H1B Cap Exempt

What is the H1B Cap?

Under section 214(g)(1)(A)(vii) of the Immigration and Nationality Act (INA), only 65,000 H1B visas may be allocated each fiscal year.  This is commonly called the “H1B cap.” The H1B cap applies to H1B3 fashion models of distinguished merit and ability as well.  There is an additional set aside of 20,000 H1B visa numbers for applicants who possess a master’s degree or higher from a United States institution of higher education. However, once those 20,000 H1B visas have been allocated, even applicants with advanced degrees from U.S. institutions of higher education are placed in the general pool of H1B applicants.  Because there is far more demand than supply for the 65,000 available H1B visa numbers each year, the H1B cap serves as a barrier between many otherwise qualified applicants and H1B status.

What is the H1B Cap Exemption?

There is a limited class of H1B petitions that are cap exempt.  In order to fall under the cap exemption, the petition must be filed by an H1B cap exempt employer for employment for such employer.

What are the H1B Cap Exempt Employers?

The statute describing who is eligible for an H1B cap exemption is found in section 214(g)(5)(A)-(B) of the INA.

• A. Institution of Higher Education or a Related or Affiliated Nonprofit Entity

Under section 214(g)(5)(A), an alien who is employed or has received an offer of employment from an institution of higher education or a related or affiliated nonprofit entity is exempt from the H1B cap.

The term “institution of higher education” is defined by statute in 20 U.S.C. 1001.  Generally, the school must be accredited by a nationally recognized accrediting agency or association or must have preaccreditation status from an agency or association recognized by the Secretary of Education for granting preaccreditation status.  The institution must be a public or otherwise nonprofit institution and must meet certain requirements in the programs that it offers.

Under 8 C.F.R. 214.2(h)(19)(iii)(B), in order to be considered a “related or affiliated nonprofit entity,” the entity must be connected to the institution of higher education through (1) shared ownership or (2) control by the same board or federation, or it must be (3) attached to the institution of higher education as a member, branch, cooperative, or subsidiary.

• B. Nonprofitt Research Organization or Governmental Research Organization

Under section 214(g)(5)(B) of the INA, an alien who is employed or who has received an offer of employment from a nonprofit research organization or a governmental research organization is exempt from the H1B cap.

Under 8 C.F.R. 214.2(h)(19)(iii)(C), a “nonprofit research organization” is defined as an organization that is primarily engaged in basic and/or applied research.  A “governmental research organization” is a U.S. government entity which has the primary mission of performing or advancing basic and/or applied research.

• C. General Tax Exempt Status Requirement

In order to be an H1B cap exempt employer, 8 C.F.R. 214.2(h)(19)(iv) requires that the organization have been approved as a tax exempt organization for research or educational purposes.  This means that even if the organization is tax exempt, it will not qualify if it is tax exempt for purposes other than for research or education.  Such petitioners are also exempt from certain additional filing fees under 8 C.F.R. 214.2(h)(19)(iii).

• D. H1B Cap Exempt Petition Filed by Non-Qualifying Private Employer

In certain cases, an H1B petition may be considered cap exempt even if it is filed by a private employer that would not qualify as an H1B cap exempt petitioner.  These scenarios are listed in a 2008 United States Citizenship and Immigration Services (USCIS) Memorandum titled “Guidance Regarding Eligibility for Exemption from the H1B Cap based on § 10 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313).”  In short, the petition may be considered H1B cap exempt if the beneficiary will work at, but not for, a qualifying institution.  However, the Memorandum specifically requires that the beneficiary’s proposed employment must be furthering “the essential purpose, mission, objectives, or function” of the qualifying institution or organization.  This means that merely working at the location of such an institution is not in and of itself sufficient for a petition to be considered H1B cap exempt.

Other Considerations

H1B cap exempt employees may port their H1B petitions to a different cap exempt employer if otherwise eligible to do so.  Such an exercise of H1B portability will not make the new portability petition cap subject.  However, if the H1B cap exempt employee seeks to port to a cap subject employer and if his or her underlying petition was never counted against the H1B cap, he or she may only apply to port the petition when H1B numbers are still available.  Furthermore, the H1B employee would be ineligible to begin employment with the cap subject employer until approval of the new petition i.  However, an H1B cap exempt employee is not cap subject if he or she obtains concurrent cap subject employment while working for a cap exempt employer, so long as he or she is still primarily employed by the cap exempt employer (see USCIS PM 70/6.2 (May 30, 2008)).

