Immigration options for crewmen

By Reuben S. Seguritan

April 13, 2016

Sometimes ship crew members ‘jump ship’ while their vessel is in the US in the hope that they can obtain their green card and build a better life.

Unfortunately, they would soon realize that as a rule, they are not eligible to adjust status even if they are married to a US citizen.

What then are their options?

If the crewman is the beneficiary of a petition or labor certification filed on or before April 30, 2001 and was in the US on December 21, 2000 if the petition was filed after January 14, 1998, he is covered by the 245(i) exception to the adjustment bar. However, if he does not fall under this exception, he has to go abroad and obtain an immigrant visa.

This would mean years of separation from his family if he has accrued unlawful presence in the US for more than 180 days. But a recent regulation now allows certain individuals, including crew-members, to shorten the separation by obtaining a provisional waiver before he departs for his immigration interview abroad.

We have recently represented a crew member who successfully obtained a provisional waiver. Our client was in the Philippines only for a few weeks and is now a lawful permanent resident in the US.

Another option is for the crew-member to check with an attorney if he is a crewman to begin with.

Under the Immigration and Nationality Act, an alien crewman is a person serving in a capacity required for the normal operation and service on board a vessel or aircraft, who intends to land temporarily and solely in the pursuit of his calling as a crewman.

The proper visa classification for crewmen is the D visa. However, the C-1 visa is also given to crewmen who will be in immediate and continuous transit through the U.S. to join a ship or aircraft in the U.S. Consular officials often issue a dual transit/crew-member visa called “C-1/D”.

Confusion sometimes arises because, since the C-1 visa is generally for those who are passing through the U.S. to another country, not all transit visa holders are crew-members but they are issued a C-1/D visa.

The confusion continues upon inspection for admission or parole in the U.S., where the individual may be issued an I-94 with a C-1 or D stamp, or an I-95 (crewman’s landing permit).

In other words, not everyone with a C-1 or a C-1/D visa is a crewman and ineligible to adjust status. If the person does not meet the statutory definition of a crewman, he/she should not be considered ineligible for adjustment of status. Under the law, it is one’s occupation and purpose of entry that makes him a crewman and not the manner of his arrival.

Given the serious immigration implications of being categorized as a crewman, it is important to look beyond what may be stamped on the face of one’s immigration papers and analyze many factors, including his occupational history, purpose in coming to the United States, circumstances surrounding his inspection upon admission to the U.S., and actions after his entry.

H-4 employment authorization guideline

By Reuben S. Seguritan

April 06, 2016

A question and answer guideline concerning the employment authorization for certain H-4 dependent spouses was recently released by the USCIS. It provides information on eligibility, the application process, adjudication and processing times.

The H-4 employment authorization rule took effect on May 20, 2015. Many have already applied for the benefit but further clarification of the process was needed.

Under the rule, eligible are the spouses of H-1B nonimmigrants who are the beneficiaries of an approved I-140 immigrant petition or who have been granted extension beyond six years under the AC21 law.

The I-140 need not have been filed by the current H-1B employer or by the employer who had filed the H-1B petition.

The I-140 must not have been revoked. Both the spouse and the dependent must be maintaining their nonimmigrant status.

The authorization is unrestricted. This means that you as a dependent spouse may work anywhere or engage in self-employment or start a business.

If you file you must submit a paper I-765 application, not an electronic form, and submit supporting documents. Supporting documents include evidence of H-4 nonimmigrant status, evidence of your relationship with your H-1B spouse such as your marriage certificate and documents proving his/her H-1B status. This could be a copy of Form I-797, Notice of Approval for the Form I-129 filed on your spouse’s behalf. This could also be a copy of your H-1B spouse’s Form I-94, personal data page in his/her passport, visas on which he or she last entered the US and the latest US admission stamped in his/her passport.

If your spouse’s H-1B status is based on the AC21 law, you must include evidence that your H-1B spouse is the beneficiary of a Permanent Labor Certification Application filed at least 365 days before the expiration of his/her six-year stay. This could be a copy of a printout from the Department of Labor (DOL) showing the status of the Permanent Labor Certification Application filed on his/her behalf.

