Important Reminders

*ALWAYS retrieve your most recent I-94 after international travel. This WILL affect your allowed stay in the United States: https://i94.cbp.dhs.gov/I94/#/home#section

It is important to always check your most recent I-94 as the validity dates determines how long you are allowed to remain in the United States. The most recent I-94 always controls and supersedes any previous approvals.

*Spouses/Dependents DO NOT receive automatic status or extensions. If you have a spouse/dependent, they need to file their own applications.

*If your address changes, please update your address with USCIS (AR-11) https://egov.uscis.gov/coa/displayCOAForm.do

*NEVER assume something has been filed unless you have an official receipt notice from USCIS.

*Please DO NOT make international travel plans without consulting with your attorney, this includes Canada and Mexico.

Executive Order

The Executive Order was just signed – Here’s what we know NOW.

 The order suspends the issuance of immigrant visas for 60 days effective at 11:59 p.m. eastern daylight time on April 23, 2020 ONLY for those immigrant applicants who:

(i)    are outside the United States;

(ii)   do not have an immigrant visa that is valid on April 23, 2020; and

(iii)  do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on April 23, 2020 or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

 This means I-485 adjustment of status applicants in the U.S. are NOT affected by the suspension.  These applications will continue to process as usual.

Importantly, the temporary ban DOES NOT apply to the following persons who are :

  • any lawful permanent resident (green card holder)of the United States;
  • anyone seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees;  and any spouse and unmarried children under 21 years old of any such alien who are accompanying or following to join the alien;
  • anyone applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program;
  • any immigrant visa applicant who is the spouse of a United States citizen;
  • any applicant who is under 21 years old and is the child of a United States citizen, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;
  • any applicant whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee;
  • any member of the United States Armed Forces and any spouse and children of a member of the United States Armed Forces;
  • anyone seeking to enter the United States pursuant to a Special Immigrant Visa in the SI or SQ classification, subject to such conditions as the Secretary of State may impose, and any spouse and children of any such individual; or
  • anyone whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

In sum, this suspension does not include green card applicants who are applying for adjustment of status and does not include many other green card applicants who is apply for an immigrant visas at the U.S. embassy. It does not affect the processing of any qualifying petitions such as I-140 or I-130 petitions.   Unless they fall in one of the special exceptions, the 60 day suspension does apply to the following applicants for immigrant visas at the U.S. embassy:

  • Spouses and children of permanent residents
  • Parents, children over age 21, and siblings of permanent resident
  • EB-1, EB-2, EB-3, EB-4 employment based applicants

Visit http://badmuslaw.com/ for more information on our services.

Current Situation

  • Routine visa services at all U.S. embassies and consular posts around the world have been suspended as of March 20, 2020. U.S. embassies and consulates continue to provide urgent and emergency visa services as resources allow. The Department of State (DOS) intends to continue to process visa applications for farm workers and medical professionals assisting with COVID-19.
  • U.S. Citizenship and Immigration Services (USCIS) has temporarily suspended in-person services through at least May 3, 2020, including in-person interviews and biometrics processing. USCIS staff will continue to perform duties that do not involve contact with the public and will provide emergency services for limited in-person situations.
  • The U.S. borders with Canada and Mexico are closed for non-essential travel until at least May 20, 2020.
  • With some exceptions, the entry of individuals who were present in China, Iran, the Schengen Area, the U.K., and Ireland, during the 14-day period before their attempted entry into the United States has also been suspended.
  • Despite these limitations, USCIS continues to accept and process applications and petitions, including applications requesting an extension or change of status.

Visit http://badmuslaw.com/ for more information on our services.

USCIS Formally Announces Implementation of Electronic H-1B Registration Process and the Registration Timeframe | USCIS

On Jan. 9, 2020, U.S. Citizenship and Immigration Services published a Federal Register notice formally announcing the implementation of the H-1B registration process for fiscal year 2021 H‑1B cap-s

Source: USCIS Formally Announces Implementation of Electronic H-1B Registration Process and the Registration Timeframe | USCIS

USCIS Announces Implementation of H-1B Electronic Registration Process for Fiscal Year 2021 Cap Season | USCIS

USCIS Announces Implementation of H-1B Electronic Registration Process for Fiscal Year 2021 Cap Season

Release Date: Dec. 6, 2019

WASHINGTON—U.S. Citizenship and Immigration Services today announced that it has completed a successful pilot testing phase and is implementing the registration process in the next H-1B lottery. Employers seeking to file H-1B cap-subject petitions for the fiscal year 2021 cap, including those eligible for the advanced degree exemption, must first electronically register and pay the associated $10 H-1B registration fee.

The electronic registration process will dramatically streamline processing by reducing paperwork and data exchange, and will provide an overall cost savings to petitioning employers.

Under this new process, employers seeking H-1B workers subject to the cap, or their authorized representatives, will complete a registration process that requires only basic information about their company and each requested worker. USCIS will open an initial registration period from March 1 through March 20, 2020. The H-1B random selection process, if needed, will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.

Historically, employers filed their full, and often voluminous, H-1B cap-subject petitions with USCIS, after which USCIS would select eligible petitions through a random selection process. This process resulted in unnecessary paperwork and incurred mailing costs for both petitioners and the agency.

“By streamlining the H-1B cap selection process with a new electronic registration system, USCIS is creating cost savings and efficiencies for petitioners and the agency, as only those selected will now be required to submit a full petition,” said USCIS Deputy Director Mark Koumans. “The agency completed a successful pilot testing phase, which included sessions with industry representatives, and implementation of the registration system will further the goal of modernizing USCIS from a paper-based to an online-filing agency.”

