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USCIS plans to Implement e-registration process for the fiscal year 2021 H-1B Cap Cases (to be filed in 2020) Pending completed testing of the System

Nov. 7, 2019, Washington DC, Adhikari Law PLLC. U.S. Citizenship and Immigration Services has announced today a final rule that will require a non-refundable small fee of $10 for each H-1B e-registration submitted by petitioning employers, once it implements the electronic registration system. The pre-registration was previously announced by the agency.

The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.

Upon implementation of the electronic registration system, petitioners seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, will first have to electronically register with USCIS during a designated registration period, unless the requirement is suspended.

The final rule, Registration Fee Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens, is effective Dec. 9, 2019, and the fee will be required when registrations are submitted. USCIS is fee-funded, and this non-refundable fee will support the new electronic registration system to make the H-1B cap selection process more efficient for both petitioners and the agency.

USCIS is slated to implement the registration process for the fiscal year 2021 H-1B cap selection process, pending completed testing of the system. The agency will announce the implementation timeframe and initial registration period in the Federal Register once a formal decision has been made, and USCIS will offer ample notice to the public in advance of implementing the registration requirement.

USCIS published a notice of proposed rulemaking highlighting a registration fee on Sept. 4, 2019, which included a 30-day public comment period. USCIS received only 22 comments during that time, and has considered all submissions and offered public responses ahead of announcing the final rule, which is effective on Dec. 9.

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If you want to learn more about this topic or Cap Subject H-1B in general or about our legal services for the preparation and the filing H-1B petition do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 600 7745, or email us at info@adhikarilaw.com

SEVP Policy Guidance on Practical Training: Determining a Direct Relationship Between Employment and a Student’s Major Area of Study

Student and Visitor Exchange Program (SEVP) of the Immigration and Customs Enforcement (ICE) within U.S. Department of Homeland Security issues a Policy Guidance which addresses both OPT and science, technology, engineering and mathematics (STEM) OPT extension opportunities and explains that students are responsible for providing a description of how their job relates to their major area of study, which the DSO must review and retain. When the DSO has concerns about whether the job directly relates to the student’s major area of study, additional documentation may be required to demonstrate the connection. https://www.ice.gov/doclib/sevis/pdf/optDirectlyRelatedGuidance.pdf

This guidance supersedes any information previously provided by the Student and Exchange Visitor Program (SEVP) on this matter.

Documenting the Direct Relationship:

Non immigrant students are responsible for providing a description of how their practical training opportunity relates to their major area of study, which the DSO must review and retain. Preferably, this description would be entered in the free text section in SEVIS, described above, which is provided for the purpose of capturing this information. Students can enter the information by using the Portal or DSOs can enter the information directly in SEVIS. 4 As an alternative to entering the information in SEVIS, the DSO must obtain an explanation of how the j ob relates to the student’s major area of study and retain that explanation in the student’s records. SEVP may request this information as part of a compliance review. If an explanation is not entered in SEVIS, a notation should be made in the free text field indicating that the DSO has received an explanation of the direct relationship and will maintain the record in the student’s fil e. The written explanation, maintained in SEVIS or otherwise, should include the student’s job title, employer name, major area of study, whether fu ll time5 or the average hours worked per week, and a brief explanation of bow the job is directly related to the student’s studies. The regular duties should be explained and the nexus between those duties and the degree described (see examples provided at the end of this document).

Assessing the Direct Relationship:

As described in the regulations , when a DSO recommends a student for OPT or STEM OPT, the school assumes additional responsibilities to monitor and update the student’s SEVIS record. Consistent with those responsibilities, a DSO must make a determination of whether there is a direct relationship between the job and the major area of study. The decision should be made on a case-by-case basis. The inquiry is whether there is a logical connection between the duties involved in the practical training opportunity and the student’s major area of study. In the vast majority of cases, a DSO should be able to make that assessment based on the documentation provided by the student.

