Understanding the “change of status” portion of the H-1B process

If you are reading this post, then perhaps you have F-1 student status. If so, you probably hope to later gain H-1B status and to do so without have to leave the United States.  In this case, the information below may be important and useful to you.

This process of going to H-1B from F-1, while remaining in the United States, is called a “change of status.” Many students who are in F-1 status prefer the change of status to the alternative of leaving the United States, gaining an H-1B visa and re-entering the United States with that visa. This latter method, called “consular processing,” is generally more time consuming and expensive due to the travel involved.

The employer of an H-1B person is supposed to indicate, on the H-1B petition, if the F-1 beneficiary (that is, the person who seeks H-1B status) wants a change of status to H-1B. If so, then the best result for that person is that in addition to getting an approval of the H-1B petition itself, the person also gets an approval of the request to change status.

Please note that these two approvals involve separate issues. The approval for H-1B status depends in large part on the complexity of the job and the qualifications of the beneficiary. The approval for change of status from F-1 to H-1B depends in large part on the person’s eligibility for such change of status. Many times, a person will be approved for both H-1B status and for a change of status. On the other hand, a person might be approved only for H-1B status but be denied the request for change of status.  Such a result can be serious, and a person in this situation might want to consult an attorney to discuss its implications.

To reduce the chances of a denial of change of status, a person should make sure of the following:

-          Maintain the conditions of F-1 status

The immigration regulations state that a person who has failed to maintain the conditions of his or her current status is ineligible to seek a change of status. With respect to an F-1 student, the following actions, among others, constitute a failure to maintain status:

o   engaging in unauthorized employment

o   failing to maintain a proper course load

o   failing to make academic progress

o   exceeding, during optional practical training, the allowable unemployment period

In other words, avoiding these actions will improve your chances of being approved for a change of status.

-          Avoid abandoning the request for change of status

A person should also be careful of doing anything that will cause the government to declare that you have abandoned your application to change status. In particular, a person who leaves the United States during the time his or petition is being reviewed is deemed to have abandoned the application to change status. This situation applies even if the person later returns to the US on his or her F-1 visa prior to the decision on the petition. Therefore, such a person might want to consider remaining in the U.S. while the petition is being reviewed.

At this point, you may be wondering how a person knows about the approval, or not, of the application to change status. The result generally will come along with the decision on the H-1B petition itself. If both the H-1B status and the application to change status are both approved, then the I-797 approval notice will say so.  On the other hand, if the H-1B status is approved, but the change of status is denied, then the I-797 notice will refer only to the former, and omit the latter. In addition, the employer will receive a separate “notice of decision” which explains the reasons for the denial of the change of status.

Maintaining current F-1 or other status is critical for approval of a change of status to H-1B.

The above information does not constitute legal advice and does not form an attorney-client relationship.

Calvin Sun, Attorney at Law
215-983-3723
csun@calvinsun.com
We Chat: calvin_t_sun

DHS verifications may delay a driver license or renewal

If you, a non-U.S. citizen, seek a new or renewal driver’s license, and you meet all requirements, including documents, then you might be successful on your first visit to your state’s driver license center. However, be aware that you might need to return a second time.

In most if not all states, driver licenses are available to non-U.S. citizens, provided that such persons have all required documents and meet other requirements. The Pennsylvania Department of Transportation (PennDOT), for example, publishes a chart that identifies, by type of status, documents required for licenses. http://www.dot.state.pa.us/Public/DVSPubsForms/BDL/BDL%20Publications/pub195nc.pdf

 Please be aware that each state has its own specific requirements. That is, what is true for Pennsylvania may not necessarily be true for another state, and vice-versa.

More importantly, please be aware that having all required documents still might not be enough. A client of mine, who is seeking adjustment of status, recently went to a Pennsylvania driver license center to renew her license. She had all the documents she was supposed to have, after consulting the above chart. However, the driver license center staff told her that she was “not recognized” by the system. After I made inquiries to a department official, the matter was cleared up. It turned out that my client, at the time, had not been verified by the U.S. Department of Homeland Security (DHS), and thus could not get the renewal at that time. However, this official personally followed up on this verification, and later my client did get her renewal.

