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.

Registration Information for Diversity Green Card Lottery

The annual Diversity Immigrant Visa Lottery, which makes available 50,000 permanent resident visas ("green cards") to natives of countries deemed to have low rates of immigration to the U.S., is now open for online registration until November 6, 2018.  The Diversity Lottery is FREE and applications must be filed online through the official Department of State Diversity Lottery website.  Please visit the State Department Diversity Immigrant visa information site for eligibility information and to apply.  

Only applicants from certain eligible countries can apply in the Diversity Lottery, and must meet certain educational or work requirements (i.e. having a high school education or having worked in 2 of the last 5 years in a qualifying occupation).  

Lottery winners will be selected at random next year and can check whether they have been selected starting May 1, 2019.

H-1B Visa Cap Met. What 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 2018.  Specifically, USCIS received 190,098 H-1B cap cases (a 4% drop 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, 2018. 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 2018, 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.

Guidance for Trump's New Travel Ban

President Trump has rolled out a new travel ban, after the previous 90-day travel ban expired yesterday.  This new policy continues the existing travel restrictions to the U.S. for most citizens of Iran, Libya, Somalia, Syria and Yemen, and now adds the countries of Chad, North Korea and Venezuela.  The new restrictions range from full travel bans on nationals from countries like Syria, Chad, and North Korea to more targeted restrictions for Venezuela, Iran, Libya, and Yemen.  For example, the suspension of nonimmigrant visas to citizens for Venezuela, applies only to senior government officials and their immediate families.  Iranian nationals will only be allowed to enter the U.S. using valid student and exchange visitor visas, but such visitors will have to undergo "enhanced screening and vetting requirements."

These news restrictions, which will take effect on October 18, 2017 and will be in place for an indefinite period of time.  The order does not apply to lawful permanent residents, existing visa-holders, or foreign nationals currently within the United States.  The Department of Homeland Security may also grant waivers on a case-by-case basis for students and workers with significant U.S. ties who happened to be outside the country when the order was enacted, among others.

Once again, as a result of these actions, many in the immigrant community are confused and scared – I understand!  Despite all that you read or hear in the news or from your friends and family, this is not a time to panic or to make hasty decisions.  It is a time for calm, rational thinking and for informed, conservative and proactive planning.  In that regard, I suggest the following:

  1. If you are a citizen of one of the countries listed in this new travel ban, do not travel out of the U.S.  The Executive Order does not apply to you if you merely visited one of these countries.
  2. If you have a non-immigrant visa and you plan to travel out of the U.S. please consult with an Immigration Attorney first.  In this climate of enhanced enforcement it is prudent to be able to document your status as much as possible in the event you are subject to additional scrutiny by an overly aggressive immigration officer upon your return.
  3. Consideration should be given to accelerating any immigration planning (i.e. extensions of status, green card processing, etc.) in order to take advantage of the existing laws and regulations. It is possible that these policies may continue to become more restrictive.

As evidenced by the prior travel bans, the current administration is intent on restricting travel to the U.S..  Once again, I sympathize with the fear and uncertainty many may be feeling right now - I come from a family of immigrants.  It pains me that the country whose doors gave my family refuge in their time of need is now trying to close those same doors to others.  I believe that these times too shall pass and that better times lie ahead.  Until then I will do everything I can to ease your fears and help you through this difficult period.

Please sign up for updates on the current situation and I will provide you with developments as they take place.  In the interim, please feel free to call me any time to discuss any of your concerns.

The End of the International Entrepreneur Rule

The Trump administration announced this week their intent to delay and ultimately rescind the International Entrepreneur Rule.  The rule, which was created by President Obama’s administration and which was set to go in to effect on July 17, 2017, would have allowed certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) in order to start or grow their businesses in the U.S..  Applicants would have to show they met minimum requirements for capital investments and demonstrate that their startup would have been of benefit to the public via job creation in the U.S.

While the current administration is delaying the effective date of the International Entrepreneur Rule until March 14, 2018 and taking public comment on the rule, their intention is to rescind the rule.