If a DSO believes that the documentation does not provide a sufficient explanation, they should ask for additional evidence to better understand the relationship. Although not required, DSOs may make use of websites that provide a general crosswalk between jobs and programs of study. Examples of these types of websites include, but are not limited to, sites maintained by the College Board, the Department of Labor and the National Center for Education Statistics.

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If you want to learn more about this and other legal topics do contact us at (+1) 888 820 4430 (toll free) or email us at info@adhikarilaw.com

Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

H-1B Employees are subjected to Federal Insurance Contributions Act (FICA) tax withholding

Employees in F-1, J-1, M-1, Q-1 or Q-2 non-immigrant status are exempt from FICA therefore no withholding has to be made. However once these nonimmigrant change their visa status to H-1B, generally beginning from Oct 1st, then they are no longer exempt from FICA. So the employer should review payroll procedures and update tax withholding exemptions for these H-1B employees. U.S. employers must start withholding FICA taxes on the effective date of the change of status to H-1B whether it be October 1st or later whenever change of status to H-1B gets approved.


If you want to learn more about this and legal topics do contact us at (+1) 888 820 4430 (toll free) or email us at info@adhikarilaw.com

Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

DHS Proposes a small Registration Fee for Petitioners Seeking to File H-1B Cap-Subject Petitions

September 3, 2019, Adhikari Law, Washington, DC. The Department of Homeland Security (DHS) today announcednotice of proposed rule making that would require petitioners seeking to file H-1B cap-subject petitions to pay a $10 fee for each electronic registration they submit to USCIS.

Because USCIS must expend resources to implement and maintain the H-1B registration system, and because USCIS operations are funded by fees collected for adjudication and naturalization services, DHS is proposing an appropriate, nominal fee for submitting H-1B registrations to recover those costs.

On Jan. 31, DHS published a final rule requiring petitioners seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period, unless we suspend that requirement. We also stated in that final rule that we were suspending the registration requirement for the fiscal year (FY) 2020 cap season, to complete required user testing of the new H-1B registration system and otherwise ensure the system and process work correctly.

In that final rule, DHS also reordered the cap selection process to increase the chance of selecting petitioners with a master’s degree or higher from a U.S. institution of higher education. Preliminary data shows that the number of petitions for U.S. advanced degree holders selected toward the FY 2020 numerical allocations increased by more than 11% over the year before.

H-1B visas allow skilled workers in certain specialty occupations to temporarily live and work in the United States.

Additional information on the proposed rule is available in the Federal Register. Public comments will be accepted from Sept. 4 (when the proposed rule publishes in the Federal Register) through Oct. 4. 

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If you want to learn more about Cap Subject H-1B or about our legal services for the preparation and the filing H-1B petition do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 600 7745, or email us at info@adhikarilaw.com

FAQ about Automatic re-validation of an expired non-immigrant visa based on valid status: What is re-validation of a nonimmigrant visa?

What is re-validation of a nonimmigrant visa?

Generally, the nonimmigrant visa is valid until the duration given on the visa itself. The validity of an expired nonimmigrant visa issued under Immigration and Nationality Act ("INA" or "Act") may be considered to be automatically extended to the date of application for readmission in cases where the original nonimmigrant classification of an alien has been changed by U.S. Department of Homeland Security (DHS) to another nonimmigrant classification, the validity of an expired or unexpired nonimmigrant visa may be considered to be automatically extended to the date of application for readmission, and the visa may be converted as necessary to that changed classification.

Who is eligible for re-validation of a nonimmigrant visa?

