An early H-1B filing might mean less than full three years of H-1B time

Give up my daughter. That’s the price you pay for the life you choose.

The 1990 movie “The Godfather Part III” closes out the story of the Corleone family, and focuses in particular on the attempts of Don Michael Corleone to become legitimate, and on the transition in power from Michael to his nephew, Vincent. Treacherous enemies and an assassin are threatening Michael, who by now has become older and weary. But Michael has been concerned over a romantic relationship between Vincent and Michael’s own daughter, Mary (who therefore of course is Vincent’s first cousin). For this reason, Michael demands this ultimate choice from Vincent, before the latter can inherit command of the family.

You may never have to make this same choice between love for a first cousin versus control of a family. However, if you are seeking, for the first time, cap-subject H-1B status, you WILL have to choose between an early filing date for the petition, versus being able to have a full three years of H-1B time with that petition. YOU CANNOT HAVE BOTH.

The reason for this situation involves the relationship between the labor condition application (LCA) and the H-1B petition, as well as the processing time for the LCA. As you may know, the LCA is the document in which your employer certifies that you are being paid at least the prevailing wage for your job and your geographic location.

Like the H-1B petition, an LCA can be filed up to six months in advance. In addition, like the H-1B petition, an LCA can request a period of up to three years.  However, the LCA must be filed and certified, and then included with the H-1B petition. That is, the LCA filing and certification must occur before you can file the H-1B petition.  Furthermore, the LCA typically requires about six to seven business days for the certification.  This processing time prevents you from getting a full three years of H-1B should you file on April 1. Here’s why.

Let’s say that you wanted to file your H-1B petition on April 1, 2014.  Doing so would allow you an H-1B period of October 1, 2014 to September 30, 2017.  However, the H-1B filing would need to include a certified LCA . Therefore, in order to have the certified LCA by April 1,  you would need to submit the LCA material about seven business days in advance of April 1, for example March 20.

If you submit the LCA on March 20, then specifying an October 1 LCA start date (to match the H-1B start date) would be IMPOSSIBLE, because October 1 is more than six months from March 20.   Rather, the latest that the LCA period could start would be September 20, and the longest it could run would be to September 19, 2017.  The government will not allow you have H-1B time that exceeds the end of your LCA time, so they will shorten your H-1B to end on September 19 rather than September 30.  In other words, you would lose 11 days of time at the end of the H-1B period.

If, on the other hand, you wanted a full three years of H-1B time, starting from October 1, 2014, you would need to submit your LCA no earlier than April 1, 2014.  You then would probably receive the certification around April 10, meaning that the earliest you could file your H-1B petition would be April 10 or later.  In this case, you could get a full three years. However, you would not be able to file right on April 1, but rather on April 10 or later, and therefore would run a greater risk that the cap will fill up in the meantime. In fact, as you probably know, in 2013 the cap ran out in the first five days of April.

If you are like my clients, you are unlikely to want a full three years of H-1B time, if having it means a late filing. In other words,

"Give up the full three years. That's the price you pay for the early filing you choose."

You are welcome to contact me at csun@calvinsun.com, 215-983-3723, 610-296-3947. This information is not legal advice and does not create an attorney/client relationship.

H-1B pitfalls to watch

So, Barzini will move against you first. He’ll set up a meeting with someone that you absolutely trust, guaranteeing your safety. And at that meeting, you’ll be assassinated….Now listen: whoever comes to you with this Barzini meeting, he’s the traitor. Don’t forget that.

The prudent see danger and take refuge, but the simple keep going and suffer for it. (NIV) Proverbs 27:12

The classic 1972 movie The Godfather portrays the Corleones, a New York crime family headed by Don  (总) Vito Corleone, and depicts the transition in power from Vito to his youngest son, Michael. In particular, Vito has been concerned about the rival Barzini family, which has long been plotting against the Corleones. Perhaps knowing that his end is near, Vito counsels Michael on what to expect in terms of treachery from Barzini. On the DVD version, this dialog appears in scene 20, “I Never Wanted This for You.” http://youtu.be/fuWkcKbBQkg

You may never be in a position to become head of the Corleone family, nor may you ever need to fear assassination. Nonetheless, pitfalls await you during your stay in the U.S., particularly with respect to seeking H-1B status. I am not saying that any of these pitfalls will absolutely doom your petition, nor am I saying that heeding everything I say below will guarantee approval. Still, knowing about such pitfalls may increase your chances of success in this regard. I strongly suggest you pay heed even if your company has an attorney that is preparing your petition. A mistake by that attorney could be far less serious for that attorney than for you.

Here, like Michael Corleone’s Barzini meeting, are things to beware of:

-          Does the Department of Labor recognize your employer’s EIN?

Before your employer can file an H-1B petition, it must file and receive a certified labor condition application (LCA). In order to file an LCA, the employer’s employer identification number (EIN) must be recognized by the Department of Labor (DOL) computer system. In other words, simply having a valid EIN from the Internal Revenue Service (IRS) might be insufficient, because the system of Department of Labor is separate from that of the IRS.

A delay in having a recognized EIN will delay the filing, and hence the receipt of a certified LCA, and thus will delay your H-1B petition filing. Such a delay could be fatal if as a result you miss the “cap full” date. For further information, you are welcome to visit

http://yi2min2.blogspot.com/2013/01/is-your-h-1b-employers-ein-recognized.html

I strongly suggest that ensuring a DOL-recognized EIN be the first step of your H-1B process. This verification can never occur early enough.

-          Premium processing might be irrelevant in the event of a lottery

In previous years, USCIS has stated that petitions that request premium processing receive no special consideration in a lottery. Assuming they are truthful, and assuming the same applies in the upcoming filing season, you may wish to consider your reasons, if any, for requesting premium processing. You might want peace of mind. Or, you or your employer might be cap-exempt, and you simply want to start work as soon as possible. On the other hand, if your sole reason is to have a better chance in the lottery, you might want to reconsider premium processing, because it might not give you a better chance at all. In that case, you would simply be wasting money.