Be aware that something similar may happen to you. If you go to get your license or renewal, and your state’s licensing bureau is able to verify your status with DHS, then you may be able to get your license then and there. On the other hand, if the verification cannot immediately occur, you might have to return to the center a second time. In Pennsylvania, once verification occurs, the person will receive a letter stating that he or she now is eligible. My client received such a letter, but for her it was unnecessary because she already had been verified through the PennDOT official.

Your own state most likely has similar procedures for verifying information with DHS.

The above information does not constitute legal advice and does not form an attorney-client relationship.

Calvin Sun, Attorney at Law
215-983-3723
csun@calvinsun.com
We Chat calvin_t_sun

The issues and uncertainty about OPT STEM extensions might be resolved

The recent uncertainty about the continued availability of OPT STEM extensions might be resolved. The result, in fact, could be even better than the current STEM extension provisions.

A few days ago, the U.S. Department of Homeland Security (DHS) announced a proposed rule regarding the OPT STEM extension program. One major change involves an increased length of the extension, from the current 17 months to 24 months. In other words, a STEM-eligible OPT participant, under the new rule, could have an total OPT period of as long as 36 months, as opposed to the current maximum 29 months.

As important as this increased length for STEM OPT is, however, an even MORE important aspect is the fact that DHS has proposed this rule in the first place. Their doing so addressed a key concern of the Federal judge who, a few months ago, struck down the OPT STEM extension program while delaying the effect of the striking down until February 2016.  The judge actually had no problems with either OPT or the OPT STEM extension themselves. Rather, she was unhappy because DHS failed to follow the proper procedure when originally setting up the OPT STEM extension option. The judge delayed the effect of the striking down in order to give DHS time to fix this earlier mistake—that is, to give DHS time to create a regulation and to do it properly.

The advertising in the Federal Register is the first step toward properly creating a rule, and should encourage those of you who have been concerned over the future of the OPT STEM extension. No one knows the future, of course. However, barring any unforeseen developments or problems, and specifically, assuming the judge finds no issues with the new rule or the process, the OPT STEM extension should continue, this time with an even longer period than before.

For further details of the proposed rule:

https://www.federalregister.gov/articles/2015/10/19/2015-26395/improving-and-expanding-training-opportunities-for-f-1-nonimmigrant-students-with-stem-degrees-and

The information above does not constitute legal advice and does not create an attorney-client relationship.

Calvin Sun, attorney at law
215-983-3723
csun@calvinsun.com (note: you may get a Spamarrest challenge message in response)
We Chat: calvin_t_sun

“Is my employer ‘large enough’ for H-1B?”

Michael: “If anything in this life is certain--if history has taught us anything--it’s that you can kill anyone. Rocco?”

Rocco: “Difficult, not impossible”

This statement by Rocco Lampone, in “The Godfather: Part II,” to answer Michael Corleone about a planned assassination, comes to mind whenever someone asks me about H-1B at a “small” employer.  That person has identified an employer that potential could petition for H-1B status for the person, but the person has concerns about the size of the employer and if it prevents H-1B.

In answering this question, the first thing I say is that I have gotten approvals for H-1B petitions for employers with as few as two people. Several more approvals have gone to employers with three people. Overall, I estimate that 35% of my approvals have involved employers with fewer than 10. I wish that I could guarantee that I will get you an approval even though your employer is small, but I can’t. I can, however, offer some perspectives on this situation, and how to improve your chances.

Please be aware that no law or regulation mandates a minimum employee number or minimum revenue for an employer in order to qualify for H-1B. On the other hand, a small employer could well receive a request for evidence (RFE) that references the size of the employer. In such a case, usually, the immigration service is concerned about three things. First, is the employer financially strong enough to pay you? Second, will you, as an H-1B person, be relatively free of non-H-1B tasks? Third, does the employer really require your position? Let’s consider each point in turn.

-          Financially strong?

A condition of H-1B status is that the employer pay you “enough”—in legal terms, that the company pay you at least the “H-1B required wage.” Therefore, an employer with a small number of employees, and especially one with low revenue numbers, could cause concern. Overcoming this issue will require the employer to show sufficient financial resources, or strong potential future business. In fact, while I don’t recommend this practice, one H-1B employer a few years ago actually refused to disclose revenue and income figures on the H-1B petition, requiring me to use alternate means of showing financial strength. This petition ultimately was approved, though I wasn’t happy about the process.