The nonimmigrant who is:

  1. in possession of a Form I-94, Arrival-Departure Record, endorsed by DHS to show an unexpired period of initial admission or extension of stay, or,

in the case of a qualified F or J student or exchange visitor or the accompanying spouse or child of such an alien, is in possession of a current Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, or Form IAP-66, Certificate of Eligibility for Exchange Visitor Status, issued by the school the student has been authorized to attend by DHS, or by the sponsor of the exchange program in which the alien has been authorized to participate by DHS, and endorsed by the issuing school official or program sponsor to indicate the period of initial admission or extension of stay authorized by DHS;

AND

2. Is applying for readmission after an absence not exceeding 30 days solely in contiguous territory. In the case of a student or exchange visitor or accompanying spouse or child Travelers (F, J) are allowed to visit contiguous territory or adjacent islands (i.e. Caribbean) other than Cuba for period not exceeding 30 days.

3. Has maintained and intends to resume nonimmigrant status;

4. Is applying for readmission within the authorized period of initial admission or extension of stay;

5. Is in possession of a valid passport;

6. Does not require authorization for admission under INA 212(d)(3); and

7. Has not applied for a new visa while abroad, and the person does not have a pending or rejected application for a new visa. Since it is not possible to renew a non-immigrant visa in the U.S., a person on a non-immigrant visa may travel to a nearby country to apply for a new visa

8. The person is not a citizen of one of the countries designated by the U.S., as a state sponsor of terrorism.

As of 2015 the Department of State list includes four countries:Iran (designated January 19, 1984), Syria (designated August 12, 1993), Sudan (designated December 29, 1979) and Democratic People's Republic of Korea (North Korea designated November 20, 2017). Cuba was removed on April 4, 2015.

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If you want to learn more about this and other immigration law topics do contact us at (+1) 888 820 4430 (toll free) or email us at info@adhikarilaw.com

Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

DHS published the Final Rule related to the public charge ground of inadmissibility citing Section 212(a)(4) of the Immigration and Nationality Act

Washington, DC. On August 14, 2019, the U.S. Department of Homeland Security (DHS) published the Inadmissibility on Public Charge Grounds final rule that codifies regulations governing the application of the public charge inadmissibility ground under INA section 212(a)(4). On Oct. 10, 2018, DHS issued a Notice of Proposed Rulemaking (NPRM), which published in the Federal Register for a 60-day comment period. DHS received and considered over 266,000 public comments before issuing this final rule. The final rule provides summaries and responses to all significant public comments.

The final rule enables the federal government to better carry out provisions of U.S. immigration law related to the public charge ground of inadmissibility. The final rule clarifies the factors considered when determining whether someone is likely at any time in the future to become a public charge, is inadmissible under section 212(a)(4) of the INA, and therefore, ineligible for admission or adjustment of status.

The rule applies to applicants for admission, aliens seeking to adjust their status to that of lawful permanent residents from within the United States, and aliens within the United States who hold a nonimmigrant visa and seek to extend their stay in the same nonimmigrant classification or to change their status to a different nonimmigrant classification.

The final rule does not create any penalty or disincentive for past, current, or future receipt of public benefits by U.S. citizens or aliens whom Congress has exempted from the public charge ground of inadmissibility. The final rule does not apply to U.S. citizens, even if the U.S. citizen is related to a noncitizen who is subject to the public charge ground of inadmissibility. The rule also does not apply to aliens whom Congress exempted from the public charge ground of inadmissibility, such as refugees, asylees, Afghans and Iraqis with special immigrant visas, and certain  nonimmigrant trafficking and crime victims, individuals applying under the Violence Against Women Act, special immigrant juveniles, or to those who DHS has granted a waiver of public charge inadmissibility.

In addition, this rule also clarifies that DHS will not consider the receipt of designated public benefits received by an alien who, at the time of receipt, or at the time of filing the application for admission, adjustment of status, extension of stay, or change of status, is enlisted in the U.S. armed forces, or is serving in active duty or in any of the Ready Reserve components of the U.S. armed forces, and will not consider the receipt of public benefits by the spouse and children of such service members. The rule further provides that DHS will not consider public benefits received by children, including adopted children, who will acquire U.S. citizenship under INA section 320, 8 U.S.C. 1431.

