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Carl Shusterman's Immigration Update


  1. H-1B Lottery Odds are Less than 50% Apply for an EB Green Card Now!

    In 2014, when over 172,000 petitions were filed for 85,000 visas, immigration lawyers had the following advice for the H-1B lottery losers:

    1. Look for a cap-exempt H-1B employer;
    2. Get a TN or an E-3 visa if you are eligible;
    3. Extend your OPT if you are a STEM graduate;
    4. Go to graduate school on an F-1 visa; or
    5. Return to your country, and try again next year.

    This year, there will probably be over H-1B 200,000 petitions filed for 85,000 visas, so the odds of being selected for the H-1B lottery will be far less than they were last year.

    This year, there is a better alternative to waiting for the H-1B lottery results: Have your employer sponsor you for a green card now.

    Last year, the wait in the EB-3 professional category was 18 months. This year, the EB-3 wait has been decreasing every month. Consider the first 3 months of 2015: January (19 months), February (13 months) and March (9 months). Odds are the EB-3 waiting times will continue to shrink, perhaps to 6 months or less.

    This is great news for both employers and employees getting ready for the H-1B lottery in April. After all, even if one wins the H-1B lottery, he cannot get H-1B status for at least 6 months, until October 1, 2015. So why not start your application for a green card now? It is not necessary to wait until April to apply for a green card.

    Let's examine the following categories of potential immigrants:

    1. Students who will Graduate this June

    If you are due to graduate from a US university in June, you will be granted a 12-month OPT work permit (EAD), perhaps with the possibility of a 17-month extension if your degree is in a STEM (Science, Technology, Engineering and Mathematics) field.

    If you employer immediate files a PERM application of your behalf, it will probably be approved before the end of 2015 and you can file forms I-140 and I-485 simultaneous. 90 days later, you will qualify for another EAD, and you will get your green card a few months later.

    2. Registered Nurses and Physical Therapists

    Most RNs are ineligible for H-1B visas, so it may not make sense to apply. However, both RNs and PTs are Schedule A shortage occupations, meaning that their employers do not have to file PERM applications for them. Instead, they can simply file I-140s for them, and when their priority dates are reached a few months later, they can submit I-485 packets and received an EAD 90 days later. A few months after that, they will receive green cards.

    3. Other Professionals

    If you are not eligible for OPT and are not an RN or a PT, there is no reason to worry. If you are present in the US on another type of working visa (E-1, E-2, H-1B, H-4, J-1, J-2, L-1, L-2, O, P, R, etc.) your employer can sponsor you for a green card, and you will be probably get an EAD within 12 months and a green card shortly thereafter.

    If you outside the US, you will have to get your green card abroad, but do not let that stop you. If your employer in the US is willing to sponsor you for a green card, you will probably enter the US as a permanent resident within 1 to 2 years.

    Unfortunately, Congress has yet to abolish the per-country quotas for EB visas. Until they do, applying for a green card will take many years for persons born in India and China with needed job skills.

    4. Section 245(k)

    What if so many people who lose the H-1B lottery all apply for green cards now that the waiting times start to retrogress?

    If you are in the US, remember that section 245(k) of the law permits you to adjust your status under an employment-based category as long as you have not been out of status for 180 days or more since you last admission to the US. In other words, you have 6 months of wiggle room.

    So, if you lose the H-1B lottery, don't jump off a bridge. Have your employer sponsor you for a green card, now!

    Updated 02-17-2015 at 03:06 PM by CShusterman


    On January 13, a bipartisan group of Senators introduced the Immigration Innovation (“I-Squared”) Act of 2015.

    The Act would create a much-needed overhaul of our broken legal immigration system. It would dramatically raise the H-1B cap, and would provide much-needed reforms of the employment-based preference system for green cards. It would also raise the per-country cap for family-based green cards.

    What follows is a brief summary of the I-Squared Act.

