Archive for January, 2010
Which employers are exempt from the H-1B cap?
Most employers are subject to the H-1B cap (annual quota of visa numbers available) when sponsoring someone for an initial H-1B visa.
However, there are four categories that are cap exempt:
1. Institutions of higher education (colleges or universities)
2. Non-profit organizations affiliated with an institution of higher education (there are a variety of affiliations that would qualify, although most involve shared ownership or control)
3. Non-profit research organizations (basic research or applied research)
4. Government research organizations (defined as a U.S. government entity)
If you have any questions regarding H-1B sponsorship and/or whether your company or employer qualifies as H-1B cap exempt, please don’t hesitate to contact our office.
Tags: cap-exempt, college, H-1B, non-profit, university
Posted in FAQ H-1B, H-1B | Read More »
How do I remove the conditions on my marriage-based green card if the marriage is terminated?
An individual who obtained conditional residency based on marriage to a U.S. citizen, but thereafter the marriage was terminated, may file a Form I-751 waiver petition to remove the conditions on his/her green card. This waiver applies to both marriages that end in divorce and marriages during which the beneficiary spouse or child was the victim of battery or extreme cruelty perpetrated by his/her U.S. citizen father or spouse.
Waiver Based on Divorce
An individual who married his/her former U.S. citizen spouse in good faith, but thereafter divorced, may file a Form I-751 waiver to remove the conditions on his/her green card. The divorce must be final before the waiver petition is filed. The USCIS will not accept a waiver petition for a couple that is separated, but not divorced.
Typically, a couple that is still married when it comes time to file for removal of the conditions must jointly file a Form I-751 petition, along with supporting documentation of their continuing bona fide marriage. This joint filing requirement is waived if the couple is legally divorced. That is, the foreign national can apply alone without the former spouse’s input or signature.
A waiver petition based on divorce must include evidence that the marriage was entered into in good faith (and not to circumvent immigration laws), records showing combined assets at some point during the relationship, evidence showing the length of time the parties cohabitated, and the final divorce judgment/decree.
For married couples, the I-751 petition can only be filed within 90 days of the expiration of the initial 2-year green card. For a divorced petitioner filing an I-751 waiver, the waiver petition can be filed at any point following the divorce and before the conditional residency expires. In limited circumstances, the immigration service may grant a waiver following the expiration of the conditional residency, but it is discretionary.
Waiver Based on Being the Victim of Cruelty
An individual who married his/her former U.S. citizen spouse in good faith, but thereafter fell victim to battery and/or extreme cruelty perpetrated by his/her U.S. citizen spouse, may file a Form I-751 waiver to remove the conditions on his/her green card. The couple need not be divorced as stated above for this waiver category to apply. This category also applies to battery or extreme cruelty perpetrated against the beneficiary’s children.
The immigration service has stated that this category includes being the victim of any act or threatened act of violence, including psychological or sexual abuse, or any forceful detention which results or threatens to result in physical or mental injury. A waiver petition based on being the victim of cruelty may be supported by any credible evidence and the immigration service will keep all evidence confidential.
Form I-751 waiver petitions are separate and independent and multiple grounds should be asserted where applicable. Please don’t hesitate to contact our office if you need assistance with an I-751 waiver petition.
Tags: cruelty, divorce, marriage green card, removal of conditions, waiver petition
Posted in FAQ Marriage-Based Green Card, I-751 Waiver Petitions | Read More »
Alert: H-1B Filing Season is Around The Corner
The H-1B filing period for fiscal year 2011 (for a start date of October 1, 2010) will open on April 1, 2010. The H-1B category is used by an employer to sponsor a foreign national to work in a specialty occupation, which is a position requiring, at a minimum, a Bachelor’s degree or equivalent experience.
As you may already be aware, there are a limited number of H-1B visas each fiscal year: 65,000 slots for holders of Bachelor’s degrees and 20,000 additional slots for holders of Master’s degrees or higher level degrees from U.S. universities. In 2007 and 2008, the numerical limit was reached in the first few days of April . In 2009, due to the struggling economy, the quota was not met until December 21, 2009.
While there is no way to predict how quickly the visas will be used this year, we do anticipate that demand will increase from last year, and therefore we recommend that all employers planning to file H-1B petitions file them on April 1, 2010 so as to ensure the greatest chances of success.
Filing an H-1B this year requires more lead time for preparation than in prior years. This is because in 2009, the Department of Labor (DOL) rolled out a new system for certifying the Labor Condition Application (LCA), a form required in the filing. This new system, involving manual review of all LCA’s, has created unforeseen delays and unpredictability of timing in the H-1B process. Under the old system, the LCA could be certified automatically upon an attorney submitting it online. Certification is now projected to take 7 days. However, in many instances, the LCA is denied erroneously because of DOL computer error, and must be re-filed, making the exact length of the LCA process unpredictable.
Please contact our office if you’d like to file an H-1B petition for fiscal year 2011. Given the changes discussed here, it would be prudent to begin the process as soon as possible. We look forward to assisting you.
Tags: cap, DOL, FEIN, H-1B, iCert, LCA, quota, tax identification number
Posted in Uncategorized | Read More »
Temporary Protected Status for Haiti
We have all seen horrific images of the devastation wrought by this week’s earthquake in Haiti. Secretary of Homeland Security Janet Napolitano has temporarily suspended all deportations to Haiti. While this is a positive step, the U.S. government should also immediately grant temporary protected status to Haitians in the U.S.
Frankly, Haiti can use all of the help it can get, and Haitians in the U.S. can and will play an integral part in the recovery process there. We should help that recovery effort by giving undocumented Haitians one less thing to worry about-their immigration status. With temporary protected status, or TPS, and through it a right to work legally in the U.S., Haitians will be able to send more money home. Please send a message to your elected officials and ask them to grant TPS to Haitians in the U.S.: ttp://capwiz.com/aila2/home/.
Tags: Haiti earthquake, TPS
Posted in Politics/Current Events | Read More »
A New Year Brings New Hope for Immigration Reform
Happy New Year to our readers!
After a long holiday hiatus, we are back to blogging regularly. Our blog features posts on a variety of immigration issues, including business immigration, family-based immigration, deportation issues, as well as immigration policy and immigrant rights advocacy.
We hope there will be much to write about this year in the area of immigration reform. Immigration reform is the “dream deferred”* for 12 million would-be lawful permanent residents, most of whom are hard-working and eager to contribute to our nation’s economic recovery. Congress, we are waiting and watching.
*A reference to the poem “Dream Deferred’ by Langston Hughes
Posted in Uncategorized | Read More »
