Immigration Visa Lawyer Blog

We expect a marked improvement in the advancement of the Second Preference (EB-2) immigration petition priority dates for Indian and Chinese nationals. The May and June visa bulletin should reveal significant advancement of the EB-2 immigrant visa petitions because of a surplus in the EB-1 visa numbers. It remains to be seen whether the circumstances leading to the improvement in the priority dates for EB-2 immigrant petitions will cause such priority dates for Indian and Chinese nationals to become current. The Columbus immigration attorneys at The Law Firm of Shihab & Associates, Co., LPA will continue to monitor these developments and will bring you up-to-date on the latest developments.

Yesterday, Charlie Oppenheim, Chief, Immigrant Visa Control and Reporting Division, U.S. Department of State, communicated to the American Immigration Lawyers Association of a remarkable decline in the filing of EB-1 visa petitions with the USCIS which then resulted in a large number of unused visas which will be dumped into the EB-2 visa category. Mr. Oppenheim stated that more than 12,000 additional visas will become available to the EB-2 category as of May 2011. He also stated that citizens from India have the largest demand for EB-2 immigrant visa numbers.

Hence, we are encouraged with this news and will announce any new developments as they become available.

The B-1 visa allows a visitor to temporarily visit the United States for business. For the purposes of this article, I will call the business B-1 visa a "business visa." This article provides general information and some easy-to-follow steps in obtaining the B-1 "Business Visa." It is part one of a two-part series. Please find Part 2 here.

The B-1 "Business Visa" - Not an Easy Visa!
While it may seem simple at first blush, obtaining a business visa under the B visa category poses traps for the unwary and involves providing a very particular kind of evidence in many cases. This is chiefly due to the fact that a business visa absolutely cannot involve employment in the United States, which seems contradictory to those who are not well-versed in immigration law and procedure. The lawyers at The Law Firm of Shihab & Associates have been successfully helping individuals obtain the B-1 business visa for almost two decades. Contact our firm today for a consultation.

The B-1 "Business Visa" General Requirements
There are five general requirements that the Department of State has specified for issuance of a B-1 business visa. In order to be classified under the B-1 guidelines, you must be entering the U.S. for a limited duration. Second, you must intend to depart the U.S. when your business activity is complete. Third, you have to maintain a foreign permanent residence while you are in the U.S. Fourth, you must have adequate financial arrangements to travel to, sojourn in, and depart from the U.S. This is typically shown by either a round trip ticket or proof of hotel accommodations. Finally, you must be engaged solely in legitimate activities relating to your business or pleasure.

Conducting Business on Behalf of an Overseas Employer
The B nonimmigrant visa category covers alien visitors for business (B-1) and pleasure (B-2). The business visa provides an excellent way for an overseas company to send an employee to the United States for a legitimate business activity. It is often utilized in lieu of the H-3 Visa for a number of reasons, speed being a very good one. A key condition of the B visa category is that the alien cannot engage in gainful employment (labor for hire) in the U.S. A crucial factor is whether the alien will be paid a salary from a U.S. employer or otherwise engage in activity here that results in payment to the alien of fee for services. If so, the B-1 business visa will not be approvable.

Continue reading "How to Visit the U.S. with a Visitor (B-1) Visa to Conduct Business on Behalf of Overseas Employer (Part 1) " »

On March 13, 2011, the USCIS issued a policy memo on the new fee waiver guidelines. The lawyers at The Law Firm of Shihab & Associates are available to answer any questions about fee waivers under the newly issued memo.

The final rule establishes a new fee schedule for immigration-benefit requests and amends the regs governing fee-waiver eligibility. Our clients may now use a new Form I-912, Request for Fee Waiver, to facilitate the fee-waiver request process. The form has been available since Novermber 23, 2010. Only forms listed in AFM Chapter 10.9 are eligible for a fee waiver. Please refer to AFM Chapter 10.9 by accessing the USCIS website found here.

USCIS will adjudicate each fee-waiver request on its own merits. If you prove to USCIS that you are unable to pay the fee, USCIS will grant the fee-waiver request. Inability to pay the fee is based on your overall financial picture and household situation.

