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H-2B application filing window opens on July 3, 2020

The Office of Foreign Labor Certification (OFLC) announced that the filing window to submit H-2B Application for Temporary Employment Certification (Form ETA-9142B) requesting work start dates of October 1, 2020, or later, will open on July 3, 2020, at 12:00 a.m. Eastern Time. Such applications will be denied if they are filed before July 3, 2020, at 12:00 a.m. Eastern Time. OFLC will randomly order for processing applications filed during the initial three calendar days (July 3-5, 2020) will be selected using the randomization procedures.

H-2B visa category is for workers performing temporary non-agricultural service or labor.   The employer petitioning for H-1B status for a foreign worker must establish that the need for the employee will end in the near, definable, future.  The request for labor must be a one-time occurrence, a seasonal need, a peak load need, or an intermittent need. For more information about H-2B status, click here.

Please note that this articles does not constitute a legal advice.  We showed only a procedural step and deadline of the H-2B process.  If you would like to discuss if you may qualify for H-2B status, call our experienced H-2B visa attorney at 480-425-2009 or contact an experienced H-2B attorney via our website to schedule a consultation. We look forward to discussing how we can help you obtain your H-2B visa.

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Treaty investor (E-2) visa for Czech dealer of motorized surfboard

My client, a Czech entrepreneur, formed a US company that entered into a dealer agreement with importer of motorized surfboard manufactured in the Czech Republic. Motorized surfboard is an ultra-light high tech personal watercraft and MotoSurf is one of the fastest growing sports.

My client’s company focuses on marketing, sales and service of motorized surfboards boards. The investment was “substantial” and consisted with showroom construction, furniture, equipment, tools, event expenses, payroll and other related expenses. The company started with just four employees and is expanding quickly.

The investment is not marginal and the enterprise is real and doing business. The treaty investor (E-2) visa was approved pursuant to bilateral treaty between the US and the Czech Republic.

Please note that this case study does not constitute a legal advice.  We simplified the law in order to outline the treaty investor (E-2) visa requirements.  If you would like to discuss if you may qualify for treaty investor (E-2) visa, call our experienced treaty investor (E-2) visa attorney at 480-425-2009 or contact an experienced treaty investor (E-2) attorney via our website to schedule a consultation. We look forward to discussing how we can help you obtain your treaty investor (E-2) visa.

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Characteristics of H-1B Specialty occupation workers

The U.S. Citizenship and Immigration Services released its Fiscal Year 2019 (FY 2019) Annual Report to Congress. Among other things, the report shows that the number of H-1B petitions filed increased by 0.4 percent from FY 2018 to 420,549. The number of H-1B petitions approved increased 16.9 percent from FY 2018 to 388,403.

Of the H-1B petitions approved in FY 2019, 71.7 percent reported that the beneficiary was born in India. The second most prevalent country of birth of H-1B beneficiaries was the People’s Republic of China, representing 13.0 percent of all beneficiaries. The third most prevalent country of birth of H-1B beneficiaries was Canada, representing only 1.2 percent of all beneficiaries. The beneficiaries from each other country represent less than 1% of all beneficiaries. The number of beneficiaries from India approved for initial employment increased by 54.7 percent in FY 2019

At the time their petitions were approved, 62.4 percent of workers granted H-1B status during FY 2019 were between 25 and 34 years of age and 85.9 percent of workers between 25 and 39 years of age.

The breakdown of the highest level of education achieved by H-1B beneficiaries shifted to upward trend towards master’s degree in recent years. The report shows that 54 percent of all H-1B petitions approved for workers in FY 2019 reported that the highest degree achieved by beneficiary was the equivalent of a master’s degree, 36 percent a bachelor’s degree and 8 percent a doctorate degree.

The reports shows the distribution of beneficiaries by occupational category. The category of computer-related occupations was the largest occupational category in 2019 representing 66.1 percent of approved petitions. The second largest category was category of occupations in architecture, engineering and surveying representing 10.1 percent of approved petitions, followed by categories in administrative specializations (5.5%), education (5.1%), medicine and health (3.9%), mathematics and physical sciences (3%), life sciences (1.6%) and managers and officials (1.2%), etc.

The corresponding shares for initial employment in computer-related occupations were 56.3 percent and 71.6 percent for continuing employment. The number of H-1B petitions approved for workers in computer-related occupations increased by 16.3 percent. The number of H-1B petitions approved for all other known occupation groups increased by 18 percent. USCIS found that the median salary of beneficiaries for FY2019 was $98,000 and 54% held a master’s degree.

