Tag Archive immigration attorney

ByPhillip Kim

Time to File H-1B Work Visa 2017; when to file h1b 2018 cap how to file and change status prevailing wage specialty occupation

Now is the time to prepare for your H-1B Work Visa/status filing. It is anticipated that USCIS will reach its H-1B Cap in the first week of April 2017. Thus, you should start your preparation now or by mid February at the latest, because it could take a few weeks to complete H-1B filing.

Requirement 1 – You must have an employer-employee relationship with the petitioning U.S. employer.

In general, a valid employer-employee relationship is determined by whether the U.S. employer may hire, pay, fire, supervise or otherwise control the work of the H-1B worker. In some cases, the sole or majority owner of the petitioning company or organization may be able to establish a valid employer-employee relationship, if the facts show that the petitioning entity has the right to control the beneficiary’s employment.

Requirement 2 – Your job must qualify as a specialty occupation by meeting one of the following criteria:

  • A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position;
  • The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor’s degree in a field related to the position;
  • The employer normally requires a degree or its equivalent for the position; or
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

that normally requires a degree in a related field?

Requirement 3 – Your job must be in a specialty occupation related to your field of study.

+ How do I show that my degree is related to the specialty occupation?

+ Can I qualify without a bachelor’s degree?

Requirement 4 – You must be paid at least the actual or prevailing wage for your occupation, whichever is higher.

The prevailing wage is determined based on the position in which you will be employed and the geographic location where you will be working (among other factors). The U.S. Department of Labor (DOL) maintains a database with applicable current prevailing wage levels based on occupation and work location. To view the wage database and estimate the prevailing wage that may be required for your position, click here.


Requirement 5 – An H-1B visa number must be available at the time of filing the petition, unless the petition is exempt from numerical limits.

The H-1B visa has an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization are not subject to this numerical cap.  Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. The U.S. government’s fiscal year starts on Oct. 1. H-1B petitions can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date.

(from USCIS)

ByPhillip Kim

Immigration Judges Approved 57% of Deportation Cases

During the first ten months of FY 2016, immigration judges have determined that 96,223 noncitizens against whom Homeland Security sought removal orders were entitled to remain in this country. By the end of this fiscal year this pace is on track to surpass the record set last year of 106,676 noncitizens that the court found could remain in the U.S. These outcomes account for 56.8 percent of all cases that judges have decided so far this year.

One in four individuals (25%) allowed to stay was from Mexico. Over four out of ten (44%) were from the three Central American countries — El Salvador, Guatemala, and Honduras — where in recent years large numbers of unaccompanied children and women with children have come to this country seeking asylum. These figures are based upon case-by-case court records updated through the end of July 2016 obtained and analyzed by the Transactional Records Access Clearinghouse at Syracuse University.

There are a number of reasons why an individual may be allowed to remain in the country. For example, the judge can find that the government did not meet its burden to show the individual was deportable. Or, the judge may have found that the individual was entitled to asylum in this country, or may grant relief from removal under other provisions of the law. A person also may be allowed to remain because the government requests that the case be administratively closed through the exercise of ICE’s prosecutorial discretion, or for some other reason.

Outcomes, for example, vary markedly by Immigration Court. The Phoenix Immigration Court had the highest proportion of individuals who were allowed to stay. In more than four out of every five (82.2%) of its 3,554 cases closed so far in FY 2016 the individuals were successful in their quest to remain in the U.S.

The New York Immigration Court was in second place with 81.5 percent of the individuals in its 16,152 cases closed so far this year allowed to remain in the U.S. The Denver Immigration Court came in third with 78.0 percent of the 831 individuals in its cases successful in their quest to stay in this country.

At the other extreme were the Oakdale, Louisiana, Lumpkin (Stewart), Georgia, and Napanoch (Ulster), New York Immigration Courts where only between 11.3 percent and 17.5 percent of the individuals were allowed to remain in the U.S. Each of these courts handle cases for individuals who are held in detention.


