A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Thursday, October 19, 2017

November 2017 Visa Bulletin



In November, the EB-1 visa categories continue to be current for China and India.  EB-2 India and China move forward by 3 weeks.  Final Action Dates for EB-3 China remain ahead of EB-2 China.  Hence, Chinese EB-2 employment-based applicants may still take advantage of the "downgrading" mechanism to apply for I-485 adjustment applications earlier.   Family 1st advances one month for China, India and Other Countries.

AD: Dates for Final Action (Approval)FD : Dates for Filing Applications
      Family
Other Coountries
      China
India
Mexico
Philippines
F1
AD
01/22/2011
01/22/2011
01/22/2011
04/01/1996
01/01/2007
FD
01/01/2012
01/01/2012
01/01/2012
11/01/1996
10/01/2007
F2A
AD
11/15/2015
11/15/2015
11/15/2015
11/01/2015
11/15/2015
FD
11/01/2016
11/01/2016
11/01/2016
11/01/2016
11/01/2016
F2B
AD
11/15/2010
11/15/2010
11/15/2010
07/22/1996
01/01/2007
FD
09/01/2011
09/01/2011
09/01/2011
01/01/1997
09/01/2007
F3
AD
08/15/2005
08/15/2005
08/15/2005
05/08/1995
03/01/1995
FD
12/01/2005
12/01/2005
12/01/2005
10/01/1995
06/15/1995
F4
AD
05/22/2004
05/22/2004
10/22/2003
10/08/1997
06/08/1994
FD
11/15/2004
11/15/2004
06/22/2004
02/08/1998
03/01/1995
1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)


Employment
Other Counties
China

El Salvador
Guatemala
Honduras
India
Mexico
Philippines
EB1
AD
C
         C
C
          C
C
C
FD
C
C
C
C
C
C
EB2
AD
 C
06/15/2013
C
  10/08/2008
C
C
FD
C
11/15/2013
C
02/08/2009
C
C
EB3
AD
C
02/01/2014
C
10/15/2006
C
01/15/2016
FD
C
09/01/2015
C
01/01/2008
C
08/01/2016
Other Workers
AD
C
04/01/2006
C
10/15/2006
C
01/15/2016
FD
C
06/01/2008
C
01/01/2008
C
08/01/2016
EB4
AD
C
C
11/01/2015
C
04/01/2016
C
FD
C
C
04/15/2016
C
C
C
EB5
AD
C
07/01/2014
C
C
C
C
FD
C
10/01/2014
C
C
C
C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)4th: "Special Immigrants" (Religious & others) 5th: Employment Creation (Investors)

Diversity Visa Program ("Visa Lottery") 2019

Want a U.S. green card?  Maybe the visa lottery is the answer.  The Diversity Immigrant Visa Program 2019 is a visa lottery program created by Congress. It is also known as the Green Card Lottery. It is an annual program which opens to all individuals worldwide with approximately 50,000 visas available. For the fiscal year 2019, due to some technical errors, the registration period has been changed:  DV-2019  registration opens from 11:00am, Wednesday, October 18, 2017 to 11:00am, Wednesday, November 22, 2017.


Where to apply and what are the costs?

The lottery is free of charge! It is an official government immigration program and the U.S. Department of State supervises the program. The department has set up an official website where all applications have to be submitted. Official Application Website of the U.S. Government: www.dvlottery.state.gov.


Eligibility 

For DV-2019, natives of the following countries are not eligible to apply because these there were more than 50,000 natives immigrated to the United States from these countries in the previous five years:

Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

Despite the fact that people born in mainland China are not eligible for DV-2019, those who born in Hong Kong SAR, Macau SAR, and Taiwan are eligible to apply.

If one was not born in an eligible country, there are two other ways the person may have a chance to be a qualified applicant:

(1) If the person's spouse was born in an eligible country, then the person can claim the spouse's country of birth as his/her birth country - apply visa lottery based on the spouse's native country.  

(2) As long as neither of the applicant's parents was born in ineligible countries, and they were not residents of the ineligible country at the time when the applicant was born, the applicant would be able to apply for DV-2019 by claiming one of his/her parents' country of birth. For example, if an applicant was born in China mainland, but her parents were born in Taiwan and they were not residents in China mainland at the time of applicant's birth, then the applicant is eligible to apply.


Education and Work Experience Requirement

An applicant must either have a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education; or two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform.


When and how to submit an entry

Entries for the DV-2019 program must be submitted electronically. Applicants may access the electronic DV Entry Form (E-DV) at www.dvlottery.state.gov during the registration period. Paper entries will not be accepted.  DV-2019  registration opens from 11:00am, Wednesday, October 18, 2017 to 11:00am, Wednesday, November 22, 2017.


