OC Immigration Attorney

We recently received excellent news that the National Interest Waiver petition we filed with USCIS for one of our Orange County clients was approved. The client applied as an advanced degree professional self-petitioner.

He is a well-regarded Ph.D. in the field of Energy Sciences. He has been published numerous times and often gives lectures on the topic of thermonuclear fusion. The ares in which he specializes is very specific and there are very few individuals in the world with a comparable level of knowledge on the subject. Additionally, he holds numerous patents in this area of science.

Ultimately, USCIS agreed that it would be in the national interest of the United States to have our client stay in this county and continue his work. USCIS approved him as an alien who is a member of a profession holding an advanced degree or having exceptional ability (the second employment-based category). Because our client did not have a job offer at the time of the petition, which is normally required for this type of visa, we applied for the national interest waiver.

USCIS found that our client was seeking employment in an area of substantial intrinsic merit, the benefit to the US would be national in scope and the national interest would be adversely affected if a labor certification was required.

If you are considering the National Interest Waiver process, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will personally meet with you to discuss your situation and whether the national interest waiver would be appropriate for you.

The blanket L petition program allows a petitioning employer to seek continuing approval of itself, its parent, and its branches, subsidiaries, and affiliates as qualifying organizations and, later, classification under INA Section 101(a)(15)(L) of any number of aliens employed by itself, its parent, or some of its branches, subsidiaries, and affiliates. The program is generally restricted to relatively large international employers who are engaged in commercial trade or services. The petitioning employer must document that it meets certain criteria to file the blanket L petition and to document the relationship between the qualifying organizations which will be included in the blanket L petition.

The blanket L petition does not ensure approval of individual employee beneficiaries. Whether an alien beneficiary of the blanket L petition qualify for L classification is later determined by the appropriate consulate with jurisdiction over the beneficiary or the USCIS or CBP officer if the alien is visa-exempt or applying for change of status.

The L-1 Visa Reform Act modifies the eligibility requirements for L-1 intracompany transferees covered by a blanket L petition and requires that the L-1 beneficiary of a blanket L petition have been employed abroad by the L entity for a period of 12 months. The Act eliminates the 6 month exception that had been the law for blanket L petition beneficiaries since 2001.

A blanket L petition is an extensive and time-consuming process and requires substantial evidence including but not limited to SEC filings, annual reports, corporate organizational charts. All of the organizations, parents, subsidiaries and affiliates listed in the blanket L petition must be engaged in commercial trade or services. The petitioning employer must have an office in the United States that has been doing business for at least one year. The L petitioner must have at least three or more organizations included in the blanket L petition. The blanket L petition has other requirement that must be met as well.

If you are considering a blanket L petition, contact The Nunez Firm to schedule a free consultation.

We just received an approval for an H-1B petition filed by a law firm client of ours. The applicant finished her Master’s Degree in Public Health and began working at the law firm during an approved Optional Practical Training period. The employer was happy with her performance and chose to petition for her to receive an H-1B nonimmigrant employment visa.

Although her OPT ends in June 2011, she is eligible for a cap-gap extension, which will allow her to continue to work for her employer until her H-1B status becomes in September 2011.

We provided evidence to show that the employee beneficiary was eligible for the H-1B including her education records, transcripts and diplomas.

We also provided documentation proving that the employer was eligible as a petitioner. The law firm is a large firm with offices all over the United States. We provided evidence explaining the position with the employer as well.

Because the employer was eager to have a decision as soon as possible, we filed using premium processing. We received a decision within approximately ten days.

The employer and employee are very excited about the good news and look forward to working with each other for at least the next three years.

If you are considering the H-1B process, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will discuss your employment scenario with you and the options available.

The H-1B Program

U.S. businesses use the H-1B program to employ and petition for alien workers in specialty occupations and jobs that require theoretical or technical expertise in specialized fields, such as scientists, engineers, and computer programmers.

How USCIS Decides if an H-1B Petition is Subject to the FY 2012 Cap

The United States Citizenship and Immigration Services (“USCIS”) uses the information provided by the immigration attorney to determine whether a petition is subject to the 65,000 H-1B numerical limitation (the “cap”).  Some petitions are exempt from the cap under the advanced degree exception provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher (or a foreign academic equivalent).