Similarly, DHS will not consider the Medicaid benefits received: (1) for the treatment of an “emergency medical condition,” (2) as services or benefits provided in connection with the Individuals with Disabilities Education Act, (3) as school-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under State or local law, (4) by aliens under the age of 21, and (5) by pregnant women and by women within the 60-day period beginning on the last day of the pregnancy.

DHS will only consider public benefits received directly by the applicant for the applicant’s own benefit, or where the applicant is a listed beneficiary of the public benefit. DHS will not consider public benefits received on behalf of another as a legal guardian or pursuant to a power of attorney for such a person. DHS will also not attribute receipt of a public benefit by one or more members of the applicant’s household to the applicant unless the applicant is also a listed beneficiary of the public benefit.

Question (Q). Which benefits are included in public charge inadmissibility determinations? 

A. DHS will only consider public benefits as listed in the rule:

  • Any federal, state, local, or tribal cash assistance for income maintenance
  • Supplemental Security Income (SSI)
  • Temporary Assistance for Needy Families (TANF)
  • Federal, state or local cash benefit programs for income maintenance (often called “General Assistance” in the state context, but which may exist under other names)
  • Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”)
  • Section 8 Housing Assistance under the Housing Choice Voucher Program
  • Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)
  • Public Housing under section 9 the Housing Act of 1937, 42 U.S.C. 1437 et seq.
  • Federally funded Medicaid (with certain exclusions)

This rule also clarifies that DHS will not consider the receipt of designated public benefits received by an alien who, at the time of receipt, or at the time of filing the application for admission, adjustment of status, extension of stay, or change of status, is enlisted in the U.S. armed forces, or is serving in active duty or in any of the Ready Reserve components of the U.S. armed forces, and will not consider the receipt of public benefits by the spouse and children of such service members. The rule further provides that DHS will not consider public benefits received by children, including adopted children, who will acquire U.S. citizenship under INA 320, 8 U.S.C. 1431 or INA 322, 8 U.S.C. 1433.

DHS also will not consider:

  1. The receipt of Medicaid for the treatment of an emergency medical condition;
  2. Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act;
  3. School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under state or local law;
  4. Medicaid benefits received by an alien under 21 years of age; or
  5. Medicaid benefits received by a woman during pregnancy and during the 60-day period beginning on the last day of the pregnancy.

The final rule also clarifies that DHS will only consider public benefits received directly by the applicant for the applicant’s own benefit, or where the applicant is a listed beneficiary of the public benefit. DHS will not consider public benefits received on behalf of another as a legal guardian or pursuant to a power of attorney for such a person. DHS will also not attribute receipt of a public benefit by one or more members of the applicant’s household to the applicant, unless the applicant is also a listed beneficiary of the public benefit.

Q. How will DHS determine whether someone is likely at any time to become a public charge for admission or adjustment purposes? 

A. Under the final rule, “likely at any time to become a public charge” means more likely than not at any time in the future to become a public charge (in other words, more likely than not at any time in the future to receive one or more of the designated public benefits for more than 12 months in the aggregate within any 36-month period, such that, for instance, receipt of two benefits in one month counts as two months).

Under this final rule, inadmissibility based on the public charge ground is determined by looking at the factors set forth in 8 CFR 212.22 and making a determination of the applicant’s likelihood of becoming a public charge at any time in the future based on the totality of the circumstances. This means that the adjudicating officer must weigh both the positive and negative factors when determining whether someone is more likely than not at any time in the future to become a public charge. As required by section 212(a)(4) of the Act, and this final rule, when making a public charge inadmissibility determination, a USCIS officer must consider the applicant’s:

Q. How will DHS determine whether someone is likely at any time to become a public charge for admission or adjustment purposes?

