On March 17, 2011, the BIA in the interim decision Matter of Sesay, 25 I&N Dec. 431 (BIA 2011), addressed the issue of whether an alien who entered the United States on a non-immigrant K-1 fiance visa and met the condition of timely marrying the petitioning spouse remains eligible to adjust status even when the marriage has ended. The Board held that a fiancé visa holder may be granted adjustment of status under sections 245(a) and (d) of the act, even if the marriage to the fiancé visa petitioner does not exist at the time the adjustment of status is adjudicated, if the applicant can demonstrate that he or she entered into a bona fide marriage within the 90-day period to the fiancé visa petitioner.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

{ Comments on this entry are closed }

Recently, our office has been contacted by numerous people inquiring about H-1B visa petitions for fiscal year 2012.  As you may know, April 1, 2012 is the first date for filing H-1Bs and that day is around the corner. It is very important to note that the H-1B program has an annual cap of 65,000, so it is important to file your H-1B visa on April 1, 2011 promptly or soon after.  The start date for the H-1B fiscal year 2012 is October 1, 2011.

Introduction – What is H-1B Visa?

The H-1B program is used by U.S. businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers.  The USCIS uses information provided in Part C of the H-1B Data Collection and Filing Fee Exemption Supplement (Form I-129, pages 14 through 15) to determine whether a petition is subject to the 65,000 H-1B numerical limitation (the “cap”).  Some petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher (Master-Cap).

The current annual cap on the H-1B category is 65,000. Not all H-1B nonimmigrants are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. The cap eligible petitions are the number of petitions that USCIS has accepted for this particular type of cap.  It includes cases that have been approved or are still pending.  It does not include petitions that have been denied.

Pre-requisite – You need the following for H-1B visa petitions

In order to file your H-1B visa petition, you need to consult your employer first to find out whether they will petition on your behalf.  Immigration law mandates that the employer files the H-1B visa petitions for the foreign employee. Thus, self-petitions for H-1Bs are not available.  Moreover, your employer must pay equal to or more than the determined prevailing wage for your occupation.  Lastly, your employer needs to pay the filing fee for the visa petition which ranges from $1575 to $3550 (assuming premium processing services + more than 25 employees).  Legal fees for lawyers are separate.

Once your employer decides to file the H-1B visa petition, the Labor Condition Application (LCA) should be filed to the Department of Labor. Without the certified LCA, you cannot file the H-1B visa petition. The LCA normally takes 10 to 14 business days for approval, so you need to give yourself two weeks before you file the H-1B.

What kind of documents do you and your employer need to provide?

Good supporting documentation is key for successful H-1B visa petitions.  The following list of may vary depending on the beneficiary’s job, his credentials and the type of business the employer is in.

INFORMATION REGARDING EMPLOYER/PETITIONER

• Employer’s tax info/record
• Company website printout
• Any information regarding the employer/petitioner

EVIDENCE PERTAINING TO THE BENEFICIARY’S EDUCATION AND QUALIFICATIONS

• Copy of Beneficiary’s Degree
• Copy of membership card if you are affiliated with any professional associations
• Any certificate which demonstrates that you are qualified for this “specialty occupation.”

EVIDENCE PERTAINING TO THE PROFERRED POSITION

• Detailed employment letter that explains that the proffered position is a “specialty occupation.”

Special Notes

If you currently hold a J-1 Visa in the United States, subject to the two-year foreign residency requirement, and want to change your status to H-1B, you need to get a waiver before you file your H-1B visa.  If you have a question with regard to J-1 waiver, please read our other blog articles for that topic.

If you are currently working for an employer under the OPT program, and that employer wants to file the H-1B visa petition for you, you do not have to leave the United States even if your OPT expires before October 1, 2011.  Under the “Cap-Gap” rule, your OPT can be extended until September 30, 2011 as long as your OPT does not expire before April 1, 2011.

Our firm has vast experience in H-1B cases, and we have obtained approvals for positions ranging from attorneys, computer systems analysts, sales managers, web graphic designers, physicians etc. Feel free to contact us at 1.800.898.7180 or email us at jp@sarmientoimmigration.com for questions.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

{ Comments on this entry are closed }

Matter of A and Z (IJ Dec. 20, 1994) (Arlington) (Nejelski, IJ):  Granted asylum to a Jordanian woman who had been physically and verbally abused throughout a 30 year marriage by her husband who was a wealthy and successful businessperson.  Husband also sought to control her activities and isolate her. Respondent testified she believed in Western values and was not content to be a slave to her husband.  There was also a failure of state protection because the respondent could not go to the police to seek protection, nor could she divorce her husband. Judge found applicant to be a member of a particular social group, consisting of women who espouse western values and are unwilling to live their lives at the mercy of their husbands, society, or government.

