The Visa Stamp in My Passport Expired, am I in the United States Illegally?

ZZ55684069-ttWhat Happens if the Visa Stamp in your Passport Expires or is revoked? Are you required to leave the United States? Or are you allowed to stay? Many people seem confused as to what a visa stamp is for, what an I–94 is for, etc. Therefore, every once in a while, we think it is good to review these concepts.

As most people know, in order to enter the US, generally you will need a visa stamp in your passport (the big colerful stamp that takes up a whole page – not the entry stamp you get when coming to the US with the date you need to leave the US). There are, of course, exceptions to this. Permanent Residents and citizens do not need visas. Also, those entering under the visa waiver program are not required to get a visa stamp either (although they do have to use the online system prior to any trip to the US). However, as stated above, generally most people will need to visit a US Consulate and receive a visa stamp in their passport before entering the United States. The purpose of the visa stamp is just that, to allow you to enter the United States. It does not control your status in the US, it does not indicate when you need to leave the US. It is simply a tool to allow you to travel and enter the United States.

Whenever you do enter the United States, you are required to go through an immigration control line, in which Immigration and Customes Enforcement (ICE) Officers, and perhaps USCIS officer, will review your passport, visa stamp, immigration history, etc. and determine if you are admissable to the United States. Despite having the visa stamp in your passport, these officers can still deny you entry to the United States if they believe that you meet one of the grounds of inadmissability or are not eligible for the status you are seeking. If they determine that you are eligible they will allow you to enter and will provide you with an entry stamp in your passport and an I–94 online. It is these documents, the entry stamp and I–94 that control your status in the United States. Whatever date is listed on these documents is the date your stay will expire and when you need to leave the US. Therefore, if your Visa Stamp expires it does NOT affect your stay in the US. Just recently, the DOS confirmed that this is the case, and further confirmed that even if DOS revokes your visa, this does not affect your stay in the US either. It is up to ICE and USCIS to revoke your status in the US and to kick you out, if they are so inclined. DOS simply does not have that power.

Why would your visa be revoked? Well, there are many reasons, including that you no longer qualify for the status (i.e., a tourist visa for someone who filed a green card application or you move to an H visa, etc.), or some other information comes to light that shows you no longer qualify (security concerns, etc.). While a visa revocation alone will not affect your stay in the US, it is a good idea to talk with your attorney (or an attorney) if you do receive such a letter in the mail, as it could be a harbinger of other things to come.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

New H-4 Work Authorization Rules “Close at Hand”

According to USCIS Director Leon Rodriguez, the new regulations allowing certain H-4 spouses the ability to apply for employment authorization are close at hand.  While we do not know exactly when the new rules will be out, the Director did also state that he was disappointed that they had not already been released.   As soon as the rules are published and we know what the parameters will be, we will certainly let you know.

USCIS Changes Position on Nurses and H-1Bs

USCIS just issued a new menurse-shortage-immigrationmo that opens up the possibility for more Nurses to qualify for H-1B status.  The memo, dated July 11, was issued but he Office of Policy and Strategy, Business and Foreign Workers Division, Office of the Director, USCIS.

Prior to this memo, USCIS view was that RN positions simply could not qualify for an H-1B as a bachelor’s degree was not normally required as the minimum entry into those particular positions.  While not couched as a blanket rule, that was effectively how it was treated.  USCIS, however, did concede that some advance practice registered nurses may qualify for the H-1B visa.

The new memo significantly changes this position.  While USCIS still feels that Registered Nurses, in general, do not qualify for the H-1B visa, they are now open to the fact that, in many cases, they MAY qualify, if sufficient evidence is provided.  USCIS pointed out that Bachelor’s degrees are becoming more prevalent for RN’s and are being required more frequently.  USCIS particularly pointed to the American Nurses Credentialing Center (ANCC) Magnet Recognition Program.  This program requires of the organizations that are certified through it (and it is a mark of excellence for the organization) that 100% of RN Managers working at the organization and that at least 80% or ALL RN’s have bachelor’s by 2020 at the latest.  The organizations are also encouraged to move towards that goal as quickly as possible.  They also pointed to specialty RN Positions, such as rehabilitative nurses, pediatric nurses, peri-operative nurses, emergency room nurses as possible types of RNs that may require bachelors degree because of the complexity of the positions, etc. and, therefore, could qualify for the H-1B visa as well.

Lastly, USCIS looked at Advance Practice Registered Nurses and affirmed that these positions will usually be found to qualify for H-1Bs as long as it can be shown that a bachelors in a particular field is required.  USCIS also recognized that there may be many names for these type of nurses depending on the state, such as Certified Nurse-Midwife, Certified Nurse Practitioner, Certified Clinical Nurse Specialist, etc.