Table 1. Outcome in Immigration Court Cases, FY 2016 (October 2015 – July 2016)
Immigration Court Closed Cases Percent Allowed Stay Rank
All Courts 169,258 56.8
Phoenix 3,554 82.2 1
New York 16,152 81.5 2
Denver 831 78.0 3
San Antonio 3,704 76.8 4
Miami 7,513 75.8 5
Newark 3,358 75.1 6
Philadelphia 2,325 74.1 7
Boston 4,142 73.9 8
Guaynabo 186 71.5 9
Los Angeles 17,981 70.4 10
San Francisco 9,447 70.3 11
Honolulu 353 68.8 12
Cleveland 2,202 64.9 13
Detroit 1,915 64.8 14
Portland 1,037 64.0 15
New Orleans 3,067 63.1 16
Baltimore 4,247 61.8 17
Seattle 2,440 61.7 18
Arlington 7,082 61.0 19
Las Vegas 2,738 60.4 20
Bloomington 1,563 59.3 21
San Diego 2,415 58.1 22
Memphis 5,189 57.5 23
Orlando 3,204 56.3 24
Hartford 1,166 55.3 25
Omaha 1,403 54.5 26
Saipan 13 53.8 27
Pearsall 1,594 53.5 28
Kansas City 1,760 52.8 29
Hagatna 21 52.4 30
Buffalo 1,299 52.0 31
Los Fresnos 1,505 46.1 32
Chicago 3,456 45.4 33
El Paso 3,183 45.3 34
Imperial 393 43.3 35
Atlanta 7,278 41.0 36
Tucson 734 41.0 36
Aurora 786 40.2 38
Harlingen 1,929 38.5 39
Elizabeth 1,156 38.0 40
West Valley 821 37.3 41
Houston – Detained 3,657 36.3 42
Tacoma 1,572 34.9 43
York 1,336 31.8 44
Miami – Krome 2,177 31.8 44
New York – Detain 632 29.4 46
Florence 1,004 28.9 47
Adelanto 1,789 26.2 48
Charlotte 4,153 25.9 49
Dallas 6,826 23.8 50
Houston 4,807 21.0 51
Eloy 1,466 19.4 52
Oakdale 2,240 17.5 53
Lumpkin 2,191 13.1 54
Napanoch 266 11.3 55
Report date: August 17, 2016
ByPhillip Kim

Supreme Court Tie Blocks Obama Immigration Plan- DAPA & DACA expanded

Today, June 23, 2016, the U.S. Supreme Court deadlocked in a 4 to 4 split in the long-awaited case, United States v. Texas, effectively upholding the lower court’s injunction halting the expansion of the Deferred Action for Childhood Arrivals (DACA) program and the creation of a new program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The original DACA program remains in place.

The decision was just nine words long: “The judgment is affirmed by an equally divided court.”

The case, United States v. Texas, No. 15-674, concerned a 2014 executive action by the president to allow as many as five million unauthorized immigrants who were the parents of citizens or of lawful permanent residents to apply for a program that would spare them from deportation and provide them with work permits. The program was called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.

The court did not disclose how the justices had voted, but they were almost certainly split along ideological lines. Administration officials had hoped that Chief Justice John G. Roberts Jr. would join the court’s four-member liberal wing to save the program.

The case hinged in part on whether Texas had suffered the sort of direct and concrete injury that gave it standing to sue. Texas said it had standing because it would be costly for the state to give driver’s licenses to immigrants affected by the federal policy.

Chief Justice Roberts is often skeptical of expansive standing arguments. But it seemed plain when the case was argued in April that he was satisfied that Texas had standing, paving the way for a deadlock.

White House officials had repeatedly argued that presidents in both parties had used similar executive authority in applying the nation’s immigration laws. And they said Congress had granted federal law enforcement wide discretion over how those laws should be carried out.

But the court’s ruling may mean that the next president will again need to seek a congressional compromise to overhaul the nation’s immigration laws. And it left immigration activists deeply disappointed.

In their Supreme Court briefs, the states acknowledged that the president had wide authority over immigration matters, telling the justices that “the executive does have enforcement discretion to forbear from removing aliens on an individual basis.” Their quarrel, they said, was with what they called a blanket grant of “lawful presence” to millions of immigrants, entitling them to various benefits.

In response, Solicitor General Donald B. Verrilli Jr. told the justices that this “lawful presence” was merely what had always followed from the executive branch’s decision not to deport someone for a given period of time.

Speaking at the White House, President Obama described the ruling as a deep disappointment for immigrants who would not be able to emerge from the threat of deportation for at least the balance of his term.