-          Make sure of the filing address

The instructions for the H-1B petition will contain the address to which your completed petition and other materials should go. Read those particular instructions carefully, because filing at the wrong location could result in a delay or even a denial of your petition.

In general, those who work in the “east” will send petitions to the Vermont Service Center, while those who work in the “west” will send instead to California Service Center. However, historically, those petitions from an employer which is cap-exempt have gone to California regardless of work location, and the same might be true in the upcoming season. Furthermore, the respective service centers may have multiple addresses, in particular a street-and-number address as well as a post-office-box address. Be aware that most if not all courier services, such as Federal Express, will deliver ONLY to a street number/name address, NOT to a post office box address.

Therefore, read the mailing address instructions carefully.

-          Early delivery may kill your petition

The H-1B cap already is full for fiscal year 2014, that is, the fiscal year that ends September 30, 2014. For this reason, anyone subject to the cap who wishes H-1B status may begin only on October 1, 2014 or later—that is, fiscal year 2015. Under H-1B regulations, filing may begin a MAXIMUM of six months prior to a requested start date, so that the earliest one may file for an October 1 date is April 1, 2014.

Therefore, a petition that arrives at USCIS prior to April 1, which request an October 1 start date, IS SUPPOSED TO BE DENIED. That is, such a petition must arrive on April 1 or later, but no earlier.

For this reason, don’t get “cute” with trying to save money with courier services, by asking for “second day” or “third day” delivery. Keep in mind that generally speaking, a “third day” delivery, for example, doesn’t necessarily mean the courier will actually deliver exactly on the third day from your dropoff. Chances are, it means only that the courier commits to delivery NO LATER THAN that third (or second) day. In other words, if you mail three days before April 1, specify “third day delivery,” and expect delivery on exactly April 1, you might be rudely surprised. Depending on how busy the courier is, it might end up delivering early, say March 30 or 31. In most cases, customers would be happy at an early delivery. In your case, though, early delivery kills you. Therefore, I recommend you “bite the bullet” (that is, put up with the extra expense of next day delivery) and mail only ONE day before April 1, and make sure you AVOID same-day delivery. Trying to be “cute” with second- or third-day delivery is what Americans call being “penny-wise and pound foolish.”

By the way, in previous years, when a lottery arose, USCIS has stated that they accept petitions during the first FIVE days of April. However, none of my clients has ever been happy with, or wanted, anything later than April 1 delivery, and you probably are the same way.

-          Submit duplicate copies of the petition

Even if you request change of status to H-1B (from, for example, F-1) rather than consular processing (whereby you leave the US, or are already outside the US, and receive actual H-1B visa stamp at a US embassy or consulate), you STILL need to be concerned with embassies or consulates. One day, you might need to leave the US while in H-1B status, and therefore would need an H-1B visa in order to return. For this reason, you should submit a duplicate copy of your H-1B petition, and mark it clearly as such. This duplicate petition, assuming your original one is approved, will go to the Kentucky Consular Center, a facility of the US Department of State, and there it will be scanned into a computer system accessible by embassies and consulates worldwide. Therefore, when you have your visa interview, the consular officer theoretically will have access to your petition.

-          Separate checks for the filing fee

Your petition may involve as many as three separate filing fees: a base filing fee, a fraud prevention fee and an H-1B training fee. In addition, certain employers who have “many” H-1B or L-1 employees are subject to a separate additional fee. In any event, I recommend that you submit a separate check for each filing fee, even though the payee will be the same—US Department of Homeland Security. Having separate checks reduces the chances of an arithmetic error in calculating the total amount of a single check, and thus reduces the chances of denial on that basis. Of course, you will need to verify that you have accounted for all relevant fees and that your checks are in the correct amount for each fee.

-          Do you need a license?

Generally speaking, if your H-1B occupation requires a license or certificate, then you yourself must have such license or certificate at the time your employer files your petition. However, if for some reason you are exempt from any such requirement, be aware that simply relying on the boss’s “say so” might be insufficient for the petition. Americans will say that simply having the boss’s say-so “won’t fly.”  That is, simply having the boss say, in a letter, that you are exempt might not satisfy USCIS, and as a result you might get a request for evidence (RFE), asking for more proof of why you are exempt.

Rather, if you are exempt, you are better off if you can supply official documentation as to the reason, for example, a state statute or regulation. In other words, try to submit such evidence with the initial petition, thus reducing the chances (and resultant delays) of an RFE.

-          Certified translations

In the event you submit a document that is not in English, you must submit with it a certified translation. You may, but are not required to, use a professional translation service. In fact, you may even do the translation yourself. However, at the least you will need someone else to sign a statement to accompany the translation. That statement will certify that the signer is fluent in English and the other language, and that the document is truly what the certification says it is.

-          Official transcripts

In many, if not all cases, you will need to supply a transcript of your school work. Be aware that such a transcript must be official. That is, it should come from the office of your university that maintains the transcripts (generally the registrar). It should also contain the insignia of that office and be signed. Note, however, that while the transcript should be official, it need not necessarily be original. That is, a photocopy or scanned version is acceptable so long as, of course, the copy is accurate. I never have received any request to submit an original copy of a transcript.

I hope this information helps you.

Now listen: whoever comes to you with this Barzini meeting, he’s the traitor. Don’t forget that.