-          Free of non-H-1B tasks?

A key requirement of H-1B status is that your job be sufficiently complex. The immigration service doesn’t want an H-1B person, therefore, to be spending significant time doing non-H-1B type work. For example, they probably don’t want an H-1B person to be spending all or most of his or her time sweeping the floor, sorting mail in the mailroom or answering the main company telephone number as a receptionist. The immigration service believes, rightly or wrongly, that such things have a greater likelihood in a smaller company. Therefore, you and your employer must show that such is not the case.

-          Is the position really required?

If an employer is small, then the service may question whether the job is really necessary at all for that employer. This issue is particularly relevant for the person who works only with people inside the employing organization, rather than for customers or clients.  An employer of only three or four people, therefore, might have trouble justifying the hiring of an internal accountant. On the other hand, that same employer might have an easier time if it were an accounting firm, and the person is being hired to be billed out to do accounting for external clients. Therefore, make sure your employer has sufficient workload to justify your hiring.

If you have an H-1B opportunity from a small employer, I wish you success. Remember, getting approval is difficult, not impossible.

 

Here is the video clip: https://www.youtube.com/watch?v=SnZyIHgM1xY

The information above does not constitute legal advice and does not form an attorney-client relationship.

Calvin Sun, Attorney at Law
215-983-3723
csun@calvinsun.com
We Chat: calvin_t_sun

It’s job time: do you know where your documents are?

Many years ago, a New York City television station ran advertisements at night, asking the question, “It’s 10 p.m. Do you know where your children are?”

You may not have children and it might not be 10 p.m. Nonetheless, you, as an international student, might soon be in a position to get a U.S. job. Whether that job is via a green card or via H-1B or other nonimmigrant status, certain documents could be important to that process. I am not saying that the list below covers every such document you might need. I also am not saying that you will necessarily need every document that I list below, or that you necessarily have every such document right now. Nonetheless, the documents below might be important. Having them in hand now can save you time and frayed nerves, because you could avoid scrambling to meet any filing deadlines.

Generally speaking, when submitting documents to the immigration service, photocopies are acceptable rather than the original document. Needless to say, any such photocopy should be a true copy of an unaltered original document. Any other photocopy could cause a person serious problems. In addition, any document not in English should have an accompanying certified English translation. That is, the translation should contain a statement signed by a person other than yourself. The statement should say that the person who signed is fluent in English and the other language and that the translation is accurate. The statement also should describe the translated document. The person who signs this translation should also give his or her address and the date of signing.

-          Passport (in particular, the information page)

-          Passport page showing the visa stamp you used to enter the U.S.

-          Employment authorization document

-          I-20

-          I-94

A few years ago, the Customs and Border Protection (CBP) agency stopped issuing hardcopy I-94s.  Now, I-94s are stored at the ICE web site https://i94.cbp.dhs.gov/I94/, and are downloadable from there.

-          Birth certificate

You are unlikely to be required to submit a birth certificate for an H-1B filing. However, you WILL need one in order to adjust status, that is, to receive a green card while remaining in the U.S.

-          Official transcripts from previous institutions you graduated from

Such transcripts might be important if a prospective employer is filing an H-1B petition for you. Because of issues of timing that involve your having earned a degree for your current studies, versus the required time period for filing an H-1B petition, you might need to rely on previous rather than current academic work.

Any transcript that you submit to the immigration service should be an official transcript. That is,  it should come from the university office that issues such transcripts, generally the registrar. The transcript generally should contain the insignia of the university and a signature from a responsible university official. Ideally, the transcript also should indicate the degree awarded and the date of awarding.

In other words, a “do it yourself” screen print of a transcript, such as from your Banner or Blackboard account, will not be acceptable.

If the transcript is from a non-U.S. institution, and you are relying on such a degree for your filing, you should consider getting an academic equivalence report. Companies that provide such reports will review your transcript and then provide a statement, if applicable, that the degree associated with the transcript is associated with a particular U.S. educational level degree.

Having these documents might make your filing process easier and less stressful.