“Today’s decision is frustrating to those who seek to grow our economy and bring a rationality to our immigration system,” he said. “It is heartbreaking for the millions of immigrants who have made their lives here.”
(from nytimes)

ByPhillip Kim

Obama Appeals Executive Action to Supreme Court – DACA DAPA immigration ruling by 5th Circuit

WASHINGTON — The Obama administration appealed to the Supreme Court on Friday for an expedited review of its plan to shield more than 4 million undocumented immigrants from deportation.

The request, outlined in a 35-page court filing, asserts that the case “warrants immediate review” because of an “unprecedented and momentous” ruling from the U.S. Court of Appeals for the 5th Circuit earlier this month that upheld a challenge to the deferred deportation plan brought by Texas and 25 other states led by Republican governors.

“If left undisturbed, that ruling will allow states to frustrate the federal government’s enforcement of the nation’s immigration laws,” the Justice Department said. “It will force millions of people … who are parents of U.S. citizens and permanent residents to continue to work off the books, without the option of lawful employment to provide for their families.”

The administration’s appeal sets up the possibility of a major legal battle over immigration at the end of President Obama’s tenure, in the midst of partisan battles over Syrian refugees, and in the midst of an already caustic presidential election campaign.

Arguing that the federal appeals court ruling earlier this month had “far-reaching and irreparable humanitarian impact,” administration lawyers said the lower court decision bars an estimated 4 million parents “who have lived in this country for years, would pass a background check, are not priorities for removal and have a son or daughter who is a U.S. citizen or a lawful permanent resident.”

The coalition of Republican governors had argued to the appeals court that Obama lacked the authority to protect about one-third of the nation’s undocumented immigrants by executive fiat. The authority that the administration claimed, the court said in a 2-1 ruling, would allow it “to grant lawful presence and work authorization to any illegal alien in the United States.”

The administration and immigration rights groups have hung their hopes on the Supreme Court rather than the conservative appeals court with jurisdiction over Texas, Louisiana and Mississippi. But the four-month wait for the lower court’s ruling means that the administration had to rush its appeal in hopes of getting the case on the high court’s docket this term.

Texas now has a month to respond, and the justices could take up the request in early January — barely enough time to schedule the case for oral arguments in April and a decision by the end of June. That is the scenario the administration seeks; a decision reversing the appeals court — hardly a guarantee — would give the Department of Homeland Security seven months to begin implementing the policy before Obama’s term ends in January 2017.

If the case is not heard until later in 2016, even a reversal would leave the 4.3 million undocumented immigrants deemed eligible for the program at the mercy of the next president — either a Democrat who likely would continue the program or a Republican who likely would have campaigned against it.

Obama unveiled the program exactly a year ago as an extension of his 2012 policy delaying the threat of deportation for about 770,000 undocumented immigrants brought to the country as children. The new plan would broaden that program and add protections for adults with children who are U.S. citizens. It would make them eligible for driver’s licenses, work permits and a host of health care, disability and retirement benefits.

Federal District Court Judge Andrew Hanen temporarily blocked the program in February, ruling that the states were likely to win their argument that Obama lacked executive authority to carry out the plan without congressional action, or at the least a formal period for public comment. In May, the appeals court panel refused to let the program continue while it considered the appeal.

In its ruling earlier this month, the appeals court’s 2-1 majority said Obama’s program “would allow illegal aliens to receive the benefits of lawful presence solely on account of their children’s immigration status, without complying with any of the requirements … that Congress has deliberately imposed.”

Their ruling said the program “would dramatically increase the number of aliens eligible for work authorization, thereby undermining Congress’s stated goal of closely guarding access to work authorization and preserving jobs for those lawfully in the country.”

Judge Carolyn Dineen King dissented, arguing that the deferred action program was an “exercise of prosecutorial discretion” beyond the reach of federal court judges. She also criticized her court for stalling well beyond its normal 60-day period of review.

“I have a firm and definite conviction that a mistake has been made,” she said. “That mistake has been exacerbated by the extended delay that has occurred in deciding this ‘expedited’ appeal. There is no justification for that delay.”

ByPhillip Kim

USCIS released earlier dates on Visa Bulletin- when to file for IV or AOS

USCIS, in coordination with Department of State (DOS), is revising the procedures for determining visa availability for applicants waiting to file for employment-based or family-sponsored preference adjustment of status. The revised process will better align with procedures DOS uses for foreign nationals who seek to become U.S. permanent residents by applying for immigrant visas at U.S. consulates and embassies abroad.