Matter of M and K (IJ Aug. 9, 1995) (Arlington) (Nejelski, IJ):  Granted asylum to a woman from Sierra Leone who suffered domestic abuse and forced female genital mutilation.  In Sierra Leone, those who resisted mutilation was considered an outcast; women are expected to be subservient to men.  Respondent was verbally and physically abused because she was mouthy and attempted to assert her individual autonomy.  The government was unable or unwilling to protect women from mutilation or from spousal abuse.  Spousal abuse was persecution; social group was women who have been punished with physical spousal abuse for attempting to assert their individual autonomy.

Matter of Sharmin (IJ Sept. 27, 1996) (New York) (Bukszpan, IJ):  Granted asylum to Bangladeshi woman who was active in the women’s section of the Jayto Party despite her husband’s orders not to leave the house or talk to other people.  Woman testified her husband beat her and a letter from a clinic corroborated physical injuries and hospitalization.  Judge found persecution based on account of both social group membership and political opinion and that the government condoned a husband’s oppression of his wife, and that Muslim religious laws consigned women to an inferior status from which they could not escape.

Matter of A-P- (IJ, Sept. 20, 1996) (San Francisco) (Schooley Yam, IJ):  Granted asylum to a Guatemalan women who was severely beaten by her husband (frequent infliction of severe injury, including dislocated jaw, attempt to cut off hands with machete, attempting to abort when she was pregnant by kicking her in the spine.  Applicant sought help from police, but they said they “would not get involved.”  Judge found persecution on social group membership and political opinion.  Membership was defined as “Guatemalan woman who become involved intimately with Guatemalan men who believe in male domination and are targeted by their male companions…when these men attempt to control them through violence.  Applicant’s resistance to her husband’s abuse was a challenge to his opinion that women are to be subordinate to men, which constituted an expression of political opinion against male domination.

Matter of S- A-:  Granted asylum to a Moroccan woman severely abused by her father because her actions did not conform to his religious beliefs restricting her conduct in dress and behavior.  The court found that the woman was persecuted on account of religion. Membership in a particular social group is based on either an immutable characteristic or one that is so fundamental to the applicant’s identity that he should not be required to change it.  While this encompasses many domestic violence asylum claims, Matter of S- A- illustrates that membership in a particular social group is not the only ground for gender claims.  For example, women may resist subordination and violence because of views about their own autonomy may constitute a well-founded fear of harm.  The court may find their views of autonomy to engage the political opinion ground.

Matter of R- A-:  BIA overturned a grant of asylum to a Guatemalan woman who had shown that her husband kicked her violently when she declined to abort a fetus, despite the applicant’s showing that spousal abuse in Guatemala is common and she was unable to secure state protection.  The court held that the husband’s motives for harming her were not gender-specific and, therefore, she was not persecuted on account of a protected ground (gender-defined particular social group).  There was no evidence that Guatemala willfully withheld protection from a specific class in failing to provide her with security.

Posted by:

Sung Hee (Glen) Yu

Associate Attorney

Sarmiento Immigration Law Firm

1.800.496-8043

glen@sarmientoimmigration.com

dev.sarmientoimmigration.com

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

{ Comments on this entry are closed }

A J-1 visa is a non-immigrant visa issued by the U.S. government to exchange visitors participating in programs that promote cultural exchange, especially to obtain medical, certain level of academic (mostly Post-Doctorate Program) or business training within the U.S.  All applicants must meet the eligibility criteria and be sponsored either by a private sector or government program. Recently, the number of J-1 visa issuances has rapidly increased.  However, most of the J-1 visa holders are subject to the Two-Year Foreign Residence Requirement. Under INA Section 212(e), this requirement is one of the grounds of inadmissibility. Nevertheless, this mandatory two-year home residence requirement can be waived by the following waivers:

• No Objection Statement (NOS) Waiver
• Exceptional Hardship / Persecution Waiver
• Interested Government Agency Waiver

This article will only discuss the No Objection Statement Waiver.  We will explain and discuss other types of waivers in later blog articles.

What is the “Two-Year Home Residence Requirement?”

Before we discuss it further, if your J-1 visa and DS-2019 states that you are not subject to this requirement under the INA Section 212(e), then you do not need to worry about this waiver at all.  In case you are not sure whether you are subject to the 2-year requirement, you can file an advisory opinion request to the Department of State.  However, certain classes of J-1 “Exchange Visitors” require that the alien return to his/her home country or country of last permanent residence for a period of two (2) years upon completion of their J-1 status. The alien must spend the two-year period in country he/she resided in at the time he/she received the J-1 visa. Such classes include:

• Individuals who have obtained their J-1 status through programs financed either in whole or in part by the U.S. government or individual’s home country government;
• Individuals whose home country is in short supply of people with the individuals’ skill sets; and
• Individuals who have received medical training within the U.S. as interns or residents.