The above information does not constitute legal advice and does not form an attorney-client relationship.

Calvin Sun, Attorney at Law
215-983-3723, csun@calvinsun.com, We Chat calvin_t_sun

 

Gaining "fast-track" U.S. citizenship via the MAVNI military service program

For many people, particularly students from China, gaining either a green card or U.S. citizenship can be a long and difficult process. Such a student typically must find a employer who is willing to petition for H-1B status. Then, if the job is H-1B cap-subject, the student must both survive the H-1B lottery and gain approval. The student then might need that employer or a new one to petition for a green card for the student. Even after an immigrant petition is approved, the student might need to wait several years for the actual green card. Then, even after the student gets the green card, he or she might have still another five years to wait before becoming a naturalized U.S citizen.

Getting a green card can take a long time. Become naturalized afterwards takes even longer.  As an alternative, therefore, such students might want to consider a program that offers naturalization in exchange for service in one of the U.S. armed forces. The program is called Military Accessions Vital to the National Interest (MAVNI). It seeks people with needed skills to join the U.S. military, and such skills include Chinese language.

This path to citizenship via military service is authorized by section 329 of the Immigration and Nationality Act (INA). According to this section, a person must meet a residency requirement. However, when that when a person enlists or inducted into one of the armed forces while within the U.S., he or she is deemed to have met that requirement. Any such service must be honorable service, and a person who later leaves the armed services must do so via an honorable discharge. 

According to United States Citizenship and Immigration Services (USCIS), MAVNI participants are naturalized during basic training. This method of naturalization is faster because participants skip getting a green card, and because they are exempted from the continuous residence requirement, which can be as long as five years. This method is less expensive because filing fees are waived. Also, persons in J-1 exchange visitor status can participate in this program as well, even if they otherwise are subject to the two-year home country residence requirement. According to USCIS, any two-year requirement would not apply to those who join the MAVNI program, so that such people need not fulfill the requirement, and need not apply for any waiver, if they were subject to the requirement at all.

Keep in mind that participating in this program involves joining one of the U.S. armed forces, and fulfilling any commitments you have agreed to, for the period of time you agreed to.  According to a MAVNI fact sheet, referenced below, the period of commitment for those with a language skill is at least four years of active duty. This program, therefore, might not be right for everyone. However, if you do participate and meet requirements, you possibly could become a U.S. citizen even faster than others who become a permanent resident using the “normal” methods.

• Information on the U.S. Army MAVNI program: http://www.goarmy.com/benefits/additional-incentives/mavni.html
• USCIS web page regarding the military: http://www.uscis.gov/military
• MAVNI fact sheet, from the Department of Defense: http://www.defense.gov/news/mavni-fact-sheet.pdf

Calvin Sun, attorney at law

215-983-3723, csun@calvinsun.com

 

The information above does not constitute legal advice and does not form an attorney/client relationship.

 

 

 

Dealing with the non-selection of your H-1B petition

This past April 2015, the H-1B lottery statistics painted a discouraging picture. Prospective employers filed over 230,000 cap-subject petitions for an available allotment of only 65,000 approvals, with an additional 20,000 for those who hold at least a master’s degree from a U.S. institution of higher education. Because of this situation, the U.S. Citizenship and Immigration Services (USCIS) conducted a random lottery to determine which petitions they would select to be reviewed for H-1B status.

If your petition was one of those that failed to be selected, then the following information may be useful to you.

You will know officially that your petition failed to be selected through the return, to your employer or to your attorney, of your entire petition package. That is, your employer or attorney will receive, from USCIS, everything that was filed for you: the petition, your immigration documents, your transcripts and any other evidence that was submitted. Your employer’s filing fee checks will be included, uncashed. The package also will contain a blue sheet that explains that due to lottery non-selection, your petition is being returned.

This non-selection is particularly critical if you were in an H-1B cap gap situation—that is, your F-1 status ended or will end between April 1 and September 30. Had your petition been selected and approved, you would have been able to remain in status (in many cases with work authorization) until September 30, then change to H-1B on October 1. However, such a cap gap extension of status is unavailable if your petition was non-selected. A key point, in this case, is that you must keep track of the end of your F-1 status. This end date is either 60 days past the end of your F-1 status (the end of the grace period, assuming you had a normal completion of program, with no status violations), or else it is 60 days from the date you are notified of your petition non-selection, whichever is later.

