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What is “cap-gap”?

Where an employer subject to H-1B cap properly files H-1B petition requesting an October 1 start date and a timely change of status on behalf of an F-1 student, student’s F-1 status and employment authorization (if in Optional Practical Training) is automatically extended until September 30, thus eliminating the “gap” between the time the F-1 status would have expired and the October 1 start date of H-1B status. If the H-1B petition is not filed before the OPT expires, the student may not be empoyed again until October 1. Cap-gap does not apply to cap-exempt H-1Bs.

Please note that this article does not constitute legal advice.  We simplified the law to provide general information about one aspect of H-1B visa.  If you would like to discuss if you qualify for the cap-gap or need help obtaining H-1B visa, schedule a consultation with an experienced immigration lawyer in Phoenix at www.calendly.com/irena-3 TODAY or call our office at 480-425-2009! We look forward to talking with you!

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What is STEM OPT and who qualifies for it?

Foreign students with student visas (F-1) may be eligible for 12 month of standard Optional Practical Training (OPT) at each higher educational level (one 12-month period at BA level then another at MA level). OPT must be directly related to the student’s major area of study. OPT allows F-1 students get a work authorization in the United States.

STEM OPT is a form of OPT after the course of study is completed. Science, technology, engineering, or mathematics (STEM) students can qualify for STEM OPT if they have a degree in a STEM field or as part of a dual-degree program. The STEM subject must be the F-1 student’s major or dual major. A STEM student may be allowed a 24-month extension beyond the initial 12 months of OPT. In order to qualify for the the 24-month STEM extension, the F-1 student’s field of study’s CIP (Classification of Instructional programs) code has to be included on the U.S. Department of Homeland Security STEM Designated Degree program List.

Please note that this article does not constitute legal advice.  We simplified the law to provide general information about one aspect of employment for F-1 students.  If you would like to discuss if you qualify for STEM OPT or what are employment options in the U.S. you may have, schedule a consultation with an experienced immigration lawyer in Phoenix at www.calendly.com/irena-3 today or call our office at 480-425-2009! We look forward to talking with you!

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What is PERM?

PERM is the abreviation for the Program Electronic Review Management. It’s a system for processing labor certification application, which is necessary (with some exceptions, e.g., National Interest Waiver, Schedule A precertification) to get a green card through employment. The basic criteria are whether the employer has me the procedural requirements of the regulations, whether there are insufficient U.S. workers who are able, willing, qualified, and available, and whether the employment of the foreing worker will have an adverse effect on the wages and working conditions of U.S. workers similarly employed.

Please note that this article does not constitute legal advice.  We simplified the law to provide general information about one aspect of the employment based green card process.  If you would like to discuss if you qualify for a green card through employment, schedule a consultation with an experienced immigration lawyer in Phoenix at www.calendly.com/irena-3 today or call our office at 480-425-2009! We look forward to talking with you!

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PERM for an operations director approved

Our client has a tower crane service company and needed to fill the position of operations director. There are not many people in the world who qualify for this position where safety is at stake. Therefore, the employer was willing to go through a PERM process to advertise the position in the Sunday newspaper, at a job fair, on the employer website and at the job search site according to strict regulations. The employer received over 200 application, but no applicant was willing, able, qualified and ready to take the job.

We submitted the application for permanent employment certification to the US Department of Labor. Originally, the US Department of Labor eroneously concluded that one applicant met the qualification requirements, but we showed that that application had no connection to the US and was not a US worker who this process is designed to protect. The application was certified and we can now file the petition and green card application to complete the green card process through employer.

Please note that this article does not constitute legal advice.  We simplified the law to show a case study about one aspect of the EB-3 process, green card process through employemnt.  If you would like to discuss if you qualify for EB-3 green card based on your employment, schedule a consultation with an experienced immigration lawyer in Phoenix at www.calendly.com/irena-3 today or call our office at 480-425-2009! We look forward to talking with you!

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What to do if my H-1B registration was not selected?

On March 30, 2021, the USCIS completed the H-1B lottery and announced that it received enough H-1B registrations to reach H-1B cap for the fiscal year 2022. What options do you have if you were not amount those who were selected?

First of all, you are eligible for selection in any subsequent selection for FY 2022. For example, some selected registrants may not file their petitions.

Depending on your situation, you may be eligible for other types of visas or status. Your employer may file for your employment-based green card (permanent legal resident status) if he can show that there are no U.S. workers available, willing and qualified for the job. Certain professionals from Mexico or Canada may qualify for TN visa. If you are the entrepreneurial type and are from certain countries, you may be eligible for E-2 (treaty investor) or E-1 (treaty trader) visa. If you have extraordinary ability in the sciences, arts, education, business of athletics, you may apply for O visa.

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Can you recover your attorney’s fee in EB-1 case?

Individuals of extraordinary abilities applying for EB-1 green card are often faced with requests for evidence adding to the cost of the representation and what seems to be arbitrary and capricious decisions. They are often not aware that they may be able to recover attorney’s fees and cost under the Equal Access to Justice Act (EAJA) if they challenge the USCIS decision under the Administrative Procedures Act (APA). They need to prevail against the USCIS in challenging its decision, which was not “substantially justified” and no “special circumstances make an award unjust”.

For example, after Ludovic Pierre Berardo, an extraordinary stop-motion animator, challenged USCIS’s denial, USCIS approved his petition and he recovered $44,672.50 in attorney’s fee and $400 in costs.

