IRS Scams | Filing I-824 | Advisory on I-601A | Updated N-400 form | Def...

Immigration Law Issues in this Video: IRS Scams - Filing I-824: when and why to file - Advisory on I-601A: petty offenses will not be grounds for denial - Updated N-400 Form: traffic violations, addressing question related to arrests & citations, good moral character - Deferred inspection: prosecutor description, withdrawal of admission, potential charges of inadmissibility - Secondary inspection: what it is, process of secondary inspection, inaccurate NTAs.

IRS Scams | Filing I-824 | Advisory on I-601A | Updated N-400 form | Def...

New Caps for Federal Skilled Worker, Federal Skilled Trades Programs, an...

Citizenship | Unlawful presence | Visa Bulletin page change | Call monit...

- Citizenship: applying for selective service;
- Unlawful presence: definition of unlawful presence, Bar restrictions, exemptions of unlawful presence, what to do if you are in unlawful presence, filing extensions to remain in lawful status
- New New York Office
- Visa bulletin page change
- Call monitoring: Calls are recorded at 100% by National Security System, Calls are kept for 30 days.

Citizenship | Unlawful presence | Visa Bulletin page change | Call monit...

Post H-1B filing | Changing into other non-immigrant visas | Receiving R...

- Post H-1B filing: Options for those not selected, exemptions for the H-1B cap, those on OPT (STEM extensions)
- Changing into other non-immigrant visas;
- Receiving RFE (Requests for Evidence) for H-1B applications: queries involve businesses processing necessity to have h-1b applicant, education equivalency and experience, submitting a strong application initially to avoid RFE.

Post H-1B filing | Changing into other non-immigrant visas | Receiving R...

Cut off dates for April 2014 | Immigration Reform Bill, Deportations are...

Cut of dates for April 2014; Immigration Reform - Administrative
Changes, DACA, Provisional Waivers, Parole-in-Place for Military
Families, CSPA, Pro-immigrant Lobby Groups; Deportations are highest under Obama and Why.

Cut off dates for April 2014 | Immigration Reform Bill, Deportations are...

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As we have
previously stated, filling critical positions has become nothing more
than a roll of the dice, putting workers and their families, employers,
and the country as a whole at risk of losing out on greater economic
growth and prosperity. Multiply this problem many times over in the
nation's handling of other kinds of employment and family visas and the
failure to fully utilize the skills and talents of currently
undocumented workers, and it becomes clear how far we have to go before
we can take full advantage of the opportunities a robust and
functional immigration system presents. It is clear that the U.S.
immigration system requires reform. Immigration Lawyers took to Capitol
Hill last week for the annual National Day of Action (NDA). Attempts
were made by U.S. immigration lawyers nationwide to convince members of
Congress how valuable immigration reform can be for our Nation. We
continue to wait patiently for Comprehensive Immigration Reform (CIR)!

PERM Travel Bug Advisory

Employers need to be sure to take into account any considerations of travel for prospective employees for whom the PERM Labor Certification is being done. Consider whether the travel is "significant" or whether it is "incidental" to the duties of the prospective Green Card employee. 

PERM Travel Bug Advisory

ABCs OF H-1Bs (THIS IS PART VI OF AN VIII PART SERIES): CAP REACHED; DO I STILL HAVE A CHANCE OF GETTING AN H-1B VISA? By: Michael Phulwani, Esq., David H. Nachman, Esq. and Rabindra K. Singh, Esq. | Bergen County Employment Immigration Lawyers | Ridgewood Citizenship Law Firm

ABCs OF H-1Bs (THIS IS PART VI OF AN VIII PART SERIES): CAP REACHED; DO I STILL HAVE A CHANCE OF GETTING AN H-1B VISA? By: Michael Phulwani, Esq., David H. Nachman, Esq. and Rabindra K. Singh, Esq. | Bergen County Employment Immigration Lawyers | Ridgewood Citizenship Law Firm



On Monday, April 7, 2014, U.S. Citizenship and Immigration Services
("USCIS") announced that it has received a sufficient number of H-1B
petitions to reach the statutory cap, both regular and master's, for
fiscal year (FY) 2015. Because of the surge of petitions that were
filed, USCIS conducted a lottery (technically referred as "random
selection process") on April 10, 2014, to determine which petitions
received in the five-day submission period, the minimum time USCIS can
accept petitions, will actually be considered. USCIS will soon start
sending receipt notices for the petitions selected in the random
selection process.