Selection process

Lucky winners will be randomly selected by a computer system.  There is no way to improve the odds of getting selected.  As stated before, all eligible members within a family may apply individually, thus increasing the chance of winning.


How to find out the results

Beginning May 1, 2018, applicants will be able to check the status of their DV-2019 entries online.  Visit www.dvlottery.state.gov, click on Entrant Status Check, and enter the unique confirmation number and personal information. Entrant Status Check will be the only means through which applicants may check the status of their applications.  It will also provide instructions to the winners of the visa lottery how to proceed with the application process, and also notify them of their appointments for their immigrant visa interview.


Tips:

The DV program makes visas available to persons meeting simple but strict requirements. Applicants should carefully follow the program instructions to fill-out the application form and submit all required photographs. Entries not following the official instructions and requirements will be rejected and disqualified. Furthermore, DHS is technologically capable of identifying fraudulent entries, illegal entries or multiple entries. Also, do not wait until the last week of the registration period to enter. Heavy demand may result in website delays.


Saturday, October 14, 2017

Power of Attorney Can be Broad or Narrow

Powers of Attorney can be very useful tools for estate planning purposes.  A power of attorney is a written authorization to authorize an agent to act on behalf of the individual establishing the legal document (called the principal).  Most commonly, a power of attorney grants power to the agent to carry out financial and business transactions such as accessing bank accounts, selling properties or paying bills.

Broad Powers of Attorney
A power of attorney can be broad or narrow.  Most people or financial planner would draft broad general powers of attorney to cover all types of transactions.   A broad power of attorney is appropriate when the principal has decided to grant substantial powers to another person that he or she trusts completely, such as a spouse or child.  

A broad (also called general) power of attorney allows the agent to basically do anything that the principal is allowed to do.  Such broad powers would facilitate business transactions when the principal becomes disabled unexpectedly. However, a person should be carefully when preparing a general power of attorney.  A short power of attorney that grants broad powers to an agent may not be accepted by financial institutions or government agencies for fear of fraud.  Hence, a carefully drafted power of attorney may be necessary based on the principal's particular needs and circumstances. 

Narrow/Specific Powers of Attorney
There is no legal requirement that a power of attorney must be broad or comprehensive.  A power of attorney can be narrowly written to make specific business transactions possible.  In fact, this practice is quite common in various types of business transactions.  For instance, an individual may live in one country but own a house in another country.  If one day she decides to sell this house, it would be more convenient to grant a power of attorney to an agent in the country to facilitate the sale.   She may choose a family member, a friend or a professional (real estate agent, lawyer, etc.) to act as her agent.

Duration of Powers of Attorney
Generally speaking, a power of attorney is effective upon execution (signing).  But it can also be written in such a way that it is only effective when something happens.  For example, a person may decide to make a power of attorney effective only when he or she becomes unable to handle business affairs due to mental or physical disability.  This is called a "springing" power of attorney.

A power of attorney is considered "durable" after execution.  It means that the power will continue to exist indefinitely unless it is changed or explicitly revoked by the principal.  Hence, if a person does not intend to have a durable power of attorney, it is important to clearly specify the period of validity or how a power of attorney can be terminated in the document.  

Other Estate Planning Tools
Sometimes people confuse a power of attorney with other documents such as Health Care Power of Attorney and Last Will and Testament.  A Health Care Power of Attorney is used to provide instructions to health care providers regarding when and what life-sustaining procedures should be used, appoint an agent to make health care decisions, and also to grant such agent authority to have access to the principal's medical records.  A Last Will and Testament is a legal documents that allows an orderly disposition of one's properties according to his or her wishes. A Will also allows the naming of executors to administer the estate, trusts to manage any trusts formed, and guardians for any minor children.   Without a valid Will, properties will be distributed based on state's default rules and the court will appoint a legal guardian for minor children.  






Friday, October 13, 2017

Changes in I-129 Filing Addresses

On October 12, 2017, USCIS changed the direct filing addresses for certain petitioners of Form I-129.  Specifically,


  • Petitioners will now file Form I-129 according to the state where the company or organization’s primary office is located. (no longer based on the beneficiary’s temporary employment or training location.)
  • Petitioners located in Florida, Georgia, North Carolina and Texas will now file Form I-129 at the California Service Center.

The I-129 form is used by U.S. employers to petition for non-immigrant workers.

Starting November 11, 2017, USCIS may reject Form I-129s that are filed at the wrong service center.

Tuesday, October 3, 2017

I-131 Travel Document Denied Due to International Travel


If you have an advance parole travel document application pending, do not leave the United States.   USCIS is denying pending Forms I-131 for abandonment if the applicant travels internationally.  

Generally, when a person applies for adjustment of status, he or she is not allowed to depart from the U.S. without first obtaining an advance parole travel document.  Such departure is considered an abandonment of the I-485 adjustment application.  