If you wish to stay in the United States lawfully, one or more of the following possibilities might be available to you.

-          Remain in F-1 status

You can choose simply to remain in F-1 status by enrolling at an appropriate institution. Depending on that institution and program, you also might be able to secure an immediate curricular practical training (CPT) and thus might be able to continue working at your current employer. Remember that people in F-1 status have no definite “admitted until” date. Rather, they are admitted for “duration of status.”

Please be as diligent as possible in ensuring that your F-1 school is legitimate. The worst thing that could happen is that you choose a school similar to Tri-Valley University. This school, a California institution,  was raided a few years ago by U.S. Immigration and Customs Enforcement (ICE) over its fraudulent practices. Therefore, I strongly suggest, at a minimum, that you verify the school’s accreditation by the respective regional accreditation body, for example the Middle States Association for schools in and around Pennsylvania. Each region of the U.S. has its own accreditation body.

-          Change to a dependent status

If you are married to a person with non-immigrant status, you could consider changing to a dependent status. For example, spouses of a J-1 person are eligible for J-2 status, while spouses of an H-1B person are eligible for H-4 status. Be aware, however, that such dependent status may or may not allow lawful employment. Also, keep in mind the new regulations that will allow certain H-4 status holders to apply for employment authorization, depending on the green card application status of the H-1B spouse.

-          Find a job with an H-1B cap-exempt employer

Certain employers are exempt from the H-1B cap. Such an employer could file a petition on your behalf without worrying about doing so in the first five business days of April. That petition would not need to be part of any lottery. If the petition were approved, you would not need to wait until October 1 to start work.

The three types of cap-exempt H-1B employers are

 o   Institutions of higher education, and proper affiliated entities

o   Non-profit research organizations

o   Federal government research organizations

Please note, however, that simply being non-profit, by itself, is INSUFFICIENT to exempt an employer from the cap. Similarly, simply being a non-governmental organization (NGO) by itself does not exempt an employer from the cap.

-          Find a non-H-1B job
Though H-1B is the most common non-immigrant work status, it is not the only one. Other potential statuses could include

o   G, for employees of an international organization such as the World Bank

o   I, for representatives of foreign media

o   R, for religious workers

Of course, you would need to eligible for such status and qualified for such job.

-          Enter into a bona fide marriage with a U.S. citizen

A spouse of a U.S. citizen is known, in immigration law terms, as an “immediate relative.” Such a person does not fall into any preference category, and need not worry about priority dates or cutoff dates. Immediate relatives always have an immigrant visa number immediately available to them. Please be aware, however, that engaging in marriage to evade U.S. immigration laws is a serious offense. Engaging in such a “sham” marriage could subject the non-U.S. citizen spouse to removal from the U.S., and possibly could lead to loss of citizenship for a naturalized U.S. citizen spouse. For this reason, such persons should ensure that their marriage is bona fide and that they can prove such bona fide nature.

A famous American saying states that “It ain’t over ‘til the fat lady sings.” This saying is based on the idea that many operas have, as their ending, a solo by a female opera singer who is stereotyped as being overweight. Only after this singer performs does the opera truly end.

In the same way, you possibly might not have received any receipt for your H-1B petition, even though your friends might have, as well as other clients of your attorney. You might be feeling discouraged or anxious in thinking that your petition was non-selected. Please keep in mind, however, that it ain’t over ‘til the blue sheet comes.

The information in this blog post does not constitute legal advice and does not create an attorney/client relationship.

Calvin Sun, Attorney at Law
cell 215-983-3723, csun@calvinsun.com, we chat: calvin_t_sun

Religious worker R-1 site visits could be effective for as long as six years

A non-US person who seeks to work in the United States as a minister, or in a religious occupation or vocation, might qualify for R-1 religious worker status. Like H-1B, this status is a temporary, nonimmigrant one. However, unlike H-1B, the filing fees are less and the employer has far less paperwork to contend with. Most importantly, R-1 status has no cap and therefore people who seek it need not worry about a lottery, nor about any fixed filing or start-of-work dates.

