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

Finding an exemption from the H-1B cap

If you are seeking H-1B status in 2015, most likely you will need to be concerned about the H-1B cap. By law, the number of H-1B approvals is limited each fiscal year to 65,000. Of this number, about 6,000 are reserved for nationals of Singapore and Chile.

The cap poses two issues. First, if the number of petitions exceeds the cap, then the immigration service will conduct a random lottery. See http://yi2min2.blogspot.com/2014/12/dealing-with-h-1b-cap.html  for details. Therefore, if your employer has filed a petition, and this petition is part of the lottery, you risk not being selected. Second, regardless of whether or not a lottery will be held, you might have timing issues in maintaining status until October 1, 2015, the time when new approvals become available. For example, your OPT grace period might end prior to April 1, 2015, leaving you a gap between that time and October 1. In such a case, you would need to find another lawful status so that you could remain in the US, or else have to leave the US. See  http://yi2min2.blogspot.com/2012/12/your-opt-ending-date-and-its-effect-on.html   for details on how an OPT ending date affects an H-1B cap-subject petition.

On the other hand, some petitions for H-1B status will be exempt from the cap.  If your petition falls into one of the categories below, and is otherwise approvable, you would not need to worry about any lottery or about any arbitrary filing or beginning-of-work dates.

·         The petitioner (that is, would-be employer) is an institution of higher education, or a nonprofit entity having a proper affiliation with such an institution

For example, a faculty person at a university probably would be H-1B eligible and also cap-exempt. So would, possibly, a researcher at a hospital at which medical school students from a university would study or do practical work

·         The petitioner is either a federal or a nonprofit research organization

An example of such an organization is the National Institutes of Health (NIH).

·         The beneficiary (that is, the would-be employee) previously held cap-subject H-1B status in the past

The Bible says that “since Christ was raised from the dead, he cannot die again…” Romans 6:9. That is, because Christ died once, he therefore cannot die again.

In the same way, if a person previously was counted against the cap recently enough, that person is not required to be counted again. For example, suppose a person graduates with an MBA, then receives cap-subject H-1B status for the first time to work as an accountant. After a year, the person returns for a second master’s degree, changes back to F-1 status, and this degree requires a year. When this person again seeks H-1B status, this person need not be concerned with the cap, because of the previous cap-subject H-1B time.

Please note that simple nonprofit status of a petitioner, by itself, is INSUFFICIENT to qualify that petitioner as cap-exempt. In the same way, a non-government organization (NGO) is not automatically exempt from the cap.

The immigration statute provides another exemption, but only for the first 20,000 eligible petitions. This exemption is for people who hold a master’s degree or higher from a U.S. institution of higher education. This U.S. master’s cap exemption is already full, however, so that even if you held such a degree, the earliest you could work lawfully in cap-subject status, if at all, would be October 1, 2015.

If you are claiming an exemption based on the type of petitioner, be sure to pay attention to the address for filing. These petitions traditionally have gone to the California Service Center. In addition, please be aware that Federal Express, if not other courier services, will deliver only to a “real” street address, not to a post office box address.

I hope this information is helpful to you.

The above blog post does not constitute legal advice and does not form an attorney-client relationship.
Calvin Sun, Attorney at Law
610-296-3947, cell 215-983-3723
csun@calvinsun.com
We Chat: calvin_t_sun

Thin envelope "good," thin envelope "bad": understanding the H-1B lottery

If you are an international student, and you are seeking to work lawfully in the US following your graduation or your optional practical training, you might want to start planning for H-1B, and talking to your boss about it, if not already.

In particular, if you and your employer both are subject to the H-1B cap (and this blog post assumes so), then you must be aware of particular dates and of the possibility of a lottery. In this blog post, I will explain why certain dates are important for cap-subject H-1B petitions, and how to deal with both the cap itself as well as any possible lottery.

The two most important dates with respect to a cap-subject petition are April 1and October 1. Each year, by law, the government makes available 65,000 H-1B approvals (though the actual available number is less, due to provisions for people from Singapore and Chile, under the NAFTA treaty). If, during the current period, the cap already is full, then a person cannot begin working until October 1. This date is the start of a new federal fiscal year and is also the date that new H-1B approvals are available.

Furthermore, the H-1B regulations allow petitions to be filed at most six months prior to a given requested starting date. Six months prior to October 1 is April 1. Therefore, if you wish to file a petition that requests an October 1 starting date, you must do so only ON or AFTER April 1. IF YOU FILE PRIOR TO APRIL 1, THAT PETITION WILL BE DENIED, because the cap for the current fiscal year already is full.

Starting on April 1,  the immigration service will begin receiving and counting the petitions it receives. The H-1B regulations state that if the cap is reached during any of the first five business days of April, the service must make ALL petitions filed during those first five days available for a random lottery.  In other words, even if 100,000 petitions arrive the first day, the service has to continue to accept petitions for the next four days, then conduct the lottery. Yes, you are correct: your petition could be the first one that arrives April 1, but even still it might not be selected in the lottery. Conversely, your petition could be the last one that arrives on April 5, and that petition could be number 150,000, but even so it possibly still could be selected in the lottery. Yes, this arrangement s*&@ks  and is unfair to you if your attorney was diligent and filed right on April 1. But please understand, I did not make these regulations.