Cap Eligible Petitions

This is the number of petitions that USCIS has accepted for this particular type of cap.  It includes cases that have been approved or are still pending.  It does not include petitions that have been denied.

Cap Amounts

The current annual cap on the H-1B category is 65,000. Not all H-1B specialized occupation employees are subject to the annual cap. Please note that up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation which implemented the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.
When to File an FY 2012 H-1B Cap-Subject Petition

We will begin accepting H-1B petitions that are subject to the FY 2012 cap on April 1, 2011.  You may file an H-1B petition no more than 6-months in advance of the requested start date.

* Petitions seeking an FY 2012 H-1B cap number with an Oct. 1, 2011 start date can be filed no sooner than April 1, 2011.

Note:  If you request a start date for a FY 2012 cap-subject H-1B petition that is prior to Oct. 1, 2011 or submit a cap-subject petition prior to April 1, 2011, USCIS will reject your petition.

How to Ensure that USCIS will accept your H-1B petition

The H-1B filing process is a complex and timely set of steps. There are many forms and required pieces of evidence that must be included. The packet of documents must be filed with the correct USCIS location or the packet will be rejected by USCIS. A rejected petition can result in an employer not being able to employ the desired alien specialty occupation worker if the H-1B cap is reached.

Additional Documents Required With Your Petition

• Labor Condition Application (LCA): You must submit a certified Department of Labor (DOL) LCA (Form ETA 9035) at the time of filing your petition.  A copy of the LCA is acceptable. Petitioners should keep DOL LCA processing times in mind when preparing the H-1B petition and plan accordingly.  If the LCA certified by DOL is for multiple positions, you must provide the name and USCIS case receipt number of any alien who has previously utilized the LCA. Petitioners should ensure that they have signed the LCA prior to the LCA being submitted with the petition to USCIS.
• Evidence of Beneficiary’s Educational Background: You must submit evidence of the alien employee/beneficiary’s educational degree at the time of filing.
• A copy of the beneficiary’s final transcriptIf you are indicating that the beneficiary is qualified based on a combination of education and experience, please provide substantiating evidence at time of filing.
• A Duplicate Copy of the H-1B Petition: You must submit a duplicate copy of your H-1B petition at the time of filing if the beneficiary will be seeking nonimmigrant visa issuance abroad.  USCIS will not make a second copy if one is not provided.

You may also choose to submit a duplicate copy of the petition if the beneficiary is requesting a change of status to H-1B or an extension of stay in case the beneficiary later decides to seek visa issuance abroad or the H-1B petition is approved but the beneficiary’s concurrent change of status or extension of stay request is denied.

You may review the Department of State website to make sure that the consulate indicated on Form I-129 is able to process the beneficiary’s nonimmigrant visa application and for any other consulate-specific special instructions.
Multiple or Duplicative Filings

On March 19, 2008, USCIS announced an interim final rule on H-1B visas to prohibit employers from filing multiple or duplicative H-1B visas for the same employee. To ensure fair and orderly distribution of available H-1B visas, USCIS will deny or revoke multiple or duplicative petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicative petitions.

Required Fees

There are different fees depending on the type of H-1B petition you are submitting.  Please refer to Fee Exemption and/or Determination of Form I-129 for detailed instructions on fees.

The following fees may be required with a cap-subject petition:

Base filing fee: $325

American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee; (see H-1B Data Collection and Filing Fee Exemption Supplement, Part B): $750 for employers with 1 to 25 full-time equivalent employees, unless exempt. $1,500 for employers with 26 or more full-time equivalent employees, unless exempt

Fraud Prevention and Detection fee: $500 to be submitted with the initial H-1B petition filed on behalf of each beneficiary by a petitioner (does not apply to Chile/Singapore H-1B1 petitions)

Public Law 111-230: $2,000 to be submitted by a petitioner which employs 50 or more employees in the United States where more than 50 percent of its employees in the United States are in H-1B or L-1 nonimmigrant status.

Premium Processing fee: $1,225 for employers seeking Premium Processing Service (optional)

While petitioners are normally provided the chance to correct a fee error, pursuant to the regulations, the filing date is not set until the fee error has been corrected.  H-1B cap-subject petitions with non-payable fees will be given a new filing date the day the fee error has been corrected, as long as the cap has not been met.  If the new filing date is after the cap has been met, the petition will be rejected.
Premium Processing Service

H-1B petitions are eligible for the Premium Processing Service.  Petitioners may choose to file a Request for Premium Processing Service (Form I-907) to have their petition processed within 15 calendar days. The filing fee of $1,225 (this fee is in addition to the required base filing and other applicable fees and cannot be waived).