Please note that this articles does not constitute a legal advice.  We showed only some data from the report to outline some characteristics of H-1B visa/status recipients.  If you would like to discuss if you may qualify for H-1B status, call our experienced H-1B visa attorney at 480-425-2009 or contact an experienced H-1B attorney via our website to schedule a consultation. We look forward to discussing how we can help you obtain your H-1B visa.

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Treaty investor (E-2) visa for Czech real estate investor

My clients, a married couple from the Czech Republic, formed an LLC where each have 50% ownership. The Company was formed as a real estate investment company to buy distressed properties at a discount price, holding for a year and remodeling and selling them for a profit or renting them as income generating real estate.  At the time we filed the investor visa application, Company has bought a total of 11 properties. Out of these properties, six were for resale and already two were sold at a considerable profit, the other five properties are currently rented generating healthy revenue. 

The Company has four employees, one full time and three part-time employees: a full time maintenance technician, handyman and electrician, a part-time bookkeeper) and two part-time secretaries.   The enterprise is real and doing business and investment is “substantial” and not marginal. My clients have extensive experience in real estate. Their treaty investor visas were approved without any problems for five years.

Please note that this case study does not constitute a legal advice.  We simplified the law in order to outline the treaty investor (E-2) visa process.  If you would like to discuss if you may qualify for treaty investor (E-2) visa, call our experienced treaty investor (E-2) visa attorney at 480-425-2009 or contact an experienced treaty investor (E-2) attorney via our website to schedule a consultation. We look forward to discussing how we can help you obtain your treaty investor (E-2) visa.

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Supreme Court Rules Asylum Seekers Cannot Seek Federal Court Review of Expedited Removal Orders

A citizen of Sri Lanka attempted to enter the US illegally. He was apprehended just 25 yards from the border, and put in an expedited removal process. He did not show “credible fear” of persecution to avoid expedited removal. He invoked the writ of habeas corpus to obtain additional review of his asylum claim and ultimately to obtain authorization to stay in the US. Habeas has traditionally been a means to secure release from unlawful detention.

The US Supreme Court ruled that neither the Suspension Clause nor the Due Process Clause of the Fifth Amendment requires any further review of his claims, and IIRIRA’s limitations on habeas review are constitutional as applied.

Please note that this article does not constitute a legal advice.  We simplified the law in order to outline the latest US Supreme Court decision and its application to review or expedited removal orders.  If you would like to discuss if you may qualify for asylum, call our experienced immigration attorney at 480-425-2009 or contact an experienced immigration attorney via our website to schedule a consultation.

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Changes in employment authorization for asylum seekers

On August 25, 2020, new changes to the regulations governing asylum seekers and their eligibility for employment authorization will become effective. New regulations extend the wait time before the asylum seeker can apply for employment authorization from 150 days to 365 days. Asylum seekers who have failed to file for asylum within one year of their last entry won’t be eligible to apply until exception to the one-year requirement is approved.

The regulations prevent asylum seeker who, absent good cause, illegally entered the United States from obtaining employment authorization. In addition, regulations define new bars and denials for employment authorization, such as for certain criminal behavior; limit the employment authorization validity period to a maximum of two years; and automatically terminates employment authorization when an applicant’s asylum denial is final.

Please note that this article does not constitute a legal advice.  We simplified the law in order to outline the latest changes to employment authorization process for asylum seekers.  If you would like to discuss if you may qualify for asylum and associated work authorization, call our experienced immigration attorney at 480-425-2009 or contact an experienced immigration attorney via our website to schedule a consultation.

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What does the US Supreme Court latest decision mean for DACA recipients


On June 18, 2020, the U.S. Supreme Court ruled that Department of Homeland Security’s (DHS) decision to rescind the Deferred Action for Childhood Arrivals (DACA) program was arbitrary and capricious under the Administrative Procedures Act because the DHS failed to consider important aspects of the problem – whether to continue only the deferred action part of the DACA program. DHS failed to provide a reasoned explanation for its action and also failed to address the considerable reliance interests created by the DACA program, such as the impact on Dreamers and their families, if the agency terminated DACA.
The parties agreed that DHS may rescind DACA. The Court remanded the case for further consideration.