A. Under this final rule, inadmissibility based on the public charge ground is determined by looking at the factors set forth in 8 CFR 212.22 and making a determination of the applicant’s likelihood of becoming a public charge at any time in the future based on the totality of the circumstances. This means that the adjudicating officer must weigh both the positive and negative factors when determining whether someone is more likely than not at any time in the future to become a public charge. As required by section 212(a)(4) of the Act, and this final rule, when making a public charge inadmissibility determination, a USCIS officer must consider the applicant’s:

  • Age;
  • Health;
  • Family status;
  • Assets, resources, and financial status;
  • Education and skills;
  • Prospective immigration status;
  • Expected period of admission; and
  • Sufficient Form I-864, when required under section 212(a)(4)(C) or (D) of the INA.

If you want to learn more about this and other immigration law topics do contact us at (+1) 888 820 4430 (toll free) or email us at info@adhikarilaw.com

Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

USCIS publishes a final rule which makes a number of significant changes to its EB-5 Immigrant Investor Program

Adhikari Law PLLC, Washington, D.C. U.S. Citizenship and Immigration Services (USCIS) has published a final rule on July 24 that makes a number of significant changes to its EB-5 Immigrant Investor Program, marking the first significant revision of the program’s regulations since 1993. The final rule will become effective on Nov. 21, 2019.

New developments under the final rule include:

Under the EB-5 program, individuals are eligible to apply for conditional lawful permanent residence in the United States if they make the necessary investment in a commercial enterprise in the United States and create or, in certain circumstances, preserve 10 permanent full-time jobs for qualified U.S. workers.

Major changes to EB-5 in the final rule include:


If you want to learn more about EB-5 investor immigration program or other immigration law topics do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 600 7743, or email us at info@adhikarilaw.com
Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

Fairness for High-Skilled Immigrants Act of 2019 Passes House of Representatives

Washington, D.C. U.S. House of Representatives (House) has passed the H.R. 1044 – Fairness for High-Skilled Immigrants Act of 2019 today. The bill will now goes to U.S. Senate (Senate). Passed/agreed to in House on motion to suspend the rules and pass the bill, as amended Agreed to by the Yeas and Nays: (2/3 required): 365 – 65 (Roll no. 437). The bill was introduced in House on February 7, 2019. This bill increases the per-country cap on family-based immigrant visas from 7% of the total number of such visas available that year to 15%, and eliminates the 7% cap (per-country) for employment-based immigrant visas. It also removes an offset that reduced the number of visas for individuals from China.

The bill also establishes transition rules for employment-based visas from FY 2020- FY2022, by reserving a percentage (15%, 10% and 10%) of EB-2 (workers with advanced degrees or exceptional ability), EB-3 (skilled and other workers), and EB-5 (investors) visas for individuals not from the two countries with the largest number of recipients of such visas. Of the unreserved visas, not more than 85% shall be allotted to immigrants from any single country. These provisions will expedite the employment-based immigrant visa processing or adjustment of status for the national of China, India and other countries with backlogs on EB-5.

History of the Bill

 

Feb. 7, 2019: Bills and resolutions are referred to committees which debate the bill before possibly sending it on to the whole chamber.    Read Text

July 5, 2019: The House indicated that this bill would be considered in the week ahead.

July 10, 2019: The bill was passed in a vote in the House. It goes to the Senate next.   View Vote

Upon further action on the bill, the following steps may occur next:

Passes Senate

Signed by the President

 

 

If you or your employer wants to learn more about employment-based immigration programs or about other immigration and visa programs do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 600 7742, or email us at info@adhikarilaw.com

Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice.

U.S. begins implementation of E-2 Investor Visas for Israeli Nationals

Washington, D.C. Adhikari Law PLLC. The U.S. has started the implementation of the U.S. E-2 Investor Visa for Israeli nationals, beginning May 1. E-2 visa is a temporary (nonimmigrant) visa that can be used to develop, direct, or provide specialized skills to an enterprise in which the owner has invested a substantial amount of capital. With the implementation of this visa, Israeli investors now have the opportunity to invest in the U.S. economy and send qualified employees to the United States. Likewise, U.S. citizens will be eligible to apply for visas to invest in Israel.

