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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.

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What is a conditional green card (permanent residence)?

A conditional green card is valid for only 2 years and is issued (1) to a spouse who has been married for less than 2 years at the time of green card approval and (2) to a foreign EB-5 investor and to his or her dependents.

A conditional green card holder must file a petition to “remove the conditions” within the 90-day period before the conditional green card expires. The conditional green card holder based on marriage needs to show that he has been married during those two years (with certain exceptions). The conditional green card holder based on EB-5 investment needs to show that (s)he invested $1,8 million (or $900,000 in certain areas), (s)he sustained the investment during those 2 years, and that (s)he created 10 new full-time jobs for U.S. workers.

Please note that this article does not constitute legal advice.  We simplified the law to provide only general information to outline the conditional resident status and conditional green card.  If you would like to discuss how to obtain a conditional green card or need help with the removal of conditions on residency, 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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Can I enter the U.S. with my green card after one year abroad?

If you have a green card and stayed outside the United States due to circumstances beyond your control for longer than one year or beyond the validity of the re-entry permit, you may need a returning resident (SB-1) special immigrant visa to enter the United States and resume permanent residence. You will need to prove that you did not abandon your residency.

If your application for returning resident status is not approved, a new green card petition will need to be filed.

Please note that this article does not constitute legal advice.  We simplified the law to provide only general information about green card use and validity after an extended stay abroad.  If you plan extended stay abroad or stayed abroad due to unforeseen circumstances and would like to discuss your situation and how we can help you, 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 an abandonment of a green card?

If a green card holder remains outside the United States for more than a year, the regulations require invalidation of his green card (legal permanent resident status). The Department of Homeland Security takes the position that residency has been abandoned. Residency can be deemed abandoned even where a person lives and works abroad and visits the United States every year. What is relevant to determine if the green card was abandoned is the purpose of the departure, the existence of a fixed termination date for a visit abroad, and the objective intention to return to the United States as a place of permanent employment and actual home. A person may be abroad for several years and not abandon his residency if (s)he has a continuous uninterrupted intention to return to the United States. For example, a child is out of the United States for six years due to father’s heart condition.

Please note that this article does not constitute legal advice.  We simplified the law to provide only general information about the abandonment of a green card.  If you would like to discuss if you have abandoned your green card and what can be done in your situation, 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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H-1B approval in 1 day!

Our client, an established engineering and OEM company, wanted to hire a Controls Software Engineer, an Indian national currently on an H-1B visa. We obtained a certified labor condition application and worked with a client to document fully the eligibility for H-1B classification. The petition was filed with a request for premium processing. The USCIS received the petition on Monday and we received approval on Tuesday.

Please note that this article does not constitute legal advice.  We simplified the law to provide general information about one H-1B case.  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!