This information does not constitute legal advice and does not create an attorney-client relationship. You are welcome to contact me, Calvin Sun, at 610-296-3947 or 215-983-3723, or via email at csun@calvinsun.com. My avvo profile is at http://www.avvo.com/attorneys/19301-pa-calvin-sun-1935383.html

Make Sure About Your H-1B “Trapeze”

You probably have seen a flying trapeze act if you have ever been to a circus. Performers swing from a trapeze (that is, a swing) high above the floor. In particular, they will use multiple trapezes to move from one platform to another. To do so, of course, they must coordinate the trapeze they are on with the one they intend to change to. That is, at the time they let go of the first trapeze, they must make sure that the next one is right by them so they can grab it. Otherwise, they will fall.

This same situation pertains to obtaining more than three years of H-1B time. A person can have as many as six years of H-1B time, but any such petition for H1B status is limited to a maximum of THREE years. Therefore, a person who wishes more than three years must have an employer file a second “extension” petition later, as the time on the first petition is drawing to an end.

For purposes of the following discussion, assume that you have never had H-1B status prior to what I describe below.

Most of the time, the “second trapeze” of the H-1B extension already is waiting for you. For example, if your first status was with a cap-subject employer, then you would have been counted under the cap for that petition, so you would not be counted a second time. This cap-counted situation applies regardless of whether you remained with your same employer or whether you sought a new one. Furthermore, if your second employer itself is cap-exempt, you similarly would not have a cap problem.

You will need to be careful, however, if your first H-1B status is with a cap-exempt employer. Yes, you would have avoided, at the time of filing, many of the troubles your friends may have faced with their cap-subject petitions. They, for example, probably had to worry about whether their petitions were prepared and filed in time, whether they needed to face a lottery and whether or not they were selected in the lottery. However, if they got through those things, they generally would be “home free” with respect to the extension petition, because they have dealt with and conquered the cap problem already. They are like the person who had chicken pox as a child, and so need not worry about it later.

You, on the other hand, did not face these problems the first time, but you might face them the second time, i.e. with the extension. That is, you are like the one who still risks chicken pox through not having it as a child. Therefore, to reduce risk and the chances of problems, you might want to assess your situation and talk with your employer. Having assurance from your employer about continued employment would be helpful. Alternatively, having a second potential cap-exempt employer also would be helpful.

The WORST situation for you is to be caught off-guard near the end of your cap-exempt H-1B time, with no cap-exempt possibilities, and with the cap at that time already full. In this case, you will be leaving your current trapeze, but no second trapeze might be waiting for you. In this case, put another way, now you are facing your chicken pox.

This situation is occurring right now with a client who came to me recently. In 2012, before she knew me, she began H-1B status with a cap-exempt employer, and that status will end in the summer of 2014. The employer had made clear that it would offer only initial H-1B status, and no extension. However, the attorney who handled that petition apparently (and if so, then in my view, irresponsibly) never told her the implications of the summer ending date. As you probably know, the cap already is full for fiscal year 2014, that is, the year in which her initial H-1B is to expire. In fact, the cap filled up during the first five days of April 2013, the earliest time one could file to begin work October 1, 2013, that is, the first day of fiscal year 2014. At the present time, therefore, filing a cap-subject petition that would allow her to begin work in the summer of 2014 is impossible.

Be careful of this situation, if, like this client, your initial H-1B is at a cap-exempt employer. If you fail to find a cap-exempt status for your extension, you may even need to end your first H-1B time early, in order to have an October 1 start date at a cap-subject employer. In turn, in this case, an October 1 start date would require an April 1 filing date.  As you can see, careful planning and timing is critical. This process may be hard, but it might be the only way that you can begin your extension in time to avoid a cap problem.

You are welcome to contact me at 610-296-3947, 215-983-3723 or csun@calvinsun.com. The above information does not constitute legal advice and does not create an attorney-client relationship.

Don't Get Dog-bit

Being bitten by a dog is rarely pleasant, but it is something I need to discuss.

A guy (call him Guy 1) sees another guy (call him Guy 2) with a dog. Guy 1 asks Guy 2, “Does your dog bite?” Guy 2 says, “No.” Guy 1 reaches to pet the dog, which promptly bites him on the hand. Shocked, Guy 1 shouts to Guy 2, “You said your dog doesn't bite.”

Guy 2 responds, “That isn't my dog.”

I thought of this old American joke the other day, after getting a call from someone who wanted answers to some green card and F-1 questions. After I explained arrangements, he emailed back the next day, saying that he found answers on the Internet and therefore didn't need my help.

I responded that I hoped his sources and his information were correct.

However, after thinking some more, I realized that for this person, simply having correct information was not enough. That information had to actually apply to the person, that is, it had to be relevant. Otherwise, this person would be like Guy 1, who received correct information (i.e. that Guy 2’s dog did not bite) but for whom that information was irrelevant (because the dog by Guy 2 was not Guy 2’s dog at all).

You probably have done much searching on the Internet for information, and if so, I hope your information is correct, particularly if it relates to immigration. However, as with the person who called, make sure that your information—even if it is correct—actually applies to you. Everyone's situation is different. Your green card options and waiting times depend, for example, on (among other things) where you were born, what type of degree you have and whether your work benefits the national interest. Your H-1B options depend on whether or not your employer is exempt from the cap, and whether you yourself might be exempt, even though your employer isn't.

If you care only about the correctness of your information, and ignore its relevance, you could end up like Guy 1: dog-bit.

*************************************

You are welcome to contact me at csun@calvinsun.com, 215-983-3723, 610-296-3947. This information does not constitute legal advice.

The dangers of using the term "H-1B transfer"

A few days ago, a client asked about changing jobs while in H-1B status. He asked if, when changing from employer A to employer B, he needed to file a new petition, or whether he could simply "transfer" his H-1B. 

His question made me wonder if he understood the requirements involved.  In particular, he seemed to think that changing H-1B jobs required no new filings or petitions. 