This revised process will enhance DOS’s ability to more accurately predict overall immigrant visa demand and determine the cut-off dates for visa issuance published in the Visa Bulletin. This will help ensure that the maximum number of immigrant visas are issued annually as intended by Congress, and minimize month-to-month fluctuations in Visa Bulletin final action dates.

The Visa Bulletin revisions implement November 2014 executive actions on immigration announced by President Obama and Secretary of Homeland Security Johnson, as detailed in the White House report, Modernizing and Streamlining Our Legal Immigration System for the 21st century, issued in July 2015.

October 2015
Dates for Filing Family-Sponsored Adjustment of Status Applications
Family-Sponsored All Chargeability Areas Except Those Listed
F1 01MAY09 01MAY09 01MAY09 01JUL95 01SEP05
F2A 01MAR15 01MAR15 01MAR15 01MAR15 01MAR15
F2B 01JUL10 01JUL10 01JUL10 01JAN96 01JAN05
F3 01APR05 01APR05 01APR05 01OCT96 01AUG95
F4 01FEB04 01FEB04 01FEB04 01MAY98 01JAN93

Dates for Filing Employment-Based Adjustment of Status Applications
Employment-Based All Chargeability Areas Except Those Listed
1st C C C C C
2nd C 01MAY14 01JUL11 C C
3rd 01SEP15 01OCT13 01JUL05 01SEP15 01JAN15
Other Workers 01SEP15 01JAN07 01JUL05 01SEP15 01JAN15
4th C C C C C
Relig C C C C C
5th C 01MAY15 C C C

What is Changing:

Two charts per visa preference category will be posted in the DOS Visa Bulletin:

Application Final Action Dates (dates when visas may finally be issued); and
Dates for Filing Applications (earliest dates when applicants may be able to apply).

Each month, in coordination with DOS, USCIS will monitor visa numbers and post the relevant DOS Visa Bulletin chart. Applicants can use the charts to determine when to file their Form I-485, Application to Register Permanent Residence or Adjust Status.

To determine whether additional visas are available, USCIS will compare the number of visas available for the remainder of the fiscal year with:

Documentarily qualified visa applicants reported by DOS;
Pending adjustment of status applications reported by USCIS; and
Historical drop off rate (for example, denials, withdrawals, abandonments).

About the Visa Bulletin

DOS publishes current immigrant visa availability information in a monthly Visa Bulletin. The Visa Bulletin indicates when statutorily limited visas are available to prospective immigrants based on their individual priority date.

The priority date is generally the date when the applicant’s relative or employer properly filed the immigrant visa petition on the applicant’s behalf with USCIS. If a labor certification is required to be filed with the applicant’s immigrant visa petition, then the priority date is when the labor certification application was accepted for processing by Department of Labor.
Availability of an immigrant visa means eligible applicants are able to take one of the final steps in the process of becoming U.S. permanent residents.

ByPhillip Kim

F-1 & J-1 Students: Be Careful – Scams on SEVIS

If it sounds too good to be true, it probably is.

Recently, U.S. Immigration and Customs Enforcement’s Homeland Security
Investigations (HSI) has seen an increase in the number of scams targeting
unsuspecting international students. Cultural and language barriers often make
it difficult for international students to discern genuine offers for assistance from
scams, making them particularly vulnerable to deceitful solicitations.

For example, scams may take the form of all-inclusive student visa service packages or great deals on travel. Often students realize too late that the fees they paid to a company to organize their trip to the United States are lost forever or they have not been properly registered as promised by the scammer.

Scam companies will often produce websites or addresses that are similar in name to legitimate student organizations or government agencies. To avoid falling prey to these solicitations, students should carefully scrutinize websites and thoroughly
research companies before submitting any payments or personal information.
School officials should work with their international students to ensure they are aware of how to avoid scams.

International students are required to adhere to many rules and regulations to maintain their student status, so it is especially alarming when they receive an email or telephone call advising them that their immigration status is in jeopardy unless they provide immediate payment for services, fees or fines.

With these scams, students are typically contacted by email or telephone, and often the sender or caller will know specific information about the student. The scammer will usually request immediate payment either by credit card or electronic
transfer, and may even claim to be from a U.S. government agency or known student organization.

