01 Feb 2017

Effect of Executive Order on Pending Applications at USCIS

The Recently enacted Executive Order that bars entry into the US from Nationals of 7 predominantly Muslim countries has now been expanded to also negatively impact ALL pending applications before the US Citizenship and Immigration Services (USCIS)

Pursuant to an article published in the Intercept, Daniel M. Renaud, Associate Director of Field Operations for DHS’ office of Citizenship and Immigration Services has issued a directive ordering ALL adjudications for nationals from the 7 affected countries to be stopped! https://theintercept.com/2017/01/30/asylum-officials-and-state-department-in-turmoil-there-are-people-literally-crying-in-the-office-here/

“Effectively [sic] immediately and until additional guidance is received, you may not take final action on any petition or application where the applicant is a citizen or national of Syria, Iraq, Iran, Somalia, Yemen, Sudan, and Libya,” wrote Daniel M. Renaud, Associate Director of field operations for DHS’s office of U.S. Citizenship and Immigration Services. “Field offices may interview applicants for adjustment of status and other benefits according to current processing guidance and may process petitions and applications for individuals from these countries up to the point where a decision would be made.”

“At that point, cases shall be placed on hold until further notice and will be shelved with specific NFTS codes which will be provided through the Regional Offices,” Renaud went on to say. “Offices are not permitted [to] make any final decision on affected cases to include approval, denial, withdrawal, or revocation.”

We are reviewing available recourse for our clients impacted by this decision. For those with pending Naturalization (“Citizenship”) applications, the law allows for applicants to file a lawsuit against USCIS in Federal Court and ask the Federal Court to adjudicate the case where USCIS refuses to adjudicate once the case has been pending for more than 120 days.

It is also unclear whether this policy is being implemented uniformly across all USCIS offices across the United States. However, if you or someone you know is from one of the 7 countries directly affected by the Executive Order, it is in your best interest to speak with your attorney, or seek immediate legal counsel if you do not already have an attorney helping you.

We are following all movements related to Immigration very closely, and while these are very fast moving actions, we will do our best to update you as news becomes available to us. In the meantime, please do not hesitate to contact us at 206-623-3352 or visit us online at www.orbitlawpllc.com should you have any questions or concerns. We will try our utmost to help as best we can.

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28 Jan 2017

TRAVEL ADVISORY: Executive Order Applies to ALL Non-US Citizens!

President Trump on Friday, January 27, 2017 signed an Executive Order titled “Protection of the Nation From Foreign Terrorist Entry Into The United States”, the executive order would bar entry to “Aliens” from certain countries from entering the United States for a period of 90 days.

The countries, currently affected by the order are: Iran, Iraq, Syria, Sudan, Libya, Yemen and Somalia.

While previously thought to apply only to Individuals seeking admission i.e. Visitor Visa and largely admission as Refugees into the United States, Gillian Christensen, acting Department of Homeland Security Spokeswoman, confirmed in an email to reporters that the Executive Order also applies to ALL Non-US Citizens, including Lawful Permanent Residents who may have temporarily left the United States to visit family abroad, or for work!

As of this moment, there is NO set guidelines or policy regarding the right of individuals with valid visa to return to the US, this includes the category of individuals who may be in possession of a Student (F-1) Work (H-1, L-1, O-1, P-1, R-1 or any other category)

Our strong recommendation to persons who might be affected by the Executive Order is to refrain from traveling outside of the United States. Legal challenges to the order have been filed as of yesterday. These are fast moving developments and we will follow closely. We will provide updates as soon as further information becomes available.

Should you have any questions, please contact Kripa Upadhyay or Steve Tanijo or call us at 206-623-3352.

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20 Nov 2016

USCIS Publishes Final Rule Impacting Employment Based Immigrants & Non-Immigrant Workers

USCIS on November 18, 2016, published their final rule impacting various aspects of certain Non-Immigrant and Immigrant visa programs.

  1. Employment Work Authorization (EAD) for Employees with Approved I-140: While there was much hope for an expansion to the EAD rule to allow more foreign workers to be eligible for the EAD, the final rule is still very restrictive. The rule permits persons in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status to apply for an EAD, provided that they meet certain conditions:
    1. The applicant is the beneficiary of an approved employment-based (EB-1, EB-2, or EB‑3) immigrant visa petition,
    2. The applicant is unable to apply for adjustment of status or an immigrant visa stamp because her priority date is not current under the Visa Bulletin,
    3. The applicant shows “compelling” circumstances justifying the grant of an EAD.