For questions about this policy change, please feel free to contact us.  Foreign entrepreneurs and startups seeking alternative immigration options to the U.S. should read our article on entrepreneur visa options.  

Supreme Court Allows Partial Travel Ban

The U.S. Supreme Court has ruled to partially unblock President Trump’s executive order temporarily banning travel to the U.S. from the following predominantly muslim countries: Iran, Syria, Libya, Somalia, Sudan and Yemen.  The ruling will keep in place part of the lower court injunction, but will reinstate a travel ban for foreign nationals “who lack any bona fide relationship” with any person or entity in the United States. 

The practical upshot of this is that foreign nationals of these 6 countries should expect that the travel ban will now be enforced against them, thereby barring their travel to the U.S. for a period of 90 days, unless they are able to demonstrate a relationship with a person (e.g., a family member) or an entity (e.g., school, employer, host organization) in the U.S.  In other words, the travel ban may not be enforced against individuals from these 6 countries so long as the individual can prove they have a family relationship with someone in the U.S. or a relationship with a U.S. entity, (i.e. attendance at a U.S. university or employment with a U.S. employer).  While other relationships may also qualify, none were specifically mentioned in the decision.

Foreign nationals traveling to the U.S. from Iran, Syria, Libya, Somalia, Sudan and Yemen should now plan to travel with evidence of their family relationships in the U.S. (i.e. affidavits, birth certificates, marriage certificates), or evidence of their enrollment in a U.S. school (i.e. student visa, Form I-20), or employment (work visa, visa petition approval notices, pay stubs, letters verifying employment).  Additionally, travelers from these countries should be prepared to answer questions about their U.S. family members or employment.

The Supreme Court will hear arguments on the merits of the executive order in October 2017.  In the meantime, if you have any questions on how this ruling may impact you or your employees, please feel free to contact us.

Department of State’s Plans for “Extreme Vetting”

The U.S. State Department has announced new visa vetting procedures it plans to put into effect on May 18th, as part of President Trump’s “extreme vetting” visa policies.  Applicants subject to the vetting provisions would be required to provide the following information:

  • Travel history during the last 15 years, including source of funding for travel
  • Address history during the last 15 years
  • Employment history during the last 15 years
  • All passport numbers and country of issuance held by the applicant
  • Names and dates of birth for all siblings
  • Name and dates of birth for all children
  • Names and dates of birth for all current and former spouses, or civil or domestic partners
  • Social media platforms and identifiers/handles used during the last 5 years
  • Phone numbers and email addresses used during the last 5 years

Furthermore, the State Department explained that individuals may be selected for additional screening based on “individual circumstances” that may “lead U.S. consular officers at posts around the world to conclude the applicant warrants enhanced screening that takes into account” information from the additional questions listed above.

These additional stricter screening requirements are likely to result in potential administrative processing delays for some applicants.  Additionally, these new directives will likely cause slowdowns in visa issuance and an increase in visa denials.

Increased Visa Scrutiny Announced

The U.S. Secretary of State has directed all U.S. consulates to take all possible steps to increase scrutiny of all visa applications and applicants themselves for security threats.  These diplomatic cables direct officers to ask more detailed questions about the background of all applicants and requires applicants whose nationality or background may raise security concerns to provide additional information, including: travel history over the last 15 years; names of siblings, children and former spouses not already recorded in the DS-160/260 or NIV/IVO case notes; addresses over the last 15 years; prior passport numbers; prior jobs and employers, including brief descriptions if applicable, for the last 15 years; any phone number the applicant has used in the last five years; email addresses and social media handles the applicants has used in the last five years.  The cables also will now limit consular officers to no more than 120 interviews per day, a change that will likely cause backlogs and processing delays.

These additional stricter screening requirements, along with the limits on interviews are likely to result in potential administrative processing delays for some applicants.  Additionally, these new directives will likely cause slowdowns in visa issuance and an increase in visa denials.