Conclusion

Being eligible for cap-exempt employment offers those seeking to employ H1B workers or those seeking H1B status a significant advantage over cap subject H1B applicants.  The H1B cap prevents many people who otherwise meet the requirements for H1B status from obtaining a H1B visa each year.  However, an H1B cap exempt employee should be aware of the limitations on exercising H1B portability during the first six years on H1B status.  Furthermore, it is important to consult with an experienced immigration attorney for guidance on accepting concurrent employment with a cap subject H1B employer without violating status.

Before seeking to employ a foreign worker or immigration status as a foreign worker, it is well advised to consult with an experienced immigration attorney.  In addition to offering guidance through the application process, an experienced immigration attorney will be able to assess whether the H1B visa is the optimal avenue for achieving immigration results for the petitioner and beneficiary, and whether the employer and proposed employment may qualify for an H1B cap exemption.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Resources and materials:

Alexander J Segal - "H1B Higher Education Cap Exemption", "Enhanced H1B Portability", "Introduction to H1B Visas"

Lawyer website: http://myattorneyusa.com

Election Issues and Immigration #3: The Immigration Record of Tim Kaine

THE SELECTION OF TIM KAINE

On July 22, 2016, the then-presumptive Democratic nominee for President, Hillary Clinton, selected Virginia Senator Tim Kaine as her running mate.

Kaine is currently serving in his first term as a Senator after having been elected in 2012. Prior to his election to the Senate, Kane served as Governor of Virginia from 2006-2010, and as Lieutenant Governor of Virginia from 2002-2006. Additionally, Kaine was the Chairman of the Democratic National Committee from 2009-2011.

Kaine is a proverbial “safe pick” for Clinton. Like the Republican Vice Presidential nominee, Mike Pence [see blog], Kaine has both executive and legislative experience. His positions put him toward the ideological center of the Democratic Party. Furthermore, Tim Kaine speaks fluent Spanish, and highlights a speech he gave in favor of the “Gang of Eight” bill in Spanish on the Senate floor in 2013 [see video]. It is safe to expect that the Clinton campaign will make liberal use of Kaine's Spanish fluency in appealing to Spanish-speaking voters on the campaign trail.

As we will explore in this article, Kaine's immigration positions, as well as his positions in general, are hard to distinguish from Clinton's. The ideological conformity of the ticket makes for an interesting contrast with the Trump-Pence ticket on the Republican side, where one can find many differences between the positions that Trump is campaigning on and the positions that Pence has advocated throughout his political career.

To read more about my views of immigration and the November elections, please see my introductory post [see blog].

TIM KAINE ON IMMIGRATION

During his term in the Senate, Tim Kaine has supported several major immigration initiatives. While campaigning for his Senate seat, Kaine expressed support for the Dream Act and for making it easier for foreign students [see category] to procure LPR status after completing their education in the United States.[1]

While in the Senate, Tim Kaine supported President Obama's Deferred Action for Childhood Arrivals (DACA) [see article] program. Kaine also supported President Obama's Deferred Action for Parental Accountability (DAPA) program and DACA expansion, which have been blocked in federal court [see blog].[2] Kaine supports a “bipartisan approach to comprehensive immigration reform” that would offer a path to citizenship for many persons who are in the United States illegally.

In an interview with Telemundo after being named the Vice Presidential nominee, Kaine agreed with Hillary Clinton's plan to pursue comprehensive immigration reform in her first 100 days in office. Kaine stated that “Paul Ryan and the other leaders of [the Republican Party] are going to understand that if they want a future for their party they are going to have to work together to find a solution to this.”[3]

WILL KAINE HAVE AN EFFECT ON CLINTON'S IMMIGRATION PROPOSALS?

It seems unlikely that Tim Kaine's presence on the Democratic ticket will have any significant effect on Clinton's immigration proposals. For one, the positions that Kaine advocated in his campaign for the Senate and during his single term are not significantly distinguishable from the positions that Clinton has advocated during the current campaign. Both Clinton and Kaine have supported President Obama's immigration executive actions, the Gang of Eight proposal, and the Dream Act. There are no indications that Kaine disagrees with other liberal immigration proposals on Clinton's platform.