You can file the Form I-907 and corresponding fee:

* concurrently with Form I-129 or
* at any time after you file Form I-129 while it is still pending.

If filed after the Form I-129, include the receipt number (e.g., EAC 11 123 51234) of the Form I-129 in the pertinent section of Form I-907.

Note: USCIS will only accept the 08/10/09N (or later) edition of Form I-907.

A separate check for each applicable filing fee (Form I-129, Premium Processing, Fraud Fee, ACWIA fee, and Public Law 111-230) is preferred.  Applicable fees should be stapled to the bottom right corner of the top document.
Preferred order of documents at time of submission:

* Form I-907 (if filing for Premium Processing Service)
* Form G-28 (if represented by an attorney or accredited representative)
* Form I-129, Petition for a Nonimmigrant Worker
* H Classification Supplement to Form I-129
* H-1B Data Collection and Filing Fee Exemption Supplement
* All supporting documentation to establish eligibility
* Provide a Table of Contents for supporting documentation
o Tab items as listed in Table of Contents
o Arrival-Departure Record (Form I-94) if the beneficiary is in the U.S.
o SEVIS Form I-20 if the beneficiary is a current or former F-1 student or F-2 dependent
o SEVIS Form DS-2019 if the beneficiary is a current or former J-1 or J-2
o Form I-566 if the beneficiary is a current A or G nonimmigrant
o DOL certified LCA, Form ETA 9035
o Employer/attorney/representative letter(s); and
o Other supporting documentation.
* Duplicate copy of the petition, if necessary.  Clearly indentify the duplicate copy of the petition as “COPY”, so that it is not mistaken for a duplicate filing.

How to mail multiple petitions together

If multiple petitions will be included in the same courier service or Post Office package, please place individual petitions into separate envelopes within the package.  Individual petition envelopes should be marked with the following labels to reference the type of petition:

* Master’s Premium
* Master’s
* Regular Premium
* Regular
* Chile/Singapore

Form I-129, Petition for a Nonimmigrant Worker

* Complete all sections of the form accurately.
* Ensure that the petition is properly signed.
* Provide the petitioner name and address on the USCIS petition form. It is critical that petitioners accurately provide their name and address on the USCIS petition form.  This facilitates USCIS in matching information from the petition with information received from the Independent Information Provider (IIP) through the Validation Instrument for Business Enterprises (VIBE). Listing an attorney or representative’s address in the “Petitioner Information” section of the form may result in the issuance of an RFE.
* Ensure the beneficiary’s name is spelled properly and that his/her date of birth is displayed in the proper format (mm/dd/yyyy).  Also, country of birth/citizenship and the I-94 number (if applicable) should be reviewed for accuracy.
* If the beneficiary will ultimately be seeking issuance of a visa at a consular office abroad, a copy of the petition and supporting documentation should be included with the filing.  For cases where the beneficiary will be seeking a change of status or extension of stay in the United States, a copy is suggested, but not necessary.
* If the beneficiary is seeking an extension or change of status, the petition should include evidence (e.g. Form I-94 or Form I-797 approval notice) to establish that the beneficiary will have maintained a valid nonimmigrant status through the employment start date being requested.
* Include a copy of the beneficiary’s valid passport.

H Classification Supplement to Form I-129 (pages 11 and 12 of Form I-129)

* Be sure to complete all sections of the form accurately.
* In listing previous periods of stay in H/L classification (question 3), include the nonimmigrant classification held (e.g. H-1B or L-1).
* Petitioner must sign the form.

H-1B Data Collection and Filing Fee Supplement form

* Be sure to complete all sections of the form accurately.
* Enclose page 17 through 19 of the Form I-129 (with a revision date of November 23, 2010 or later).
* Be sure to answer appropriately in Part A, question 5 and Part C, question 2 if the beneficiary has earned a master’s degree or higher from a U.S. educational institution.