Court Temporarily Blocks Trump’s Revised Travel Ban

A federal judge in Hawaii issued a temporary restraining order the practical effect of which is to put a stop to those portions of the presidents revised executive order that are keeping affected individuals from predominantly muslim countries (Iran, Syria, Libya, Somalia, Sudan and Yemen) from entering the United States.  Based on that temporary restraining order, U.S. Customs & Border Patrol (CBP) posts around the world are being authorized to notify airlines to allow such affected individuals to board aircraft bound for the United States. 

The practical upshot of all this is that there may now be a short window of opportunity for any affected individuals to enter the U.S.  To the extent this short window of opportunity may benefit any of your friends or employees, I urge you to communicate this information to them as soon as possible.  

This is clearly a fluid situation and subject to change on very short notice.  I will continue to keep you apprised of any developments.

In the interim, please call me if you have any questions.  

Guidance for Trump’s Revised Travel Ban

President Trump signed an Executive Order today, which has replaced the January 27, 2017 travel ban for citizens of certain countries and limitations on refugees.  The revised Executive Order will take effect March 16, 2017 and will temporarily suspend visa issuance to nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days.  The Executive Order now also contains the following revisions:

  • All visas that are currently valid (even if from one of the 6 countries) will remain valid.
  • U.S. Lawful Permanent Residents (“Green Card” holders) are exempt from the order.
  • A foreign national’s nationality will be determined based on the passport they present while traveling, which means dual nationals from one of the six countries should be admitted if they can present a passport from a country not covered by the order.
  • Iraq nationals are removed from the list of countries subject to the temporary ban.
  • The U.S. Refugee Admissions Program will be suspended for 120 days.
  • The new Executive Order does not give priority to religious minorities and does not specifically target Syrian refugees.
  • The Department of Homeland Security may grant waivers on a case-by-case basis if the foreign national can prove his/her entry is in the national interest of the United States, does not pose a threat to national security and that denying entry would cause undue hardship.  If the waiver is approved for visa issuance, it would remain in effect for the validity of the visa. 

Once again, as a result of these actions, many in the immigrant community are confused and scared – I understand!  Despite all that you read or hear in the news or from your friends and family, this is not a time to panic or to make hasty decisions.  It is a time for calm, rational thinking and for informed, conservative and proactive planning.  In that regard, I suggest the following:

  1. If you are a citizen of one of the “six countries” listed on the Executive Order, do not travel out of the U.S.  The Executive Order does not apply to you if you merely visited one of the “six countries”.
  2. If you are a citizen of any other country which has a predominantly Muslim population, do not travel out of the U.S. without consulting with an Immigration Attorney first.
  3. If you have a non-immigrant visa (even if you are a citizen of a country which is not predominantly Muslim) and you plan to travel out of the U.S. please consult with an Immigration Attorney first.  In this climate of enhanced enforcement it is prudent to be able to document your status as much as possible in the event you are subject to additional scrutiny by an overly aggressive immigration officer upon your return.
  4. Consideration should be given to accelerating any immigration planning (eg; extensions of status, green card processing, etc.) in order to take advantage of the existing laws and regulations. It is possible that these may become more restrictive as the policies of the current administration continue to evolve.

It is my belief that more executive orders will be forthcoming - which are likely to add to the fear and uncertainty that many may be feeling.  I sympathize with what you may be feeling right now - I come from a family of immigrants.  It pains me that the country whose doors gave my family refuge in their time of need is now trying to close those same doors to others.  I believe that these times too shall pass and that better times lie ahead.  Until then I will do everything I can to ease your fears and help you through this difficult period.

Please sign up for updates on the current situation and I will provide you with developments as they take place.  In the interim, please feel free to call me any time to discuss any of your concerns.

Court Temporarily Blocks Trump’s Travel Ban, and Airlines Are Told to Allow Passengers

Late yesterday (Friday), a federal judge in Seattle issued a temporary restraining order the practical effect of which is to put a stop to those portions of the presidents executive order that are keeping affected individuals from predominantly muslim countries (Iran, Iraq, Syria, Libya, Somalia, Sudan and Yemen) from entering the United States.  Based on that temporary restraining order, earlier today (Saturday), the Port Director of U.S. Customs & Border Patrol (CBP) at JFK airport advised that all CBP posts around the world are being authorized to notify airlines to allow such affected individuals to board aircraft bound for the United States.  Late today (Saturday), the Department of Justice indicated that it intends to file an emergency stay of this order.  