One potential issue with R-1 petitions, however, is the site visit. United States Citizenship and Immigration Services (USCIS) requires that a valid site visit to the would-be employer occur before an R-1 petition can be reviewed for decision. Such a visit is intended to ensure that the organization is a legitimate one. Even if the petition is filed with premium processing, by which USCIS could render a decision within 15 calendar days, such 15-day clock starts only after a valid site visit.

Fortunately, a given site visit need not apply to only a single petition. That is, a site visit might be good even for petitions filed several years later.

I recently discovered that, assuming correct information from the client and lack of USCIS error, that site visit could be effective for as long as six years.

On January 13, 2015, I filed a premium processing R-1 petition, and it was approved by the end of the month—that is, within the 15-day period.

According to the person’s boss at that organization, the last time they had an R-1 site visit was for a worker who was approved in November 2008. Therefore, assuming the boss is correct, this latest R-1 approval did not require its own site visit, but rather was based on the 2008 visit. Assuming also no error by USCIS, a site visit therefore apparently can be effective for as long as six years.
Will such a six year effective period necessarily apply to everyone else? Of course not. As the car advertisements say, “Your mileage may vary.” However, in at least one case, an organization benefitted from a six year old site visit.

[The above information does not constitute legal advice and does not create an attorney-client relationship]

 

Calvin Sun, Attorney at Law
610-296-3947, cell 215-983-3723

csun@calvinsun.com

We Chat: calvin_t_sun

“Understanding the H-1B Process” – Ustream web broadcast Sunday, February 8 at 4:30 pm ET

This web broadcast will help you understand key aspects of the H-1B process. Topics will include

• General immigration concepts
• H-1B legal standard
• The “cap”
• Important H-1B dates
• Lottery
• “Cap gap” extension
• U.S. master’s cap exemption
• When submitting documents as evidence
• Questions and answers

This web broadcast will occur on Sunday, February 8, 2015 at 4:30 pm Eastern Time, and will last for about 90 minutes. The URL for the broadcast is http://www.ustream.tv/channel/calvin-sun

I will answer as many questions as I can, time permitting. Unfortunately, however, I am unable to analyze specific job situations as to their eligibility for H-1B status. You may send questions to me beforehand. Text me at 215-983-3723, or email me at csun@calvinsun.com. If you do the latter, please be aware that I have a spam blocker, and if I do not see your email beforehand, you will need to respond to a CAPTCHA challenge message before I will see your email. My We Chat ID is calvin_t_sun.

This broadcast does not and will not constitute legal advice, nor will it create an attorney-client relationship.

If you wish, you may tune in at about 4:00 PM ET for a musical prelude of songs by George Strait.

Marriage license vs. marriage certificate

A number of immigration benefits are based on marriage. For example, a person who applies for a green card can include a spouse in that application. Or, the spouse of a non-immigrant status holder often can apply for and receive dependent status. That is, for example, an H-1B person’s spouse can receive H-4 status, while an F-1 person’s spouse can receive F-2 status.

Therefore, when applying for such benefits based on marriage, a person should submit proof of marriage. While marriage laws in the U.S. are generally a matter of state, rather than federal law, so that each state has differences in marriage laws, one principle generally applies. The legal ability of two people to marry usually is controlled by a marriage license. Two people who wish to marry generally will go to a marriage license office in a particular town or county. After fulfilling the requirements for that license, they will receive that license, and it will allow these two people to get married usually within a specified time limit. However, simply holding a marriage license is NOT evidence that these people are married. In fact, a couple can apply for and receive a marriage license, then simply choose not to get married. I am aware of no state that requires the holders of a marriage license to actually get married.

Once these two people are married, the person who conducted the marriage will certify this situation. Then, later, the couple will receive a marriage certificate, and this certificate, NOT the license, documents the couple’s married state.

Therefore, if you are applying for a marriage-based immigration benefit, make sure you supply the correct marriage document. That document is a marriage certificate, NOT a marriage license.

The above information does not constitute legal advice and does not form an attorney-client relationship. The situation described above is true in many states but might not necessarily be true in your own state.

Calvin Sun, Attorney at Law
610-296-3947, cell 215-983-3723
csun@calvinsun.com
weixin calvin_t_sun