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New H1B Pre-Registration Rule Announced!

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Today the USCIS finally announced a much anticipated rule regarding next year's H1B visa (specialty occupation worker) application process.  At the moment, a computer-aided lottery is required to simply choose which applications may go forward for simple consideration.  This is because the law requires an annual cap on new H1B visas to be issued every year, about 65,000.  Recently, American companies have submitted about 3 to 4 times that number for their potential foreign employees, resulting in some sort of system to pick which applications to even consider.  
H1B applications are complicated, requiring multiple steps to even assemble an application to submit to the government.  Also, the fees are quite high, several thousand dollars for small companies and even more for the larger ones.  For a basic run down on the H1B visa, read my previous run down: H1B Visas Explained.
So then why go through all the rigamarole to interview an employee in January or February, offer them a job…

What’s the Deal with the Mexican Caravan?

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It’s hard to sift through the rhetoric on both sides regarding the Mexican caravan. With good reason, there’s a lot of exaggerations and mistruths on both sides of the immigration issue. I have to admit, the politicization has kept me from commenting on the the caravan till now.

Now that the election hubbub is over, however, I’d like you to read a direct account from my immigration colleague and law school classmate, who recently spent time with caravan members in Mexico. She’s has provided a fairly clinical account of she did and saw.

For big picture consideration, at the end is a link to a recent Time magazine article, tracing back some of the current problem to the Obama administration.

At the end of this post are incredible photos that Charlene took of the caravan. Whatever one’s opinion about what should happen when these folks arrive at the US border, I myself feel an emotional pull to the humanity that can, on an impromptu level, organize such a movement, literally and figurative…

Passport Home

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Today I toured the Minneapolis Passport Agency, along with a group of immigration attorneys from the Minnesota State Bar Association’s Immigration section.

It was a wonderful tour and I did not think I would learn as much as I did about obtaining a U.S. passport. It was interesting to see the internal workings of the passport application, approval, denial, and creation processes, as well as some of the new initiatives being planned. Just to be clear, the passport agency is for U.S. passports only, for U.S. citizens and soon to be citizens.  Passport agencies are divisions of the United States Department of State,  which is America’s primary foreign policy representative and runs U.S. embassies around the world.   There is a U.S. Embassy in every country of the world except North Korea and Iran.

Of course, my very first question was: why can’t you get passport photos at a U.S. Passport Agency?? Well it turns out that our tour guide, the customer service manager and 26 year passport agen…

EB5 Visas (PART 1)

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What Does It Take to Get An EB5 Visa?Why the interest in an "EB5," or (Employment-Based 5) category of green card, or Legal Permanent Resident, in the United States?
The short answer is: Speed.  
The EB5 category is the fastest method of a noncitizen to become a Legal Permanent Resident in the United States.  As with all methods of immigration, however, there's a tradeoff.  The speed of permanent entry is offset by a high standard of eligibility, and more importantly a high expense.  But those that can afford a sizable investment into U.S. business, hiring employees, OR local government projects along with high legal fees may consider this mutually beneficial approach.  But beware, the documentation required rivals an SEC audit.  In short, the EB5 is a "strings attached" process of mutually beneficial immigration to America.
The applicant must invest in a new, expanding, or troubled business.New: created or restructured after November 19, 1990Expanding: existing n…

How Does A Stay of Adjudication Impact Immigration?

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Recently I was asked the following question:I'm considering accepting a "Stay of Adjudication" plea, in a pending criminal sexual conduct case.  I also have a pending asylum application.  I need to know, would accepting this still type of plea make me removable as far as the DHS is concerned? Should I just risk trial then if my worst fear is deportation?
SHORT ANSWER:  
A "stay of adjudication" represents a full conviction for immigration purposes.  So if you plead guilty, with "stay of adjudication," to a criminal charge, you'll have to see if that criminal charge itself impacts immigration.  In your case, you would still be deportable with a Stay of Adjudication to criminal sexual conduct.  If it was a Stay of Adjud to disorderly conduct, then you would probably be fine.  A noncitizen should ALWAYS have an experienced immigration attorney help or represent them in a criminal charge!  There are just too many nuances!
ANSWER:
You pose the proper quest…

Married to US Citizen, Waiting for H1B Renewal

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I Recently Answered the Following Question:
I am currently waiting for my H1B renewal to be approved.  When I get married to my U.S. citizen fiancee, can I file for adjustment of status while my H1B is still pending?
ANSWER:
Yes, you can start the green card process by filing the Immediate Relative petition (I-130), Adjustment of Status application (I-485), Employment Authorization (I-765) and Advance Parole (I-131).  The pending H1B application won't affect the process.
IMPORTANT!  I suggest continuing with your H1B renewal AND status until your green card is in hand--even if you receive an interim EAD.  If, for some reason, your green card is denied you will still be in H1B status and no additional action would be required.  Other attorneys do argue, however, that it is better to change your work status to EAD. This preserves a certain amount of time being deducted from one's H1B clock, in case the green card is denied and you have to go back to H1B.  The drawback is that it wou…

Second, Part-Time H1B Job?