You may also submit proof that your H-1B spouse’s Form I-140 was filed at least 365 days before the expiration of his/her six-year stay as an H-1B. An example would be to include a copy of your H-1B spouse’s Form-I-797 Receipt Notice for the Form I-140.

If you are applying based on your spouse being a beneficiary of an approved Form I-140, submit a copy of the approval notice of his Form I-140 or if unavailable, anything that could explain why it is unavailable.

If you are unable to obtain the abovementioned documentation for whatever reason, sworn affidavits by non-parties who have direct knowledge of the relevant events and circumstances may likewise be submitted as substitute evidence.

While the I-765 is pending, you may travel if you are currently in status and meet all other admission requirements. If the I-765 is filed concurrently with your I-539 change of status to H-4, travel will be treated as abandonment of application.

Processing time is about 90 days. The employment authorization card cannot be used to enter and exit the US.

USCIS issues H-1B filing instructions

By Reuben S. Seguritan

March 23, 2016

H-1B petitions for fiscal year 2017 that starts October 1, 2016 will be accepted beginning April 1, the USCIS announced last March 16.

More petitions than the H-1B cap of 65,000 are expected to be filed during the first five business days. So all the petitions received during that period will be subject to a computer-generated lottery system to randomly select the petitions required to meet the cap.

Last fiscal year, the USCIS received approximately 233,000 during the first five business days in April. The USCIS will notify the public when the H-1B cap has been met. Those not selected will be returned.

The first 20,000 H-1B petitions for individuals holding a US master’s degree or higher are exempted from the cap. Once this limit is reached, the petitions will be subjected to the regular cap.

Processing of H-1B petitions may be expedited through premium processing request on Form I-907. This may be filed concurrently with the H-1B petition. For a fee of $1,225, premium processing guarantees a fifteen calendar day processing of filed petitions from receipt of the request. This year the USCIS will start premium processing of H-1B petitions subject to cap no later than May 16.

Before the filing of an H-1B petition on Form I-129, the petitioner must file with the U.S. Department of Labor, a Labor Condition Application (LCA). The certified LCA must be filed with the Form I-129 petition.

To be classified as a specialty occupation for H-1B purposes, the occupation requires at least a bachelor’s degree or higher in the specific specialty or its equivalent. In order to be eligible for a specialty occupation, the beneficiary must have at least one of the following: (1) US bachelor or higher degree, (2) foreign degree equivalent to a US bachelor degree or higher, (3) an unrestricted license or certification to practice profession or (4) experience equivalent to completion of degree.

The H-1B petition must be accompanied by proof that the beneficiary is eligible for H-1B classification. Documentary evidence includes diploma, transcript of records, credentials evaluation and license to practice the profession, if required, among others.

The USCIS allows for the submission of other evidence if the degree has not been awarded yet but requirements for the degree have been met. The final transcript as well as a letter from the Registrar confirming that all degree requirements have been met may suffice.

A U.S. employer cannot file multiple H-1B petitions for the same beneficiary. Multiple H-1B petitions by a single employer for the same beneficiary will be rejected. However, related employers such as a principal and subsidiary may file for the same worker for different positions subject to other requirements. The H-1B beneficiary may work for more than one employer provided that each employer files a separate petition with the required labor condition application.

There is a base fee of $325 for an H-1B petition, an ACWIA fee of $750 or $1,500 depending on the number of employees of the employer and an anti-fraud fee of $500.

F-1 system students can now stay longer

By Reuben S. Seguritan

March 16, 2016

A new Department of Homeland Security (DHS) rule just gave international students with F-1 visa two more years of on-the-job training here in the US.

Before, an F-1 student with a degree in science, technology, engineering and mathematics (STEM) from a US institution of higher education can apply for 17 months of OPT on top of the one year already allowed to them after graduating in a STEM field. Under the new rule, starting May 10, students can apply for a 24-month extension of their post-completion OPT.

This means that the new rule that was published last March 11 gave international students earning a degree in these fields the chance to experience three years of on-the-job training. This gives them more time to expose themselves to valuable and practical STEM experience.

