Selective Service can Delay Naturalization.

If you receive your green card before your 26th birthday and fail to register for Selective Service, you may have to wait until your 31rst birthday before you will be eligible to apply for Naturalization.

Example

Joe received his green card on his 21rst birthday. He decides not to register for Selective Service. Five years after he received his green card he is 26 and he believes that he is eligible to apply for Naturalization.

He is now too old to register for Selective Service and the USCIS will deny his Application for Naturalization, because they regard his wilful failure to register as proof of that he is not well disposed to the good order and happiness of the USA.

He must wait 5 years from the date when he could have registered to overcome the issue that he is not well disposed to the good order and happiness of the United States. He would have to reapply when he is 31 years old.

Almost all male U.S. citizens, and male immigrants living in the U.S., who are 18 through 25, are required to register with Selective Service. It’s important to know that even though he is registered, a man will not automatically be inducted into the military. In a crisis requiring a draft, men would be called in sequence determined by random lottery number and year of birth. Then, they would be examined for mental, physical and moral fitness by the military before being deferred or exempted from military service or inducted into the Armed Forces.

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Abandoning Permanent Resident Status

You may be found to have abandoned your permanent resident status if you:

  • Move to another country intending to live there permanently
  • Remain outside of the United States for more than 1 year without obtaining a reentry permit or returning resident visa. However, in determining whether your status has been abandoned, any length of absence from the United States may be considered, even if less than 1 year
  • Remain outside of the United States for more than 2 years after issuance of a reentry permit without obtaining a returning resident visa. However, in determining whether your status has been abandoned any length of absence from the United States may be considered, even if less than 1 year
  • Fail to file income tax returns while living outside of the United States for any period
  • Declare yourself a “nonimmigrant” on your tax returns

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