Didn’t Get An H-1B Visa? Here Are Your Alternative Immigration Options.

U.S. Citizenship & Immigration Services (USCIS) has announced that it reached the annual 85,000 H-1B visa cap in the first five days of April 2019.  Specifically, USCIS received 201,011 H-1B cap cases (an increase from last year), which means that once again, USCIS will conduct a computer-generated lottery in the coming weeks to determine which petitions they will process. Employers who have their petitions selected in the lottery will receive a receipt notice from USCIS, and if approved, can have their employees begin working for them in H-1B status on October 1, 2019. Petitions that are not selected in the lottery will be returned to the employers with their money back.

USCIS will continue, however, to accept H-1B petitions year-round from employers who are exempt from the H-1B cap (such as universities, nonprofits affiliated with institutions of higher education, or nonprofit research organizations), as well as petitions to extend the status of those currently in H-1B status or for those in H-1B status seeking to change employers.

While no more new H-1B visas will be available for employers and foreign nationals seeking to apply in 2019, many candidates may be eligible for other alternative visa options. The following visa categories are available throughout the year, without numerical caps, for qualifying foreign nationals:

  • L-1 Visa: For intracompany transferees who have worked for a foreign entity for one year and are seeking to transfer to a U.S. subsidiary, affiliate, parent, or branch office in the U.S. in a managerial, executive, or specialized knowledge capacity

  • E-1/E-2 Visa: For international investors or traders from certain treaty countries looking to engage in substantial trade between the U.S. and their foreign country or to develop and direct the operations of an enterprise in which the foreign national has invested. The E-1/E-2 visa is a great option for foreign entrepreneurs seeking to work in an essential capacity for their U.S. entity.

  • O-1 Visa: For foreign nationals of extraordinary ability who have achieved national and international recognition for extraordinary achievements in their field of endeavor.

  • TN Visa: For Canadian and Mexican citizens employed in certain professional categories seeking to engage in U.S. employment. Examples of qualifying TN professional occupations include, but are not limited to Engineer, Accountant, Architect, Computer Systems Analyst, Geologist, Geophysicist, Graphic Designer, Management Consultant, Scientific Technician, Engineering Technicians, and many occupations in the medical and allied health field.

  • H-3 Visa: For foreign nationals coming to the U.S. to engage in a course of training.

  • E-3 Visa: For Australian citizens who will be employed in a specialty occupation in the U.S. (similar requirements to the H-1B visa).

Watch our immigration videos for additional information on these visas and to learn more about the eligibility requirements. As always, if you have questions about the H-1B visa cap or any of these work visa options, please contact our office.

New Immigration Policy to Deny Cases Without Issuing RFE or NOID

U.S. Citizenship and Immigration Services (USCIS) has released a new policy that gives immigration adjudicators discretion to deny any and all visa applications or petitions without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) in cases where initial evidence is missing or does not establish eligibility. This new guidance, which becomes effective September 11, 2018, replaces a prior policy which instructed adjudicators to request additional evidence in a case, unless there was no possible way that additional evidence could fix a deficiency in the case.

The intent of this guidance is to provide immigration officers with more discretion to deny a visa application without requesting further information first. This policy has even greater implications in light of USCIS’ other recent announcement instructing officers to initiate removal (deportation) proceedings if, upon denial of an application or petition an individual is unlawfully present in the United States. 

As USCIS continues to shift away from a focus on immigration benefits to a focus on immigration enforcement and stricter standards for approval of visa petitions, employers and foreign nationals should consider the following strategies to avoid consequences imposed by these new rules:

  • Take all precautions to ensure visa petitions and applications are filed with the requisite documentation and evidence. This includes overdocumenting how the employer and employee meet all of the visa eligibility requirements.
  • Applications to extend nonimmigrant visa status (including H-1B, L-1, O-1, and others) should be filed as early as possible (up to 6 months before expiration) to avoid any lapses in nonimmigrant status.
  • Employer’s should continue to extend the nonimmigrant status of their foreign national employees until their applications for lawful permanent residence are approved, in order to avoid situations where the employee is in unlawful presence and could be deported.
  • Employer’s should consider utilizing USCIS’s “premium processing” program when filing “change of employer” visa petitions to quickly obtain work authorization for a candidate and not have a candidate risk changing employers without an approval.

These new USCIS policies reinforce the importance of ensuring all visa petitions and applications include the required evidence to show the applicant meets the visa eligibility requirements. The chances of having a family or employment-based visa petition or application denied are significantly reduced when working with qualified immigration counsel to prepare a comprehensive application.

For more information or advice on how to navigate these or any other immigration policy changes, please don’t hesitate to contact me.