This is good news for a lot of students who want to gain more knowledge in their field of study. This is also great news for US employers who can benefit from their skills and know-how.

However, there are a lot to consider as the new rule is very strict when it comes to reporting.

In order for one to be eligible to apply for the extension, you have to have a bachelor’s, master’s, or doctoral degree from a school that is accredited by a U.S. Department of Education-recognized accrediting agency and is certified by the Student and Exchange Visitor Program (SEVP) when you submit your STEM OPT extension application. It is also important that your OPT must be in a field related to science, technology, engineering and mathematics. Should you have a non-STEM master’s degree but you have a bachelor’s degree in any of the fields mentioned, you can use your bachelor’s degree to apply for a STEM OPT extension.

A formal training plan developed with your prospective employer is also necessary. You need to draw a plan where you and your future employer identify learning objectives and the ways by which you envision to achieve these. In order to keep track of how these goals are being met, the DHS may conduct unannounced site visits when necessary.

The new rule also imposes a six-month validation requirement where you or your school must confirm the validity of certain information about you. This information may be about your home country, your address, current employment status and other biographical information. There is also a yearly self-evaluation that you will submit to your designated school official (DSO) detailing the progress of your on-the-job training. The employer must sign this evaluation.

Come May 10, USCIS will accept applications for STEM OPT extensions. If you feel like you need more time to hone your skills here in the US, you must submit an I-765, Application for Employment Authorization together with an I-20 Certificate of Eligibility for Nonimmigrant Student Status, endorsed by your DSO.

You may also submit your application up to 90 days before your current OPT employment authorization expires, and within 60 days of the date your designated school official (DSO) enters the recommendation for OPT into your Student and Exchange Visitor Information System (SEVIS) record.

Post-sixth year H-1B extension and portability issues

By Reuben S. Seguritan

March 02, 2016

Many foreign nationals in H-1B status apply for permanent residence in the United States. However, because of long government delays and per-country visa limitations, only a few are able to get their green cards before the end of the six-year maximum H-1B period.

Since it is not an option for them to remain outside the United States for at least one year to restart the 6-year H-1B period, what most H-1B workers do is apply for a post-sixth year extension of their H-1B status.

Under the American Competitiveness in the Twenty-First Century Act (AC21), an extension of H-1B status after the 6^th year is allowed under either of two circumstances.

First, if the foreign national is the beneficiary of a labor certification or an I-140 immigrant worker petition filed at least 365 days before the expiration of the six year period, a one-year extension is available. This addresses the delays due slow government processing of the labor certification application and the I-140 petition.

Second, if the foreign national is the beneficiary of an approved I-140 petition but cannot adjust status because of per-country visa limits, he/she can apply for a three-year extension of H-1B status. This is helpful for heavily backlogged employment-based third preference category and second preference category with respect to nationals of China and India.

In some cases, the foreign national finds another employer who is willing to sponsor him/her for H-1B employment. Assuming that his original H-1B petitioner has filed a labor certification application by the fifth year, can the new employer file an H-1B petition for the foreign national and extend his/her H-1B status beyond the six-year period?

Under AC21 regulations, the petitioner in the post-sixth year H-1B extension does not have to be the same employer who filed the labor certification or I-140 on behalf of the H-1B worker. A seventh year H-1B extension is permitted as long as the foreign national is the beneficiary of any labor certification or immigrant petition

For example, let’s say Mark is working for Company A as a Marketing Manager. His H-1B status will reach its sixth year on March 31, 2012. Company A filed a PERM labor certification application for Mark on February 15, 2011. Mark then gets an offer from Company B in September 2011.

If Company A’s labor certification application is still pending, Mark can transfer to Company B, which must file a new petition by March 31, 2012 or while Mark is in a “period of stay authorized by the Attorney General” (for instance, Company B’s petition was filed after March 31, 2012 but while Company A’s 7^th year H-1B extension for Mark was pending).

This assumes that Company A has not withdrawn the labor certification. In order for Mark to continue to pursue permanent residence, Company B should conduct its own recruitment and file its own PERM labor certification application on Mark’s behalf as soon as possible. After its PERM application is certified, Company B should file an I-140 petition and use premium processing if possible.