Students should be aware that a government agency would never contact them by telephone to demand immediate payment and would never request that the student wire money for immediate payment. Students should always consult with their designated school official (DSO) about their immigration status. Additionally, students should pay careful attention to the email address of any contact, as government emails and websites will always end in “.gov” and never “.com.”

HSI recommends that school officials communicate to their students that if they receive a scam telephone call or email, they should:
–Not give out any personal information.
–Not send money.
–Obtain as much information from the caller or email as possible without
alerting the scammer so they can report it to police, HSI or the Student and
Exchange Visitor Program (SEVP), and their DSO.

We ask DSOs to immediately alert their student body when they learn of any scams
targeted toward international students so others are not harmed and to also contact
their local HSI office or SEVP to notify them of any identified scams. DSOs may
also contact the HSI Tip Line at 866-DHS-2-ICE (866-347-2423) if calling from the
United States.
(from SEVP)

ByPhillip Kim

Updates on Obama’s Executive Action

Here are the updates:
You may start filing in March/June 2015.

The following needs to be proven with documents:
• Identity;
• Relationship to a U.S. citizen or lawful permanent resident; and
• Continuous residence in the United States over the last five years or more.

Documents to gather:
Birth certificates, Marriage certificates, School records, Bills, Hospital records, Taxes filed, etc.

Q: What if your case is denied?
A: USCIS could contact ICE for deportation under its current policy. So, make sure you are eligible before filing.

Q: If I currently have 2-year DACA, can I receive the 3-year permit under the new Exec. Action?
A: You might. USCIS is exploring how to extend to the new three-year period.

*** For future updates, LIKE my Facebook page:

ByPhillip Kim

White House Still Pressing for Immigration Reform

Advocates for immigration reform in the White House claim that their focus has not changed and that they are still pushing for immigration reform. To read more about immigration reform, read Laura Matthews’s article below:

2013 Immigration Reform: ‘Focus Hasn’t Changed,’ Says White House

The focus on the part of the White House to pass a 2013 immigration reform bill has not changed, said Press Secretary Jay Carney in a press briefing on Monday.

“Our absolute focus on getting immigration reform passed by both houses and signed into law has not changed at all,” Carney said in response to a question about President Barack Obama’s message to those concerned the issue has been low priority for the White House.

Earlier this year, there was increased momentum for a comprehensive immigration reform bill passing Congress before the end of the year. With the failure of gun control in April, delivering a huge blow to Obama’s second-term agenda, overhauling the status quo on immigration looked at one point as if it was the only one of Obama’s agenda items that would see legislative success.

The Senate passed its comprehensive immigration reform bill in June, providing a 13-year path to citizenship for immigrants in the U.S. illegally and boosting spending for border security and more fencing along the Mexico border.

Click here to continue reading the article.

ByPhillip Kim

Applying for Refugee and Asylum Status

A refugee is someone persecuted in his or her home country due to race, religion, war, nationality, or political affiliation. Obtaining refugee status in the United States is a form of protection for refugees who are not allowed or unwilling to return to their home country because of fear or social harm. In order to qualify for the refugee status, the applicant must be from outside the U.S.

To qualify for an asylum status, the applicant must meet the definition of a refugee, be present in the U.S., and seek admission at a port of entry, according to the U.S. Citizenship and Immigration Services.
One can apply for asylum regardless of the background of your country and immigration status.

ByPhillip Kim

House Will Consider Immigration Reform

The House has recently added the issue of immigration reform on their agenda for this month and next month. To read more about the updates of immigration reform, read Laura Matthew’s article below:

2013 Immigration Reform Makes Cantor’s Legislative Agenda, But Uncertainty Remains Over Undocumented

House Majority Leader Eric Cantor, R-Va., indicated in a recent memo to Republicans that a vote on 2013 immigration reform bills may come this fall, as the topic was added to the legislative agenda for this month and the next.

Cantor noted that the House “may begin considering” this fall the five bills passed in various committees. No one in the majority leader’s office was available for a comment Wednesday evening on when exactly the bills will be brought to the floor. “Before we consider any other reforms, it is important that we pass legislation securing our borders and providing enforcement mechanisms to our law enforcement officials,” the memo read.

This should be a good sign for immigration reform advocates: Unlike in previous memos from Cantor, this one did not mention immigration reform as an afterthought — even though thorny issues like appropriations, debt limit, Syria, nutrition (food stamps) and Obamacare all came before it on the agenda, in that particular order.

Click here to continue reading the article.