The factors laid out by USCIS to look at in all of the above cases (RN’s and Advance Practice Registered Nurses) includes:  a detailed description of the duties to be performed, and advanced certification requirements, clinical experience requirements, training in the specialty requirements, nature of the petitioners business, industry practices, ANCC Magnet Recognition status and the wage rate of the position relative to otherwise within the occupation, among others.

This will allow at least some hospitals and organizations to more easily bring in needed nurses on H-1Bs and ease the nursing shortage, in our view.  If you feel that you can benefit from this new standard please contact us or your attorney to discuss the matter.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

28 Days and Counting

argueCongress only has 28 days left in its latest legislative session.  After that, they take a break for two months, and then, when they come back, the election season is on in full force and there is not much chance of anything of significance passing.  What does this mean for Immigration reform?  It means that every day that passes we are less likely to see anything done to reform our immigration system and modernize it with today’s realities.  This reform will not just allow more people to come to the US, but will hopefully, finally, allow USCIS to work in a more timely manner.

What is the chance that such reform will happen?  Well the most supportive Republicans put it at 50/50 at the best.  I think even that may be somewhat optimistic.  Many of the Republican politicians facing challenges from the right have distanced themselves from Immigration Reform to show that they are conservative.  The Democratic plan has little to no Republican support but there is no guarantee that Democrats will support a watered down version of their bill.  Democrats have also flatly refused to support cutting the bill into several smaller bills, which many Republicans have said is a necessity.

For all the above the chances of immigration reform happening this year seem to be dwindling rapidly.  While not gone, every day makes it less and less likely that anything will happen.

Judge of the Work of Others: What Evidence is needed?

For the National Interest Waiver, the Extraordinary Ability and the Outstanding Researcher applications, evidence that you have judged the work of others in your field or a related imagesfield can be extremely helpful.  However, the level of helpfulness of this evidence depends greatly on the type of judging and the kind of evidence submitted to USCIS.

First, in terms of the type of judging:  What USCIS is looking for is that you judged the work of other scientists.  Not Master’s or undergraduate students, not Ph.D. students, but scientists.  And then, even if you have reviewed the work of scientists, there are still two levels of evidence:  reviews of just postdocs, and reviews of postdocs and others researchers (or just other researchers).  If you have just reviewed postdoc work, while it will help, it will not help as uch as if you actually reviewed work of others at a higher level.  The reason for this is that USCIS looks at just post-doc reviewing as being a lower level than reviewing the work of other researchers.  Primarily this is because a Postdoc is considered to still be in training.  Also, Postdocs are at the beginning of their career, so if they are the only ones eligible, you are only judging those people at the beginning of their career and not those in advanced states of their careers.  Whether this view is warranted or not, it is the view of USCIS, so it is important to keep it in mind.  It is certainly possible to provide evidence to USCIS that, even though you were just judging the work of postdocs it was still extremely prestigious position in the field, but the burden of proof is on you to show this.

Assuming you now have your evidence of reviewing the work of other scientists, the next question is what kinds of evidence will be most helpful to USCIS.  There are two kinds of evidence that you can provide USCIS:  evidence of WHAT you did and evidence of the IMPORTANCE of what you did.  It is important to emphasis that BOTH types are needed for this evidence to be really useful for these cases.  The first type of evidence, proof that you actually conducted the judging, proves that you actually performed the act, but it does not show USCIS why it should regard this evidence as helping to show that you have made substantial contributions to the field (National Interest Waiver) or that you have received renown in the field (Extraordinary Ability andOutstanding Researcher).  In order to do that you need evidence as to the criteria that was used to select you for that position (evidence of the importance of what you have done).  The letter needs to explain the criteria in a way that shows USCIS that you were selected because of your renown, because of the importance of your work to the field, etc.  Without this second type of evidence, there is no proof that USCIS can use to show it what the importance of your judging  is, and, therefore, this evidence will not help your case get approved nearly as much as it would have had you provided documentation as to the importance of the work.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

The National Interest Waiver – Within the Reach of Many

The National Interest Waiver application is a self-sponsored application that is a good fit for many, many researchers and others looking to get permanent residence inth
the US. While many people feel that they need to show they are working for our government or something similar in order to show that their work i
s in the National Interest, this is actually not the case. The National Interest Waiver, while not easy to get approved, is much less restrictive than the E
xtraordinary Ability application and many people may be surprised that once they review the standard, that they can in fact qualify for this green card category.

