John Q Khosravi Law Firm
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John Q. Khosravi Immigration Law Firm (JQK Law Firm)
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Licensed to Practice in CA. Practice Focus on Federal Immigration Law. This Blog is Legal Advertisement.
Wednesday, May 27, 2015
Tuesday, May 26, 2015
On April 9, 2015, USCIS’ Administrative Appeal Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC, which held that employers must file amended H-1B petitions when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker’s worksite location. Specifically, the decision stated:
- When H-1B employees change their place of employment to a worksite location that requires employers to certify a new Labor Condition Application for Nonimmigrant Workers (LCA) to the Department of Homeland Security, this change may affect the employee’s eligibility for H-1B status; it is therefore a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).
- When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H−1B petition with the corresponding LCA.
This precedent decision represents the USCIS position that employers are required to file an amended petition before placing an H-1B employee at a new worksite. USCIS will accept comments on the below draft guidance for a limited period of time.
When You Must File an Amended Petition
You must file an amended H-1B petition if your H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or an “area of intended employment” (as defined at 20 CFR 655.715) covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.
Note: Once you file the amended petition, your H-1B employee can immediately begin to work at the new location. You do not have to wait for a final decision on the amended petition for your H-1B employee to start work at the new location.
When You Do NOT Need to File an Amended Petition
- A move within an MSA: If your H-1B employee is moving to a new job location within the same MSA or area of intended employment a new LCA is not required. Therefore, you do not need to file an amended H-1B petition. However, you must still post the original LCA in the new work location within the same MSA or area of intended employment. For example, an H-1B employee moving to a new job location within the New York City MSA (NYC) would not trigger the need for a new LCA, but you would still need to post the previously obtained LCA at the new work location. This is required regardless of whether an entire office moved from one location to another within NYC or if just one H-1B employee moves from one client site to another within NYC.
- Short term placements: Under certain circumstances, you may place an H-1B employee at a new job location for up to 30 days, and in some cases 60 days (where the employee is still based at the original location), without obtaining a new LCA. See 20 CFR 655.735. In these situations, you do not need to file an amended H-1B petition.
- Non-worksite locations: If your H-1B employee is only going to a non-worksite location, you do not need to file an amended H-1B petition. A location is considered to be “non-worksite” if:
- The H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
- The H-1B employees spend little time at any one location; or
- The job is “peripatetic in nature,” such as situations where their primary job is at one location but they occasionally travel for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).” See 20 CFR 655.715.
Filing Amended H-1B Petitions
- If your H-1B employees were changing worksite locations at the time of the Simeio Solutions decision, you have 90 days from the date of this web alert (May 21, 2015) to file amended petitions for H-1B employees who changed their place of employment to an MSA or area of intended employment requiring coverage by a new or different LCA than that submitted with the original H-1B petition. Therefore, if you have not filed an amended petition for an H-1B worker who moved worksite locations before May 21, 2015, you have until August 19, 2015 to file an amended petition.
- If your H-1B workers changed their worksite location before the Simeio Solutions decision, USCIS will not take adverse action against you or your employees if you, in good faith, relied on prior non-binding agency correspondence and did not file an amended petition due to a change in an MSA or area of intended employment by May 21, 2015. However, as noted above, you must now file an amended petition for these H-1B employees by August 19, 2015.
- If you do not file an amended petition for these employees by August 19, 2015, you will be out of compliance with USCIS regulation and policy and thus subject to adverse action. Similarly, your H-1B employees would not be maintaining their nonimmigrant status and would also be subject to adverse action.
- If your amended H-1B petition is denied, but the original petition is still valid your H-1B employee may return to the worksite covered by the original petition as long as the H-1B employee is able to maintain valid nonimmigrant status at the original worksite.
- If your previously-filed amended H-1B petition is still pending, you may still file another amended petition to allow your H-1B employee to change worksite locations immediately upon your latest filing. However, every H-1B amended petition must separately meet the requirements for H-1B classification and any requests for extension of stay. In the event that the H-1B nonimmigrant beneficiary’s status has expired while successive amended petitions are pending, the denial of any petition or request to amend or extend status will result in the denial of all successive requests to amend or extend status. See Memorandum from Michael Aytes, Acting Director of Domestic Operations (Dec. 27, 2005) for similar instructions about portability petitions.