    The “compelling” circumstances are described as including one or more of the following:

    1. serious illness or disability faced by the worker or dependents
    2. employer retaliation against the nonimmigrant worker
    3. other substantial harm to the applicant
    4. significant disruption to the employer

    For those that are able to meet this restrictive definition, they are eligible for an EAD valid for one year.

  2. H-1B Extensions Beyond the Sixth Year

    The regulation codifies USCIS’s longstanding policies on H-1B extensions beyond the sixth year, with some additional requirements.

    • Post-sixth year extensions will be available to foreign nationals who are not currently in H-1B status, as long as they previously held that status and remain eligible for an additional period of H-1B admission, consistent with current policy.
    • An H-1B nonimmigrant will become ineligible for a one-year post-sixth year extension, if he or she fails to apply for adjustment of status or an immigrant visa within one year of the date an immigrant visa becomes available to him or her.
    • A one-year post-sixth year H-1B extension will cease to be available if, at the time the extension is filed, the foreign national’s labor certification is no longer valid, his or her I-140 has been denied or revoked or an adjustment application or an immigrant visa has been approved or denied.
    • An H-1B whose approved I-140 petition was withdrawn 180 days or more after approval will remain eligible for a three-year extension unless the I-140 was withdrawn for fraud, material misrepresentation, material USCIS error, or revocation or invalidation of the underlying labor certification.
  3. Portability and Priority Date Retention for I-140 Beneficiaries: The new regulation eases the impact of I-140 petition revocations and codifies certain longstanding agency policies on I-140 job portability.

    A foreign national whose I-140 petition has been approved for 180 days or more will not have the petition automatically revoked if the employer goes out of business or withdraws the petition.  However, the foreign national will need a new job offer or a new I-140 petition to obtain employment-based permanent residence.

    An I-140 beneficiary whose petition is revoked will be able to use the priority date for a subsequent I-140 petition, unless the reason for revocation was fraud, material misrepresentation, invalidation or revocation of the underlying labor certification or material USCIS error.

    Consistent with current policy, the beneficiary  of a pending I-140 will be able to port to new employment after his or her adjustment of status application has been pending for 180 days or more, as long as the pending I-140 petition was approvable when filed and remained approvable for 180 days after the filing of the adjustment application.

  4. Grace Periods for Nonimmigrant Workers

    Amongst the hardest challenges that Non-immigrant workers have faced in the US is that until now, they have been left with no “grace period” to try to find alternate employment, or even to dispose of their personal belongings should they find themselves suddenly unemployed. The law has always had a strict policy of the Non-Immigrant being out of status as soon as his/her employment is terminated. This law changes that. Employees on E, H-1B, H-1B1, L-1, O-1 and TN nonimmigrants whose employment is terminated early will be accorded one grace period of up to 60 days during each validity period, to allow them to extend, change or otherwise maintain status or, in the H-1B context, to port to new employment. 

    Approved E, L-1 and TN nonimmigrants will receive a 10-day grace period before and after their validity period, as is currently available to H-1B nonimmigrants. They will be able to enter the United States 10 days before their start date to prepare for employment, and will have 10 days at the end of their period of stay to take action to extend, change or otherwise maintain status, or prepare for departure from the United States.

    Employment is not authorized during the grace periods, except for H-1B foreign nationals who are porting to new employment.

  5. Employment Authorization Documents:  Automatic Extensions and Application Processing

    The regulation offers an automatic 180-day work authorization extension to certain foreign nationals who timely file for EAD renewal, including adjustment applicants, applicants for extension of Temporary Protected Status, and certain applicants under the Violence Against Women Act. The automatic extension will not be available to H-4, L-2 or E nonimmigrant spouses seeking renewal of employment authorization.