    Temporary Visas

    • Raise the general H-1B cap from 65,000 to 115,000
    • Allow the cap to go up (but not above 195,000) within any fiscal year where early filings exceed cap and require the cap to go down in a following fiscal year (but not below 115,000) if usage at the end of any fiscal year is below that particular year’s cap
    • Remove the 20,000 limit for the Masters’ cap
    • Reform fees on H-1B visas and employment-based green cards; use money from these fees to fund a grant program to promote STEM education and worker retraining to be administered by the states
    • Grant employment authorization for H-4 visa holders
    • Establish a grace period during which foreign workers can change jobs and not be out of status and restore visa revalidation for E, H, L, O and P visas
    • Allow dual intent for foreign students at US universities

    Green Cards

    • Enable the recapture of green card numbers that were approved by Congress in previous years but were not used, and continue this policy going forward through the roll-over of unused green cards in future fiscal years to the following fiscal year
    • Exempt certain categories of persons from the employment-based green card cap:
      • Dependents of employment-based immigrant visa recipients
      • US STEM advance degree holders
      • Persons of extraordinary ability
      • Outstanding professors and researchers

    • Eliminates per-country limits for employment-based green cards
    • Increases per-country limits for family-based green cards from 7% to 15%

    The I-Squared bill would remove many of the artificial limits on obtaining temporary work visas and permanent residence for the next generation of entrepreneurs and leaders in science and technology. Providing more visas for these innovators will, in turn, create additional jobs for US workers.

    http://shusterman.com/images/eb3-workers.jpg Fantastic news for those in the EB-3 category in the February 2015 Visa Bulletin!

    Two years ago, the wait for those in the EB-3 category was almost 6 years to get a green card, even more for persons born in the Philippines (as well as China and India, which is a problem yet to be resolved by Congress). During the past 2 years, the wait has been shrinking and shrinking.

    Now, in the February 2015 Visa Bulletin, the wait has fallen to 13 months, and the State Department predicts even faster waiting times in the months ahead.

    This is an opportunity which you cannot afford to miss. If you qualify for a green card in the EB-3 category (Professionals and Skilled Workers), make sure your employer submits a PERM application for you immediately!

    If you are a Registered Nurse or a Physical Therapist, no PERM application is required. Your employer should submit an I-140 visa petition on your behalf as soon as possible. As soon as your priority date becomes current, apply for a green card using form I-485.

    EB-3 vs. H-1B

    This is especially great news for foreign-born students studying in the US. Once you graduate, you can apply for Optional Practical Training (OPT). OPT is a work permit which is valid for at least 12 months, or for some STEM jobs, up to 29 months.

    Since getting an H-1B temporary work visa is a 50-50 lottery these days, if your employer submits a PERM application or an I-140 petition at the beginning of your OPT period, you may be able to go directly from OPT to Green Card, and bypass H-1B altogether.

    This is great news for employers as well given the costs and uncertainty of obtaining H-1B status for essential employees.

    Don't hesitate, apply immediately!
  4. Will the H-1B Cap Be Raised this Year?

    http://shusterman.com/images/Computer-Repair-Support.jpg A bipartisan group of Senators lead by Orrin Hatch (R-UT) is trying to pass a bill which would raise the H-1B cap from 85,000 to 135,000. The I-Squared bill would do this by raising the general cap from 65,000 to 115,000 while leaving the master’s cap at 20,000.

    Does this bill stand a chance to be signed into law before the April 1st H-1B start date?

    Perhaps, but there are a lot of hurdles which must be overcome, including some internal battles within Hatch’s own party.

    Hatch, who heads the Republican’s High Tech Task Force recently stated: “Our high-skilled worker shortage has become a crisis.”

    However, not all his GOP colleagues agree.

    Two senior Republican Senators, Jeff Sessions (R-AL) and Charles Grassley (R-IN) argue that there is no shortage of high-tech workers in our country. In 2007, Grassley said: “Unfortunately, the H-1B program is so popular that it’s now replacing the U.S. labor force.” Senator Grassley is slated to become the Chairman of the Senate Judiciary Committee later in January when the Republicans take control of the Senate.

    Are Senators Sessions and Grassley champions of the American worker or are they simply anti-immigrant? As to the first issue, they have two of the worst voting records on labor-related issues according to the AFL-CIO. They both have negative voting records on immigration legislation.

    Even if the bipartisan coalition is somehow successful in getting the bill through Senator Grassley’s Committee and then approved by both the Senate and the House of Representatives, there is no guarantee that it would be signed into law by President Obama.

