The Likely Release of Proposed Rule of H-4 Spouse EAD

The Likely Release of Proposed Rule of H-4 Spouse EAD Under the rule-making Executive Order, the OMB of the White House has from 30 days to 90 days to complete their review. There are some exceptions including any rules that involve emergency or serious economic impact, which can be completed within 30 days. Another rule is the OMB's authority to extend the maximum 90-day review mandate. In 2012, for obvious reasons, a host of visa and immigration related rules of the DHS, DOS, and DOL kept extended over and over beyond 90 days and some beyond 180 days. The reason why this proposed rule review may be completed in March 2013 is the bi-annual rule making agenda that set the target date at March 2013, implying that this proposed rule review schedule may follow the 90-day review schedule of the OMB and USCIS. The proposed rule was submitted by the USCIS to the OMB on 12/10/2012. We will see whether there will be any chance that the proposed rule review will be completed rather earlier under the 60-day review schedule. We will wait and see. This does not mean that the H-4 EAD rule can be implemented in March 2013. Once the proposed rule is published in the federal register with a period of comment, it will have to go through another cycle of the OMB review before the binding Interim Final or Final Rule can be published in the federal register. Proposed rule is not binding. Besides, depending on the USCIS policy, there will be an extended period of time for the agency to review the comments which they received from the public before they draft and submit the Interim Final or Final to the OMB for review. The proposed rule will also provide from 30 days to 60 days comment period. Our smart visitors will be able to figure out the rough timeline, from the foregoing information, when the H-4 spouse EAD program may be in place and implemented. http://www.greencardapply.com/news/news13/news13_0201.htm http://www.greencardapply.com http://www.greencardfamily.com

Some of the Common Misunderstandings Regarding the Annual H-1B Limit or Cap

Some of the Common Misunderstandings Regarding the Annual H-1B Limit or Cap Given the stress and timing considerations that accompany H1B cap-subject filings, it is important not to improperly assume that a particular case needs a cap number. When reverting to H1B status from another nonimmigrant status, an individual automatically becomes subject to the H1B cap. Others believe that being counted against the H1B cap is a way to become eligible for more H1B time. These matters are clarified here for our readers. 1) Changing Status Does Not Make a Person Subject to Cap As a general and oversimplified explanation, most people only need to be counted against the H1B cap once. The rule regarding the cap references being counted within the six years prior to the petition. However, even those requesting extensions beyond six years do not need to be counted against the H1B cap, if they have previously been counted. This general rule holds true even if one changes to a different nonimmigrant status in the interim. 2) Filing a Cap-Subject Case Does Not Give Extra H1B Time Many seem to misunderstand the function of the H1B cap. The cap is an annual limit on the number of new H1B workers. These new workers would be eligible for a maximum of six years in H1B status, subject to certain exceptions allowing additional time. Our firm often receives questions from individuals seeking a way to become eligible for more than six years of H1B time. They usually are close to the end of their six-year H1Bs and, erroneously, assume that it is possible to simply file another cap-subject case to acquire six more years of H1B time. This is not correct. Generally, in order to be eligible for a full six years of additional H1B time, it is necessary to leave the United States for one year. After that year, one becomes eligible for six more years, but must be counted against the numerical cap anew. In some cases, if the person has not used all six years in H1B status before leaving, there could be an option to return for the unused "remainder" time (without becoming subject to the cap). The other options for eligibility for more H1B time require the filing of an employment-based permanent residence (green card) case at least 365 days earlier, or obtaining an I-140 immigrant petition approval when the priority dates are not current. http://www.greencardapply.com/news/news13/news13_0221.htm http://www.greencardapply.com http://www.greencardfamily.com