    The new regulation eliminates a rule that required USCIS to process EAD applications within 90 days and grant interim work authorization to those with an EAD application pending for more than 90 days.  As a practical matter, the agency had ceased adhering to these rules in recent years. USCIS has indicated that, except when impracticable, it will accept renewal applications up to 180 days before EAD expiration to minimize the impact of extended EAD processing delays on a foreign national’s continued eligibility to work; previous policy prohibited renewal applications from being filed more than 120 days before EAD expiration.

    The Big Unknown: These policy changes, while welcome and much needed, are set to take effect on January 17, 2017 i.e. a few days before the new Administration takes office. Therefore; it is, as yet, unclear as to whether or not this final proposed rule will in fact be implemented, or whether it will be withdrawn. There is speculation that Senator Jeff Sessions is to be the incoming administration’s nominee to lead the Department of Justice, of which USCIS and the Immigration Courts are a part. Sen. Sessions has been a vociferous opponent of Immigration reform, and should he be confirmed as the Attorney General, it is likely that policy changes such as these will be impacted.

We will continue to follow up on these and post updates as and when we have them. As always, please contact us at 206-623-3352 should you have any questions or if we can help you in any way.

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26 Oct 2016

Temporary Protected Status (TPS) Extended for Nepal till June 2018

The United States Citizenship & Immigration Services (USCIS) announced yesterday that they would automatically extend TPS for Nepal through June 28, 2018

Re-Registering for TPS:

For those that already have TPS, you MUST re-apply between October 26, 2016 through December 27, 2016 to maintain status

If you are a TPS beneficiary under the Nepal designation and your EAD is based on your TPS status with an original expiration date of December 24, 2016, your EAD is covered by this automatic extension.

To prove that you are authorized to continue working legally, you may show the following documentation to your employer and government agencies:

  • Your TPS-related EAD with a December 24, 2016 expiration date; and
  • A copy of the Federal Register notice announcing the automatic extension.

Late Initial Filing for TPS
You can apply for TPS for the first time during an extension of your country’s TPS designation period. If you qualify to file your initial TPS application late, you must still independently meet all the TPS eligibility requirements listed in the Eligibility section for Nepal.

To qualify to file your initial TPS application late, you must meet at least one of the late initial filing conditions below:

  • During either the initial registration period of Nepal’s designation or during any subsequent initial registration period if Nepal was re-designated you met one of the following conditions, and you register while the condition still exists or within a 60-day period immediately following the expiration or termination of such condition
    • You were a non-immigrant, were granted voluntary departure status, or any relief from removal
    • You had an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal which was pending or subject to further review or appeal
    • You were a parolee or had a pending request for re-parole
    • You are a spouse of an individual who is currently eligible for TPS

OR

  • During either the initial registration period of  Nepal’s designation or during any subsequent initial registration period if Nepal was re-designated you were a child of an individual who is currently eligible for TPS. There is no time limitation on filing if you meet this condition. So if your parent is currently eligible for TPS and you were his or her child (unmarried and under 21 years old) at any time during a TPS initial registration period for Nepal, you may still be eligible for late initial filing even if you are now over 21 years old or married.  You may file during an extension of Nepal’s TPS designation time period.

Eligibility Criteria for Nepalese

In order to be eligible for TPS as a Nepali National, you MUST:

Continuous Physical Presence and Continuous Residence in the United States since June 24, 2015

You may NOT be eligible for TPS or to maintain your existing TPS if you:

  • Have been convicted of any felony or two or more misdemeanors committed in the United States;
  • Are found inadmissible as an immigrant under applicable grounds in INA section 212(a), including non-waivable criminal and security-related grounds;
  • Are subject to any of the mandatory bars to asylum. These include, but are not limited to, participating in the persecution of another individual or engaging in or inciting terrorist activity;
  • Fail to meet the continuous physical presence and continuous residence in the United States requirements;
  • Fail to meet initial or late initial TPS registration requirements; or
  • If granted TPS, you fail to re-register for TPS, as required, without good cause.

 

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19 Sep 2016

Permanent Residency Options For Multinational Executives And Managers (EB-1C)

The EB-1C Immigrant Visa belongs to the First Preference visa category. It is an excellent avenue for multinational companies to expand operations into the US as it allows senior level managers and executives, with direct company experience to enter the US and pursue permanent residence here.