To qualify for a Treaty Investor (E-2) visa:

·         The investment must be substantial and sufficient to ensure the successful operation of the enterprise;

·         The business must be a real operating enterprise;

·         The investor must be traveling to the U.S. to develop and direct the enterprise;

·         If the applicant is not the investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity.

All Israeli companies seeking E-visas for their owners or employees must apply at the Branch Office in Tel Aviv and establish that the trading enterprise or investment meets the requirements. The company and applicant have the burden of demonstrating fulfillment of requirements for Treaty Trader/Investor status under Foreign Affairs Manual. For both first-time applicants and renewals, the company must submit supporting documents, including the individual application for the employee, by mail.

If USCIS authorized a Change of Status to E for a person in the United States, that status is only valid as long as you remain in the United States. To obtain an E-visa, the company and applicant must submit a complete package by mail as per first time applicants.

Selected Required Documents:

·         Cover Letter: This must be printed on company letterhead and outline the company’s qualifications for E-1 status. The letter must address all the requirements for E visa eligibility as defined by the Foreign Affairs Manual.

·         Table of Contents: Identify the documents provided and their location in the binder.

·         Completed Application: Form DS-156E Part I- Business Profile, and Part II -Staff.  Please complete every question and do not write “see attached” in response to any question.

·         Evidence that the company meets the ownership requirements:

o    For public companies: a translated copy of the Company Registrar from the Israeli Ministry of Justice, detailing the shareholders’ names and percentage of stock ownership, and a statement from a CPA stating the amount of stock that is traded on any stock exchange.

o    For privately owned companies: documentation of ownership.

o    For companies that are ultimately owned by other Israeli companies or by a consortium: documentation identifying the ultimate shareholders by nationality (Note: To the extent that a certain percentage of a company’s stock is traded on the TASE, the nationality of the shareholders of that stock may be assumed to be Israeli.)

o    For companies that have been incorporated in the U.S.: certificate/articles of incorporation, certificate of shares issued to shareholders, business license, and lease contracts. [In all cases, please submit a formal CPA letter indicating the nature of the company (branch, subsidiary, or partnership), its structure, the ownership distribution, and nationality of shareholders.]

·         Proof of Israeli nationality: The nationality of an enterprise is determined by the nationality of its individual owners.  Documents to prove nationality may include a valid passport of the owners of the ultimate parent company.

·         Evidence that at least 50% of international trade is between the U.S. and Israel: A formal statement from the company’s CPA showing international imports/exports over the last year. The statement must include:

o    Which countries the company imports from

o    Which countries the company export to

o    The volume of trade with each country

o    The volume of returned goods

o    The number of transactions with each country

·         Evidence of substantial and continuous flow in goods/services:

o    Invoices of purchases and sales for the last year

o    Bank records

o    Bills of shipment

o    Contract

·         Evidence of the company’s financial situation:

o    Most recent audited financial statement

o    Most recent quarterly annual report

o    Most recent U.S. tax return

·         The file MUST include an Employee’s visa application:

o    Completed DS-160

o    Evidence of payment of the MRV application fee (payable on the Visa Information Service website)

o    One photograph that meets the specifications

o    Form DS-156E

o    Employee’s Curriculum Vitae

o    Letter on company letterhead explaining the reasons why the employee must be in the U.S. and a description of his/her responsibilities

o    Photocopy of the bio page of the employee’s passport

·         Visa application for dependents: for each family member

 

The documentation requirement and the process for E-2 visa is complex and generally requires a professional help. If you or your employer want to learn more about E-2 Investor Visa program or work visa for manager or executives do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 600 7742, or email us at info@adhikarilaw.com

Note: This is a blog post by Adhikari Law PLLC LC and should NOT be construed as a legal advice.