Another common portability issue relates to the timing of transfer. Under AC21, the H-1B worker may commence employment upon the filing of the H-1B petition.

Let’s say Anne works for Company C, with H-1B status valid until April 30, 2012, but she gets a job offer from Company D in early April 2012. If Anne immediately accepts Company D’s offer and Company D files an H-1B petition on April 15, 2012 and it is received by the USCIS on April 18, 2012, Anne can begin working for Company D on April 19, 2012.

If for some reason Anne does not begin working for Company D until May 15, 2012, she can do so even if it is past her original H-1B period and even before approval of her new H-1B petition.

Consequences of Failing to Maintain Nonimmigrant Status

By Reuben S. Seguritan

January 01, 2001

For aliens who entered the U.S. on a nonimmigrant visa, it is important for them to maintain their status and to engage only in activities consistent with the status. Aliens who fail to maintain status become deportable. They can neither change to said non-immigrant status nor apply for adjustment of status to permanent residence.

A foreign national who wishes to apply for admission into the U.S. generally applies for a visa at a U.S. consulate overseas. There are several types of visa classifications depending upon their specific purpose. Aliens who wish to come to the U.S. for pleasure are issued a B-2 visa. They are generally allowed three (3) to six (6) months to stay with a possibility to extend their status for another six (6) months.

Once a foreign national is legally admitted into the U.S., it is the date on the I-94 that governs his legal immigration status and the duration of his authorized stay in the U.S. The I-94 card is no longer issued. The foreign national can access the most recent I-94 admission record through the I-94 website. If the alien overstays or remains in the U.S. beyond the date on the I-94, the person becomes out of status.

If they overstay for six (6) months or more, they are subject to the three-year bar. If they overstay one year or more, the bar extends to ten years. The three or ten year bar means that if they leave they cannot reenter the U.S. until after three or ten years of stay abroad.

If a nonimmigrant decides to pursue a different purpose or engage in another activity in the U.S., he has to apply for a change of status. An example is a person who entered as a student with an F-1 visa gets a job offer after finishing his/her studies in the U.S. Given the change of purpose of the stay in the U.S. from studying to working, the prospective employer may petition for a change of status on his behalf from F-1 to H-1B.

Likewise, a person who originally came as a tourist with a B-2 visa to visit family and friends may later on want to pursue studies in the U.S. Instead of going back to his country to apply for a new F-1 visa, the person can opt to apply for a change of status to F-1 with the U.S. Citizenship and Immigration Services (USCIS).

An alien on a B-2 visa who files Form I-539 to change status to student, may not start classes prior to its approval. An F-1 student fails to maintain his status if he fails to maintain a full course of study or if he transfers schools without permission.

An F-1 student who decides to work in the U.S. may not begin working before the Form I-129 petition filed by the employer is approved. Also temporary workers fail to maintain status if they change jobs without authorization. Those who work without authorization also fail to maintain their status.

The alien is authorized to engage in activities consistent with the status he is seeking only through the formal USCIS approval of the application to change status. If the alien took on activities not allowed under his current status, the application will most likely be denied. It is therefore important that the nonimmigrant not violate the conditions of his nonimmigrant visa/status.

Prepare for H-1B filing now

By Reuben S. Seguritan

February 17, 2016

The United States Citizenship and Immigration Services (USCIS) will once again open its doors to H-1B cap applications and considering that the applications for last fiscal year was 233,000, it is safe to assume that it will exceed this figure this year.

Ultimately, the applications are expected to exceed the quota which is at 65,000 for foreign workers in specialty occupations and 20,000 for graduates with advanced degrees from the US. And if the H-1B petitions go beyond the cap, the USCIS will conduct a lottery to determine which petitions will make it to the cap.

With that in mind, it is best to be prepared early to avoid delays. US companies and employers intending to hire foreign workers must start working on all the paper works for the H-1B petitions now to be ready for the April 1 filing.

For instance, the approval and certification of the labor condition application (LCA) with the Department of Labor (DOL) in itself takes about seven business days and that should be considered in the timeframe. In fact, it is recommended that LCAs be prepared and submitted to the DOL as early as February.

