Global Immigration Partners

Los Angeles Immigration & Naturalization Law Blog

What does it mean to be “paroled into the U.S.”?

For most Americans, the term “parole” refers to a prisoner who is granted an early release from incarceration. In the context of immigration, however, the term has an entirely different meaning.

Humanitarian parole is granted by the USCIS in certain circumstances involving emergencies (a funeral, illness of a relative, to obtain medical care, etc.). When a person paroled into the U.S., they are allowed to physically enter the country, but that does not mean they have been granted admission or residence. However, the USCIS will in some situations grant an adjustment of status to those who have been paroled into the U.S.

Can a family member get a green card, too?

Virtually everyone agrees that U.S. Citizenship and Immigration Services’ rules, regulations and laws are complex and often difficult to fully understand. So let’s take a look at an area of immigration law that enables green card holders to petition for certain family members to a green card so that they, too, can come and live in the United States.

If you are a permanent resident and hold a green card, your spouse and unmarried children (of any age) can be eligible to receive immigration visas. Because there are limits on the number of people who may immigrate in this “family preference category,” there is often a waiting list.

Who is in the top preference category for employment visas?

As Los Angeles readies to ring in a new year, we know people are also readying themselves to apply for immigrant visas. One of the categories of visas given out each year is employment-based visas awarded to people in five different preference categories.

The top preference category of employment visa is referred to as Priority Workers (E1). Let’s take a quick look at the type of workers who fit into the group.

Summary of the President's Executive Action

The following summary of the President's proposed executive action was obtained by the American Immigration Lawyer's Association earlier today:

Information leaked concerning the President's executive orders (Part 1)

Initially reported by Fox News, but subsequently confirmed by the New York Times, a White House memo describing the President's proposed administrative immigration relief has leaked. The memo is said to describe ten separate actions. Between the two reports, it's possible to determine eight of them:

Possible Administrative Immigration Relief

Without a doubt, the hottest topic on our firm’s discussion forum (www.immigration-information.com) has been the subject of possible immigration relief through administrative action. Originally, the President promised to enact such relief “before the end of summer.” Then, for political reasons, he backed off and now says that he will announce it “before the holidays are over.”There are multiple aspects to administrative relief. Some things can be done by changes in administrative regulations. Others can be done through simple changes in policy, while some will require an executive order, signed by the President.The most controversial proposals involve illegal immigrants. There are, however, a number of proposals that will benefit employment-based immigrants, if adopted.The administration has already published a proposed regulatory change to give work authorization to certain H-4 spouses. As proposed, eligibility would be limited to spouses of H-1B nonimmigrants who have received extensions beyond six years. The employment authorization grant would be unlimited, meaning that the H-4 spouse could work for anyone, doing anything – full or part time. The final rule could be promulgated as early as the end of this month, though it will likely take longer.The most beneficial proposal, for employment based immigrants, is the notion of reinterpreting the quota statute so that it only applies to principal applicants and not their dependents. Charles Oppenheim of the State Department’s Visa Office has speculated that if this happens, all EB quotas would become “current” immediately, and remain that way for several years at least. This provision was part of Senate bill 744, passed by the Senate last year with a 68-32 vote.The administration is also said to be considering deportation relief for approximately 5.2 million individuals who are here illegally. Eligibility would be based on whether the individual has children (irrespective of their place of birth) in the United States. This would be similar to the DACA program announced in 2012.Qualifying individuals would have to apply to the immigration service for inclusion in the program. If eligible, they would be given permission to remain in the U.S., unrestricted work authorization, and even permission to travel abroad and return.The likely window for announcement of administrative relief, if any, will be between Thanksgiving and Christmas.James R. Gotcher | Attorney

