Generally, if an H-1B visa application is approved, a foreign national employee is authorized to start working for a US employer at the start of the fiscal year, on October 1, 2012.  Optional Practical Training (OPT) status holders might be eligible for a “Gap Cap” that would allow them to start working before October 1, 2012.

H-1B visa denial rates rose from 11% in FY2007 to 17% in FY2011; likewise, Request for Evidence (RFE) rate for H-1B visa applications soared from 4% in FY 2004 to a striking 26% in FY 2011, as reported by the National Foundation for American Policy.  It is increasingly important to be represented by a seasoned H-1B lawyer.  Since the H-1B quota for FY2013 will probably not remain open for long, eligible foreign workers and their US employees are advised to immediately contact H-1B visa lawyer so that your application is ready for submission once the quota opens up on April 1, 2012!

On January 6, 2012 USCIS announced a proposal to streamline the application process for the spouses and children of US citizens currently eligible for legal permanent residency (green card).  This proposal will minimize the amount of time that applicants would have to be separated from their US-based families.

Current process. Thousands of persons who have qualifying US citizen relatives must leave the US to obtain their lawful permanent residency (green card), but as soon as they leave, they are immediately barred from re-entering for 3 or 10 years if they have been unlawfully present in the U.S. for more than 180 days.  Many are eligible for an “extreme hardship” waiver, but under current rules, the waiver can only be applied for from overseas.  Since the extreme hardship waiver application process takes  years many eligible applicants do not apply for legal permanent resident status (green card), choosing to remain in the US unlawfully rather than risk lengthy separation from their US-based families.

Proposed process.  A provisional waiver application may be submitted in the US and the applicant may continue to wait in the US until a decision is made. If it is granted, the visa applicant may proceed to a visa interview outside of the US.  To qualify for the provisional waiver, it will still be necessary to establish extreme hardship, but the qualifying hardship will be limited to a US citizen parent or spouse.  The “provisional waiver” proposal recognizes that there is no practical reason for forcing spouses and children of US citizens to wait overseas for years while their application for a waiver is pending.

We would like to emphasize that the “provisional waiver” is merely a proposal at this time, it is not yet in place. Be vigilant and avoid becoming a victim of immigration scams claiming that an immigration amnesty or immigration reform has been passed!

Immigration Reform (also know as “immigration amnesty”)
Immigration reform is a legalization proposal geared toward aliens who entered the US without inspection and remain in the US unlawfully and aliens who, while having entered the US with a valid visa, overstayed it and are now in the US unlawfully.  Under this proposal, such aliens would get some sort of legal status in the US and would eventually work their way toward becoming US citizens.
Romney: “My view is, people who have come here illegally, we welcome you to apply but you must get at the back of the line, because there are millions of people who are in line right now that want to come here legally. I want those to come here legally. Those that are here illegally have to get in line with everybody else.” [Republican Debate, December 15, 2011]

DREAM Act
The DREAM Act is a bill that would provide a path to citizenship for thousands of undocumented aliens who were brought to the U.S. as young children and who want to pursue higher education or military service.
Romney: “If I were elected and Congress were to pass the DREAM Act, would I veto it? The answer is yes.” [Washington Post, December 31, 2011]

Work Visas (H-1B and other visas) and Green Cards for Aliens with Advanced Degrees in Science
Romney: “As President, [I] will also work to establish a policy that staples a green card to the diploma of every eligible student visa holder who graduates from one of our universities with an advanced degree in math, science, or engineering. As President, a first step that [I] will take is to raise the ceiling on the number of visas issued to holders of advanced degrees in Math, Science, and engineering who have job offers in those fields from US companies.” [Believe in America, September 6, 2011]

Under this proposal, out of $500,000 at least $250,000 must be spent on a primary residence where the foreign investor will reside for at least 180 days out of the year while paying taxes to the U.S. In addition to the principal foreign investor, the three-year visa would also cover investor’s spouse and minor children. Foreign investors would have to undergo standard criminal and national security background checks and, once approved, would not be able to receive government benefits such as Medicare, Medicaid, and Social Security. As opposed to an EB-5 visa program, under VISIT-USA Act foreign investors would not be eligible for work employment authorization or converting their status to lawful permanent residency and US citizenship.

A word of caution: at this point, VISIT-USA Act is merely a legislative proposal. In fact, it is at the very beginning of a highly complex legislative process that could take many months or years. Stay tuned for updates!

It is ironic that VAWA adjudication vehicle created out of concern and compassion for immigrant survivors of domestic violence seems to be running out of steam. Our current and future VAWA clients need to understand that while their safety and well-being is still a priority, they need to be organized and detail-oriented when it comes to documenting their story. We hope that a few suggestions below would help a potential VAWA applicant substantiate their story:

1) No matter how painful it is, keep your join photos and memorabilia (albums, cards, gifts, receipts, etc) even if you have to move or go to a shelter.
2) If in doubt on item’s evidentiary value, do not discard it. Rather, show it to your attorney.
3) Be friendly with people in your building or area: landlord, building staff, super, neighbors, neighborhood store and bank clerks. If everything else fails, you might have to turn to their help to prove your residence.
4) Now that every single VAWA application is heavily scrutinized and many are denied, consider being represented by a VAWA expert.

However, towards mid-November 2011 H-1B submissions pace towards both quotas has drastically accelerated.  As a result, both quotas have been reached much earlier than expected.  We at Valentini Law Offices tell our potential clients that predicting H-1B quota is not an exact science.  Like with many things in life, acting fast and applying for an H-1B skilled worker visa as early in the “H-1B season” as possible can be crucial.  As the saying goes, an early bird catches the warmth!

An H-1B quota for Fiscal Year 2013 will be opening up on April 1, 2012.  An H-1B quota consists of two separate “sub quotas,” 65,000 quota is established for foreign nationals holding bachelor’s degrees, and another 20,000 quota is set up for foreign nationals with advanced degrees from US educational institutions.

Generally, if an H-1B application is approved, a foreign national employee is authorized to start working for a US employer at the start of the fiscal year, on October 1, 2012.  Optional Practical Training (OPT) status holders might be eligible for a “Gap Cap” that would allow them to start working before October 1, 2012.

Since the H-1B quota for FY2013 might not remain open for long, eligible foreign workers and their US employees are advised to immediately contact Valentini Law Offices to start H-1B application process.

Read more.

On Wednesday, Senators Robert Menendez (D-NJ) and Patrick Leahy (D-VT) introduced S.B. 3932, The Comprehensive Immigration Reform Act of 2010. The bill takes a broad approach to solving the wide range of problems that plague our broken immigration system. It offers proposals on border, interior, and worksite enforcement, on legalization, and on future flows of immigration. Now the Senate and House both have a vehicle (Congressman Luis Gutierrez previously introduced a CIR bill in the House last December) for generating a serious discussion on immigration reform in the coming weeks. These bills are a direct response to the overwhelming public demand for solutions to our broken immigration system. Both political parties have acknowledged that this broken system is no longer sustainable, and is disrupting America’s businesses, families, and long-term economic recovery.
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