Generally speaking, fee waiver requests are considered by taking into account 1) whether the applicant is receiving a means-tested benefit ('means tested benefits' are benefits which are allocated according to your means), 2) whether the applicant's household income level renders him or her unable to pay (i.e., income less than 150% of the poverty line - for poverty line info, please see the Health and Human Services website), or 3) whether recent financial hardship otherwise renders him or her unable to pay.

The Law Firm of Shihab & Associates has lawyers that zealously advocate for clients whose financial means are such that fee waiver requests are necessary. If you are contemplating filing an immigrant petition and are interested in determining whether you apply for a fee waiver, please contact our firm today at 1-877-479-4USA.

US Immigration and Customs Enforcement (ICE) announced yesterday that a woman in Missouri had been sentenced to twelve months in prison after she plead guilty to charges of transporting, harboring and hiring illegal aliens. Ms. Hua Huang was the manager of the China Buffet/ Mongolian Grill in Polar Bluff, Missouri. Investigators for ICE discovered that she had hired undocumented aliens from Mexico and China to work in the restaurant for wages below the minimum wage for twelve hour shifts, six days per week. She also boarded the workers in residences that were owned in close affiliation to the restaurant and she also possessed vans that would transport the workers to and from the restaurant. The restaurant did not accurately report wage or sales tax to the proper authorities. Cash and property in excess of $350,000 was forfeited by Ms. Huang and her associates as a result of her plea.

Continue reading "Employer In Missouri Sentenced to Twelve Months In Prison for Employing Illegal Aliens" »

In today's US Immigration environment, many foreign nationals are increasingly apprehensive about their visa position in the US when applying to change, transfer or extend their status. The introduction of arbitrary rules and memoranda by the US such as the H-1B Visa Third Party Placement (also known as the Neufeld Memo) has made non-immigrant visa approval more complex. Even though the criteria set form in the Neufeld memo were intended to apply in the H-1B visa program, we now see application of the Neufeld memo to have bled to the adjudication of other non-immigrant visa programs including O, L and others. This environment has amplified foreign national's concerns relative to the success of their non-immigrant visa stamping at the consulates even after having procured petition approval by the USCIS.

This article will dissect the issues relevant in the consular visa stamping process and will offer insights as to how the "sausage is made" behind the scenes" from the time of the petition approval until the consular stamping process. This information is being brought to you by Columbus immigration attorneys after careful review of material available in our files and elsewhere. Our practice encompasses the entire nation and we accept clients globally.

Step One: The Non-immigrant Visa Petition Process

The first step in a successful visa stamping process, believe it or not, begins at the initial filing of the non-immigrant visa petition. It is imperative for the immigration attorney to send in an additional copy of the visa petition and any subsequent RFEs along to the Service center processing the petition with a cover sheet requesting the Service Center to forward to the "Kentucky Consular Center" ("KCC") for what is known as the PIMS system. PIMS is an acronym for "Petition Information Management Service" is a secure web enabled system established in 2007 which allows the US Consulates to review all the documents filed by the petitioning company from a secured source. The KCC receives more than 1000 non-immigrant petitions per day from the various service centers and uploads them into the PIMS system. In addition, the KCC conducts a limited verification process of the petitioners and creates a database record of from the I-129 petition itself.

You can immediately surmise that the consulates would much rather review documents from a source they trust than from the beneficiary him or herself. You must remember that the USCIS Service Center WILL NOT send an extra copy of the visa petition package to the KCC and many immigration lawyers do not take the time to comply with the rules and neglect to send a copy thereby causing the beneficiary to experience delays during the consular process. Hence, the first step to a successful visa stamping process begins at the time the petition is filed.

Step Two: Planning For the Interview

If your petition made it to the KCC for inclusion in the PIMS system, you are in decent shape. If not, you must contact your attorney to make certain that a copy is mailed to the Service for uploading in the PIMS system.

In order to prepare for your consular interview you must visit the US Consular website to learn about the specific steps required to schedule the appointment. Remember to complete the on-line form and the payment of the filing fee. If your petition was approved prior to the establishment of the PIMS system in 2007 and you wish to receive stamping you should have your attorney make certain that the Service Center sends a copy of the petition and other related response to an RFE to the KCC with instructions to upload it in the PIMS.