This understanding is incorrect. For this reason, I strongly recommend that you avoid talking about "transferring" H-1B.  An H-1B petition is specific to a particular employer and particular job. Therefore, that petition has no relevance with regard to a different employer. That is, the new employer will have to file a new petition for that employee and show that the employee and job do qualify for H-1B status.

On the other hand, changes in the immigration laws in recent years DO provide for "portability" of H-1B between jobs and employers. In a future post, I will talk about portability, and times you should consider or else avoid it. 

Understanding the OPT STEM extension

If you are studying in the US in F-1 status, you probably know about optional practical training (OPT). It is normally a one-year period that follows the completion of your academic program, during which you may work in a job related to your field of study.

You also may have heard that certain F-1 students may extend this one year by an additional 17 months, thus giving them a total of 29 months of OPT time. In this blog post, I will discuss important aspects of this available extension of OPT time.

Such an extension is commonly called a “STEM” extension, because it is available for students who study science, technology, engineering or mathematics. In addition, the employer must be enrolled in e-Verify, a special system that determines employment authorization of potential employees.

One important reason someone might elect such an extension is to give themselves an additional chance at H-1B status, should they fail to qualify during their regular one-year OPT. Or else, a student simply might want to have more experience in the job in the U.S., before leaving the US and not wishing to receive H-1B status.

Regardless of the reason, here are some things to watch for with regard to the STEM extension:

-          Avoid confusing the OPT STEM extension with the H-1B cap gap extension

These two extensions, while in some cases are related, nonetheless are separate concepts. The OPT STEM extension deals with making your OPT period longer. The H-1B cap cap extension provides a way for you to remain in status and possibly maintain work authorization between the original end of your F-1 status and the beginning date of an H-1B cap-subject job. A person can receive both extensions, neither extension, or one but not the other.

-          Avoid these INCORRECT ways to determine your eligibility

The following methods of determining eligibility are INCORRECT:

o   Looking solely at the name of your field of study

If your field of study contains one of the STEM subject names, the chances are high that you are eligible. However, this situation does not always hold. For example, not all types of engineering might really be STEM eligible.

o   Basing your conclusion on your type of degree

In the same way, do not automatically conclude that you are automatically eligible because your degree says “of Science.” Conversely, do not automatically despair that you are ineligible because your degree says “of Arts.” These degree names are determined by your institution, and need not correspond to your actual field of study. In fact, in some institutions, you might be able to select whether your degree is “of Arts” or “of Science.”

-          Follow this CORRECT way to determine your eligibility

To truly determine whether or not you are eligible for the OPT STEM extension, consult the top of page 3 of your I-20. There, you will see the name of your field of study, and following it will be a number, probably with a decimal point included. This number is called your “classification of instructional program” (CIP) code. To determine whether you are OPT STEM extension-eligible, compare this number with a table of STEM codes maintained by U.S. Immigration and Customs Enforcement (ICE). At the web site www.ice.gov, perform a search of “STEM” to find a spreadsheet or web page of eligible codes.

A few years ago, a friend, who received a Master of Arts degree in environmental science, told me she was upset about not being eligible for the STEM extension. She based her idea on the “of Arts” degree she received. After I told her the above correct way to check, she did so, and discovered she WAS eligible. She was so happy with me that she bought me a Starbucks.

If you too are so happy with this information that you wish to do the same, I will not be mad at you. In any event, I hope this information helps you.

You are welcome to contact me with questions. Please remember that this blog post, as with others, does not constitute legal advice.

csun@calvinsun.com
610-296-3947
215-983-3723

If you are driving a car in the U.S.

If you drive or plan to drive a car in the U.S., here are some things to consider. Please note that this blog entry is not intended to be an exhaustive guide, but merely to remind you of things you yourself need to check. This blog entry also is not legal advice. Driving and automobile laws vary from state to state, and may vary even across different cities in the same state.

When confirming requirements, you are better off checking the official web site of your state transportation department, bureau of motor vehicles, or similar state agency. Be careful if instead you are relying on message boards or blogs for official information.

Driver licensing

You will need a license for yourself to drive a car. Each U.S. state is supposed to honor driver licenses of any other state. Therefore, you do NOT need a separate driver license for each state you plan to drive in. Your state might also honor an international driver license, for at least a limited time if not indefinitely.

In any event, be aware that the validity period of your license, as well as any other requirements, may differ from those of U.S. citizens. Here, for example, is a chart from the Pennsylvania Department of Transportation:  http://www.dmv.state.pa.us/pdotforms/fact_sheets/pub195nc.pdf

If you need to take an actual road test in order to receive your license, know how your state or location does so. Some states or locations will test you on “real” streets. Others will test you on a specially constructed range. Or, still others may use a combination. If all or most of your test will be on a range, find out about the possibility of practicing on that range prior to your test, during off-hours. One such center is in Frazer, PA, in Chester County. I have seen cars on their range as late as 9:30 pm, long after their business hours are over.

Most likely, the car you use for a driving test will need to have proper registration, insurance and inspection. More on these topics below.

Vehicle requirements: insurance, inspection and registration

In addition to having, yourself, a valid driver license, your car must meet certain requirements. In general, states require that cars have insurance, be inspected and be registered. Please note that these requirements generally are separate and independent of each other.

You almost certainly will need to carry automobile insurance for your car. When you complete the insurance process and get a policy, the insurance company most likely will send you a document to prove that you have insurance, and most if not all states will require that you be able to produce this document upon request by a law enforcement officer or after an accident.

Your car will probably need to be inspected. That is, an authorized person will certify that your car meets certain minimum safety requirements, such as functioning headlights and horn, sufficient tread in your tires and other matters. In some states, private repair facilities will do this inspection. In others, the state will operate facilities. If you are in a populated area, your car also might have a separate test for exhaust emissions. Once your car passes an inspection, you probably will have a sticker placed on your windshield.