So what are the actual qualifications for this application and how do you show your work is in the national interest? Unfortunately, this is a case in which both Congress and USCIS did not issue any guidance as to what the standard should be, so it was left to the courts. Specifically, the Administrative Appeals Office (AAO), in a precedent case (Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm. 1998)(NYSDOT)) did explain what is needed to show that your work is in the national interest. After the AAO issued this decision, USCIS formally adopted the decision as their standard.

The NYSDOT case laid out a three part test to determine if your work is in the national interest: 1) you must be seeking work in an area that has substantial intrinsic merit; 2) you must demonstrate that the proposed benefit to be provided by your work will be national in scope; and, 3) you must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of your services by making your position available to US Workers.
While the above can seem daunting in theory, it is not quite so daunting in practice. What it comes down to is showing you are, and will be, working in an important area and that you have already made a significant impact on your field. What type of documentation can show this?

If you are a scientist you can show this through publishing and presenting your work, citation history, peer reviewing, being accepted for oral presentation or invited to talk, having a paper highlighted at a journal website or elsewhere, having press about your findings. Please note, the above is a list of documents that CAN be used to show eligibility, and it is not a list of ALL documents that are needed, as you can be approved with less than all the above documents.
In general, while this is similar to the same type of documentation that is used for the Extraordinary Ability application, a key difference is that the NIW is a less restrictive standard than the EA. For instance, the Administrative Appeals Office, in looking at EA cases has indicated that perhaps 200 or more citations would be considered “a good number”. For the NIW application much less citations are needed. Many cases we have seen there are only 40-70 citations overall. Instead of having to show you are one of the few at the top of your field, the extent of your impact and influence on your area is key. This also me
ans that you do not need to be the first named author on your papers as it is the impact, not your renown, that is the key for the NIW.

For areas other than the sciences, such as foreign relations, health policy, etc, while the type of documentation can be much the same as above – publications, press, etc, you also have the opportunity to look at your role within projects, programs, or other initiatives. It can also be much more letter focused with letters from government officials or NGOs about the use and implementation of your work, etc. It all depends on whether your work is more academic related or applied in the field.

In essence, US interests are broad in nature, and thus, depending upon the extent of your standing within a specific area, you may very well be a good candidate for this type of visa application.

Please remember, always get your legal advice from an attorney and not a blog. Call and talk to an attorney to get the specifics of this status and your ability to qualify.

May 2014 Visa Bulletin: Inching Forward

imagesThe May 2014 visa bulletin has been released and in many of the categories there has been little to no movement.  So, without further ado, lets run through the dates:

Employment Based:

Eb-1 is still current for all.

Eb-2 is still current for all except India (which is still at 11/15/2004) and China (which progressed to 4/15/2009).

Eb-3  is still at 10/1/2012 for most of the world, and at 10/1/03 for India and 9/1/07 for the Philippines

Family Based:

F1 (unmarried sons and daughters of US Citizens):  Has moved forward about two weeks to 3/8/07 except for Mexico (11/15/93) and the Philippines (2/1/02)

F-2A (spouses and children of PRs):  Unchanged

F-2B (Unmarried sons and daughters of PRs):  Probably the biggest jump (about 4 months) to 2/1/07 for all except Mexico (5/15/93) and the Philippines (6/22/03)

F-3 (Married sons and daughters of Citizens):  Moved forward about 2 months to 9/1/03 for all except Mexico (7/1/93) and the Philippines (3/1/93)

F-4 (brothers and sisters of Citizens):  Moved Forward about 2 weeks to 12/8/01 except for Mexico 12/1/96 and the Philippines 11/1/90

That is the run down.  In terms of projections, the DOS believes that the F-2A category will start to retrogress in the coming months because of heavy demand.

USCIS Meets H-1B cap – Lottery Will be held

UnknownAs expected USCIS announced today that it has received sufficient H-1B application to meet the H-1B cap as well as the Master’s Cap.  Therefore USCIS will conduct a lottery later this month to determine which cases will be accepted for the cap, and which will not, and will be returned with their fees.   All application received by the close of business today will be accepted into the lottery.  USCIS will finish processing all cases received before proceeding with the lottery.  Unfortunately, according to USCIS, because of the high numbers received, USCIS is not sure when they will finish processing the cases.   Here is hoping it will not take them to long.  We will update you as soon as we hear anything additional.

H-1B Extensions and RFEs

Maybe this scenario sounds familiar:  You file for an H-1evidenceB for an employee, and get it  approved for them to work for you for 3 years. At the end of the 3 years you file a renewal for your employees H-1B.  Instead of a straight approval this time, however, USICS requests additional evidence as, according to the Request, they do not believe that you qualify for the position or that the position itself is a specialty occupation.  We have seen this happen recently even and, whenever it does, we cannot but help feeling confused.  Why would USCIS approve the application once and then, all of a sudden and out of the blue on a renewal demand documentation about entitlement to the visa classification?  It makes little to no sense.