ABCs OF H-1Bs (THIS IS PART VI OF AN VIII PART SERIES): CAP REACHED; DO I STILL HAVE A CHANCE OF GETTING AN H-1B VISA? | Bergen County Employment Immigration Lawyers | Ridgewood Citizenship Law Firm

On Monday, April 7, 2014, U.S. Citizenship and Immigration Services ("USCIS") announced that it has received a sufficient number of H-1B petitions to reach the statutory cap, both regular and master's, for fiscal year (FY) 2015. Because of the surge of petitions that were filed, USCIS conducted a lottery (technically referred as "random selection process") on April 10, 2014, to determine which petitions received in the five-day submission period, the minimum time USCIS can accept petitions, will actually be considered. USCIS will soon start sending receipt notices for the petitions selected in the random selection process.

As expected, it is a very stressful time for thousands of potential H-1B workers. Until the prospective H-1B employers or their legal representatives start receiving receipt notices, and the dark clouds of uncertainty over prospective H-1B visa holders move past, the question worth asking and exploring is: "Do I still have a chance of getting an H-1B visa even if my H-1B petition does not make it to the H-1B cap?"

Unfortunately, the regular (bachelor's) H-1B cap remains at 58,200[i] and the master's cap cannot accommodate more than 20,000 specialty occupation workers. However, there are certain categories of cap-exempt H-1B visas. One such category is for beneficiaries of employment offers at: (1) institutions of higher education or related or affiliated nonprofit entities; or (2) nonprofit research organizations or governmental research organizations.[ii]Thus, to get a cap-exempt H-1B visa using this category the fundamental question to ask is: whether the offer of employment is from an institution of higher education, or related or affiliated nonprofit entities, or from nonprofit research organization or governmental research organization.

For the purposes of H-1B cap exemption, the H-1B regulations have adopted the definition of institution of higher education set forth in section 101(a) of the Higher Education Act of 1965. As detailed in the previous article[iii], to be classified as an institution of higher education, the educational institution must satisfy five (5) requirements. First, the educational institute must be a public or other nonprofit institution. Second, the master's degree issuing institution must be accredited by a nationally recognized accrediting agency or association[iv]. Moreover, the educational institution must satisfy all of the following three requirements: (1) admits as regular student only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate; (2) is legally authorized within such state to provide a program of education beyond secondary education; and (3) provides an educational program for which the institution awards a bachelor's degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree. The previous article in this series discussed in detail which educational institutions may or may not qualify as an institution of higher education.

Assuming that the academic institution will qualify as an institution of higher education, the next two questions that have perplexed immigration practitioners and potential H-1B employers are: (1) what is the difference between employed "by" and employed "at"; and (2) how does one determine if the nonprofit institution is "related to or affiliated with" an institution of higher education.

The 2006 Aytes memo clarified the difference between employed "at" and employed "by', and the purpose[v] behind it. This memo explained that commonly, qualifying institutions petition on behalf of current or prospective H-1B employees and claim this exemption. In certain instances, petitioners that are not themselves a qualifying institution also claim this exemption because the prospective H-1B beneficiary will perform all or a portion of the job duties "at" a qualifying institution. Such petitioners are referred to as "third party petitioners." Thus, USCIS allows an exemption in situations where the employee is employed by a "third party petitioner" but the prospective H-1B employee will perform job duties at a qualifying institution that directly and predominately furthers the normal, primary, or essential purpose, mission, objectives or function of the qualifying institution, namely, higher education, or nonprofit research organization, or governmental research organization. Thus, if the petitioner is not itself a qualifying institution, the burden is on the petitioner to establish that there is a "logical nexus" between the work performed predominately by the beneficiary and the normal, primary, or essential work performed by the qualifying institution.

In this context, the issue that has been source of frequent litigation is: "How to determine whether the nonprofit institution is "related to or affiliated with" the institution of higher education?" The Administrative Appeals Office ("AAO"), a component of USCIS, has always deferred to the USCIS approach as to whether the nonprofit institution is related to or affiliated with the institution of higher education. According to USCIS policy, the definition of related or affiliated nonprofit entity that should be applied can be found at 8 C.F.R. § 214.2(h)(19)(iii)(B). In particular, USCIS takes into consideration the following definition: "A nonprofit entity (including but not limited to hospitals and medical or research institutions) that is connected or associated with an institution of higher education, through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative, or subsidiary."