Your car will need to be registered with the state agency that deals with motor vehicles. You probably will need to supply the license tag number and possibly the title number, as well as information on insurance. After you register, you should receive a card to that effect. You also may receive some sort of sticker to place on your license plate or on your windshield. Please be aware that in certain places, motorists have had their registration stickers stolen from their license plates. The thief usually does so by actually cutting away the part of the license plate that holds the sticker.

Your registration and inspection stickers will probably show a month and year on them, to indicate when they expire. Having an expired sticker could result in your receiving a warning, or worse, a violation notice from a police officer. In some places, having such expired stickers, or lack of insurance, even could result in the confiscation of your car. Therefore, please be sure to have current stickers and insurance cards.

Other

I recommend you carry a set of battery jumper cables (also known as “booster cables”), particularly if you drive in places with cold winters. In such places, you have a greater risk that your battery will lose power and not be strong enough to start your car. In such cases, jumper cables, when attached to another car with a properly functioning battery, will allow you to start your car by using power from the battery of the other car. Such cables will come as a pair. One cable will be red (the “positive” cable), the other will be black (the “negative” cable). To help me keep the colors straight (positive red, negative black), I imagine that a LONG set of cables extends fromPuerto Rico to New Brunswick.

A flashlight can be a lifesaver. I recommend the “Mini Maglite,” available in many stores including Wal-Mart. It is renowned for its reliability and quality. In addition, people, particularly women, can carry it not only to provide light, but for self-defense. Its hard casing makes the Mini Maglite a good weapon for striking an attacker.

You also might want to purchase and have in your car a tire pressure gauge. The most convenient ones are those shaped like a pen. The tire gauges you might see at a service station, if you see any at all these days, often are unreliable.

I hope this information is helpful.

Calvin Sun, attorney at law 孙自成，律师
Immigration and nationality law

csun@calvinsun.com
610-296-3947

New electronic I-94 arrival/departure document replaces paper-based ones

Have you, or anyone you know, ever lost your I-94 arrival/departure document? Not only is replacing it a time-consuming nuisance, but it is also an expensive nuisance. The current fee for filing form I-102, for replacement of your I-94, is $330.

Now, however, having to do is a thing of the past. Beginning in the spring of 2013, U.S. Customs and Border Patrol (CBP) began a system of issuing electronic I-94s. This change means that now, upon arrival at a U.S. port of entry, you receive no paper-based I-94. If you do need evidence of your lawful admittance and confirmation of your “admitted until” date, you can check www.cbp.gov/i94.  The entry screen will prompt you for name, date of birth, passport number, country of passport issuance, most recent date of entry and class of entry (e.g. F-1, H-1B, E-2 etc.). After you enter the required information and submit it, you will see, on the resulting screen, your I-94 number and your “admitted until” date. The latter two pieces of information are important if you apply for statuses such as H-1B.

This change has advantages but disadvantages. On the one hand, you no longer have any paper-based, hardcopy I-94 to lose. On the other hand, without a piece of paper for warning purposes, you might forget or forget about your “admitted until” date, and end up staying beyond your “admitted until” date, and doing so is a bad idea.

Therefore, if you are within a class that does have a definite “admitted until” date, such as H-1B or E-2, then you might want to program that date into your smart-phone or other device, or at least circle on a traditional wall calendar. Remember that if you are in certain other classes, such as F-1, you have no specific “admitted until” date, but rather you are admitted for duration of status. In other words, so long as you maintain the conditions of your classification, you will be considered to be within your “admitted until” period, and you will have neither a status violation nor unlawful presence.

You are welcome to contact me at 610-296-3947 or via email at csun@calvinsun.com. This information does not constitute legal advice.

“This is not a competition”: Regarding H-1B petitions

For the past several years, I was a leader of a church youth group that did short-term summer  missions work in the Rio Grande Valley area of south Texas. On several of those trips, we needed to rent multiple cars, usually minivans, to transport the team members. During such trips, I would say to the other drivers, as we going from one place to another, “This is not a competition.” In other words, I was reminding them not to jeopardize safety by trying to be the first one to arrive at our destination. Of course, I was usually the first one anyway.

I mention this story because of conversations I have had with a number of people who mention the “competitive” nature of gaining H-1B status. For that reason, I would like to clarify the adjudication process for those who might be unfamiliar with it.

Filing a petition for H-1B status is different from applying to a university. There is no committee that sits at a table and evaluates a pool of H-1B petitions against each other. That is, your own petition does not get judged by how “qualified” you are compared to another person’s petition. Furthermore, they do not “rank” the petitions, then select only the “best” 65,000 of them. Rather, a USCIS adjudicator looks at YOUR petition, and the evidence that you, your employer and your attorney have prepared,  then decides—based on immigration regulations and the statute—whether you qualify for H-1B status.

The only “competition” involved with an H-1B petition involves those petitions that are subject to the cap. The competition involves filing your petition before the cap fills up. Actually, though, according to USCIS procedures in the past, petitions could be filed any time during the first five days of April. Then, if the cap is reached during those five days, USCIS would conduct a lottery, as they did this past April. If your petition was filed before the cap filled up in a non-lottery year, or if your petition “won” in any H-1B lottery, then whether you are approved or denied depends only on YOUR petition and supporting evidence, not on how well you compare with another.

So, as with my summer missions trip transportation, so too with H-1B petitions: this is not a competition.

You are welcome to contact me at 610-296-3947 or csun@calvinsun.com. This material does not constitute legal advice.

Change-of-address requirement

If you are in the U.S. as a non-citizen, then in most cases, you
will have a requirement regarding change of address. Specifically,
within 10 days of your move, you must tell the immigration service
of your new address. This requirement continues for you until and
unless you become a citizen.