Basic Eligibility: The basic requirements that must be met prior to pursuing this option are that the Individual must have been employed as either an executive or manager by a qualified company for a period of one year within the last three years immediately preceeding the date of the application

A qualified “executive” must be an individual who directly manages the organization or a major part of it; has extensive decision-making authority, and supervises other employees while receiving only general supervision or direction from upper management.

A qualified “manager” is an individual who manages at least a subdivision of an organization, and supervises and controls the work of other supervisory/professional/managerial employees, or manages an essential function of the business. Furthermore, a manager must have authority to employ and terminate those who are supervised or at least work at a senior level in the organization.

A “qualified organization” is an entity if it is either a US affiliate, parent or subsidiary of a foreign business entity. The terms “affiliate,” “parent,” and “subsidiary” are defined by immigration regulations.

Benefits of EB-1(C)

Shorter Processing Time: The EB-1(C) visa provides the applicant Permanent Residence within the United States. There are no formal quotas for these types of applications; hence, the wait time for Permanent Residence via this option is a considerably shorter wait than is true for the EB-2 or EB-2 visa categories.

No Labor Certification Required: Unlike the PERM process that requires employers to complete an often arduous task of advertising the available position, conducting good faith recruitment and then waiting the normal 4-6 month processing time in order to receive certification on an LCA, the EB-1(C) does NOT require Labor Certification as a part of the process.

How We Can Help: We know that demonstrating that an applicant meets the requirements of the EB-1C visa is a potentially overwhelming task. However, by working with a law firm like ours that has experience handling these types of applications and cases, you can rest assured that your application is in the hands of professionals who know how to help you achieve your goal of living and working in the U.S.

Please do not hesitate to contact us to find out what we can do to help.  Call (206) 623-3352

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01 Apr 2014

H-1B Fiscal Year 2015 Filing Information

U.S. Citizenship and Immigration Services (USCIS) is accepting H-1B petitions subject to the fiscal year (FY) 2015 cap beginning today, April 01, 2015. Cases will be considered accepted on the date that USCIS receives a properly filed petition with the correct fee. USCIS will not rely on the date that the petition is postmarked.

The congressionally mandated cap on H-1B visas for FY 2015 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.

USCIS anticipates receiving more than enough petitions to reach both caps by April 7. The agency said it will use a random selection process to meet the numerical limit. Non-duplicate petitions that are not selected will be rejected and returned with the filing fees.

Due to the high level of premium processing receipts anticipated, combined with the possibility that the H-1B cap will be met in the first five business days of the filing season, USCIS has temporarily adjusted its current premium processing practice. To facilitate the prioritized intake of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases no later than April 28, 2014. USCIS guarantees a 15-calendar-day processing time.

USCIS will continue to accept Form I-907, Request for Premium Processing Service, with fee, concurrently with the Form I-129, Petition for Nonimmigrant Worker, while premium processing is unavailable. Petitioners may also upgrade a pending H-1B cap petition to premium processing once USCIS issues a receipt notice.

While the Form I-797 receipt notice indicates the date USCIS received the premium processing fee, the 15-day processing period will begin no later than April 28, 2014, as noted above. This allows for USCIS to take in the anticipated high number of filings, conduct the lottery to determine which cases meet the cap, and prepare the volume of cases for premium and regular processing.

The 15-day processing period for premium processing service for H-1B petitions that are not subject to the cap, or for any other eligible classification, continues to begin on the date the request is received.

We will provide updates regarding cap issues as and when we have it, so please check back for updates.

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25 Feb 2014

Getting Ready for H-1B filings

The deadline to file H-1B petitions for foreign national workers is fast approaching. All new H-1B applications MUST be received at the respective USCIS location on or close to April 01, 2014. This year, like last year, is more likely than not going to result in a lottery as the demand for visas is far higher than the number of visa’s available. Employers interested in filing H-1B’s for prospective employees or current OPT/STEM employees need to start the process now!

Background

The H-1B visa is an attractive option for employers that rely on the temporary employment of foreign professionals in the United States for positions that employers’ often cannot find qualified skilled talent. Specifically, this visa category offers work authorization to foreign nationals employed in specialty occupations, defined as a position requiring at least a bachelor’s degree in a specific academic field. Over teh years, the vast number of H-1B petitions have been filed for employees in the Technology Industry. Employees with degrees in Science, Technology, Engineering or Math (STEM) account for the largest portion of these visas.