The Student Visa Cancellation and the Visa Reapplication

The Student Visa Cancellation and the Visa Reapplication There are situations in which an F-1, J-1, or M-1 visa issued to a foreign national student may be cancelled automatically due to a break in the student's studies. There are two such conditions under which such a break in studies causes cancellation of the student visa. One occurs when the student remains in the United States without attending school for certain extended periods. The other results when a student takes time away from school and spends several months abroad. Transfers Enjoy Five-Month Window / Reinstatement Application: Students (F-1 or M-1) who are in the process of transferring between schools are regarded as being out of status if they do not resume classes within five months of the transfer. The same five-month window applies to students who are transferring between programs after completion of a course of study. In these situations the visa stamp becomes invalid even if there is no formal government finding that the student is out of status. If there has been a five-month lapse in studies the student is eligible to apply for reinstatement. Of course, eligibility to request reinstatement does not mean that the request will be granted in all cases. If reinstatement is granted, the student is back in status and the lapse is forgiven. In that event, the visa becomes valid again until its expiration date (or until a new status lapse). If the reinstatement is denied, however, the student's status is lost, and the visa remains invalid. The student is regarded as out of status and accruing unlawful presence from the date of the denial of the reinstatement request. Thus, in most instances, this requires that the student depart the United States and apply for a new visa from abroad. Reapplication of the F-1, J-1, or M-1 Visa Abroad: A student whose visa is automatically cancelled due to failure to attend school and/or being denied reinstatement can reapply for a visa at the U.S. consulate in her/his home country. If the student departs in a timely manner, s/he would not typically be barred from reapplying for a new student visa. The consulate must review the situation, however, to determine if the applicant is really a bona fide student and eligible for a new student visa. Consular officers are instructed to review the reasons that a student was not attending classes as required. Clearly, the chance of success depends upon the student's ability to demonstrate a valid reason for the failure to comply with the terms of his/her status. Students who Travel for Extended Periods - Beyond 5 Months: Another situation in which a visa is automatically cancelled is when a student is not enrolled and spends more than five months abroad. Under these circumstances, the visa is not lawful because student visas are only valid for continuing students. After five months, the student is no longer considered a continuing student. Therefore, even if the visa stamp in the passport has not expired, it is invalid and, if presented at the port of entry, the officer can cancel it and deny admission. (If the break is less than five months, the student can return on the unexpired F-1 or M-1 visa with a valid I-20 form endorsed by the school.) http://www.greencardapply.com/news/news13/news13_0304.htm http://www.greencardapply.com http://www.greencardfamily.com

The "Legal" Immigration System Reform in The Comprehensive Immigration Reform

The "Legal" Immigration System Reform in The Comprehensive Immigration Reform The immigration reform debates and talks have focused on the three components: Border Security, Immigration Enforcement, and Legalization of Undocumented Immigrants. Why? Because these are key issues that have divided lawmakers, political leaders, and political parties. As time has gone by, there appears to be a compromise looming up between the right and the left through the left more or less accepting the right's issue of strengthening border security and immigration enforcement and the right agreeing to legalization within the context of keeping the legalized undocumented immigrants at the end of row of immigrant wait lines. What about other key component of reforming broken "legal" immigration system? Thus far, some pieces of such reform have been introduced in the form of piecemeal immigration bills. Additionally, both employment-based immigration advocates and family-based/other immigration advocates talked about their points here and there "sporadically." It is tragic that the legal immigration reform advocates have been so narrowly obsessed with reform of their interest only without discussing their issues within the framework of more broad and overall reform of the entire "legal" immigration system. Thus far, no one has come forward to discuss in the media the overall reform of the legal immigration system. The key issue that divides between the right and the left for the legal system reform involves the total immigrant quota the nation should accept. Obviously, the right will focus on keeping the number of immigrants at the current level or less and at a restrictive level, while the left will advocate to accept increase of the total annual numbers. The position of the right has been to reduce family-based immigration or non-employment-based immigration quota and increase the employment-based immigration quota within the level of keeping overall number within the current immigration system. The Bush comprehensive immigration reform represents such concept with the eventual goal of keeping the new total immigrant numbers at bay. Obviously, such proposal is not acceptable to the left that focuses on family unification and traditional concept of diversity in immigration system. For the reasons, the left will not accept reform of immigration reform unless the right is willing to accept increase in total immigrant numbers as the left also recognizes that the nation needs foreign talents and should accept increased number of such talents in one form or another. From the standpoint of the left, the position of the right presents insurmountable complicated power allocation issues as well as serious ethnic and racial implication issues as the reality is that no Europeans or other white races or ethnic group are immigrating to this country for the two reasons, among others: Their countries are well off economically and otherwise. The other reason is that they do not have close relatives in the United States who can sponsor their immigration under the current family-based immigration system. For the reasons, the right's push for reduction of family-based immigration system or diversity immigration naturally leads to implication of controlling immigrants from other ethnic or racial groups, typically so-called third world. The issue gets touchy and complicated under the circumstances that there are plenty of xenophobic sector of population that are concerned with growing imbalance of demographic distribution of the nation's population between the whites and nonwhites. For the foregoing reasons, reform of legal immigration system involves much more complicated and serious issues the nation and national leaders must address and seek a consensus in one way or another. The problem of the right to accept increase of employment-based immigration numbers without reducing the family-based or diversity immigrants may stem from a calculation that eventually such increase of employment-based immigrant numbers as well as keeping the family-based or diversity immigrant numbers will lead to a "reality" that it will lead to explosion of minority population in the sense that most of employment-based immigrants are coming from India and China and most of diversity immigrants are coming from Africa. There are already flood of immigrants coming from Asia and Central or South America based on the family-based immigration system. http://www.greencardapply.com/news/news13/news13_0305.htm http://www.greencardapply.com http://www.greencardfamily.com