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Recent I was asked the following question:
I work full-time as a software developer in H1b status.  Now a local college has asked me if I can join as an adjunct teacher and teach a computer science class for only 4 hours a week.  It is a government college and is willing to apply H1B.  Can I work/teach part-time in that college?  Is premium processing available?ANSWER: 
Yes, this should work.  You can have what is called a concurrent H1B visa, i.e. more than H-1B at the same time.  You just need to make sure that the second H1B application clearly indicates that it is a concurrent H1B petition and not a change of employer or replacing your current employment in any way.   Also, you must continue to abide by all the terms of your original H1B.  Premium processing for the teaching job is indeed possible, but prevailing wage determination's and LCA's take time.   As such, you may consider using a private service for your prevailing wage determination, or just use Online Wage Librar…

Online University Program?

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QUESTION:

Does one need to have an F1 visa enroll/study in an online program? I’m currently on an H4 visa.

ANSWER:

NO. F1 visas require full-time attendance at a brick and mortar school that is accredited and nonprofit. However, you are free to study in an online program while on an H4 visa. But, you are not eligible for temporary employment related to your field of study, or on campus employment—something available to some foreign students, such as those in an F-1 status.



STEM OPT: Questions About The SEVP Portal?

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*** This is literally a copy and paste from the Department of Homeland Security’s FAQ. Link to that the original document is at the end of this post.***

Top Questions from Designated School Officials (DSOs) about the Student Exchange Visitor Program (SEVP) Portal
Note: This document provides answers that interpret U.S. government regulation, but does not serve as a replacement for federal regulation or official SEVP policy guidance. Questions have been edited for grammar and style. Questions were either received by SEVP or taken from the SEVP Special Report Webinar: SEVP Portal on March 20, 2018. SEVP Portal and policy
1. Does SEVP have plans to deploy additional functionality through the SEVP Portal?
A. Yes, SEVP has plans to deploy additional functionality through the portal. The first release, deployed in March 2018, was a basic release to provide initial functionality to F-1 students engaged in post-completion optional practical training (OPT) and M-1 students engaged in practical…

OPT: Can You Hear The Collective PHEWW??

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Huge sigh of relief to stem IT workers on stem OPT. They may work offsite, contrary to what was announced earlier this summer. However a strict employer-employee relationship must be maintained. To accomplish this, my recommendation is to follow employer-employee relationship guidelines spelled out in the 2010 Neufeld memo for H1B visas.

https://www.uscis.gov/news/alerts/clarification-stem-opt-extension-reporting-responsibilities-and-training-obligations



You Think Politics is Tricky TODAY?

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On this date in 1804, U.S. Vice President, Aaron Burr, mortally wounded former Secretary of the Treasury Alexander Hamilton in a pistol duel in Weehawken, New Jersey. 
The two had once been friends, but a long history of conflict spawned largely by their clashing political ambitions set them at odds. The bad blood may have started in 1791, when Burr replaced Philip Schuyler, Hamilton's father-in-law, in the United States Senate. 
In 1800 Burr very nearly won the presidency, tying Thomas Jefferson with 73 electoral votes, and Hamilton—who disliked both Jefferson and Burr, but distrusted Burr more—worked hard to ensure that Jefferson emerged the victor when the election was thrown into the U.S. House of Representatives. Hamilton similarly labored to defeat Burr's bid for the governorship of New York when it became evident that Jefferson meant to drop Burr as vice-president after one term. 
The situation reached a crisis when Burr challenged Hamilton to repudiate comments he'…

Should You Always Buy in Bulk?

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Okay, for the record it was fake news that Costco started to sell marijuana in bulk. See here: https://www.snopes.com/fact-check/kushland-signature/

Having said this, recently an attorney colleague asked me the following question:

Hey Satveer,

I have a client who is Laotian and came to the US when he was 9 or 10 years old. He’s charged with possessing 5 pounds of marijuana – Felony Fifth Degree Possession of a Controlled Substance. He qualifies for a Minn Stat. 152.18 diversion, but will that disposition still affect his ability to become a citizen eventually? I don’t want to enter a plea to this if it means he will either be subject to deportation, or he will not be able to become a citizen. Do you know the ramifications of this off the top of your head?

ANSWER:

A drug diversion program under Minnesota Statute 152.18 is usually an ideal disposition for first-time drug offenders. It’s an opportunity to realize one’s mistake and not let it follow you the rest of your life.

However, noncit…

American Immigrants: Because, D-Day

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Today is June 6, 2018. June 6 is a hallowed day in world history, and for America in particular. Today is the 74th anniversary of the invasion to take back earth from the slimy grip of Nazi Germany.