The lottery occurs in two stages. First, the service looks only at those petitions where the beneficiary (that is, the would-be H-1B employee) has at least a master’s degree from a United States institution of higher education, because by law, the first 20,000 such petitions are exempt from the cap. The service then randomly chooses, from these petitions, 20,000 of them. Any unselected petitions then get placed with all other filed H-1B petitions—that is, those where the beneficiary lacks a master’s degree or higher from a U.S. institution of higher education. Note: you would be INELIGIBLE for the U.S. master’s cap exemption if your master’s or higher degree(s), if any, came from only (a) non-U.S. institution(s) of higher education. This remaining pool of petitions is the source for the second stage of the lottery.

In the second stage, the service chooses, from this remaining pool, up to 65,000 petitions for review. These selected petitions, plus the 20,000 selected from the first stage, are the only ones that possibly can be approved for cap-subject H-1B status for the period beginning October 1, 2015. Please note: simply being selected in the lottery is not enough for H-1B status. Rather, your petition still be reviewed to ensure it meets H-1B legal standards. Furthermore, neither the strength of the petition, nor the election of premium processing, has anything to do with its chances of being selected in a lottery.

Now that you have this understanding, what are key points to remember?

Timely filing is crucial

The most important aspect of filing a cap-subject petition is to file as soon as possible on or after April 1,  BUT NOT BEFORE. If you cannot file right on April 1, then the latest you should be filing is the fifth business day of April. If you file after this date, your chances of acceptance under the cap decrease dramatically, or might even be zero. If you miss this window, then your only chance for consideration is that no lottery is held. Even then, your petition must arrive in time, before the cap fills up. The best arrangement, therefore, is to file no earlier than April 1 and no later than the fifth business day of April.

H-1B cap-subject filing involves WINDOWS, NOT “deadlines”

When I talk about “windows,” I am not referring to any computer product. Rather, I am referring to the idea that your filing can occur neither too early (that is prior to April 1) nor too late (that is, later than April 5).  For this reason, H-1B filing involves a window, not a deadline. The latter implies that filing can occur any time before a particular date. However, such is not the case with cap-subject H-1B. If you file too soon, that is, prior to April 1 2015, you will be DENIED.

Qualifying for the U.S. master’s cap exemption increases your chances

If you qualify for this exemption, your chances of acceptance increase, because, effectively, you have a chance at an “additional” 20,000 approvals.

Some H-1B beneficiaries who might otherwise qualify for this exemption might be discouraged by the timing of their graduation. They could think that because the H-1B window is April 1 to April 5, and because they might not get their degree until after that time, perhaps May or June, that they are ineligible. In some cases, though, they could be WRONG. The immigrations statute requires only that the degree be EARNED, not that the degree necessarily be AWARDED. If you are such a person, then you might want to consult with your advisor or other relevant academic official. If that person legitimately considers you to have completed all requirements of your degree, such that the only other requirement is your graduation, then you could be considered to have met the exemption. In this case, you should get a letter to this effect, on letterhead, and send to your attorney.

Prior lottery results have no effect on current lottery chances

A number of people have asked me whether their non-selection in the previous lottery gives them an advantage in the upcoming lottery. Unfortunately, no such advantage exists. Every petition that is filed theoretically has an equal chance, regardless of what happened to that beneficiary in a previous lottery.

The nature of your job has no effect on your lottery chances
Your chances of being selected in the lottery has nothing to do with the nature or location of your job. That is, whether that job is in Philadelphia or New York is irrelevant. Similarly unimportant is whether your job involves a STEM area or not.
Getting through the lottery is necessary, but not sufficient

If you find that you were selected in the lottery, you should be happy. But please remember, the immigration service STILL has to review your petition to see if you are eligible for H-1B status.

You may be wondering how you will know whether or not you were selected in the lottery. If you were selected, your employer or attorney will receive, relatively quickly (that is, within two to three weeks) a thin envelope with a form I-797 receipt, showing the filing fees your employer paid (and remember, your employer, not you, should be paying these fees).

However, if you were not selected, then several months later, your employer or attorney will receive a THICK envelope, and the contents will be your petition filing. This envelope will contain the uncashed filing fee checks. It also will contain a blue sheet that explains that in spite of being filed in time, your petition was not selected in the lottery.

Key point: thin envelope is GOOD, thick envelope is BAD.

Now let’s talk about some WRONG ways to improve your chances in a lottery.

DO NOT “stuff the lottery box”

“Stuffing the [ballot] box” is an American idiom that refers to the practice of voting, illegally, multiple times for a given candidate. In the old days, and in certain places in the U.S. still, elections are conducted via paper ballot, where a voter marks the ballot then places it in a ballot box. A dishonest person who wanted a particular candidate to win therefore could try to “stuff the box” by placing extra, unauthorized ballots in that box, with that candidate selected.

Some employers might have this same idea with respect to an H-1B lottery. That is, they believe they can increase the chances of petition approval simply by filing multiple cap-subject petitions for the same person.

NOT COOL!!!

If they do, the immigration service will deny every such petition from that employer, leaving that beneficiary with NO chance for H-1B with that employer. In other words, an employer may file, for a given fiscal year, a maximum of ONE cap-subject petition for a given beneficiary.
Be skeptical of anyone who says that they can otherwise increase your lottery chances

If anyone says that for a fee, he or she can increase your chances in the lottery, apart from what I have described above, listen if you wish, but be skeptical. Or else, simply run as fast as you can from that person.  

The information in this blog post does not constitute legal advice and does not form an attorney-client relationship.
Calvin Sun, Attorney at Law
csun@calvinsun.com
cell 215-983-3723, office 610-296-3947
We chat: calvin_t_sun
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