The practical upshot of all this is that there may now be a short window of opportunity for any affected individuals to enter the U.S.  To the extent this short window of opportunity may benefit any of your friends or employees, I urge you to communicate this information to them as soon as possible.  

This is clearly a fluid situation and subject to change on very short notice.  I will continue to keep you apprised of any developments.

In the interim, please call me if you have any questions.  

Immigration Guidance for Trump's Executive Orders

Three Executive Orders were issued by President Trump last week – one related to the building of a wall along our border with Mexico, one related to enhanced immigration enforcement and one related to a travel ban for citizens of certain countries and limitations on refugees.  These actions have been drastic in terms of their impact as well as vague in terms of how they will be applied.  As a result of these actions, many in the immigrant community are confused and scared – I understand! 

I am writing this to help you navigate these turbulent waters.  Despite all that you read or hear in the news or from your friends and family, this is not a time to panic or to make hasty decisions.  It is a time for calm, rational thinking and for informed, conservative and proactive planning.  In that regard, I suggest the following:

  1. If you are a citizen of one of the “seven countries” listed on the Executive Order (Iran, Iraq, Syria, Libya, Somalia, Sudan and Yemen), do not travel out of the U.S.  The Executive Order does not apply to you if you merely visited one of the “seven countries”.
  2. If you are a citizen of any other country which has a predominantly Muslim population, do not travel out of the U.S. without consulting with an Immigration Attorney first.
  3. If you have a non-immigrant visa (even if you are a citizen of a country which is not predominantly Muslim) and you plan to travel out of the U.S. please consult with an Immigration Attorney first.  In this climate of enhanced enforcement it is prudent to be able to document your status as much as possible in the event you are subject to additional scrutiny by an overly aggressive immigration officer upon your return.
  4. Consideration should be given to accelerating any immigration planning (eg; extensions of status, green card processing, etc.) in order to take advantage of the existing laws and regulations. It is possible that these may become more restrictive as the policies of the current administration continue to evolve.

It is my belief that more executive orders will be forthcoming - which are likely to add to the fear and uncertainty that you may be feeling.  I sympathize with what you may be feeling right now - I come from a family of immigrants.  It pains me that the country whose doors gave my family refuge in their time of need is now trying to close those same doors to others.  I believe that these times too shall pass and that better times lie ahead.  Until then I will do everything I can to ease your fears and help you through this difficult period.

Please sign up for updates on the current situation and I will provide you with developments as they take place.  In the interim, please feel free to call me any time to discuss any of your concerns.

Changes to the Visa Waiver Program

Congress has passed new regulations that will change the Visa Waiver Program (VWP) for foreign travelers to the United States.  Under the new law, individuals who are nationals of or who have been present in Iran, Iraq, Sudan, or Syria at any time since March 1, 2011, will be required to obtain visas in order to travel to the U.S.  The Department of Homeland Security (DHS) and the Department of State (DOS) will also review VWP countries on an ongoing basis and may restrict other countries from participation in the VWP from time to time.

Under the current VWP, nationals from the 38 VWP countries may obtain an online Electronic System for Travel Authorization (ESTA) approval to visit the U.S. for up to 90 days without needing to obtain a visitor visa.  Beginning April 1, 2016 all VWP travelers will be required to have fraud-resistant electronic passports (e-passports) that contain biographic and biometric information.

Travelers using the VWP should expect additional screening measures in the Electronic System for Travel Authorization (ESTA) application and lengthier processing times.  Individuals who may no longer qualify for a visa waiver under this new law, should begin to initiate applications for B-1/B-2 visas.

Answers To Your Questions About DAPA & DACA

How and when do I apply for DACA or DAPA?

If you are newly eligible for DACA under the expanded criteria, USCIS will begin accepting applications on February 18, 2015.  If applying for deferred action as a parent (DAPA), USCIS expects to begin accepting applications by May 19, 2015.  Instructions for DAPA are still pending. Based on the evidence required for DACA applications, you will need documents that establish your identity, your relationship to a U.S. citizen or lawful permanent resident son or daughter, and your continuous residence in the U.S. since January 1, 2010. Also, all documents that are not in English need to be translated into English. 

