Understanding the Visa Bulletin

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Understanding the Visa Bulletin (August 23, 2019)

United States employment and family-based permanent visas, green cards, are limited each year by number and by country of origin. In 2019, there will be no more than 226,000 family-sponsored visas and no more than 140,000 employment-based visas.

The United States further limits employment and family-based immigration by only allowing 7% of visa to originate from one country. This is not a quota and the United States is not required to admit a specified number of foreign nationals from one country, but rather a ceiling and the United States cannot admit more than 7% of the total visas issued to foreign nationals from one country. In 2019, approximately 25,620 visas are equivalent to 7%.

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The North American Free Trade Agreement (TN) Visa

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The North American Free Trade Agreement (TN) Visa (June 25, 2019)

The North American Free Trade Agreement (NAFTA) integrated key sectors of the United States, Canadian, and Mexican economies.  Central to that integration was creating a special visa category that allowed qualified Mexican and Canadian citizens to seek temporary admission into the United States to engage in business activities.

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Public Charge Updates in 2019

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Public Charge Updates in 2019 (February 7, 2019)

One of the key inquiries made by the United States Citizen and Immigration Services (USCIS) when deciding to grant or deny a nonimmigrant visa or permanent residency is whether an applicant will likely be or become a public charge. A public charge is an individual that will heavily rely on the federal government for assistance. For the purposes of this article, we will focus on public charge analysis as applicable to an applicant for U.S. permanent residency.

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H-1B for Computer Programmers

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H-1B for Computer Programmers (December 22, 2018)

The Immigration and Nationality Act allows an employer to petition for an H-1B visa on behalf of an alien beneficiary if the alien beneficiary will be working in a “specialty occupation.”  To qualify as a “specialty occupation” a job must require “theoretical and practical application of a body of specialized knowledge and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”

Time passes, technology advances, and the USCIS under different administrations alters what qualifies as a specialty occupation. Reasonable minds can differ when occupations are in transition; however, the current industry standards and the OOH indicate that most computer programmers have a bachelor’s degree in a computer related field. Most should mean normal, which is the H-1B standard.

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Matter of A-B- and Women Facing Domestic Violence

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Matter of A-B- and Women Facing Domestic Violence (November 1, 2018)

In June 2018, former Attorney General Jeff Sessions overturned an immigration court’s decision and issued a precedential decision that makes it even more difficult for  asylum seekers to obtain asylum protection in the United States by citing fear of domestic abuse. This is also the case for asylum seekers who make asylum claims based on their fear of gang violence.

The Attorney General has authority over all immigration courts and delivered a speech, which was followed by a USCIS memo, that outlined when USCIS officers should use their discretion in asylum cases.

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Unlawful Presence for Students

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Unlawful Presence for Students (July 24, 2018)

The start of a new academic year will bring thousands of foreign nationals to the United States to study at one of the nation’s many rigorous academic institutions.  The United States derives many benefits from allowing foreign nationals to study at its colleges and universities, including but not limited to, diversified classroom discussions and enriched collegiate clubs and extracurricular activities.

Unlike their American colleagues, foreign national students must maintain lawful  presence and abide by all of the United States Citizen and Immigration Services (USCIS) requirements.  Traditionally, if a student failed to meet the requirements of his or her visa, then unlawful presence would not begin to accrue until the day after the USCIS made a formal finding that a nonimmigrant status violation had occurred or an immigration judge ordered the student excluded, deported, or removed, whichever came first.

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Third-Party Worksites

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Third-Party Worksites (June 8, 2018)

An H-1B work visa is appropriate if two primary conditions are met. First, an employer must be able to demonstrate its need for a qualified worker to fill a specialty occupation. Second, a valid employer-employee relationship must exist throughout the duration of the H-1B visa residency.  For a more detailed discussion of the first requirement please see our previous articles.

The petitioner (sponsoring employer) carries the burden of proving that a valid employer-employee relationship will exist for the duration of the beneficiary’s (foreign national’s) residency. Usually, a valid employer-employee relationship will exist if the petitioner retains the right to control the daily tasks, the work production, and is able to hire, fire, and pay the beneficiary.

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Responding to H-1B Request for Evidence in the Trump Era

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Responding to H-1B Request for Evidence in the Trump Era (April 11, 2018)

An H-1B visa is an employment visa for professional workers in specialty occupations that have at least a bachelor degree or equivalent.  Throughout the H-1B visa’s history, the United States Citizens and Immigration Services (USCIS) has been concerned that employers will abuse the H-1B visa by displacing American workers with foreign Responding to H-1B Request for Evidence in the Trump Era counterparts at lower wages.

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Employers Impacted By Immigration Changes In Trump’s First Year

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Employers Impacted By Immigration Changes In Trump’s First Year (February 20, 2018)

The January 30, 2018 State of the Union became another chapter in President Trump’s ongoing campaign for America to serve its own needs and its people first.  Embodying this ideology, President Trump declared that, “we will follow two simple rules: Buy American and Hire American.”

During his first term, those two simple rules have dramatically changed the immigration process into the United States.  Although Congress has yet to pass immigration reform, President Trump has issued several executive orders that have overhauled the United States immigration system. Trump’s first year has made it more difficult for employers to sponsor or hire immigrant workers and following Trump’s State of Union employers should not expect it to become easier to hire immigrant workers during the Trump’s tenure.

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International Entrepreneur Rule Gets a Second Chance

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International Entrepreneur Rule Gets a Second Chance (January 23, 2018)

On December 1, 2017, in National Venture Capital Association v. Duke the United States District Court of the District of Columbia ruled the United States Citizenship and Immigration Services (USCIS) violated the Administration Procedure Act’s (APA) notice and comment rulemaking requirements when it decided to delay the international entrepreneurial rule (IER) without giving the public adequate notice or time to comment on its decision to delay the rule.

On January 17, 2017, three days before the end of the Obama administration, the Department of Homeland Security (DHS) published the final IER rule to allow foreign nationals who meet certain entrepreneurial standards to apply for parole, which is temporary admission into the United States to grow new companies. The rule was to set to go into effect on July 17, 2017, 180 days following its publication.

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