Reducing the provision to its essential elements, the AAO has stated that 8 C.F.R. § 214(h)(l9)(iii)(B) allows an H-1B petitioner to demonstrate that it is an affiliated or related nonprofit entity if it establishes one or more of the following: (1) The petitioner is associated with an institution of higher education through shared ownership or control by the same board or federation; (2) The petitioner is operated by an institution of higher education; or (3) The petitioner is attached to an institution of higher education as a member, branch, cooperative, or subsidiary.[vi]

The AAO has further interpreted the terms "board" and "federation" as referring specifically to educational bodies such as a board of education, board of regents, etc. Arguing that all public universities and public primary and secondary schools are all nonprofit entities ultimately owned by the State government will not help to fetch the exemption. However, consider a situation where the primary or secondary school runs a teacher's certification program in collaboration with a qualifying institution of higher education, and one of the essential purposes of the institution of higher education is to train primary and secondary school teachers. This collaboration could be used to satisfy the third prong that the petitioner is attached to an institution of higher education as a member, branch, cooperative, or subsidiary. Thus, individuals involved in such a program could be treated as being H-1B cap exempt. However, such an exemption is limited to the employees of a nonprofit petitioner who are directly involved in the jointly managed program that directly and predominantly furthers the essential purposes of the institution of higher education.

Switching gears from the most hotly contested issue to that of the least contested issue is a focus upon which institution may qualify as a nonprofit research organization or governmental research organization. USCIS always follows the definition as stated in the regulation at 8 C.F.R. 214.2(h)(19)(iii)(C). Specifically, a nonprofit research organization is an organization that is primarily engaged in basic research[vii] and/or applied research[viii]. A governmental research organization is a United States Government entity whose primary mission is the performance or promotion of basic research and/or applied research. The research, be it basic or applied, includes sciences, social sciences, or the humanities.

In conclusion, to claim H-1B cap exemption under this category, the institution should qualify either as an institution of higher education or as a nonprofit research organization or as a governmental research organization. Even if the petitioner is not an institution of higher education, it may qualify for the exemption if it is "related to or affiliated with" the institution of higher education. In order to be "related to or affiliated with" an institution of higher education, one or more of the following must be satisfied: (1) The petitioner is associated with an institution of higher education through shared ownership or control by the same board or federation; (2) The petitioner is operated by an institution of higher education; or (3) The petitioner is attached to an institution of higher education as a member, branch, cooperative, or subsidiary.

Last but not the least; the regulations do not demand that the prospective H-1B employee should be employed "by" an institution of higher education (or related or affiliated nonprofit entities), or nonprofit research organization, or governmental research organization. Even if the H-1B employee is employed by a third-party but s/he performs majority of work "at" a qualifying institution and that work directly and predominately furthers a primary or essential purpose of the qualifying institution, such an employee will be treated as cap-exempt.

---

[i] Up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B1 program designed specifically for the nationals of Chile and Singapore (1,400 visas for the nationals of Chile, and 5,400 visas for the nationals of Singapore). The annual 6,800 H-1B1 numerical is counted against the H-1B numerical cap.

[ii] Section 214(g)(5)(A) of the Immigration and Nationality Act (INA), as modified by the American Competitiveness in the Twenty-first Century Act (AC21), Pub. L. No. 106-313 (October 17, 2000)

[iii] ABCs of H-1Bs (This is Part V of a VIII Part Series): Does My Master's Degree Qualifies Me for the H-1B Master's Cap?, published on ILW.COM (posted April 1, 2014).

[iv] or if not so accredited, is an institution that has been granted pre-accreditation status by such an agency or association that has been recognized by the Secretary for the granting of pre-accreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such agency or association within a reasonable time.

[v] Congress deemed certain institutions worthy of an H-1B cap exemption because of the direct benefits they provide to the United States. Congressional intent was to exempt from the H-1B cap certain alien workers who could provide direct contributions to the United States through their work on behalf of institutions of higher education and related nonprofit entities, or nonprofit research organizations, or governmental research organizations. In effect, this statutory measure ensures that qualifying institutions have access to a continuous supply of H-1B workers without numerical limitation.

[vi] This reading is consistent with the Department of Labor's regulation at 20 C.F.R. § 656.40(e)(ii), which is

identical to 8 C.F.R. § 214.2(h)(l9)(iii)(B) except for an additional comma between the words "federation" and

"operated". The Department of Labor explained in the supplementary information to its American Competitiveness and Workforce Improvement Act (ACWIA) regulations that it consulted with legacy INS on the issue, supporting the conclusion that the definitions were intended to be identical. See 65 Fed. Reg. 80110,80181 (Dec. 20, 2000).