To the extent possible, you should submit receipt notices of prior petitions. USCIS will determine, on a case-by-case basis, whether a petition was filed before the current I-94 expired.
For More Information
If you have any questions about filing an amended H-1B petition, please visit our Customer Contact Center.
Sunday, May 24, 2015
USCIS Releases Guidance and Frequently Asked Questions for H-4 Employment Authorization Applications
Wednesday, May 20, 2015
Author: Mona Shah
The burning question on the table when the EB-5 regional center program comes up before Congress for renewal this fall, concerns the likelihood of an increase in the qualifying investment that may be made to the program. Renewal itself is not in doubt, as Congress has extended the regional center program many times and is expected to do so again, possibly giving it permanent status as part of the overall EB-5 investor program. However, it is likely that Congress will either increase the present minimum investment of $500,000 or eliminate the TEA designation altogether, leaving the EB-5 investment amount as $1 million for all projects
Tuesday, May 19, 2015
Starting May 26, 2015, U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend premium processing for all H-1B Extension of Stay petitions until July 27, 2015. During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of the stay for an H-1B nonimmigrant. USCIS will continue to premium process H-1B Extension of Stay petitions filed with Form I-907 premium requests prior to May 26, 2015.
USCIS will refund the premium processing fee if:
- A petitioner filed H-1B petitions prior to May 26, 2015, using the premium processing service, and
- USCIS did not act on the case within the 15-calendar-day period.
Premium processing remains available for all other Form I-129 H-1B petitions, including petitions subject to the H-1B cap that are requesting a change of nonimmigrant status or consular notification.
This temporary suspension will allow USCIS to implement the Employment Authorization for Certain H-4 Spouses final rule in a timely manner and adjudicate applications for employment authorization filed by H-4 nonimmigrants under the new regulations.
Friday, May 15, 2015
The EB-5 Immigrant Investor Processing Times have had increases in June 2015. Luckily the Form I-526 Petition processing times was unchanged, but the Form I-829 and Form I-924 processing times have increase.
For more information about the EB-5 program, please contact the JQK Law Firm at (310) 582-5904.
- 14 months (No Change)
- 12.7 months, Increase of 1.3 months
- 12.1, Increase of 1 month
Thursday, May 14, 2015
The Family-Based Preference Categories moved slowly this month. Most of the F2B (unmarried children of LPRs 21 years or older) and F3 (Married Children of U.S. Citizens) Preference Categories had no movement at all! The Philippines F1 category even fell back 5 years!
The Employment-Based Preference Categories were a mixed bag. The Chinese EB-2 Category saw a great leap, moving forward 1 year. However, the Philippines EB-3 Category fell back 2 years!
Source: U.S. State Department
Other Immigration Processing Times
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplay.do
Department of Labor processing times and information on backlogs:http://icert.doleta.gov
Department of State Visa Bulletin:http://travel.state.gov/visa/bulletin/bulletin_1360.html
Visa application wait times for any post:http://travel.state.gov/visa/temp/wait/wait_4638.html
Tuesday, May 12, 2015
The L-1 non-immigrant classifications is a specially designated Employment/Business based U.S. Immigration Program that allows for the transfer of foreign company Executives, Managers and Specialized Knowledge Employees to a related U.S. based corporate entity.
The L-1 program has many stringent requirements based on the type of employment, the relationship of the foreign and domestic companies, and the history of each company. The recent L-1 approval by the JQK Law Firm was for a newly created U.S. company with an affiliated company in Eastern Europe. The Client/Petitioner requested a transfer of its foreign CEO to a newly established and affiliated U.S. company.
A lot of preparation was required before filing the "L-1A New Office Executive" Petition. However, after the Petition was submitted to USCIS, it was approved in only 11 days!
The JQK Law Firm strives to do as much preparation as possible on each case before filing to avoid future problems. This also makes it more likely that the Client will receive an approval from USCIS in the shortest time possible after submission.