Because this is an immigration blog, I focus here on asking every would-be American—Indian, Chinese, Somali, Mexican—to pause for at least 1 minute today and reflect on what this day means to every software developer, home health aide, roofer, doctor, temple priest, baseball player, or fashion model.

It has been said, and I agree, that every historical event of the 20th century ultimately lead up to D-Day. And, every event of the 20th century since, was a result of it.

Think about that. The world before June 6, 1944 had to change, and that change started on France’s beaches. And who lead that change? Yes, a handful of military brass chalked out a brilliant strategy. But it only happened because of ordinary American, British, Canadian, French, and Australian soldiers.

But get this, you …

Time to Play...OPT Jeopardy!

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It seems the immigration scammers become bolder every day. Today I came across this little gem posting for indentured servitude amongst the foreign student population. And why not?  As I said before in previous posts about IT consultant abuse, there are no prevailing wage requirements for foreign student trainees like there is for H1B visa workers. However, this erstwhile recruiter forgot the U.S. has another area of law that governs fair labor for everyone. For fun, how many violations in this post can you guess?

So, in the spirit of Jeopardy and honoring Alex Trebeck, here are the "questions":

1) What is a maximum age requirement?
2) What is hiring someone from a specific immigration category?
3) What is inducement into prohibited work arrangements?
4) What is the requirement of work authorization before a job offer?

For verification of these violations and more, you can visit theUSCIS explanation of employee rights here.

Can you identify any more violations from Mr. Ram Rajan, …

Choosing An Immigration Lawyer

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This is going to be an ongoing series of postings about choosing an immigration lawyer. Today I chatted with someone who needed a lawyer because his mother died but left property in India and has a dispute with his sister. It was mainly a counseling session on how to focus the issues, sift out emotions, and pick the right lawyer. To recap:

One. Absolutely be aware of any impending deadlines and tell a prospective lawyer immediately. I advised this individual to send a letter overnight express to request additional time to respond to a motion so he could find another lawyer. He can even ask his previous lawyer as a courtesy to e-file it.

Two. Dial back the emotional fervor. Seek grief counseling. If there is no relevant death in the circumstances, think about one’s emotions in general. This helps a potential lawyer analyze your situation and decipher facts from emotions.

Three. When looking for attorneys, focus on the factual issues. Identify your specific role in the matter to a pote…

Can Day 1 CPT End Your Status?

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The recent USCIS memo explaining unlawful presence rules in the context of F1 student status has reverberated through the legal community It has also posed many questions.  I posit here that the memo is aimed primarily at curbing Day 1 abuses.

Attorneys across the country are reporting their clients are receiving RFEs investigating past maintenance of F1 status, including past enrollment of OPT, CPT and Day 1 CPT in particular.   Maintaining valid status is a requirement of changing to a new status such as work and most categories of permanent residence.  The H1B petitions submitted by Chaudhary Law Office are not in premium processing and thus early in the application process, so we have not gotten any RFEs  as yet.  We expect that we will and anticipate similar requests for proof of status during our clients’ student days.

But, the increase in RFEs, plus the new unlawful presence memo, point to one thing: If you are not enrolled in CPT properly, for EXAMPLE if CPT was used ONLY as an…

Mawage.

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I was recently asked the following question:I am planning to get married in India later this year. We will opt for court marriage instead of traditional one. For visa interview purposes, is court marriage sufficient to prove that marriage is legal. Do we need to do traditional marriage to prove marriage is legal? Answer:I get this question a lot, because it's a good one.  Traditional marriages are usually better to demonstrate that a "bona fide marital relationship" exists. But, they are not always necessary because the method of marriage is not the only determinant of a bona fide marital relationship. It's not even the primary determinant. One must provide a whole body of evidence to meet the standard. So it's not whether the marriage is legal, but whether the relationship is real. I recommend reading the instructions for form I-130, or some people hire an attorney to assemble a quality application.
In my experience, sincere marriages are not difficult to …

The OPT Squeeze

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The government has started the squeeze on OPT.  It looks like 3rd party staffing as well as remote work situations for OPT trainees are either completely out, or, restricted enough to eliminate practical benefit to IT staffing "companies" using foreign IT students.  
Now, this may not be too much of a disruption for entities following the spirit of OPT as a training program.  After all, it is called OP-T, not OP-W, because it is for training experience and not intended to serve as a back-door work program.  But some entities will see a major roadblock in the way they've been doing business, and it seems USCIS is concerned most with these companies in its January 24, 2018 Update.  The IT staffing "consultancies," especially the one guy LLC who collects billable hours by passing Java and Sharepoint resumes, through his apartment computer in Piscataway, to 2nd and 3rd tier subvendors (or his own dummy LLCs), must now abide by restrictions not previously in place.
Yo…