Visa Extensions Will Face Higher Scrutiny

U.S. Citizenship and Immigration Services (USCIS) has annouced updated policy guidance, which now instructs immigration officers to apply the same level of scrutiny to both initial visa petitions and visa extension petitions in certain nonimmigrant categories, including the H-1B visa.  This new policy rescinds the current practice which instructs officers to give “deference” to the findings of a prior approved visa petition when adjudicating petition extensions (i.e. visa renewals), as long as the key elements were unchanged and there was no evidence of a material error or fraud related to the prior determination.

This new policy will impact all employers who are seeking to file an extension of a nonimmigrant visa for any of their international employees.  In particular, those individuals who may currently be on an H-1B, L-1A, L-1B, O-1, E-3, or other nonimmigrant visa will likely face increased scrutiny in the adjudication of their petition to extend/renew their visa.  Based on this new USCIS guidance, employers should prepare to demonstrate and document each and every eligibility criteria for a particular visa, as if they are filing a new petition.  This new policy, along with the recent announcement requiring in-person interviews for individuals seeking employment-based green cards, may also continue to lead to delays in visa processing.

This change, once again, appears to fall in line with President Trump’s “extreme vetting” immigration plans.  Nevertheless, it should always be the practice of a qualified immigration attorney to file all visa petitions (including visa extensions) as a standalone petition, evidencing how the Beneficiary and Petitioner meet the eligibility criteria for the visa.  Even more so now that USCIS may use this policy to essentially re-adjudicate the initial visa petition when adjudicating visa extension petitions.  Employers and applicants should therefore work closely with counsel to provide substantial documentation of compliance with the current terms of employment (i.e. worksite information, salary, job duties, etc.), along with evidence of maintenance of immigration status and the job that will be performed during the requested visa extension time period.   Our office will continue to monitor the rollout of this new policy. For questions or help in preparing your visa extension petition, please contact us.

Alternative Work Visas to the H-1B

Just as it has done the past four consecutive years, U.S. Citizenship & Immigration Services (USCIS) has announced that it has received enough H-1B petitions to fulfill its annual H-1B quota and will no longer accept new cap-subject H-1B petitions until April 1, 2018.  This is to say, in the first week of April 2017, USCIS received in excess of both 65,000 general H-1B cap petitions for individuals with at least a Bachelor's degree and in excess of 20,000 U.S. Master's degree H-1B petitions.

USCIS will therefore conduct a computer-generated random lottery of those H-1B petitions received between April 1 - April 7, 2017 to determine which petitions will be selected for processing.  If selected and approved in this lottery beneficiaries may begin working in H-1B status for their employers starting October 1, 2017.  Petitions not selected in the lottery will be returned to employers along with the filing fees.

USCIS, however, will continue to accept H-1B petitions year-round from employers who are exempt from the H-1B cap, as well as petitions to extend H-1B status or change employers for those individuals currently in H-1B status.

Alternative visa options are available, though, for those employers and employees who fail to receive an H-1B visa.  The following visas are available throughout the year, without numerical caps, for qualifying foreign nationals:

  • TN Visa:  For Canadian and Mexican citizens employed in certain professional categories seeking to engage in U.S. employment
  • L-1 Visa:  For intracompany transferees who have worked for a foreign entity for one year and seeking to transfer to a U.S. subsidiary, affiliate, parent, or branch office in the U.S. in a managerial, executive, or specialized knowledge capacity
  • E-1/E-2 Visa:  For international investors or traders from certain treaty countries looking to engage in substantial trade between the U.S. and their foreign country or to develop and direct the operations of an enterprise in which the foreign national has invested
  • O-1 Visa:  For foreign nationals of extraordinary ability who have achieved national and international recognition for extraordinary achievements in their field of endeavor
  • H-3 Visa:  For foreign nationals coming to the U.S. to engage in a course of training
  • E-3 Visa:  For Australian citizens who will be employed in a specialty occupation in the U.S.

If you have questions about the H-1B visa cap or any of these work visa options, please contact our office.

New Rules For Employment-based Immigrant & Nonimmigrant Visa Programs

The Department of Homeland Security (DHS) has published new regulations to provide greater flexibility for high-skilled foreign workers who have an approved employment-based immigrant visa petition, while they wait for a green card.  The intent of these new rules will better enable U.S. employers to sponsor and retain high-skilled foreign workers, increase the ability of such workers to seek promotions, accept lateral positions, change employers, or pursue other employment options.  