For more information please contact the JQK Law Firm at (310) 582-5904 or firstname.lastname@example.org
Monday, May 11, 2015
USCIS Message: Video from Director Rodríguez Regarding the Haitian Family Reunification Parole Program (HFRP)
USCIS released a video message from Director León Rodríguez regarding the Haitian Family Reunification Parole Program.
In 2014, we announced the introduction of the Haitian Family Reunification Parole (HFRP) Program to speed up family reunifications for eligible Haitians and their family members in the United States. The new program allows them to join family members in the United States up to approximately two years before their immigrant visas become available. This program is not only important to the individuals it assists, but in a larger sense, to the nation of Haiti as it recovers from the 2010 earthquake. The program is being implemented as follows:
- The Department of State’s National Visa Center (NVC) issues invitations to U.S. citizens or lawful permanent residents (petitioners) who filed Forms I-130, Petition for Alien Relative, for Haitian family members who were approved on or before Dec. 18, 2014. These family members must also have immigrant visas that are expected to be available approximately within 18 - 30 months from the date of the invitation.
- Only petitioners who receive invitations from the NVC will be eligible to apply for the HFRP Program. Petitioners should make sure that the NVC has their current mailing addresses. Petitioners can update their addresses with the NVC using the Public Inquiry Form found on the Department of State’s website athttp://travel.state.gov/
Additional information about the HFRP Program including eligibility requirements and fees is available at uscis.gov/hfrp in English and Creole.
Gade yon ti video sou HFRP an Kreyol.
USCIS Public Engagement Division
Sunday, May 10, 2015
DV-2016 Entrants can go the U.S. State Department https://www.dvlottery.state.gov/ now and check their results by entering their confirmation information on that site. Entrants should hold on to their confirmation number until at least June 30, 2016.
The U.S. State Department will never send any notification letter or any information regarding acceptance to an Entrant other than reminding them to go to the official website. Do not send any money or information in response to any emails requesting these things.
An Entrant will only get email(s) from the U.S. State Department after the Entrant entered the designated website and completed the registration process (if accepted). Those emails will only tell the Entrant that appointment details are available and must be accessed through the website.
Make sure that the website that the Entrant goes to has a ".gov" domain suffix, NOT ".com," ".org," or ".net".
Saturday, May 9, 2015
Friday, May 8, 2015
Measures that may be available to eligible Nepali nationals upon request include:
- Change or extension of nonimmigrant status for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired;
- A grant of re-parole;
- Expedited processing of advance parole requests;
- Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
- Expedited adjudication of employment authorization applications, where appropriate;
- Consideration for waivers of fees associated with USCIS benefit applications, based on an inability to pay; and
- Assistance replacing lost or damaged immigration or travel documents issued by USCIS, such as Permanent Resident Cards (green cards).
To learn how to request relief or more about how USCIS assists customers affected by unforeseen circumstances in their home country, visit uscis.gov/humanitarian/special-situations or call the National Customer Service Center at 1-800-375-5283 (TDD for the hearing impaired: 1-800-767-1833).
Thursday, May 7, 2015
On April 27, 2015, U.S. Citizenship and Immigration Services (USCIS) will begin premium processing for cap-subject H-1B petitions requesting premium processing, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher. USCIS first announced in a news release that it would temporarily adjust its premium processing practice due to the historic premium processing receipt levels, combined with the possibility that the H-1B cap will be met in the first 5 business days of the filing season.
USCIS provides premium processing service for certain employment-based petitions and guarantees a 15-calendar-day processing time.
For H-1B petitions that are not subject to the cap and for any other visa classification, the 15-day processing period for premium processing service begins on the date that USCIS receives the request. However, for cap-subject H-1B petitions, including advanced degree exemption petitions, the 15-day processing period set by 8 CFR 103.7(e)(2) will begin on April 27, 2015, regardless of the date on the Form I-797 receipt notice, which indicates the date that the premium processing fee is received.
We encourage H-1B applicants to subscribe to the H-1B Cap Season email updates located on the H-1B FY2016 Cap Season Web page.