    The President does not like the idea of “piecemeal” immigration reform. Instead, he supports the idea of Comprehensive Immigration Reform (CIR). He would have signed the bipartisan CIR bill which was passed by the Senate in 2013, but Speaker of the House John Boehner (R-OH) declined to bring the bill to a vote in the House.

    That bill would have raised the H-1B cap to 180,000 rather than 135,000. Although the new legislation is a significant improvement to the status quo, it doesn't do enough to solve the larger problem. It all but insures that there will continue to be an “H-1B lottery” this year as over 172,000 H-1B petitions were submitted by employers in 2014.

    Not only that, but allowing more H-1B professionals to work in the U.S. without abolishing the “per country” quotas for employment-based green cards leaves workers born in India and China with little choice but to look elsewhere for jobs, thus threatening our country’s supremacy in various areas of science.

    Opponents of raising the H-1B cap should remember that until 1991, there was no cap of the number of H-1B visas, and yet there was virtually no criticism of the program in Congress.

    Maybe we should let the free market rather than the federal government decide how many H-1B professionals to hire.
  5. Obama's New Immigration Policy

    http://shusterman.com/images/obamas-immigration-policy.jpg On November 20, 2014, President Obama announced his long-awaited changes to our broken immigration system. None of the changes will take place immediately, and some hoped-for changes like recapture of lost EB numbers and counting only principals toward the 140,000 EB cap were not included in the new policy.

    Nevertheless, for 4-5 million persons, most of them undocumented, there is considerable good news.

    1. Deferred Action Relief for Parents (DARP) - Parents of young persons granted DACA will not receive any benefits under the President's new policy. However, certain parents of US citizens and green card holders will be able to apply for relief and work cards under DARP.

    The age of the child is irrelevant. Even if you are 50+ years old and your son/daughter gets a green card through his/her citizen spouse, you may be eligible for DARP. To qualify, you need to have resided in the US since January 1, 2010 and not be in lawful status on November 20, 2014. The background checks will be similar to those for DACA applicants. You can qualify even if you are under removal proceedings or are subject to a Final Order of Removal.

    The work permit and biometrics fee is currently $465.

    The application period will start in the Spring of 2015.

    2. Expansion of the DACA Program - The 31-year-old age cap for the Deferred Action for Childhood Arrivals (DACA) program will be removed. You must have be present in the US on January 1, 2010 (rather than on June 15, 2007) to qualify and be under the age of 16 when you entered the US. DACA work permits will now be issued for 3 years at a time instead of 2 years. You must be present in the US on November 20, 2014 and not be in lawful status.

    The application period will start within 90 days of November 20, 2014.

    3. Employment-Based (EB) Benefits - Most of these promised benefits are in the "Coming Attractions" category since they require regulations. We are informed that the long-awaited regulations for work permits for certain H-4 spouses will soon be finalized.

    Also, that certain persons with approved EB petitions who are waiting for their priority dates to become current may eventually be permitted to "pre-register" for adjustment of status which will allow them to obtain EADs and APs, and to change jobs. Regarding OPT, the STEM category will be expanded and the length of STEM-OPT extensions will grow. Also promised are benefits for foreign-born entrepreneurs.

    Again, don't look for any of these benefits in your Christmas stocking next month. Perhaps by the end of 2015.

    4. Other Benefits - These include items that have been on many immigrants' wish lists for years and years:

    • I-601A Provisional Waivers - Will be expanded to include spouses and children of LPRs;
    • Parole-in-Place - Will be expanded;
    • Advance Parole - DHS will apply standards in Matter of Arrabally-Yerrabelly;
    • Promises, Promises - DHS will clarify legal terms of art including "extreme hardship", "specialized knowledge", "same or similar" and everything from the PERM process to Immigration Court proceedings will be improved and modernized.

    Free Webinar

    Have any questions about President Obama's New Immigration Policy?

    Of course you do!

    Please sign-up for a Free Webinar about Obama's new immigration policy in which I will participate in along with attorneys from Wolfsdorf Rosenthal on Monday, December 1st at 12:30pm, Pacific Time.

    Need More Information?

    We link to DHS's "Fixing Our Broken Immigration System through Executive Action".

    This page links to over a dozen fun-filled pages designed which attempt to explain the changes to our immigration system being contemplated by the DHS.

    Updated 11-21-2014 at 12:30 PM by CShusterman

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