2015 FISCAL YEAR H-1B QUOTA

As you may know, the filing window for the H1b quota for the fiscal year 2015 will open on Tuesday, April 1st\ 2014. Each year, the government allocates 85,000 H1bs for employees who have never previously had an H1b filed on their behalf. Of these, 20,000 are set aside for holders of US Master’s degrees, and this is referred to as the "Master’s cap." It is important to note that in order to qualify for the Master’s cap, the US Master’s program must be either a public or non-profit university and it must be accredited. WHEN WILL THE QUOTA CLOSE THIS YEAR? Four years ago, we saw the quota close in January of the following year. Three years ago, we saw it close in November and two years ago, it closed in June. This past year, it closed in the first week after having received 124,000 petitions for 85,000 spots. Over the past two years, we have seen large consulting companies, who are experiencing numerous L1A and L1B denials, file large numbers of H1bs for their L employees in order to avoid disruption on their projects. As the L1 denials increase, so will the number of H1bs that these companies file when the filing window opens. For this reason, we are advising clients to file their cases on the first possible day (April 1, 2014) and to expect a lottery situation again. WHO IS ELIGIBLE? If the employee has already had an H1b approved on their behalf within the last six years, they are likely to be exempt from the quota unless they received an H1b from a cap-exempt employer like a non-profit or university. Most candidates for the H-1B quota are students on OPT, people overseas who have never had an H1b approved on their behalf, or spouses here in the US who are looking to obtain their first H1b. Based on recent USCIS trends, the candidate must have at a minimum of either a US bachelor’s degree or the foreign equivalent in a field that is directly relevant to the position. The USCIS has recently cracked down on those who have a bachelor’s degree in a field that is not relevant to the position that the petitioner has filed for. A candidate holding a degree that is not directly relevant to the offered position can still be viewed as eligible, if they have about 3 to 6 years of documented experience in a relevant field as they can get an education evaluation that incorporates their experience and education. If you are not sure if you or a candidate, in the case of an employer, meets the requirements for an H1b, we suggest speaking with an immigration attorney before committing yourself to the process. WHAT WILL I NEED TO PROVIDE? In order to have a successful H1b filing, it is important that you have certain evidence for the filing. The USCIS will want to see that the Beneficiary has the education that is required for the H1b, and that the field of study is relevant to the position. The USCIS will also want to see that the position itself qualifies as a specialty occupation and that the Petitioner has non-speculative work for the Beneficiary. Further, the USCIS will evaluate all of the evidence to make sure that there is a valid employer/employee relationship present for the requested validity period. If you are not sure what evidence is required, we highly suggest speaking with an immigration attorney. HOW MUCH WILL IT COST? The H1b government filing fees are as such:• I-129 fee- $325• Fraud Prevention and Detection fee- $500• ACWIA fee o If Petitioner employs 25 or less full-time W2s- $750o If Petitioner employs 26+ full-time W2s- $1,500• If the Petitioner employs 50 or more full-time W2s and over 50% are in H1b or L1 status, there is an additional $2,000 filing fee• If you choose to use premium processing- $1,225• If the Beneficiary has a spouse and they must file an H4 application for them, the filing fee is $290.