Form I-907, Request for Premium Processing

* Be sure to complete all sections of the form accurately with original signatures.  Note: We will accept the 08/10/09 edition of Form I-907 (or later)
* The representative may sign in both Parts 3 and 4 of the Form I-907 if there is a valid Form G-28 with the filing.  Otherwise, the petitioner’s signature is required.  Preferably, the signature(s) should be in blue ink.
* Include a copy of the Form I-129 receipt notice along with the Form I-907 when Form I-907 is filed after the filing of Form I-129.

If your company is considering the H-1B filing process, contact The Nunez Firm to discuss the options and strategies available to you. Managing attorney Jay Nunez will personally discuss your situation with you and help you better understand the applicable immigration laws and available options.

The following excerpt is taken from a Brookings Institute report regarding the role of immigration in our country’s ability to innovate and compete economically with other world powers.

One of the strongest narratives in U.S. history has been the contribution made by talented, hard-working and entrepreneurial immigrants whose skills and knowledge created a prosperous new country. Yet today, the nation’s immigration priorities and outmoded visa system discourage skilled immigrants and hobble the technology-intensive employers who would hire them. These policies work against urgent national economic priorities, such as boosting economic vitality, achieving greater competitiveness in the global marketplace and renewing our innovation leadership.

In the long term, the nation needs comprehensive immigration reform. In the short term, policymakers should focus on reforms that are directly related to increasing the “brain gain” for the nation—creating new jobs and producing economic benefits—to produce tangible and achievable improvements in our immigration system.

The Brookings Institute recommends:

* Rebalance U.S. immigration policies to produce a “brain gain,” with changes to visas that will allow employers to access workers with the scientific and technological skills they need to improve economic competitiveness, employment and innovation
* Tie immigration levels to national economic cycles to meet changing levels of need
* Use digital technologies to modernize the current visa system

The Report points out several immigrant contributions to the US economy:
* Immigrants’ productivity raises the U.S. Gross Domestic Product (GDP) by an estimated $37 billion per year

* More than a quarter of U.S. technology and engineering businesses launched between 1995 and 2005 had a foreign-born founder

* In Silicon Valley, more than half of new tech start-up companies were founded by foreignborn owners

* In 2005, companies founded by immigrants produced $52 billion in sales and employed 450,000 workers

* Nearly a quarter of the international patents filed from the United States in 2006 were based on the work of foreign-born individuals (more than half of whom received their highest degree from an American university)

* Economists calculate that, as a result of immigration, 90 percent of native-born Americans with at least a high-school diploma have seen wage gains

* Historically, immigrants have made outsize contributions to American science and technology, with Albert Einstein perhaps the leading example. One-third of all U.S. winners of Nobel prizes in medicine and physiology were born in other countries Far from “crowding out” native-born workers and depressing their wages, well-educated, entrepreneurial immigrants do much to create and support employment for Americans.

We received good news that our premium processing of an L-1B application was approved without a request for additional evidence. The employee is currently working for our corporate client in their office in Poland. He has been working at that office for the past three years, which is more than the required 1 year of employment necessary for the L-1B intra-company transfer.

Because of his superior grasp of the company’s product, the company wants to transfer him to the corporate headquarters in the Southern California. Although we were confident that the case was approvable, we were afraid that USCIS might issue a request for additional evidence, which has been a growing trend with the USCIS California Service Center. The California Service Center has been issuing cumbersome and overly broad requests for evidence for L-1B cases in the last year. We were happily surprised when we received the approval notice.

The employee will schedule his consular interview in Poland. Assuming all goes well at that interview, he will be able to move to the US in early 2011.

If you or your company are interested in pursuing foreign-born employees, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will personally discuss your company’s employment needs and help you better understand the process involved.

We recently received the good news that H-1B status was approved for a new employee of one of our corporate clients in Southern California. The employee was already working in the United States in L-1 status for another company located in Ohio. Our corporate client hired him as a business systems analyst because of his extensive knowledge with information technologies. He has Bachelor of Engineering Degree from the University of Pune in India.

We filed the necessary forms for his wife and him with the California Service Center under premium processing, in order to cut back on any delays and allow the employee to start working as soon as possible. We were happy to receive the approval within a week. The client and the employee were very happy, and he plans to start at his new job soon.

If you or your company needs help with an employment-based immigration case, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will discuss your case with you and help you better understand the process, timeline and fees associated.