The highlights of this rule change, include:

  • Retention of Approved Immigration Visa (I-140) Petitions:  Immigrant petitions submitted by U.S. employers to request permanent employment on behalf of a foreign national (Form I-140) may no longer be automatically revoked based on a request by the employer to withdraw the petition.  Additionally, the immigrant petition will not be revoked if the the request to withdraw is based on the termination of the employer’s business 180 days after either the I-140’s approval or the filing of an I-485 application for adjustment of status.  While the I-140 would remain valid, the foreign national would need a new job offer or new petition in order to apply for a green card.
  • Nonimmigrant Visa Grace Periods:  A one-time grace period of up to 60 days whenever employment ends, will allow for greater job portability for nonimmigrant workers (especially H-1B, E-1, E-2, E-3, L-1, O-1 and TN visa holders).  During the grace period the nonimmigrant worker may apply for an extension of stay or change of status.  While the nonimmigrant will not be authorized for employment during the grace period, it will provide flexibility to allow for new employment in case of sudden termination.
  • Employment Authorization in Compelling Circumstances:  In compelling circumstances, DHS will allow certain individuals with an approved I-140 petition, who are unable to obtain an immigrant visa because of numerical limits, to apply for a one-year employment authorization document (EAD).  This new rule would only apply to individuals in E-3, H-1B, H-1B1, L-1 or O-1 status.  DHS has identified “compelling circumstances” as serious illness or disabilities, employer retaliation, other substantial harm to the applicant, or significant disruption to the employer.
  • Employment Authorization Document Processing:  Certain individuals may be granted automatic EAD extensions for up to 180 days, so long as they timely renew their EAD and it is based on the same employment authorization category as the existing EAD.  The extension is available only to certain foreign nationals, including adjustment of status applicants and individuals filing for renewal of Optional Practical Training (OPT) based on a degree in a Science, Technology, Engineering, or Math (STEM) field. This provision does not apply to H-4, L-2, or E nonimmigrant spouses seeking an EAD renewal.

The new regulation will become effective January 17, 2017, three days before Donald Trump takes office.  These regulations should remain in place, unless Congress acts to cancel them.  Please contact our office for further questions or clarification.

The International Artist & Musician Immigration FAQ

With the start of SXSW only weeks away, international artists and musicians are making final preparations for their journey to Austin, Texas.  But while many foreign performers see SXSW as their opportunity to break into the U.S. market, there are a number of logistical factors (most importantly having the right visa), which can literally end a U.S. tour before it even happens.

As a result of recent global security clampdowns, it has become significantly harder, complicated and frustrating for foreign artists and bands to perform and work in the U.S.  Simply put, there are no shortcuts, no easy answers, and no tricks.  Regardless of whether a performing artist will be paid or not, all artists seeking to enter the U.S. to perform must obtain a work visa.

To help guide international entertainers, artists, musicians, actors/actresses, and athletes about the work permits and visa processes needed to enter the U.S., I've put together the following FAQ.  Please feel free to contact me if you have any questions, and I look forward to hopefully seeing you at SXSW. 

____________________________________________________________________________

What kind of visas do international entertainers, artists, musicians, actors/actresses, athletes need to obtain to enter the U.S.?

The most common visas for international artists to perform/work in the U.S. are the O and P visas.  (The O visa is also available for talented workers in other fields like science, education, business, athletics, and even fashion models).  O visas are for individuals and require an artist to have achieved a certain level of recognition, specifically that they are prominent and have achieved a degree of skill that is significantly above average.  P visas are for performing groups that have achieved international recognition, groups that are performing as part of a cultural exchange program, or groups that will be performing or teaching a culturally unique art form.

How does an artist obtain an O or P visa?

First, a U.S. petitioner must file an O or P visa petition with U.S. Citizenship and Immigration Services (USCIS) on behalf of the artist, which must then be approved USCIS.  If the petition is approved, the artist or group will be required to attend an interview at a U.S. consulate abroad and apply for the O or P visa.  If the O or P visa is issued, once the artist/group enters the U.S., each individual will need to present the visa to a Customs and Border Patrol officer for inspection before being admitted into the U.S.

Who can be a U.S. petitioner?

The petitioner for the O or P visa petition can be any U.S. citizen, U.S. employer/organization, U.S. agent, or a foreign employer through a U.S. agent (for example, a record label, booking agent/manager, etc.).

What evidence does the artist need to provide to obtain the visa?

Depending on the artist/group, and whether they are seeking an O or P visa, in addition to completing USCIS forms, the artist/group will need to provide documentation that they have performed at prestigious events, received significant awards, garnered critical acclaim, released successful recordings, or received the praise of experts.  This means providing documentation like copies of newspaper articles and reviews, lists of awards, liner notes from albums, and letters from experts familiar with the artist/group.  Additionally, each petition must include a “consultation letter” from an appropriate performing arts union stating whether or not it agrees that the artist or group meets the requirements. 

What about visas for artist managers and/or technical personnel?