Until this two-year residency requirement has been completed the alien will not be eligible for H or L status and cannot adjust to permanent resident status in any circumstance without getting a waiver.  Moreover, a J-1 visa holder who is subject to the requirement cannot change his or her status to other non-immigrant visas in the United States by filing I-539 (change of status).  Alternatively, an alien may obtain a new status without returning to the home country by seeking such visas in a U.S. consulate in a foreign country such as Canada or Mexico. However, this process may take more time, and the rate of approval is highly dependent on the consular office.

Step-by-Step Guide: No Objection Statement Waiver

The J-1 Visa Holder’s home country government should issue a No Objection Statement (NOS) to the Waiver Review Division stating that it has no objection to the J-1 Visa holder not returning to the home country to satisfy the two-year foreign residence requirement. The NOS may also be issued by a designated ministry of the J-1 visa holder’s home government and forwarded to the U.S. Chief of Mission, Consular Section, within that country to be forwarded directly to the Waiver Review Division.

Hence, in order to obtain a NOS, you should contact the consular section of your home country’s embassy.  Depending on your nationality, your home country’s Embassy’s website may tell you what kind of documents you need to submit to them.  Also, it is very IMPORTANT to note that every country has different policies with regard to NOS.  For example, certain Embassies request extensive documentation for the NOS process.  In contrast, certain Embassies only request a simple one-page request from the applicant.

To start applying for a NOS waiver, you need to go to the Department of State website and fill out the Online J Visa Waiver Recommendation Application (Form DS-3035).  Upon completing the Form DS-3035 online, your information will be downloaded into a barcode and you will be issued a waiver case file number and further instructions.  Once you have completed this online form, you must print and mail in your DS-3035 Application with barcode, and payment ($215) to the Department of State.

Then, you need to submit all requested documents to the embassy to request a no objection statement.  As mentioned above, every country’s Embassy maintains different procedures and policies with regard to the J-1 No Objection Waiver. Contact the Embassy and ask what types of documents you need to submit along with your application together with the third party bar code page.

Once you submit the requested documents to the Embassy, they will process your waiver application and will determine whether they will issue a No Objection Statement.  If NOS is issued by your Embassy, then the Embassy will forward your documents to the Waiver Review Division.  The Waiver Review Division will forward its recommendation directly to the USCIS.  You will receive a copy of that recommendation at the address you listed on your Form DS-3035 or the most current address we have for you if you reported a change of address.  Please note that the USCIS will the final determination on your waiver request.  USCIS will notify you directly, whether your waiver application is denied or approved.

If you have any questions, do not hesitate to contact our firm. The Sarmiento Immigration Law Firm has extensive experience with the J-1 visa waiver process for various clients from different countries.  We have handled various Hardship waivers, No Objection Statement waivers and Interested Government Agency waivers for them.

Prepared by

Sung Hee (Glen) Yu, Esq.

Associate Attorney

Sarmiento Immigration Law Firm

1.216.573.3712

glen@sarmientoimmigration.com

dev.sarmientoimmigration.com

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

{ Comments on this entry are closed }

The U.S. Citizenship and Immigration Services (USCIS) announced that the Department of Homeland Security (DHS) will extend Temporary Protected Status (TPS) for eligible nationals of Somalia from the current expiration of March 17, 2011, through the new expiration date of Sept. 17, 2012. Under the extension, individuals who have been granted TPS are eligible to re-register and maintain their status for an additional 18 months. TPS does not apply to Somali nationals who first entered the United States after Sept. 4, 2001.

To maintain TPS status, Somali TPS beneficiaries must re-register during the re-registration period from Nov. 2, 2010, until Jan. 3, 2011. It is important to re-register as soon as the re-registration period opens to allow sufficient time for USCIS to complete all the routine background checks and application processing. USCIS will not accept applications from Somali TPS beneficiaries before Nov. 2, 2010.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

{ Comments on this entry are closed }

Immigration officials, in an effort to deter fraud, will unveil today a new naturalization certificate for people who become U.S. citizens.  The new certificates, used to obtain passports and other legal documents, come after the U.S. Citizenship and Immigration Services (USCIS) unveiled a new green card with improved security features to prevent forgery and tampering.

The old certificates were filled in manually and the person’s photograph was just attached to it. The new computerized certificates will have all that information embedded in the document and also will have ink patterns that are harder to duplicate.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

{ Comments on this entry are closed }

The representative for Texas’ 6th District, along with more than a dozen other Republican state legislators across the country, plans to introduce a bill in the next session calling for his state to discontinue automatic citizenship for U.S.-born children of illegal immigrants. The measure is, of course, a direct violation of the 14th Amendment, which grants citizenship to anyone born in the United States.