If you are in F-1 status, and if your school is a SEVIS school
(that is, your school’s international student office is able to
connect directly to the SEVIS system), you may fulfill the
requirement by telling that office. I strongly suggest that you do
so via email, and that you save and print a copy of the email, in
case you later ever face questions. In addition, I would keep a
copy of your lease (if you are renting your housing), or some
other evidence that shows the date of your new address.

Otherwise, the normal way to report a change of address is via
form AR-11.

You also can notify the postal service www.usps.com of your new
address if you want, but doing so DOES NOT satisfy the immigration
requirement.

Not to scare you, but failure to meet this requirement can be
considered a misdemeanor offense, and also can be grounds for
removal from the U.S.

Here is the regulation:

8 CFR 214.2(f)(17)  Current name and address. A student must
inform the DSO and the Service of any legal changes to his or her
name or of any change of address, within 10 days of the change, in
a manner prescribed by the school. A student enrolled at a SEVIS
school can satisfy the requirement in 8 CFR 265.1 of notifying the
Service by providing a notice of a change of address within 10
days to the DSO, who in turn shall enter the information in SEVIS
within 21 days of notification by the student. A student enrolled
at a non-SEVIS school must submit a notice of change of address to
the Service, as provided in 8 CFR 265.1, within 10 days of the
change. Except in the case of a student who cannot receive mail
where he or she resides, the address provided by the student must
be the actual physical location where the student resides rather
than a mailing address. In cases where a student provides a
mailing address, the school must maintain a record of, and must
provide upon request from the Service, the actual physical
location where the student resides.
You are welcome to contact me at csun@calvinsun.com or at
610-296-3947. This information does not constitute legal advice.

U.S. consulate in Guangzhou has moved, service resumes July 23

From the "immigrant visa" web page of the consulate:

"The U.S. Consulate General will be open in our new modern facility in the Zhujiang New Town neighborhood of Guangzhou. Beginning July 23, all services will be provided at our new location. Our entrance is located on Huaxia Road near Zhujiang New Town Metro Station Exit B1."

http://guangzhou.usembassy-china.org.cn/immigrant_visas.html 

I have no idea why they put this information within the immigrant visa page, as opposed to having a dedicated web page about the move. However, by now I have learned that with regard to immigration and visa policies, not to ask "why" but simply to accept that things are as they are lol.

In any event, here is a map of the new location: http://photos.state.gov/libraries/guangzhou/34611/guowz/consular%20customer%20entrance%20map_001.jpg 

As you probably already know, if you seek an immigrant visa to the US while you are in China, then Guangzhou is the ONLY post that can help you.

Suggestions regarding your OPT job search and job

Right now, many of you are either still looking for an OPT job, have started or will soon start such a job. To the first group, I wish you success, and to the others, I say congratulations. All of you, though, might be interested in what I have to say below.

-          Resumé suggestions

Consider whether to really show your home address

You were probably told, by your school’s international student office or by their career office, to put your home address on your resumé. Doing so, however, creates a potential privacy and security issue for you. This practice hearkens back to the “old days,” when (believe it or not) people DID NOT HAVE EMAIL! Rather, in order to get documents to someone, a person had to use the US mail. Today, however, with email and cell phones, an interested employer can reach you these ways, without needing to know your physical address.

For this reason, you might consider omitting a home address from your resume. Later, though, should that employer really need your address, you can give it separately from your resumé.

On the other hand, omitting an address might possibly be a "turn-off" to a potential employer.

As I write this section, I think about a former student with whom I still keep in touch. I noticed, at the end of her email, an address that looked like an apartment number. Curious about it, I asked if it was her office address or the department office at her university. I then wrote that I hoped it wasn't her home address.

She replied that yes, it was her home address.

Boy did I ever freak out at her. In 48 point type, I wrote to her, REMOVE  THAT ADDRESS!!!  NOW!!! LOL.

I explained to her, after I calmed down, that she has no idea what her recipients are doing with her email, in particular, to whom these recipients might be forwarding her mail. In other words, I said to her, people she might not even know might have her home address.

The same principle applies to your resume as to her email signature. 

If you really feel you must include an address, then consider renting a US post office box or private mail box, such as Mail Boxes Etc. or the UPS Store, and use that address rather than your home address. Or if you are still in school, and doing so is ok with school, use a departmental office address.

Be sure to include an objective

I realize that you will include a cover letter with your resume, and the cover letter will explain your job objective. Just the same, in case the two get separated, having an objective on your resume will make it stronger. Also, having such an objective in mind, while preparing the resume, will help you keep it focused.

Integrate school-related awards and honors into your “education” section

I have seen many resumes, and they have an “education” section, followed by an “honors and awards” section. Often, the latter will include items associated with a school, such as “Outstanding student in ‘Principles of Marxism.’” In such a case, I suggest that the student remove this item from the “awards” section and instead include it with the school information. Doing so gives a more complete picture of the education years.

I am not saying to get rid of the “honors and awards” section. Rather, reserve this section only for items not connected with the school, such as a community or service organization award.

-          Remember the 90 day/120 day unemployment rule

If you do not have a job the day your OPT begins, then remember that the “clock is ticking.” You are limited to 90 days of unemployment during a regular OPT, and 120 days if you have chosen a 17-month STEM extension. If you can work only part-time, then you must work at least 20 hours a week to be considered “employed.”

-          No IMMIGRATION LAW requirement that OPT job be paid

I often get questions about whether an OPT job needs to have a salary. I reply that the answer involves two issues: immigration laws and regulations, and also federal, state and local labor laws.

Unlike H-1B status, or labor certification green cards, OPT employment has NO requirements, from an IMMIGRATION LAW perspective, that a job meet any minimum salary amount, or that job be paid at all.

On the other hand, any OPT job still must comply with federal, state and local labor laws. The most common example (but not necessarily the only one) is a minimum wage law. So, therefore, even though a potential unpaid OPT job might pose no immigration law issues, it still might pose labor law issues. For this reason, you and your employer need to look carefully at any potential unpaid OPT job.