[vii] Basic research is general research to gain more comprehensive knowledge or understanding of the subject under study, without specific applications in mind. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest.

[viii] Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met. Applied research includes investigations oriented to discover new scientific knowledge that has specific commercial objectives with respect to products, processes, or services.

H-1B Premium processing | N-400 in early May | DACA Extensions | H-4 vis...

H-1B premium processing receipts are being sent out by USCIS as early as April 11th, 2014, Nachman Phulwani Zimovcak (NPZ) Law Group (NPZ) Law Group, P.C. receives premium processing receipts for the April 1st filing dates. The H-1B Lottery results are in. N-400 applications to change to a more extensive form in early May. DACA (Deferred Action for Childhood Arrivals) extensions are on the horizon. Consider dates on EADs for DACA extensions.  H-4 derivatives who are spouses of H-1B holders may be able to work soon by getting EADs. Entrepreneurial programs for foreign national investors is a focus of the White House. President Obama says he likes foreign investment in the U.S. and is likely to push for liberality of visas for same.

H-1B Premium processing | N-400 in early May | DACA Extensions | H-4 vis...

Lottery is Done! (USCIS REACHES FY 2015 H-1B CAP)

Lottery is Done! (USCIS REACHES FY 2015 H-1B CAP)

THE LOTTERY IS DONE! - USCIS received about 172,500 H-1B petitions during the filing period which began April 1, including petitions filed for the advanced degree exemption. On April 10, 2014, USCIS completed a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and 20,000 cap under the advanced degree exemption. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

USCIS REACHES FY 2015 H-1B CAP

USCIS
Reaches FY 2015 H-1B Cap

Release Date: April 07, 2014

WASHINGTON—U.S.
Citizenship and Immigration Services (USCIS) announced today that it has
received a sufficient number of H-1B petitions to reach the statutory cap for
fiscal year (FY) 2015.  USCIS has also received more than the limit of 20,000
H-1B petitions filed under the U. S. advanced degree
exemption.  


Before
running a random selection process, USCIS will complete initial intake for all
filings received during the filing period which ended today. Due to the high
number of petitions, USCIS is not yet able to announce the date on which it will
conduct the random selection process.


A
computer-generated process will randomly select the number of petitions needed
to meet the caps of 65,000 visas for the general category and 20,000 under the
advanced degree exemption. USCIS will reject and return filing fees for all
cap-subject petitions that are not selected, unless found to be a duplicate
filing. 


The agency
will conduct the selection process for the advanced degree exemption first. All
advanced degree petitions not selected will become part of the random selection
process for the 65,000 limit.


USCIS will
continue to accept and process petitions that are otherwise exempt from the cap.
Petitions filed on behalf of current H-1B workers who have been counted
previously against the cap will not be counted towards the congressionally
mandated FY 2015 H-1B cap. USCIS will continue to accept and process petitions
filed to:

• Extend the amount of
  time a current H-1B worker may remain in the United
  States;
  
• Change the terms of
  employment for current H-1B workers;
  
• Allow current H-1B
  workers to change employers; and
  
• Allow current H-1B
  workers to work concurrently in a second H-1B position.
  

U.S.
businesses use the H-1B program to employ foreign
workers in occupations that require highly specialized knowledge in fields such
as science, engineering and computer programming.


For more
information on USCIS and its programs, please visit www.uscis.gov or follow us on Facebook (/uscis), Twitter (@uscis), YouTube (/uscis) and the USCIS blog The
Beacon.

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U.S. Citizenship and Immigration Services
(USCIS) announced today that it has received a sufficient number of
H-1B petitions to reach the statutory cap for fiscal year (FY) 2015. 
USCIS has also received more than the limit of 20,000 H-1B petitions
filed under the U. S. advanced degree exemption.   

ABCs OF H-1B PART I (C)..

ABCs OF H-1B PART I (D)

ABCs OF H-1Bs PART I (D): WHAT PROSPECTIVE H-1B EMPLOYERS AND H-1BS EMPLOYEES NEED TO KNOW IN ORDER TO GET H-1BS FILED AND APPROVED IN APRIL 2014.

ABCs OF H-1B PART I (D)