Month: January 2013

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‘Tis the Season

Here in Colorado, the ski season so far is a bit of a bust as we are in desperate need of snow.  However, the H-1B season is in full swing. Under the law, only 85,000 new H-1B’s may be allotted for foreign professional workers each year, and 20,000 of those are reserved for individuals who have completed a master’s degree or higher in the United States.  The annual allotment of H-1B’s becomes available October 1, which is the start of the fiscal year.  However, employers may apply April 1stfor an H-1B with an October 1st start date.  In 2012, the H-1B cap was reached, meaning that all of 85,000 H-1B’s had been allotted, in ten weeks. Due to the improvement in the economy, it is expected that this year the H-1B cap will be reached even sooner, quite possibly the first week in April. 


Foreign workers who have never previously been in H-1B status for a private employer are subject to the cap, meaning they must receive one of the coveted 85,000 H-1B’s in order to work in the U.S. in H-1B status.  In contrast, except in extremely unusual circumstances, foreign workers who have previously held an H-1B for a private employer are not subject to the cap and often can extend their H-1B status, even if changing employers.  An individual who does not receive an H-1B in the allotment would then have to apply next year.  While certain individuals may have other options to continue employment in the U.S., depending on circumstances, we encourage all employers who need an H-1B for cap-subject individuals to start the process as soon as possible so that the petitions are ready to be filed April 1st. 


If you intend to hire foreign workers, please join Ste

rn & Curray on February 6th from 12:00-1:00 pm (MST) for a complimentary teleconference that will help employers understand and plan for the H-1B cap. For more information, including how to RSVP, follow this link: http://conta.cc/Uvr9cl.

by SCwpadmin SCwpadmin No Comments

The Latest on Immigration Reform

We are all delighted that President Obama addressed immigration reform in his inaugural speech on January 21st.  The President’s statement that, “Our journey is not complete until we find a better way to welcome the striving, hopeful immigrants who still see America as a land of opportunity; until bright young students and engineers are enlisted in our workforce, rather than expelled from our country,” indicates that he is making comprehensive immigration reform a priority.  This is welcome news and we look forward to further developments.  As always, we will post the latest information regarding changes to the law and policy that benefit our clients and all of our nation’s immigrants. 

 

 

 

 

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More Facts on the New Stateside Provisional Waiver Rule

The new stateside provisional waiver rule will result in dramatically reduced periods of separation between U.S. citizens and foreign nations in some case.  However, not all foreign nationals who have a U.S. citizen immediate relative (spouse, parent, child over 21 years of age) will benefit from this rule. It is important to understand the scope and limitations of this new rule. 

To be eligible for the new provisional unlawful presence waiver an individual must meet the following criteria:

  1. You are physically present in the U.S.

  2. You are at least 17 years of age at the time of filing.

  3. You are the beneficiary of an approved immigrant visa petition classifying you as the immediate relative of a U.S. citizen.

  4. You have an immigrant visa case pending with the U.S. Department of State for which you have already paid the immigrant visa processing fee.

  5. You believe you are, or will be at the time of the immigrant visa interview, inadmissible based on having accrued a certain period of unlawful presence in the United States.

  6. You meet all of the requirements of the provisional unlawful presence waiver as listed in the regulations, form I-601A and its instructions.
Individuals are not eligible for provisional unlawful presence waivers and their applications will be rejected or denied in the following circumstances:

  1. You fail to meet the eligibility requirements discussed above.

  2. You have a pending form I-485 with USCIS to adjust your status to that of a permanent resident

  3. You are in removal proceedings unless your removal proceedings are administratively closed and have not been re-calendared as of the date of filing of the I-601A.

  4. You have been ordered removed, excluded, or deported from the United States.

  5. You are subject to reinstatement of a prior removal order.

  6. DOS acted to schedule your immigrant visa interview prior to January 3, 2013, even if you fail to appear or you or DOS cancelled or rescheduled the interview on or after January 3, 2012. 

  7. You do not establish that a refusal of your admission to the United States would result in extreme hardship to a U.S. citizen spouse or parent, or that your application should be approved as a matter of discretion.

  8. USCIS has reason to believe that DOS may find you inadmissible at the time of your immigrant visa interview for grounds other than unlawful presence. 
These eligibility requirements and grounds for ineligibility emphasize a couple of key points.  First, the program is only available when there is hardship to a U.S. citizen spouse or parent, not a lawful permanent resident spouse or parent. The new rule also is not available for individuals who need waivers other than the waiver for unlawful presence.  For example, individuals that need fraud waivers or waivers for certain criminal offenses are not eligible for this new waiver procedure. An individual may become eligible for the program even if they are in removal proceedings if they are able to successfully petition the government to administratively close their removal proceedings. Of course, the individual must also meet the other eligibility requirements describe above.    

To learn more about this exciting new rule and determine whether or not you or a relative is eligible for the program, please contact us for a consultation. 

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The Long Awaited "State-side Waiver" Has Arrived!

On January 6, 2012, the Department of Homeland security published a proposed rule that would change the process for how certain undocumented relatives of United States citizens apply for a waiver of the time they were in the United States without permission. U.S. Citizenship and Immigration Services stated that they received over 4,000 comments on the proposed rule. A year later, on Wednesday January 2, 2013, the final rule was issued!


Many undocumented relatives of U.S. citizens who are applying for permanent residence must leave the United States and complete the process at a consulate in their country of birth. The Catch-22 of the process has been that once the person departs the United States, the immigration law says that the person must wait in their birth country for ten years as punishment for the time they were unlawfully in the U.S. The person can apply for a waiver of this punishment, but, prior to the change under the final rule, the application for the waiver could only be made at the consulate abroad after the interview. The processing of those waiver applications often takes a year or more. During that time the husband and wife, parent and child, etc. are often separated. The result of the waiver processing abroad has been that many families found the risks of having the undocumented family member leave the United States to complete the processing of the permanent resident application and waiver was too great and decided not to apply, adding to the numbers of undocumented people living in the U.S.


The“state-side waiver” process aims to reduce the risk of prolonged family separation by allowing the applicant for permanent residence to apply for and receive an approved waiver prior to departing the United States for the consular interview. As a result, the period that the applicant for permanent residence will have to spend in the country of birth could be reduced to as little as a week.

Immigration will begin accepting applications for the new waivers on March 4.

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