Artists entering on O and P visas may bring support staff (managers, artistic directors, sound/lighting technicians, makeup, etc.) with them to the U.S., so long as these support staff provide a function integral to the performance of the O/P visa holder.  Each support personnel must submit a separate visa petition.

How long can the artist stay?

The period of stay granted for an O or P visa is for whatever time is required to complete the event.  O visa holders can be granted a period of stay up to 3 years and P visa holders can be granted a period of stay not to exceed 1 year.  The event may be a single performance or a multi-date tour/season of performances.

What will it cost and how long will it take?

The USCIS filing fee for an O or P visa is $325.  USCIS takes approximately 60 days to adjudicate the petition from the time they receive it.  However, USCIS provides “premium processing” of O or P petitions within 15 days, if you pay an additional $1,225.  Taking into account processing times at foreign consulates, the entire process can take about 3 months, so make sure to file your petition as early as possible.

Can family come?

Yes.  The spouse and unmarried children under age 21 of an O or P beneficiary can apply for a visa to join the beneficiary.

 

This brief FAQ only covers the general questions concerning the O and P visas.  For more information, please contact us.

The International Entertainers FAQ

It’s not easy for international entertainers, artists, musicians, actors/actresses, or athletes to secure visas to perform and work in the United States…there are no shortcuts, no easy answers, and no tricks.  Regardless of whether a performing artist will be paid or not, all artists seeking to enter the U.S. to perform must obtain a work visa.

What kind of visas do international entertainers, artists, musicians, actors/actresses, athletes need to obtain to enter the U.S.?

The most common visas for international artists to perform/work in the U.S. are the O and P visas.  (The O visa is also available for talented workers in other fields like science, education, business, athletics, and even fashion models).  O visas are for individuals and require an artist to have achieved a certain level of recognition, specifically that they are prominent and have achieved a degree of skill that is significantly above average.  P visas are for performing groups that have achieved international recognition, groups that are performing as part of a cultural exchange program, or groups that will be performing or teaching a culturally unique art form.

How does an artist obtain an O or P visa?

First, a U.S. petitioner must file an O or P visa petition with U.S. Citizenship and Immigration Services (USCIS) on behalf of the artist, which must then be approved USCIS.  If the petition is approved, the artist or group will be required to attend an interview at a U.S. consulate abroad and apply for the O or P visa.  If the O or P visa is issued, once the artist/group enters the U.S., each individual will need to present the visa to a Customs and Border Patrol officer for inspection before being admitted into the U.S.

Who can be a U.S. petitioner?

The petitioner for the O or P visa petition can be any U.S. citizen, U.S. employer/organization, U.S. agent, or a foreign employer through a U.S. agent (for example, a record label, booking agent/manager, etc.).

What evidence does the artist need to provide to obtain the visa?

Depending on the artist/group, and whether they are seeking an O or P visa, in addition to completing USCIS forms, the artist/group will need to provide documentation that they have performed at prestigious events, received significant awards, garnered critical acclaim, released successful recordings, or received the praise of experts.  This means providing documentation like copies of newspaper articles and reviews, lists of awards, liner notes from albums, and letters from experts familiar with the artist/group.  Additionally, each petition must include a “consultation letter” from an appropriate performing arts union stating whether or not it agrees that the artist or group meets the requirements. 

What about visas for artist managers and/or technical personnel?

Artists entering on O and P visas may bring support staff (managers, artistic directors, sound/lighting technicians, makeup, etc.) with them to the U.S., so long as these support staff provide a function integral to the performance of the O/P visa holder.  Each support personnel must submit a separate visa petition.

How long can the artist stay?

The period of stay granted for an O or P visa is for whatever time is required to complete the event.  O visa holders can be granted a period of stay up to 3 years and P visa holders can be granted a period of stay not to exceed 1 year.  The event may be a single performance or a multi-date tour/season of performances.  

What will it cost and how long will it take?

The USCIS filing fee for an O or P visa is $325.  USCIS takes approximately 60 days to adjudicate the petition from the time they receive it.  However, USCIS provides “premium processing” of O or P petitions within 15 days, if you pay an additional $1,225.  Taking into account processing times at foreign consulates, the entire process can take about 3-4 months, so make sure to file your petition as early as possible.

Can family come?

Yes.  The spouse and unmarried children under age 21 of an O or P beneficiary can apply for a visa to join the beneficiary.

 

This brief FAQ only covers the general questions concerning the O and P visas.  Please note that this visa process is highly nuanced and filled with intricacies and it is therefore very important to contact an Attorney with assistance in filing your petition.  Failure to file your O or P visa petition correctly can result in denials and cancelled performances.  Please feel free to contact our office with any questions regarding visas for international entertainers, artists, musicians, actors/actresses, or athletes.