Education and H1bs Part II

In our last article, we discussed how the USCIS views certain US degrees when adjudicating H1bs. In this article, we are going to discuss how the USCIS views Curricular Practical Training (CPT) when adjudicating H1bs. Curricular Practical Training, often referred to as CPT, is provided to students who are enrolled in classes and would like to gain experience through internships, off-campus employment or co-operative programs that are directly linked to the student’s field of study. Unlike OPT, the student will receive course credit for their work. In order to be eligible for CPT, • The student must be in valid F-1 status,• If the student is enrolled in an undergraduate program, they must wait 9 months (2 full semesters) before enrolling. If the student is enrolled in a graduate program, the school official can authorize CPT in the first semester if it is part of the course curriculum or if that type of experience is required by the program. • The student’s CPT employer must enter into a cooperative agreement with the school• The student must be enrolled in at least 3 units per semester and attending classes at the university during the CPT periodIt is also important to understand that if a student uses one full year of CPT, that student is not eligible for OPT upon graduation. In order to be able to use both, the student must use less than one year of CPT and they should discuss this with the designated school official to ensure eligibility for OPT. So how does this come into play with H1bs? The USCIS has been very skeptical of schools that provide CPT to students in their first semester. After Tri-Valley University was thrust into the spot light, the USCIS has started to issue Requests for Evidence (RFE) for those students who have attended certain schools and have utilized CPT during their studies. These RFEs show up on OPT filings and extensions as well as H1b filings and they all tend to request the same evidence so it is important that students keep the following documents in the event they receive an RFE. In the aforementioned RFEs, the USCIS will request some or all of the following:• Evidence of payment of tuition • Receipts for books, parking, school supplies, etc. • Student ID • Copies of all executed I-20s• Rental agreement to show that you were living near the school during the CPT period• Class schedules• Course syllabi that include course numbers/sections, instructor’s name, delivery method (in person/lecture, lab, online, tele-learning, etc.) • Classroom location, meeting dates/times• A statement from the Designated School Official that attests to the fact that the student was attending classes at the school and that the instructor was present as well• A statement from the professor attesting to the fact that the student attended classes in-person.• Copy of the cooperative agreement with the school and the CPT employer• Letter from the CPT employer describing the position, duties, hours per week, jobsite location and employment dates• Paystubs from the CPT employer covering the CPT employment periodAs you can see, the USCIS is attempting to determine whether the CPT was related to the field of study, whether it was relevant to student’s program and whether the student actually attended classes at the school while working on CPT. If the student is unable to provide this evidence to the USCIS, their OPT request may be denied and if they are changing status to H1b, their request for the change of status may be denied as the USCIS would say that they are not maintaining their F1 status. Students should always talk with the designated school official when applying for CPT, but it is also important that the student retain evidence regarding their CPT in the event of a Request for Evidence. CPT is legal and can provide valuable work experience for students, but it is critical for students to have a solid understanding of CPT and what the possible ramifications of CPT employment are in regards to their status and any future status they may apply for. Students should also be aware that unlike the situation with an H1B, CPT experience may not be used to qualify an applicant for an I-140 if the work was done for course credit or to fulfil a graduation requirement. Next article, we will focus on Optional Practical Training.

F-1 FAQ

When applying for a College or University, what should I look for in regards to how it will affect my future immigration filings?If you intend to use your degree or advanced degree as the basis to gain work authorization or apply for an employment-based green card, it is important that the school is accredited by a recognized accreditation agency or association. The Department of Education’s website provides users with this information and is a good resource. For H1b purposes, an advanced degree from a for-profit, accredited program does not count towards the H1b Master’s quota. Curiously, the definition that the USCIS uses for the H1b Master’s quota is not the same as what they use for determining eligibility for Employment Based preference categories. If I am enrolled in a program that offers Curricular Practical Training (CPT), is there anything I need to be aware of?Yes, we will be addressing this issue in our next article in more detail. Right now, the USCIS is looking very closely at programs that issue CPT and those who receive/utilize it. Some programs issue it very quickly and without proper guidance which leads to problems for that student when they change status as they have not been maintaining proper status during that time. We will go into more detail in the article, but if a student is unsure of whether they are maintaining proper CPT status, they should write or email their Designated School Official to ensure they are in compliance. What is the advantage of going to school as an F1?The main advantage of F1 status is having the ability to engage in Curricular Practical Training (CPT) and Optional Practical Training (OPT). By having F1 status, a student can engage in work authorization that is permitted by either CPT or OPT. You may, however, attend as an H-4 or L2, in which case you will not be eligible for practical training, but you also don’t have to maintain a full course load. H and L nonimmigrants may also be eligible for in-state tuition, in many cases.Is it true that I do not have to pay taxes if I work on my CPT or OPT?Yes and no. You are required to pay certain taxes, but CPT and OPT employees are considered students by the IRS and therefore, they are exempt from FICA taxes as are their employers.If I am here in another status and I want to switch to F1 status, do I need to get an F1 visa and re-enter?No, while that is an option, you could also file a change of status here in the United States. The USCIS has recently expanded their ELIS Online filing system to include any Change of Status applications to F1 and the results have been good. ELIS filings are taking about 2 months and while the application is a bit more labor intensive, it is very efficient and manageable.