You must also understand that the consulate will have access to information and documentation about you and the petitioner as stated in the most recent approved petition which was later uploaded by the KCC in the PIMS system. If circumstances of your employment changed, for example you have been assigned to a different end client or your work-site address changed significantly, it is high advisable to file an amended H-1B visa petition prior to the scheduled visa stamping.

Take with you a copy of the entire petition package in case including any RFEs that had been issued and responded to by your immigration lawyer. In addition, take with you the original approval notice for presentation to the consular officer if necessary.

KCC advised the American Immigration Lawyers Association that five days prior to the interview, the consular officer is required to review the candidate's file and to determine whether the PIMS system is updated. If not, the consular officer is directed to request that the file be updated to the KCC which in turn will contact the USCIS Service Center regarding any missing or inconsistent information. For instance, if the PIMS system did not show an approval in the file, the KCC will attempt to obtain the same from the USCIS. The USCIS normally responds within 48 hours. Once the KCC receives the missing information from the USCIS, it updates the PIMS system.

Step Three: The Date of the Consular Interview

You must be aware that US Consulates may investigate your case notwithstanding the stature of your employer. From experience, we generally see more consular inquiries relative to petitions filed by smaller petitioners although it is not necessarily a rule of thumb. Hence, it should not be a point of concern or frustration as most cases filed in good faith will be resolved in favor of the beneficiary.

Continue reading "Visa Stamping at the Consulate and the PIMS System: Taking the Fear Factor Out of the Process Can Only Occur Through Early Planning" »

Late last year, the US Citizenship & Immigration Service ("USCIS") announced that it will be implementing a new web enabled Specialty Occupation H-1B Visa Cap Registration system whereby the H-1B visa cap petitioners would register online prior to filing their H-1B visa cap-subject petitions. The Columbus Ohio Immigration Lawyers at The Law Firm of Shihab & Associates has been following these developments and will bring you updated information as they become available. This article will discuss the new H-1B Visa Cap Registration, its applicability and whether it will impact the upcoming H-1B visa cap season (Federal Fiscal year 2012) which will begin on April 1, 2011.

On March 3, 2011, the USCIS published in the Federal Register a Notice of Advanced Rulemaking in which it provided the public the opportunity to comment on this proposal. The comment period will end on May 2, 2011. Once implemented, the USCIS promised that the new system will yield increased efficiency and cost effectiveness in the administration of the H-1B visa petition process. Under this proposal, H-1B visa petitioning employers seeking to file a cap-subject H-1B visa petition must first register through a web enabled process that they intend to file such petition. Once the registration process is complete, the USCIS would then make a selection through a lottery system if the number of registrations exceeded the visas available and then announce which beneficiaries will be eligible to have their H-1B visa petitions filed. The USCIS states that this process would save the petitioning employer from having to unnecessarily file a cap-subject H-1B visa that will be rejected through a lottery system.

What is the Effective Date of the H-1B Visa Cap Registration Process?

The new H-1B Visa Cap Registration process has not become effective yet. At the present time, this is only a proposal. The USCIS is seeking comment from interested parties until May 3, 2011 as it is required by law through what is called Notice of Proposed Rulemaking or NPRM. Once comments are received, the USCIS will then compile and disseminate the comments to the public and issue final regulations. It is not known when the final rules will be published. On that basis, it is not known yet when the H-1B Visa Cap Registration system will become effective.

Will the new H-1B Visa Cap Registration Impact the Upcoming FY 2012 H-1B Visa Cap Season?

No. The H-1B Visa Cap Registration process will not affect any cap-subject H-1B visa petitions filed towards the FY 2012 the filing for which begins on April 1, 2011. Because no final regulations have been promulgated by the USCIS, the H-1B Visa Cap Registration Process is still not in force. It is expected that regulations installing the new H-1B Visa Cap Registration Process to be effective federal fiscal year 2013 filings beginning on April 1, 2012.

What Information will USCIS Request in the Pre-filing Registration Process?