Under the US Supreme Court decision, USCIS must continue to process the following types of DACA requests:

  • Current DACA recipients can file a renewal DACA request.
  • Recipients whose previous DACA expired one year ago or less may still file a renewal DACA request.
  • DACA Recipients whose previous DACA expired more than one year ago cannot file a renewal DACA request but may file an initial DACA request.
  • DACA recipients whose previous DACA was terminated at any point cannot request DACA as a renewal but may file an initial DACA request.

In order to comply with the Court’s order, USCIS will have to publish guidance on processing the applications of applicants who have not previously been granted DACA and advance parole requests that were suspended under prior court orders.

Please note that this article does not constitute a legal advice.  We simplified the law in order to outline the latest DACA developments.  If you would like to discuss if you may qualify for DACA or the best strategy after the US Supreme Court decision, call our experienced immigration attorney at 480-425-2009 or contact an experienced immigration attorney via our website to schedule a consultation. We look forward to discussing how we can help you with DACA application.

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Presidential Proclamation Suspending Entry of Certain Non-Immigrants

On June 22, 2020, President Trump signed a proclamation suspending and limiting the U.S. entry of foreign nationals on H-1B, H-2B, J (as intern, trainee, teacher, camp counselor, au pair, or summer work travel program) and L visas and any individuals accompanying or following to join them.

The proclamation applies to those who are outside the U.S. on June 24, 2020 and do not have such non-immigrant visa or official travel document that is valid on that day.

The suspension and limitation on entry does not apply to lawful permanent residents, spouses and children of the U.S. citizens, essential workers, individuals whose entry would be in the national interest.

The proclamation shall expire on December 31, 2020, and may be continued.

Please note that this article does not constitute a legal advice.  We simplified the law in order to outline the Proclamation.  If you would like to discuss how does this Proclamation affect you, call our experienced Immigration Attorney at 480-425-2009 or contact an experienced Immigration Attorney via our website to schedule a consultation. We look forward to talking with you and helping you analyze the effect of the Proclamation and your alternatives.

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H-1B petition approval in 3 weeks

My client is a global marketing and branding company and filed a H-1B petition for a position of an Interior Designer.  The H-1B registration was selected in the H-1B lottery.  The Client was very cooperative and provided all documents necessary to show to the USCIS satisfaction that the Interior Designer is a specialty occupation according to the regulations.  In this case, the Petitioner (Client) normally requires a degree or its equivalent for the position and a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the position of the Interior Designer.   The position of the Interior Designer is also so complex that it can be performed only by an individual with a degree.

The client provided documents related to the position and showing that the Beneficiary (Employee) meets the requirements for the position.   The Beneficiary has a Master of Interior Architecture and has been working for the Client as a junior Interior Designer on her OPT.   My client was very happy to receive the approval just in 3 weeks, especially for entry level position.  Congratulations!

Please note that this case study does not constitute a legal advice.  We simplified the law in order to outline the H-1B process.  If you would like to discuss if you may qualify for H-1B status, call our experienced H-1B visa attorney at 480-425-2009 or contact an experienced H-1B attorney via our website to schedule a consultation. We look forward to discussing how we can help you obtain your H-1B visa

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Unemployment benefits for (non)immigrants

As the COVID-19 pandemic continues, we are receiving questions from our immigration clients regarding whether or not they are eligible to seek unemployment insurance benefits in the event of a layoff, reduction in force or termination.

Are you eligible for unemployment insurance? It depends. Each state has different unemployment insurance eligibility requirements. In Arizona, for example, individuals filing a claim for unemployment insurance benefits must indicate that they are able to work, available for work, and actively seeking work. In order to be “available for work,” you “must be ready and willing to accept full-time work when offered without restrictions.” Consequently, it depends on your immigration status and applicable case law to determine if you are considered “available for work” when you are unemployed.

Thus, if you are only authorized to work in the U.S. for a single employer (e.g., holding H-1B or L-1 status) and lose your job, you generally would not qualify because you are not considered “able and available to work” when you are unemployed.

On the other hand, if you have an employment authorization document (e.g., adjustment of status applicants, spouses of E or L status holders,
certain H-4 spouses of H-1B workers, DACA recipients, refugee or asylee), you would generally be “available for work” for another employer. The same applies to lawful permanent residents. Undocumented workers are not “available for work” because they are not legally authorized to work in the U.S.

Please note at that this is only an overview of the unemployment benefits for immigrants and non-immigrants and is not intended as legal advice. IF you were laid off and would like to consult an experienced immigration attorney, calls us at 480-425-2009 or contact us via our website and we will help you determine the best options in your situation.