-          Think about when to have “the H-1B talk” with boss

Remember that your OPT time is limited to either one year or 17 months. In the former case, particularly, remember the Kenny Chesney song, “Don’t Blink.” 

www.youtube.com/watch?v=4f0p5KqdU9U  In this song, Mr. Chesney reminds us that “a hundred years goes by faster than you think.” In your case, one year goes by faster than you think. If we have another &$#@!&^  H-1B lottery, then your petitions must have been filed by no later than April 5. For this reason, if you wish to remain at your OPT job, you will need to plan a time to have “the H-1B talk” with your boss or human resources department. Please see this link for helpful tips: http://yi2min2.blogspot.com/2012/12/how-to-talk-with-your-boss-about-h-1b.html

Now I am upset. Thinking about it, I don't recall hearing Mr. Chesney perform this song in Philadelphia on June 8 lol.

I wish you well in your OPT.

“This information does not constitute legal advice.”

csun@calvinsun.com, 610-296-3947, 215-983-3723

Postdocs and green cards

Postdoc: A postdoctoral scholar ("postdoc") is an individual holding a doctoral degree who is engaged in a temporary period of mentored research and/or scholarly training for the purpose of acquiring the professional skills needed to pursue a career path of his or her choosing. http://nationalpostdoc.org/index.php/policy-22/what-is-a-postdoc

This definition, from the National Postdoctoral Association, has important implications for you, the postdoc, as you consider your green card options. The most important factor, from a green card standpoint, is the “temporariness” of the position. According to the definition, a postdoc position is not a permanent one. For this reason, therefore, you are precluded from (that is, you are ineligible for) the following types of green cards:

-          Outstanding researcher or professor (EB-1B)

-         Advanced degree or exceptional ability alien, via labor certification (EB-2 PERM)

Both of these green cards require regular jobs.  The outstanding researcher or professor green card requires, among other things, either a tenure track teaching position or a permanent research position. The EB-2 PERM green card requires, among other things, a labor certification, showing that no ready, willing, qualified and available U.S. workers exist for the offered job. While ANYONE with an advanced degree or with exceptional ability (not just academics and researchers) might qualify for such a green card, it still nonetheless requires a permanent job.

Therefore, should you wish to gain a green card while you are a postdoc, you have only two options, and most likely only one of them is realistic.  However, the good thing is that neither of these green card options requires a permanent job, and in fact neither of them requires that you even have a job at all.

The first such green card is for aliens of extraordinary ability, 特殊才能的外籍者. However, this category expects that successful candidates are in that small percentage of persons who have risen to the very top of their field. When I discuss this option, I tell clients that they need to be at the level of a Yao Ming or a Lang Lang. While this option technically and legally can accommodate you in that it does not require a job at all, much less a permanent one, the high standard might make this option impractical.

For this reason, the second option—the national interest waiver (NIW, 国际利益豁免)—is your best chance for a green card while being a postdoc. The NIW is considered an EB-2 category green card. Normally, such green cards require a labor certification. However, the immigration laws of the United States provide a waiver of this labor certification, as well as a waiver of a job requirement, for those who can demonstrate that their work will benefit the national interest of the United States. From a policy standpoint, this provision for the NIW is saying that should your work meet the standards for an NIW, then the U.S. considers your getting a green card to outweigh the importance of protecting the U.S. workforce via a labor certification. In slang terms, with regard to the labor certification requirement, the U.S. government will “let it slide.”

Be aware, however, that the EB-2 nature of this green card could involve a period of waiting if you were born in China, India, Mexico or the Philippines. Right now, for example (that is, in June 2013), people born in China who filed their EB-2 green card petitions on or before July 15, 2008 are just now getting their green cards, meaning they had almost a five-year wait. http://www.travel.state.gov/visa/bulletin/bulletin_5953.html

That is, people with priority dates on or before July 15, 2008 only this month are now becoming "current."

If you wish to discuss the national interest waiver, I am happy to do so with you.

This material does not constitute legal advice.

csun@calvinsun.com, 610-296-3947

Problems with the U.S. Department of State non-immigrant visa (DS-160) application system

If you have been trying to use the online non-immigrant / DS-160 visa application system of the U.S. Department of State, https://ceac.state.gov/genniv,  please be aware that the system has had major problems ever since June 8, 2013. At that time, according to the web site, the system had been scheduled for maintenance. Furthermore, the web site said that responses that were saved to the site prior to the maintenance activity might not be available after that activity was finished, and that users should consider saving their responses as well to their own computer.

As late as 11:05 pm on Monday, June 10, 2013, the system STILL has problems. In particular, a person is UNABLE either to “start and application” or to “upload an application” (that is, to restore, from a backup file on the person’s own computer, responses that previously had been saved).  If you visit the site ceac.state.gov, and select the link for DS-160, you will see, on the next screen, the these two options are non-hyperlinked. Rather, the only option that can be selected is the one for “retrieve an application.”

I urge caution if you choose this last option, that is, if you are planning to retrieve responses that you previously saved to the web site. A client tried to do so on Sunday, June 9, but found that many of her responses had been lost. If you try the same action, you may find yourself in a similar situation.

I have serious concerns about how the State Department handled this maintenance activity, in particular their apparent inability to backup the system properly and to restore it again. I do hope the system will be fully operational soon. I have reported this situation to a contact of mine, who in turn has reported it to the Department of State.

Remember that even if you are represented by an attorney in your non-immigrant visa application process, you yourself (not the attorney) must be the person who electronically signs and submits your DS-160.

I can be reached at csun@calvinsun.com, 610-296-3947. This blog post does not constitute legal advice.

H-1B Lottery Fail: Now What?