Please note that this article does not constitute legal advice.  We simplified the law to provide general information about one aspect of EB-1 process.  If you would like to discuss if you qualify for EB-1 green card based on your extraordinary ability in the sciences, arts, education, business, or athletics, schedule a consultation with an experienced immigration lawyer in Phoenix at www.calendly.com/irena-3 today or call our office at 480-425-2009!

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What is a “particular social group” for asylum?

In order to obtain asylum in the U.S., foreigners must show fear of harm directly related to race, religion, nationality, political opinion, or membership in a “particular social group”.

What is a “particular social group” is interpreted differently by courts in different parts of the U.S. According to the Ninth Circuits Court of Appeals (where Arizona belongs), it is a particular social group as one in which the members are united by a voluntary association OR by an innate characteristic that is so fundamental to the identities or consciences of its members, that members either cannot or should not be required to change it (e.g., young women in Guatemala subject to femicide).

Here are some examples of “particular social groups”: former gang members or gang violence recipients (e.g., a former member of MS-13), family members (e.g., mother who fears that her minor daughter would be subject to FGM), domestic violence victims (e.g., Honduran woman unable to leave her relationship), people with mental illness or physical disability (e.g., persons with bipolar disorder who exhibit erratic behavior), witnesses (e.g., who publicly provide assistance to law enforcement against major Salvadoran gangs), landowners (e.g., Colombian landowners who refused to cooperate with FARC).

Please note that this article does not constitute legal advice.  We simplified the law to provide general information about one aspect of asylum laws. If you would like to discuss whether you qualify for an asylum, schedule a consultation with an experienced immigration lawyer in Phoenix at www.calendly.com/irena-3 today or call our office at 480-425-2009! We look forward to talking with you!

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The temporary increased debt limit for cheaper and streamlined small business bankruptcy is ending

The Small Business Reorganization Act added a new Subchapter V to Chapter 11 of the Bankruptcy Code, which streamlines the bankruptcy process and makes it more cost-efficient for businesses to reorganize. Not all businesses qualify for this streamlined reorganization process. Only individuals and companies with total debts below $2,725,625 may take advantage of this process. The CARES Act temporarily increased the debt limit to $7,5 million for bankruptcies filed from March 27, 2020, through March 26, 2021 (extended for another year), allowing small businesses affected by the COVID-19 pandemic to use this easier reorganization bankruptcy process.

At least 50% of the total debt must be from commercial or business activities. A business with primary business activity the ownership of single asset real estate cannot use this streamlined Subchapter V. Subchapter V eliminated certain costs and the plan confirmation is less complex and time-consuming. Also, the equity holders may keep their ownership in their company, even if they do not pay creditors in full and do not provide any new value.

Please note that this article does not constitute legal advice.  We simplified the law to provide general information about a relatively new bankruptcy option for small businesses.  If you would like to discuss if this type of bankruptcy is the best option for your business, schedule a consultation with an experienced bankruptcy lawyer in Phoenix at www.calendly.com/irena-3 today or call our office at 480-425-2009! We look forward to talking with you and helping you with restoring your peace of mind.

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H-1B registration starts on March 9, 2021

The registration for the fiscal year  2022  H-1B cap will start on March 9, 2021, and will end on March 25, 2021.  If there are more than 85,000 registrations received by March 25, the USCIS will randomly select registrations and intends to notify the registrants by Mach 31, 2021.

The petitions subject to the H-1B cap-subject may only be filed by those employers whose registrations were selected. USCIS delayed the changes to the H-1B selection process until December 31, 2021.

Please note that this article does not constitute legal advice.  We simplified the law to provide general information about the H-1B registration process for the fiscal year 2022.  If you would like to H-1B petition approved fast, schedule a consultation with an experienced immigration lawyer in Phoenix at www.calendly.com/irena-3 today or call our office at 480-425-2009!

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Difference between Chapter 15 foreign main and nonmain proceeding

A foreign “main” insolvency proceeding is a foreign proceeding pending in
the country where the debtor has the center of its main interests. The debtor’s registered office or habitual residence (domicile) is presumed to be the center of the debtor’s main interests. A foreign “nonmain” proceeding is a foreign proceeding pending in a country where the debtor maintains an establishment (persistent economic activity).

The distinction is an important one as recognition of a foreign main proceeding provides for certain rights that are not applicable to a foreign nonmain proceeding.

If the U.S. Bankruptcy court recognizes the foreign insolvency proceeding as the main proceeding, the stay of all collection efforts, foreclosures, and lawsuits against the debtor and his or her assets is triggered automatically. In addition, any sales outside the ordinary course need to be approved by the Bankruptcy Court, certain transfers of assets can be avoided and the foreign representative has additional powers. If the foreign proceeding is recognized as a nonmain proceeding, the foreign representative can request powers such as staying collection efforts against debtor’s assets, preventing debtor to transfer his or her assets, interview witnesses, and administering debtor’s assets located in the United States.

Please note that this article does not constitute legal advice.  We simplified the law to provide general information about Chapter 15 bankruptcy.  If you would like to discuss if Chapter 15 bankruptcy will help in your situation, schedule a consultation with an experienced bankruptcy lawyer in Phoenix at www.calendly.com/irena-3 today or call our office at 480-425-2009.