Am I eligible for DAPA?  Will I be able to work?

To be eligible applicants will have to show they have been in the US since January 1, 2010;  they are a parent of a US citizen or lawful permanent resident born sometime before November 20, 2014; have no serious criminal history.  If approved the applicant may be able to apply for employment authorization by showing economic need. 

How long does DAPA last?

Three years, as with the new DACA application and renewal periods.

How has DACA eligibility been expanded?

Individuals who arrived in the U.S. before the age of 16, no matter their current age, are now eligible for DACA so long as they have been continuously residing in the U.S. since January 1, 2010. Prior to this announcement, applicants must have been under the age of 31 on June 15, 2012 and have been living in the U.S. continuously since June 15, 2007.

What about DACA recipients who already received a two-year renewal?

U. S. Citizenship and Immigration Services (USCIS) is currently considering ways to extend already issued two-year renewals and work authorizations to three years.  

After I apply, how long do I have to wait for a decision?

USCIS aims to complete all applications received by the end of 2015 before the end of 2016. USCIS will provide each applicant with a notification of receipt within 60 days of receiving the application. 

What will happen after 3 years?  Will the next President continue DACA and DAPA?

DACA and DAPA are both discretionary processes. A new president could continue or cancel either or both processes after 3 years. Only Congress can change the law. 

Can I apply for DACA or DAPA if I have been deported?

No.  DACA and DAPA only apply to qualified individuals present in the U.S.

Can I travel with DACA or DAPA?

It is expected that individuals granted DAPA may separately apply for a travel document (formally known as advance parole) under certain circumstances.  Please speak with a licensed attorney to evaluate your eligibility.

Will the state where I live give me an ID or drivers license because of DAPA?

Neither DACA nor DAPA require state authorities to issue state identification documents or driver's licenses. The decision whether or not to issue driver's licenses is made by each state individually, so check with your local department of motor vehicles to find out.

What if my case is denied or I fail to pass a background check?
Under USCIS's current policy, only cases involving criminal offenses, fraud, or a threat to national security or public safety will be referred to Immigration and Customs Enforcement (ICE) for deportation proceedings. Those who knowingly misrepresent or fail to disclose facts will not receive "favorable consideration." If you have ever been arrested or convicted of any crime, please consult with an attorney before you apply.  

Will the information I share in my request for consideration of deferred action be used for immigration enforcement purposes?
Unless USCIS determines that you meet the criteria for issuance of a Notice to Appear or a referral to ICE, the information you provide in a deferred action application will be protected from disclosure to ICE or Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings. However, the information may be shared with ICE, CBP, and other national security and law enforcement agencies for reasons other than removal proceedings, including: 

Where can I get additional information on DACA and DAPA?

The executive actions, including the enforcement priorities and DACA/DAPA memoranda are posted on the Department of Homeland Security's website at http://www.dhs.gov/immigration-action. The US Citizenship and Immigration Services also has comprehensive information about the deferred action processes on their website at http://www.uscis.gov/immigrationaction. Please remember, while President Obama announced the broad outlines of the immigration executive actions on November 20, 2014, neither the expanded DACA nor the DAPA processes are in place yet. Be careful not to get scammed.

New and Easier Process for US Citizens to Obtain Tourist Visa to India

India has eased rules and streamlined the visa process to allow tourists from the US (and 42 other countries) to obtain a tourist visa to India upon arrival.  To obtain this new electronic visa (valid for 30 days) applicants should file an online application at lease 4 days in advance of their travel date at the Indian government's Tourist Visa on Arrival website.  Applicants will need to upload a photo and the page of their U.S. passport with relevant details (name, date of birth, etc.), and pay $60 by debit or credit card plus handling fees.  Applicants will then receive an email authorizing travel in India.  Print a copy of this to take with you and present it with your passport when you arrive.  Your passport must be valid for at least six months.