Wednesday, May 6, 2015
USCIS has received enough petitions to reach the congressionally mandated H-2B cap for fiscal year (FY) 2015. March 26, 2015 was the final receipt date for new H-2B worker petitions requesting an employment start date before October 1, 2015.
How We Determine the Final Receipt Date
The final receipt date is the date when we received enough cap-subject petitions to reach the statutory limit of 66,000 H-2B worker visas for FY 2015.
What Happens After Reaching the Cap
USCIS will reject new H-2B petitions that:
- Request an employment start date before October 1, 2015; and
- Were received after March 26, 2015.
Please note that employers may file petitions up to 120 days prior to the employment start date. USCIS will reject new H-2B petitions filed more than 120 days prior to the employment start date.
Petitions That Are Exempt from the Cap
USCIS will continue to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes petitions filed on behalf of the following beneficiaries:
- H-2B workers in the United States or abroad who have been previously counted towards the cap in the same fiscal year;
- Current H-2B workers seeking an extension of stay;
- Current H-2B workers seeking a change of employer or terms of employment;
- Fish roe processors, fish roe technicians and/or supervisors of fish roe processing; and
- H-2B workers performing labor or services from November 28, 2009, until December 31, 2019, in the Commonwealth of Northern Mariana Islands and/or Guam.
For more information about the H-2B work program, visit our website at http://www.uscis.gov/h-2b or call the National Customer Service Center at 1-800-375-5283.
Tuesday, May 5, 2015
Monday, May 4, 2015
Saturday, May 2, 2015
Immigrant Investor Program Office (IPO)
EB-5 Telephonic Stakeholder Engagement (April 22nd)
IPO Deputy Chief’s Remarks
Loan Proceeds as Qualifying Capital
Proceeds from a loan may qualify as capital used for EB-5 investments, provided that the requirements placed upon indebtedness by 8 C.F.R. § 204.6(e) are satisfied.
Under 8 C.F.R. § 204.6(e), “[c]apital means cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness.”
In order to establish an investment of capital, 8 C.F.R. § 204.6(j)(2) allows a petitioner to submit as evidence, among other items, the following:
Evidence of any loan or mortgage agreement, promissory note, security agreement, or other evidence of borrowing which is secured by assets of the petitioner, other than those of the new commercial enterprise, and for which the petitioner is personally and primarily liable.
USCIS classifies proceeds of a loan that are used for EB-5 investment as indebtedness governed by these regulatory requirements. When using loan proceeds as EB-5 capital, a petitioner must demonstrate first that they are personally and primarily liable for the indebtedness. That is, they must demonstrate that they bear primary responsibility under the loan documents for repaying the debt that is being used to satisfy the petitioner’s minimum required investment amount.
In addition, the petitioner must demonstrate that the indebtedness is secured by assets the petitioner owns and that the value of such collateral is sufficient to secure the amount of indebtedness that is being used to satisfy the petitioner’s minimum required investment amount. Put another way, indebtedness secured by assets owned by the petitioner qualifies as “capital” only up to the value of such collateralized assets.
Restrictions on Use of Loan Proceeds
USCIS frequently encounters situations in which explicit language in a loan agreement or other document restricts a borrower’s use of the loan proceeds to a purpose other than EB-5 investment. A restriction on the use of proceeds contained in a loan agreement is relevant evidence and will be considered in determining whether the petitioner has demonstrated, by the preponderance of evidence, a lawful source of funds. To establish a lawful source of funds, a petitioner must demonstrate that capital invested was lawfully obtained. Where the petitioner obtains a loan from a lawful source (such as a reputable bank), the loan proceeds may, nevertheless, be unlawful if the capital was obtained by unlawful means (such as fraud on a loan application). Additionally, the presence of a restriction on the use of proceeds may weaken the credibility of the evidence in the record establishing that the loan in question was the actual source for petitioner’s capital investment. Accordingly, we’d like to caution our stakeholders against submitting documents that contain any provisions that would restrict use of the funds for EB-5 investment.
As always, whether the petitioner has met his or her burden to establish lawful source of funds will be determined on a case-by-case basis, considering any evidence submitted by the petitioner along with the rest of the record.