Texas state Rep. Leo Berman hopes his state will be sued. The next step in his desired outcome is a legal victory. “That lawsuit will go all the way to the U.S. Supreme Court, where some judge is going to read the background and say there are no Supreme Court rulings affirming the 14th Amendment’s current interpretation,” he said.

Most legal scholars say it can’t be done, especially not at the state level. The 14th Amendment was established in 1868 to overrule the Dred Scott decision that prevented children of slaves from becoming citizens. The language of the amendment specifically refers to birthright citizenship: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  But some state lawmakers argue the 14th Amendment has been misinterpreted to include the children of illegal immigrants, who they say should be citizens of their parents’ native countries instead of the United States.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

{ Comments on this entry are closed }

In fiscal year 2010, U.S. Immigration and Customs Enforcement (ICE) removed more illegal aliens than in any other period in the history of the United States. ICE removed more than 392,000 illegal aliens. Half of these deported aliens, more than 195,000, were convicted of crimes, including murder, sex offenses and drug violations.

DHS Secretary Janet Napolitano said that the federal government has changed their approach to immigration enforcement since the beginning of the Obama administration. Part of this approach includes implementing the ICE-led program, Secure Communities. The program is a partnership between ICE and state and local law enforcement agencies that uses biometric technology to identify aliens who have been booked into state and local jails. Once identified, these criminal aliens are processed for removal rather than released back into communities.

ICE’s worksite enforcement numbers also climbed to historic high numbers in FY 2010, with more audits of businesses than ever before, as well as increases in prosecutions of employers who repeatedly and egregiously hire illegal workers.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

{ Comments on this entry are closed }

On August 13, 2010, President Obama signed Public Law 111-230, which requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions. The additional fee applies to H-1B or L-1 petitioners that employ 50 or more employees in the United States with more than 50 percent of their employees in the United States in H-1B, L-1A or L-1B nonimmigrant status. The fee increase applies to covered petitions with a postmark date of August 14, 2010 or later.  For petitions sent via courier services, the fee applies to filing packets picked up by the courier on August 14, 2010 or later.

Until the Petition for Nonimmigrant Worker (Form I-129) and the Nonimmigrant Petition Based on Blanket L Petition (Form I-129S) are revised, USCIS recommends that all H-1B, L-1A, and L-1B petitioners include, as part of the filing packet, the new fee or a statement or other evidence outlining why this new fee does not apply. USCIS requests that petitioners include a notation indicating whether or not the fee is required in bold capital letters at the top of the cover letter.  The fee, statement, notation, or other evidence should be provided with each petition submitted.  Where the fee or documentation is not submitted with the filing, or where questions remain, USCIS may issue a Request for Evidence to determine whether the additional fee applies to the petition. Because an RFE will be issued for the fee, rather than a rejection for the omission of the fee, USCIS will maintain the original filing date as the receipt date.  Petitioners should wait to respond to the RFE before sending in the additional fee or an explanation of why the new fee does not apply.  Once the revised Form I-129 and Form 1-129S are in place, USCIS will reject covered petitions submitted without the new fee.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

{ Comments on this entry are closed }

The US Citizenship and Immigration Services (USCIS) announced on September 23, 2010 the final rule adjusting fees for immigration applications and petitions. The final rule will increase overall fees by a weighted average of about 10 percent but will not increase the fee for the naturalization applications. The rule will also reduce fees for six individual applications and petitions and will expand the availability of fee waivers to new categories. The adjusted fees will go into effect on November 23, 2010.

Below are the increased fee schedule for some commonly used immigration applications and petitions:

• I-130 Petition for Alien Relative: $355 to $420
• I-485 Applicant to Register Permanent Residence or Adjust Status: $930 to $985 (Biometrics fee not included). The current I-485 filing fee $1,010 amount includes $930 and biometrics fee $80. The adjusted filing fee will be $985 plus $85 biometrics fee which becomes $1,070.
• I-140 Immigration Petition for Alien Worker: $475 to $580
• I-907 premium processing service: $1000 to $1225
• I-129 Petition for a Non-Immigrant Worker: $320 to $325
• I-765 Application for Employment Authorization: $340 to $380

USCIS also reduced filing fees for six individual applications and petitions, including:

• I-129F Petition for Alien Fiance: $455 to $340
• I-539 Application to Extend/Change Nonimmigrant Status: $300 to $290 and
• I-698 Application to Adjust Status from Temporary to Permanent Resident: $ $1,370 to $1,020.

The adjusted fees will go into effect on November 23, 2010. Applications or petitions mailed, postmarked, or otherwise filed on or after November 23, 2010 must include the new fee. Applications filed with inappropriate filing on and after such date will not be considered properly filed and may be rejected.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

{ Comments on this entry are closed }