Did you lose out in the fiscal year 2014 H-1B lottery? That is, did your petition fail to be selected? If so, I am sorry for your situation, and offer some thoughts that I hope will help you.  

In doing so, I am assuming that you were in your OPT period, a "regular" F-1 program study period or your grace period on the date your petition was filed, and this date would have been between April 1 and April 5. I assume further that you have no issues with the J-1 exchange visitor two-year-return-home rule—that is, you never had J status, the rule didn't apply to you or else you fulfilled or waived the requirement. I also assume that you have maintained the conditions of your status.  I also am assuming that the employer who petitioned for you really is subject to the H-1B cap, and your job really is subject to the cap.

Please understand that I have not mentioned every possible alternative that might apply to you, and that the alternatives I do mention might not apply to you. In addition, of course, this post does not constitute legal advice. Every situation is different, so if you have questions or issues, I strongly recommend that you seek qualified legal advice.

Here are things to consider:

1.       Keep track of your “depart-by” date.

This date will be 60 days from either your program end date, or the date of your notice of petition non-selection, whichever is later.  By the end of this time, you must have taken steps to maintain lawful presence, or else have departed the US. Unless you take such steps, you will be unlawfully present in the US past the end of this 60 day period.

Please see www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f52d608f52f6d310VgnVCM100000082ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD 

"If the student’s H-1B petition is denied, withdrawn, revoked, or is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States."

2.       Make sure you yourself really are subject to the cap

“What?” you say. “Calvin already said he assumed the employer is subject to the cap. Why is he now talking about me and the cap.”

I raise this point because even though an employer is subject to the cap, in some cases the employee him/herself actually might be EXEMPT. In particular, such a situation would arise if the employee previously had H-1B status. For example, suppose a person received a master degree, then began work in an H-1B job for a cap-subject employer  for a year. The person then returned to school for a second master degree, graduated and now is seeking an H-1B job again. In this case, the person is exempt from the H-1B cap because the person already was counted against the cap for the first job.

When preparing your petition, your attorney should have asked you about previous H-1B status. If he or she didn’t, however, and you did previously have such status, you possibly might actually have such an exemption.

3.       Work FOR a cap-exempt employer

Although most employers are subject to the H-1B cap, some are not. These cap-exempt employers are

-          in general, institutions of higher education and qualifying affiliated entities

-          governmental research organizations

-          non-profit research organizations

Note that, unfortunately, simply being non-profit, or simply being a non-governmental organization (NGO) by themselves do not make an employer cap-exempt.

If you can become hired by a cap-exempt employer, and you and your job otherwise qualify for H-1B, then you are not bound by the “file no earlier than April 1” and the “begin work no earlier than October 1” rules. You would be able to work as soon as your petition is approved, even though the H-1B cap already is full for fiscal year 2014.

4.       Work FOR a cap-subject employer, but AT a cap-exempt organization

Even though you might be working for an employer that is subject to the cap, you actually would be exempt if your work is performed at  an organization that is exempt from the cap, and your work furthers the objectives of that cap-exempt organization. For example, you might be hired as a researcher from cap-subject company A, but then company A places you at university U to do work that furthers the mission of U. In such a case, you could be cap-exempt even though you work for company A.

5.       Seek concurrent H-1B employment

Remember that H-1B work need not be full-time, rather it can be part-time as well. Suppose you are working already part time for a cap-exempt organization, and a cap-subject employer now wants to hire you in H-1B status. Your petition and status for the cap-subject job will be exempt from the cap so long as you work for both employers at the same time.

6.       Seek other employment status other than H-1B

H-1B is not the only status that allows employment in the US. Some others include the following:

-          R-1 religious worker or minister

-          G-4 employee of international organization, e.g. World Bank

-          E -1/E-2 treaty trader/investor specialized employee

Each of these statuses has its own specific requirements. In particular, this last status requires the existence of a treaty of commerce and navigation between the US and another country. Ownership of the hiring company must be by nationals of the treaty country, and the person being hired in E-1 or E-2 status must have that same nationality. Although Taiwan has such a treaty, unfortunately China does not.

7.   Extend your STEM OPT by 17 months

As you probably know, those people with degrees in science, technology, engineering or mathematics (STEM subjects) are eligible for a 17-month extension of OPT, for a total of 29 months. In this case, such an extension probably will keep you in status until the fiscal year 2015 filings begin, on April 1, 2014.

 

To confirm your eligiblity, check page 3 of your I-20. The field labeled "primary major" should have a numeric code, known as a CIP code. If this code appears on the STEM list of U.S. Immigration and Customs Enforcement (ICE), www.ice.gov, then you are eligible.

 

Your request for the STEM extension be timely. Also, your employer must be enrolled in e-Verify.

 

8.       Seek other ways to remain legally in the US

You might be able to stay lawfully in the US without working. Some ways include the following:

-          Get married

Stop laughing, this option is a real one, subject to the cautions I list below.

Non-immigrant statuses have a corresponding status for dependents, such as a spouse or children. For example, the spouse of an H-1B worker can have H-4 status; the spouse of F-1 student can have F-2 and the spouse of a J-1 exchange visitor can have J-2.

If you were to marry, instead of a non-immigrant, a US citizen, then you would be considered an “immediate relative.” Therefore, you would have immediate access to an immigrant visa, because their supply is infinite for immediate relatives. That is, you would not be bound by the dates listed in the State Department visa bulletin.

However, please be sure that your marriage is bona fide. Those who use or attempt to use marriage to evade US immigration laws can face severe legal consequences, including prison time, fines, removal from the US and (in the case of a naturalized US citizen) loss of citizenship.

-          Return to school

Returning to school would keep you in F-1 status. However, depending on the level of program, you may or may not be eligible for OPT.

I hope this information helps you, and more importantly, I hope you don't view your situation as the end of the world. I can be reached at csun@calvinsun.com.