The Importance of I-94 Expiration Date for Nonimmigrants

The Importance of I-94 Expiration Date for Nonimmigrants For those who are in the United States temporarily as nonimmigrants, the most important date to track is perhaps the expiration date of the I-94 arrival / departure card. The I-94 is a small card that is usually stapled into one's passport. It is obtained in one of two ways. It can be issued by a U.S. Customs and Border Protection (CBP) officer at the port of entry upon arrival in the United States. It can also be issued by the U.S. Citizenship and Immigration Services (USCIS) when one is granted an extension or change of nonimmigrant status from within the United States. If the USCIS issues an I-94, it will arrive attached to the bottom of an approval notice (I-797). This should be detached and placed in one's passport. Foreign nationals in F and J statuses do not have specific expiration dates noted on their I-94s, as they are admitted for duration of status (D/S). These individuals maintain their nonimmigrant statuses as long as they comply with the terms and conditions of their respective classifications during their programs. The I-94 card reflects how long one is permitted to stay in the United States, provided s/he complies with the terms of her/his status. Occasionally, the CBP or USCIS will issue an I-94 card with an erroneous date (either issuing an approval for a longer period than permitted by law or by granting an individual less time than appropriate). In either case, one should immediately obtain competent legal advice on the proper steps to correct the error. One should never rely upon an erroneous grant of more time in a nonimmigrant category than was requested or than one is eligible to receive. If the expiration date on the I-94 card is earlier than allowed by law, there is a risk for the individual remaining in the U.S. without correcting or otherwise addressing the error. It is important to remember that the expiration date on a visa stamp in the passport and the expiration date on the I-94 card are often not the same, as they serve two different purposes. The visa is an entry document, only. The time that one is actually allowed to remain in the United States after entry could be much shorter or longer than the duration of the visa. The appropriate amount of time an individual is allowed to remain in the U.S. is determined by the CBP at the port of entry. This is based on applicable law as well as the CBP's discretion. For example, an individual might be issued a 10-year, multiple-entry visitor visa (B-2) by the consulate. The fact that s/he has been granted a visa valid for ten years does not permit a stay of ten years on any single visit. Visitors are limited to the amount of time granted by the CBP - normally six months, but potentially less, depending on the circumstances. These expiration dates should be closely tracked. Overstaying the amount of time granted by CBP can have serious legal consequences on one's immigration status and eligibility for future immigration benefits. http://www.greencardapply.com/news/news13/news13_0312.htm http://www.greencardapply.com http://www.greencardfamily.com