However, there are some exceptions to this general rule.  If a person is possession of certain visas such as H-1B, L-1 or K visas, the person is allowed to travel on these visas without an approved an advance parole application.  

Recently, USCIS has been denying Form I-131 advance parole applications for abandonment in instances where the applicant has traveled abroad while the I-130 application was still pending. The pending Form I-131 application is being denied even if the applicant has a separate valid advance parole document or a valid H, K, L, or V visa to return to the United States. 

In the denial notification, USCIS points to the Form I-131 instructions which state that if the applicant departs the United States before the Advance Parole Document is issued, the application for an Advance Parole Document will be considered abandoned. In the past, USCIS has approved advance parole renewal applications for individuals who travel abroad during the pendency of the application with a valid Advance Parole Document or a valid H, K, L, or V visa.  Nevertheless, USCIS management has confirmed that the current policy is to deny such applications. 

This policy may cause some inconvenience but it can be avoided with careful timing of travel plans. Further, applicants may wish to consider submitting a new Form I-131 application to USCIS if a pending application is denied, as well as avoiding international travel during the pendency of the advance parole application. 


Premium Processing Now Available for All H-1B Petitions

USCIS announced today that it has resumed premium processing for all types of H-1B petitions, effective 10/3/2017.  All petitions including CAP cases, extension petitions, changes of status, changes of employer, etc., are not eligible for premium processing.  Premium processing has been suspended for 6 months since April.  This change is particularly timely for individuals whose cap-gap extension has expired on 10/1/2017.   They may not use premium processing services to speed up the processing of their pending H-1B petitions. 


Thursday, September 28, 2017

How to Respond to "Level I Wage" H-1B Requests for Evidence

Have you received a formal Request for Evidence from USCIS regarding your H-1B application?  Is it questioning why Level I wage was used in the Labor Condition Application (LCA)?   If so you are not alone.  Thousands of RFEs have been issued on this particular issue in the past few months.


"Buy America Hire American" Immigration Policy

The new wave of Requests for Evidence are the result of the recent shift in immigration policy by the Trump Administration.  In April the administration released the Buy America Hire American initiative, emphasizing the policy of protecting American goods and workers.  As we predicted, one of the side effects of the initiative was to tighten the wage requirements in the H-1B program. 


Why is USCIS complaining about the "Level I Wage" 

There are several variations of these Level I Wage Requests for Evidence.  But they are based on this basic argument - Level I wage is supposed to be paid to "entry-level" positions that require only a "basic understanding" of the job and limited exercise of judgment. Accordingly, USCIS questions whether the position being petitioned for is complex enough to qualify as an H-1B Specialty Occupation if Level I wage is used.   Conversely, if the employer's position is that the duties of the position are complex, the use of a Level I LCA would not be appropriate.  


How to Respond to a "Level I" Wage RFE

The following are some arguments that the employers can use to respond to these RFEs.  

  • The legislative history of the DOL wage level indicates that the current four levels of wages were not designed to determine the nature or complexity of the job duties.
  • The assignment of DOL wage level is a mechanical process based on the requirements of education, training, skills, knowledge or experience, etc., for the position. Despite the DOL guidance, the nature and complexities of the job duties are not considered when assignment a wage level.
  • The use of the term "basic understanding" of a profession does not imply a lack of complexities. For example, to be able to qualified to work as a medical doctor, basic understanding of medicine means many years of education and residency training. 
  • Some professions are inherently complex regardless of wage level. Examples include actuaries, attorneys, surgeons, research scientists, etc.  Nobody can argue that these professions are not complex enough for H-1B purposes regardless of the wage level assigned.
  • The four levels of wages assigned by the DOL are used within an organization to reflect the experience, seniority, performance, etc., of an employee in a particular occupation.  Again, complexity is not part of the equation.  A clerical position can have four levels of wages.
  • Requiring employers to pay H-1B workers a higher level wage would be unfair to American workers.  For example, an engineer who just graduated from college should be paid an entry level (Level I) wage regardless of whether she is a U.S. citizen or a foreign worker.  

Conclusion

The above are just some basic guidelines for consideration.  When responding to a Level I Wage RFE, it is almost impossible to prepare an effective response without the assistance of a knowledgeable immigration attorney.   Not only does it involve complex legal analysis of the legislative history, and the related statutes and regulations, it also requires a very thoughtful analysis of the facts of each case - the job duties, the organizational structure, hiring history, supervisory chain of command, parallel positions in the industry, etc.  Although questions regarding the wage level have been raised before in isolated H-1B cases, the massive issuance of RFEs on this issue is unprecedented.  Employees and H-1B workers should try their best to prepare a well-reasoned  and well-supported response.