It is also best to be ready with all necessary documentations because the USCIS will issue a Request For Evidence (RFE) if your petition is not sufficient to grant said request. When RFEs are issued, this can delay the approval of the petition sometimes way beyond the October 1 start day.

RFEs are often about the position open for H-1B workers, the qualifications and degree held by said worker and whether that matches with what is desired by the company. Sometimes it also looks into whether the candidate’s education and/or experience are equivalent to a US bachelor’s degree.

Petitions not selected during the lottery will be rejected. The petition and the fee will be returned except in cases of multiple filings. Thus, it is advisable not to file multiple petitions for one H-1B worker because that can result in the denial of all petitions and the fees paid will not be refunded. Related employers such as parent and subsidiary companies, however, are not precluded from filing petitions on behalf of the same H-1B so long as it is for different positions and based on legitimate needs of the employers.

H-1B petitions may also be accompanied with a request for premium processing but this will not increase the probability of getting an H-1B number. It will, however, be issued receipts faster than those under regular processing and in case the USCIS conducts a lottery, petitions filed under premium processing will know the results more quickly.

In preparing the H-1B petition, employers must indicate their true intention regarding the work site of the H-1B worker. If the H-1B worker will not work at their headquarters but in a client worksite, this fact must be stated in the petition. Criminal charges have been filed by the Department of Homeland Security (DHS) against employers for stating anything other than the truth.

An employer who intends to assign the H-1B worker in another work site on October 1 should state it in the petition and the Labor Condition Application (LCA) even if the employer is still unable to specify the worksite at this time.

If the H-1B petition comes with a request for change of status, the petition must be accompanied with documentary evidence of the nonimmigrant status of the beneficiary through September 30, 2016.

Work authorization for F-1 students under Optional Practical Training (OPT) who have timely filed an H-1B petition and requested for change of status shall be extended until September 30 when the petition is approved or while the petition is pending. Students who completed their OPT but are within valid grace period will receive automatic extension of their authorized stay. However, they will not be allowed to work during the period.

If you have everything and all necessary documentations, it is best to file the H-1B petition on March 31 to be received at the USCIS by overnight mail delivery on April 1.

Immigration programs extended under New Appropriations law

By Reuben S. Seguritan

December 23, 2015

On December 18, 2015, President Obama signed into law the Consolidated Appropriations Act of 2016 which includes the extension of four immigration programs until September 30, 2016. These programs are the EB-5 regional center program for immigrant investors, the Conrad 30 program for J-1 physician visa holders, the special immigrant visa for religious workers, and E-verify.

The bill also includes changes in the L-1 and H-1B fees paid by employers with more than 50 employees where 50% or more of the employees have H-1B or L-1 status.

The EB-5 regional center program grants green cards to foreign nationals who invest in any of the regional centers in the U.S. Unlike the regular EB-5 program which requires the investor to create 10 full-time jobs in two years, a regional center investor can use the more relaxed requirement of indirect job creation.

Another main difference is the amount of capital to be invested. Under the standard program the investment must be $1,000,000 unless it is made in a targeted employment area, which means that the place is a rural or high unemployment area. On the other hand, $500,000 is usually sufficient for investment in regional centers because most of them are already in targeted employment areas.

As many as 3,000 visas can be granted regional center investors annually. With a faster processing time and ongoing efforts to speed up the process in order to promote the program’s job-creation benefits, the EB-5 visa is one of the fastest routes to a U.S. green card.

Another program extended by the law is the employment-based 4th preference category visa for non-minister religious workers. This visa grants special immigrant status to individuals who are in a religious vocation or occupation but are not religious ministers.

The applicant must have been a member of a religious denomination with a bona fide non-profit religious organization in the U.S. and he must have also been working in a religious vocation or occupation. A religious vocation or occupation excludes positions that are primarily administrative in nature.

There are 5,000 visas reserved for this category which includes accompanying and following-to-join spouses and children.

The Conrad 30 program allows state health departments and agencies to recommend the waiver of the 2-year foreign residence requirement for up to 30 foreign medical graduates per year in J-1 status who agree to serve in medically underserved areas. This waiver allows them to change their status to H-1B or adjust to permanent residence and meet the demand for healthcare in areas where doctors are in short supply. Those who obtain the waiver are not subject to the annual H-1B cap.