Apply for a U.S. Green Card - National Interest Waiver

Apply for a U.S. Green Card - National Interest Waiver A National Interest Waiver, or NIW, is an employment-based, second preference immigration application. It is so named because it asks that the otherwise required Labor Certification requirement be waived "in the U.S. national interest." For applicants with an advanced degree - masters or above, there are three ideal options to apply for a Green Card. These options are in different classifications of Employment-based (EB) immigration, including: EB1A: Aliens with Extraordinary Ability in science, art, and business (or EB1-EA); EB1B: Outstanding Researchers and Professors (or EB1-OR); EB2 NIW: Members of Professions Holding Advanced Degrees Applying for a Waiver of Labor Certification in National Interest (or NIW). Many talented scientists and researchers should have better chances when they apply for an attractive job position. However often times, they failed just because they do not have a U.S. Green Card. Some people with advanced degree do not know how to apply for U.S. Green Card in above three preferred immigration categories, but instead, these people apply for a Labor Certification. However, choosing Labor Certification is not the best strategy for people who may qualify for one of the above three ideal immigration classifications. To qualify for EB2 NIW, an alien applicant needs to demonstrate that his or her work is in the National Interest of United States, and the alien applicant should have an advanced degree and have exceptional ability in sciences, arts or business. The National Interest Waiver Green Card application can either be filed by an alien applicant, or be sponsored by a U.S. employer. An alien applicant may also file additional Green Card applications in other categories, while a National Interest Waiver petition is pending. http://www.greencardapply.com/niw/niw_whatis.htm http://www.greencardapply.com http://www.greencardfamily.com

The Multinational executives or managers Green Card Application

The Multinational executives or managers Green Card Application The Immigration and Nationality Act (INA) permits multinational executives and managers to apply for U.S. permanent residence under the employment-based immigration first preference category (EB1). The employment-based first preference category are not subject to a Labor Certification requirement. The first preference immigration category consists of three subcategories, each has different eligibility requirements: a) Aliens with extraordinary ability in sciences, arts, education, business or athletics (EB-1A or EB1-EA); b) Outstanding professors or researchers (EB-1B or EB1-OR); c) Multinational executives or managers (EB-1C). In order to qualify as a multinational executive or manager under this category, during the three years preceding the application, the applicant must have been employed for at least one year by the same multinational firm or other business entity (affiliate, parent, subsidiary, or branch of the U.S. employer) that employs them in the United States. Furthermore, the applicant must seek to continue rendering services to the same employer in a managerial or executive capacity. The labor certification is not required for international managers and executives. The EB-1C petition requires the individual to have a permanent job offer from the U.S. company to work in an executive or managerial position. http://www.greencardapply.com/manager/mang_whatis.htm http://www.greencardapply.com http://www.greencardfamily.com

The L-1 Intracompany Transferee Visa Application

The L-1 intracompany transferee visa allows managers, executives, and especially knowledgeable employees who work outside the U.S. for a company that has an affiliated entity inside the U.S. to come to the U.S. and perform services for that entity. There are no limits on how many people can get L-1 visas every year. The U.S. Congress created the L-1 nonimmigrant visa category in 1970, primarily to assist multinational companies that experienced difficulties in bringing to the United States critical personnel temporarily from abroad. To be eligible for an L-1 visa, a foreign national normally must have been employed by the foreign company continuously for at least one year during the preceding three years in a managerial or executive position, or in a position where the individual gained specialized knowledge. http://www.greencardapply.com/l1visa/l1visa_whatis.htm The individual must be coming to the United States to provide services to the same employer or a branch office, subsidiary or affiliate. For this reason, L-1 visa holders are known as intracompany transferees. Executives and managers enter the United States on an L-1A visa. Employees with specialized knowledge enter the United States on an L-1B visa. To qualify for specialized knowledge, the employee must possess special knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge in the organization’s processes and procedures. Since the L-1 program’s creation, U.S. Congress has consistently responded to the needs of the business community by facilitating the process by which multinational companies import key personnel through the L-1 visa. Originally, the L-1 beneficiary had to have worked for the company abroad during the year immediately before filing the L-1 petition. A later amendment broadened the qualifying period to one year during the prior three year, thus permitting a former employee to rejoin the multinational company in the United States. A “blanket” L petition allows employers to have a petition on file that certifies that the organization meets the requirements of the blanket L visa program. http://www.greencardapply.com/l1visa/l1visa_whatis.htm http://www.greencardapply.com http://www.greencardfamily.com