In fact, in the Field Officers Operating Manual, USCIS itself states:

Issues surrounding the alien’s original entitlement to nonimmigrant status were explored by INS or CBP and Department of State officials at the time of initial admission and visa issuance (or, in the case of visa exempt aliens, by INS or CBP alone). Absent gross error, changed circumstances or new information, these should not be revisited in extension proceedings. However, if the adjudicator has strong reason to believe that the alien was not entitled to a nonimmigrant status in the first place, he or she may seek clarification from the applicant through correspondence or by requiring an interview at the appropriate local office.

Despite this, some officers will still insist on revisiting entitlement to status in subsequent renewals.  What can you do if this happens to an application for one of your employees?  The most important thing to do is to immediately start collecting the documentation requested.  The reason for this is twofold:  Fipreponderance-of-the-evidencerst, USCIS does have the right to ask for additional evidence regardless of the above procedure manual.  You also have the responsibility to meet your burden of proof – and to show by a preponderance of the evidence that the beneficiary is qualified for the position.  Second, USCIS does not like to admit they made a mistake.  By requiring you to respond no matter what, they can sooth their pride by saying it was because of the new evidence that the case became approvable.  So assume that, no matter what else you try, you will have to respond.  That way you will always be able to get the documents in a timely manner and will not run out of time.

It should also be noted that the overall RFE and denial rate has dramatically increased for H-1Bs over the years.  In 2009 it was around 8-10%.  In 2012, the denial rate was approximately 29.5% – almost a third of H-1B cases submitted in 2012 were denied.  This is a huge increase in a short period of time.  It also means that a larger percentage of cases were RFE’d (if almost 1/3 were denied) as they certainly did approved some cases that received an RFE.

So what can you do to prevent RFEs and denials in the first place?  Plan carefully – include documents showing ability to pay, include documents such as a transcript, showing the employee has learned the specific skills needed for the position through their eduction, include documentation of the complexity of the job duties so there is no question regarding the need for a bachelor’s degree.  In short, do not skimp on documentation for the initial H-1B OR the H-1B renewal.  Include everything.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

 

EB-1A Extraordinary Ability: The Cold Hard Facts

approval-rating

Many times we hear from clients or prospective clients that a “friend” of theirs, who has much less in the way of credentials, was approved for an EB-1A.  Sometimes it was a  “friend of a friend” or a “relative”  or some other acquaintance who had the approval.  While I have no idea if these individual stories are accurate or not (and I do suspect that some of these people may have been approved in different categories, either the EB-1B Outstanding Researcher (employer sponsored) or the EB-2 National Interest Waiver (self-sponsored))  I do know that numbers wise, very few people, especially on a country by country basis, are approved in this category every year.

Overall, every year there are 40,040 immigrant visas made available to the EB-1 category.  Each country gets approximately 3% of these immigrant visas per year.   There is also a limited number of visas that can be re-allocated from countries that typically do not use all their visas, to those that use more, but this is very limited and may, only bring a single countries usage up to 7% of the total or approximately 2,802 immigrant visas in this category.  It should be noted that this 3% includes all three application types in this category:  the EB-1A Extraordinary Ability AND the EB-1B Outstanding Researcher AND the EB-1C Intracompany Transferee.  All three application types share the number of visas in this category.  It also included not just the principal filer, but their spouses and children as well.   It should also be noted, that there is no backlog in this category for any country, so the maximum number of visas in this category allocated to each country is not even being used, further bringing down the overall number of approvals.  Overall, there are simply not that many people per country getting approved in this category.

Looking at USCIS statistics, this category, the EB-1A, has a historic approval rating of just over 50%, again showing how difficult this is.  Plus, you also need to take into account that there is a certain percentage of cases that are filed that definitely qualify (they won a Nobel Prize or similar, or they have huge amounts of documentation).  Once those people are taken into account, the actual approval rating for those with less sure cases is even lower.  This is in stark comparison to the EB-1B Outstanding Researcher which has an approval rating in the 90% range.

So for those approved in this category, congratulations you are truly one of a small percentage.  For those looking at applying in this category, do not deceive yourself into thinking it is easy as it is not.  It is possible to get approved with the right documentation and the right arguments, that is what is sets apart those cases that are approved, and those that are not.  We will discuss more about the kinds of documentation necessary in future posts.

As always remember while blogs are good at disseminating general information, you can only get good legal advice by contacting and discussing your specific case with a qualified attorney.