The E-Verify system is an Internet-based program that allows a participating employer to electronically confirm the employment eligibility of a newly-hired employee using the databases of the USCIS and the Social Security Administration.

K-1 Visa Under Scrutiny

By Reuben S. Seguritan

December 16, 2015

Earlier this month, news broke out that 14 innocent civilians were killed in a company party in San Bernardino, California. As a result of the mass shooting, the K-1 fiancé(e) visa process is being looked into because Tashfeen Malik, a Pakistani citizen, and one of the terrorists who carried out said shooting came to the US on a K-1 visa and later became a lawful permanent resident.

Several members of the US Congress have expressed concern over the fact that Malik was able to obtain her K-1 visa despite giving fingerprints and other information that were checked and cross-referenced against US immigration, terrorism and criminal databases. As a result, the USCIS is now looking into enforcing stricter guidelines.

The US government has a stringent process currently in place to ensure that marriages are made in good faith and is not ‘sham marriage’ or ‘fake marriage’. Under the program, the two people involved—the US citizen and his foreigner fiancé(e)— must genuinely love each other and have the sincere intent to get married within 90 days of the fiancé(e)’s arrival in the US. Both of them must be legally free to marry at the time a fiancé(e) petition is submitted to USCIS by the US citizen sponsor and must remain so thereafter. The couple must have met in person within the past two years. Proof of the relationship must likewise be shown.

Once the USCIS approves the K1 visa petition, it is forwarded to the National Visa Center where background checks are performed on the foreigner fiancé(e). The NVC will forward the petition to the Consulate that will conduct the interview. During the foreigner fiancé(e)’s interview before the Consulate, he/she is required to show proof of their intent to get married like pictures, letters, travel and hotel records and instant messages to the interviewing officer. Even during this stage, an application can be turned down if it cannot show enough proof of the relationship’s genuineness. In addition, it can be turned down on account of the foreigner fiancé(e)’s police or criminal record. The foreigner fiancé(e) also has to undergo a thorough medical examination.

Upon arrival in the US, the couple has 90 days to get married otherwise the foreigner fiancé(e) can be deported. When he/she applies for Adjustment of Status, they also have to show proof like pictures and joint documents. This is another step the couple needs to hurdle as it usually takes another six months before the ‘green card’ will be released, if at all.

The foreigner wife/husband has to go through another round of fingerprinting and facial recognition and another round of interview by the USCIS before the ‘green card’ is approved. Questions like “Do you seek to engage in terrorist activities while in the US or have you ever engaged in terroristic activities?” need to be answered.

From 1989 to 2014, 512,164 K-1 visas were given following these layers of processes placed to ensure that nobody thwarts the security measures of the United States and to ensure that the couple are really who they purport to be.

It is also important to note that depending on which country the fiancé(e) is from, the process can be even more daunting. The Philippines, for instance, has the largest K-1 visa applicants with over 7,228 Filipinos entering the US in fiscal year 2014, but at the same token, it also has the most difficult process. US citizens often go to the Philippines to meet their fiancé(e) because it is logistically hard for Filipinos to obtain a tourist visa to the US to visit the American fiancé(e).

Needless to say, while we want our borders secure and free from anybody who wishes to cause harm, it is not fair to single out a particular type of visa. US citizens must likewise be free to marry foreign spouses of their choosing. And while more scrutiny and additional screening for the K-1 visa is inevitable, holders of K-1 visa have obtained the privilege to be on American soil by following a long and difficult process.

Immigration Programs Extended Under New Appropriations Law

By Reuben S. Seguritan

December 23, 2015

The bill also includes changes in the L-1 and H-1B fees paid by employers with more than 50 employees where 50% or more of the employees have H-1B or L-1 status.

Another program extended by the law is the employment-based 4^th preference category visa for non-minister religious workers. This visa grants special immigrant status to individuals who are in a religious vocation or occupation but are not religious ministers.

There are 5,000 visas reserved for this category which includes accompanying and following-to-join spouses and children.