USCIS will post step-by-step instructions informing registrants how to complete the registration process on its website along with key dates and timelines as the initial registration period nears. USCIS will also conduct public engagements and other outreach activities to ensure registrants and interested parties are familiar with the new registration system. The agency may determine it is necessary to continue accepting registrations, or open an additional registration period, if it does not receive enough registrations and subsequent petitions projected to reach the numerical allocations.

DHS formally created the H-1B registration requirement in the final rule, Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens (PDF), published on Jan. 31, and effective on April 1, 2019. DHS intends to publish a notice in the Federal Register in the coming weeks to formally announce implementation of the H-1B registration system and provide additional details on the process.

On Nov. 8, 2019, DHS published a final rule establishing a $10 H-1B registration fee. The registration fee final rule is effective on Dec. 9, 2019, and will apply to registrations submitted during the initial and future registration periods.

For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter (@uscis), Instagram (/uscis), YouTube (/uscis), Facebook (/uscis), and LinkedIn (/uscis).

O1 Visa

I’ve been working on several O1 visas recently and I think one of the hardest aspects has been to convey reasonable expectations to clients.

The O1 visa is for those with extraordinary ability in their field. The petition is similar to an H1B visa in the sense that it must have a sponsoring employer. Unlike the H1B, the O1 does not require having a specialty occupation, it is not subject to a cap, and can be renewed indefinitely. There are several requirements but I would say that evidence of meeting them is subjective for the most part. 

Over the years, I’ve learned that immigration officers can agree and disagree with the evidence in unforeseen ways. I’ve had cases that I would consider very strong that are issued requests for evidence (a request for evidence is issued by the immigration officers when they want to see additional evidence before approving a case), whereas other cases are approved right away. I suppose it could be seen as quality over quantity, but overall I think it simply depends on which officer reviews that specific case.

Maybe it’s an erroneous perception, but it seems that there is almost an expectation from clients that these cases will be approved. While I do pride myself in my work, I do believe there should be a healthy expectation of success. The O1 visa is not just a work visa where you are meant to meet certain objective criteria (even though I could get into how that is changing) ; it is reserved for those at the top of their field and being at the top is not always easily proven (unless you have won a  Nobel prize or the like). Our services are engaged in order to prepare and present the best case possible from our end. Immigration officers’ perception of what the evidence may or may not prove is not always foreseeable. 

My goal has and always will be to assist in securing approvals. Plain and simple. But, everything with immigration is essentially a gamble; sometimes you win and sometimes you need to play again.

Obtaining a “Greencard” through Employment

Please note that the given processing times are subject to change at any time.

Legal Permanent Resident status through the labor certification process requires three steps:

  1. PERM
    1. The employee cannot be involved in this process. This is employer intensive. The overall preparation takes about six months. A prevailing wage request must be submitted to the Department of Labor and they take about 4 months to issue a determination.
    2. After the PERM is filed with the Department of Labor, the DOL takes about 4 to 6 months to certify the application. There is always the possibility of an audit, in which case, that will prolong the process for at least one more month.
  2. I-140 – After the PERM is certified, the employer files the I-140 petition. This takes about 7 months to process, but the employer can decide to premium process the petition for an additional fee. Premium processing guarantees a 15 day turnaround, however, a request for additional evidence may be issued, in which case, Immigration (USCIS) has 15 additional days to issue a decision after a response has been submitted.
  3. I-485 – after the I-140 is approved, the employee can file the I-485, I-131, and I-765 applications:
    1. I-485 is the actual “greencard” application –takes between 10 to 24 months to process after filing
    2. I-131 advance parole (travel permit) – takes about 3 to 5 months to process after filing
    3. I-765 employment authorization document (EAD) – takes about 3 to 5 months to process after filing

Some employees are allowed to file the I-140 and the I-485 together. This depends on whether the visa bulletin indicates that your specific priority date is eligible to file. The visa bulletin is updated every month. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html

USCIS Announces FY 2020 H-1B Cap Season Start, Updates, and Changes | USCIS

Premium Processing for FY 2020 Cap-Subject Petitions

Premium processing will be offered in a two-phased approach during the FY 2020 cap season so USCIS can best manage the premium processing requests without fully suspending it as in previous years. The first phase will include FY 2020 cap-subject H-1B petitions requesting a change of status and the second phase will include all other FY 2020 cap-subject petitions.

Starting April 1, FY 2020 cap-subject H-1B petitioners requesting a change of status on their Form I-129, Petition for a Nonimmigrant Worker, may request premium processing by concurrently filing Form I-907, Request for Premium Processing Service. However, to prioritize data entry for cap-subject H-1B petitions, USCIS will not begin premium processing for these petitions immediately. USCIS will begin premium processing for these petitions no later than May 20, 2019, and will notify the public before premium processing begins for these petitions. If a petitioner does not file Form I-907 concurrently with an FY 2020 H-1B cap-subject petition requesting a change of status, the petitioner must wait until premium processing begins to submit Form I-907. Until premium processing begins for these petitions, USCIS will reject any Form I-907 that is not filed concurrently with a cap-subject Form I-129. Petitioners must appropriately select response “b” for Item 4 in Part 2 of Form I-129 to be eligible to concurrently file Form I-907.

Premium processing for all other FY 2020 cap-subject H-1B petitions will not begin until at least June 2019. Cap-subject petitioners not requesting a change of status may not submit their premium processing request concurrently with their H-1B petition. These petitioners will be eligible to upgrade to premium processing by filing Form I-907 once premium processing begins for this group. USCIS will notify the public with a confirmed date for premium processing for cap-subject petitioners not requesting a change of status.

At this time, premium processing for H-1B petitions that are exempt from the cap, such as extension of stay requests, remains available.

Source: USCIS Announces FY 2020 H-1B Cap Season Start, Updates, and Changes | USCIS