Congress has set an annual limit for H-1B visas at 65,000 per fiscal year (with an additional 20,000 reserved for occupations requiring an advanced degree from a U.S. institution). Given the H-1B visa’s versatility and popularity, this annual quota is often reached shortly after the filing period opens.

The Importance of Early Preparation

The demand for H-1B visas is expected to be even higher this year than last year, when the cap was met during the first week of April 2014. We expect that the cap will be met within the first week of filing this year as well. Petitions are accepted on a “first-come-first-serve” basis. Any applications filed after the cap is met will be returned and cannot be re-filed until the following year.

To maximize the chances that your H-1B petition is included in the cap, Labor Condition Applications (“LCAs”) should be submitted to the DOL by the beginning of March, and petitions should be ready for filing on or before April 1, 2014.

For first time H-1B petitioner, the need to get started now is even greater, as chances are that the company will need to complete an additional verification process before you can even submit the LCA. All petitions need to be supported by adequate documentation of education credentials; employment offer; proof of sufficient work for the duration of the H-1B validity, and ability to pay higher of the prevailing wage or the actual wage.

Our team at Orbit Law, PLLC is ready to handle your H-1B filing needs. Whether this is your first time petitioning for a foreign worker, or whether your company has utilized the H-1B visa in the past, we are ready to provide the level of support and attention you require so please do not hesitate to contact us if we can be of service.

 

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14 Jan 2014

WA State House passes “Washington Dream Act”

The Washington State Dream Act was approved by the state House on Wednesday, bringing undocumented students one step closer to being eligible for the State Need Grant.

The measure was approved 77-20, with unanimous Democrat support and a split vote on the Republican side. It was the last piece of House legislation to make it through before the session’s cutoff.

House Bill 1817 would qualify all students who graduated from a Washington high school or earned a diploma-equivalent in the state for the State Need Grant — the state’s largest financial-aid program — as long as they meet other grant requirements. The students must also remain in the state after earning their diploma, until they attend college. The bill now goes to the Senate for a vote.

Please stay tuned for updates as we will be posting any developments on this front as and when there is news to share.

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09 Jan 2014

Republicans to Release “Principles” on Immigration Reform

Speaker John Boehner told rank-and-file Republicans that his leadership team was drafting “principles” for overhauling Immigration laws that will be presented in coming weeks.

The Senate, controlled by Democrats passed a broad Immigration overhaul plan in June 2013. The Senate bill called Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (S. 744)allowed for broad overhaul of the current Immigration system, including a path to legalization for the more than 11 Million undocumented individuals currently living in the U.S.

It is unlikely that the GOP controlled House will allow a similarly broad bill to pass; rather, it seems far more likely that the GOP will allow for smaller bills to proceed. Our prediction is that the GOP will move ahead with these three issues:

  1. Adjustment of Status for youth: The Senate bill allows Individuals who entered the U.S. as children adjust status i.e. acquire Lawful Permanent Residence in the U.S.(a smaller component of the originally proposed DREAM Act) A smaller version of this called Deferred Action for Childhood Arrivals (DACA) or “Deferred Action” is already in process.
  2. StartUp Act: The StartUp Act originally proposed back in 2010 by Senator Kerry, has gone through several revisions and currently stands at StartUp 3.0. The StartUp visa would allow for:
    1. foreign entrepreneurs who will employ at least five full-time workers — who are not family members — to stay in the U.S. for up to three years. Applications would be open to holders of the H-1B or F-1 visas as long as they’ve already raised at least $100,000 in funding and are employing at least two people currently.
    2. create a new five-year visa for foreign students in STEM disciplines who get a job in a technical field. Students would then have the right to become a legal resident and possibly a citizen after that five years
  3. Immigration Innovation Act: This would increase the number of H-1B visas available in any given year; would allow foreign students to have “dual intent” so they do not have to show an intent to return to their home country at the end of their academic program; allow certain job categories like STEM related field to be exempt from employment based Green Card cap

Please stay tuned for updates as we will be posting updates on the Immigration legislation front as soon as we receive them.

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