On March 14, 2011 the USCIS made public a document entitled Privacy Impact Assessment in which it announced the information that it will seek from petitioners in the pre filing H-1B Visa Cap Registration process. The Information includes: (1) petitioner's name and employer identification number (EIN), petitioner contact information, (2) petitioner designated user's name and contact information, (3) beneficiary's name, date of birth, country of birth, country of citizenship, gender, and passport number, and (4) any additional information requested by the registration or USCIS. In requesting this information, the USCIS stated that this new process will eliminate some unethical practices such as multiple H-1B visa petition filings by one employer for the same beneficiary and other fraudulent filing by fictitious companies. Once the information is compiled, the USCIS will use the information and check it against information available publically from undisclosed sources. USCIS also stated that the information gathered through this process will not be shared with any external organizations or agencies.

Will the new H-1B Visa Cap Registration Process Delay the H-1B visa Processing Times?

That remains to be seen. USCIS advises that the new H-1B Visa Cap Registration process will not delay the processing times once a petition is accepted for processing. It is still not known how the USCIS will use the information it will receive from the pre-filing registration process or whether the preliminary information provided to the USCIS will in any way predispose the adjudication of the H-1B visa process. As mentioned earlier, the USCIS will be checking the initial information provided by the petitioning employer against available public records sources, presumably available on the Internet. Will the USCIS group the cases based on such initial check? I believe it is troublesome that the USCIS will make such initial cross checking and could cause the agency to preadjudicate the H-1B visa petition prior to the filing of the petition itself.

USCIS issued an advisory on Friday, March 11, 2011 that Japanese and other foreign nationals from the Pacific stranded in the U.S. due to the earthquakes and tsunami devastation in the Pacific who have exceeded or are about to exceed their authorized stay in the U.S. may be permitted up to an additional 30 days to depart. Please click here for the advisory alert.

USCIS states that if you are in the U.S. on the Visa Waiver Program (VWP) and you are at the airport, you should contact the U.S. Customs and Border Protection (CBP) office at the airport. Otherwise visit your local U.S. Citizenship and Immigration Service. Click here to find your local office. Bring your passport, evidence that you are stranded (such as an itinerary for the cancelled flight), and your I-94 departure record.

The AAO recently approved an EB-3 case that was denied at the Texas Service Center for a petition for immigrant worker seeking to employ a quality assurance manager/researcher and development specialist (professional food technologist) in the skilled-worker or professional EB-3 classification.

The position required a bachelor's degree or equivalent in food science. The beneficiary had a bachelor's degree in agriculture and master's degreee in animal science from the Philippines, as well as a PhD in agriculture and forestry from the University of Melbourne, Australia. The Service Center denied the petition upon the finding that the petitioner failed to submit persuasive evidence to demonstrate that the beneficiary possessed a four-year single-source U.S. bachelor's degree or higher degree or a foreign equivalent degree in food science qualifying her for the position at issue. The petitioner appealed. Reversed.

Our clients in the mid-west and Columbus, Ohio have inquired about employment based immigration when the required degree does not exactly match the foreign degrees. At The Law Firm of Shihab & Associates, we have a staff of attorneys ready to help you prove to the USCIS that your employee's degree matches the job requirements through academic equivalency and study of AAO and BIA case decisions.

In the above-mentioned AAO case, Matter of X, SRC 07 249 5158, the AAO approved the petition upon finding that the beneficiary's PhD in agriculture and forestry specializing in dairy technology qualified her for the proffered position in charge of researching and developing dairy- and non-dairy based food products and for which a bachelor's degree or equivalent in food science was required.

This case teached us that what may seem to be common sense in terms of eductation (the beneficiary had a doctorate degree for an EB-3 food technologist position!!), it may be insufficient at the Service Center level. The Service Centers notoriously adjudicate employment based I-140 cases strictly. This AAO decision gives a petitioner some breathing room when a foreign national's educational background - while duly impressive - does not exactly match the requirements for the job. The AAO got it right in this case since the overriding factor in employment based immigration is whether the foreign national possesses the necessary skills and education for the job. Clearly in this case, the foreign national had such skill and education. This is just an example of how technical and precise one must be in preparing a PERM case or I-140.

How to Contact Us
If you have questions about a PERM case, I-140, employment based immigrant petition, and/or you need help in an immigration process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates Co., LPA at the nearest office close to you to consult with an attorney. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are an employer, an employee or a family member, The Law Firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.