As I discussed in my original candidate profile of Hillary Clinton [see blog], her immigration positions generally fail to strike an appropriate balance between expanding immigration and immigration enforcement. There are other troubling elements of Kaine's immigration positions. For example, his support of DAPA and the DACA expansion shows a serious disregard for procedural regularity and an overly-expansive view of executive power in interpretation the immigration statutes. Kaine's comment that the Republicans should agree to the comprehensive immigration proposals advanced by Clinton for the “future of [the] party” are unlikely to foster collaboration with a likely Republican-controlled house and possibly Republican-controlled Senate.

However, if Clinton is elected President, we can only hope that some of Kaine's purported moderate political instincts show in how a Clinton-Kaine administration handles immigration reform. If they were to prioritize immigration enforcement benchmarks before moving to pass individual proposals to expand legal immigration and come up with a plan to deal with those who are here illegally, there would certainly be plenty of room to work with Republicans on bipartisan proposals. Furthermore, an emphasis on moving toward a more merit-based immigration system to attract highly skilled immigrants is something that could be welcomed by many on both sides of the political aisle.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. http://www.ontheissues.org/International/Tim_Kaine_Immigration.htm
2. (Kaine's Senate Website) http://www.kaine.senate.gov/issues/immigration
3. Dinan, Stephen, “Tim Kaine promises bill to legalize illegal immigrants in 'first 100 days,'” Washington Times, (Jul. 25, 2016), available at http://www.washingtontimes.com/news/2016/jul/25/tim-kaine-promises-bill-legalize-illegal-immigrant/

Lawyer website: http://myattorneyusa.com

New Final Rule on Provisional Unlawful Presence Waivers

On July 29, 2016, the Department of Homeland Security (DHS) published a new final rule expanding provisional unlawful presence waivers [see 81 FR 50243]. The new rule will take effect on August 29, 2016. We have already published a detailed article on the modified regulations for provisional unlawful presence waivers created by the new rule [see article]. Our article discusses in detail the mechanics behind the 3- and 10-year unlawful presence bars [see article], unlawful presence waivers, and the purpose of a provisional unlawful presence waiver [see section]. In this post, I will discuss the following:

• Changes from the proposed rule to the final rule on provisional unlawful presence waivers
• Changes from the old rules regarding provisional unlawful presence waivers to the new rules
• Analysis of the new rules

I encourage you to read our full article about the new rules before consulting this post. For further reference for those who are interested, we have preserved our old article on the previous provisional unlawful presence waiver rules.

CHANGES FROM THE PROPOSED RULE TO THE FINAL RULE ON PROVISIONAL UNLAWFUL PRESENCE WAIVERS

On July 22, 2015, the DHS released the proposed rule for the expansion of provisional unlawful presence waivers [see 80 FR 34448]. In accordance with the Administrative Procedures Act (APA), the proposed rule was open for notice and public comment before the DHS took the comments into account and published the final rule. The final rule is broadly similar to the proposed rule from 2015. However, in 81 FR 50245 (final rule), the DHS listed the substantial changes it made from the proposed rule in the final rule (paraphrased):

1. Clarified that all individuals who seek provisional unlawful presence waivers, including those who are in removal proceedings, must file applications for provisional unlawful presence waivers with the United States Citizenship and Immigration Services (USCIS).
2. Allowed individuals to apply for unlawful presence waivers even if the USCIS has a “reason to believe” that they may be subject to a ground of inadmissibility other than for unlawful presence.
3. Eliminated proposed temporal limitations that would have restricted eligibility to apply for provisional unlawful presence waivers based on Department of State (DOS) visa interview scheduling.
4. Allowed individuals subject to final orders of removal, deportation, or exclusion to be eligible for provisional unlawful presence waivers provided that they have applied for, and USCIS has approved, a Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal.
5. Clarified that in order for an in order for an individual who has returned to the United States unlawfully to be ineligible for a provisional unlawful presence waiver on that basis, the DHS must have reinstated a removal, deportation, or exclusion order [see article].

The Federal Register notice adds that the DHS made several other “technical and non-substantive changes” in the Final Rule.

CHANGES FROM THE OLD RULES REGARDING PROVISIONAL UNLAWFUL PRESENCE WAIVERS TO THE NEW RULES

On January 3, 2013, the DHS published the final rule for the previous regulatory scheme regarding provisional unlawful presence waivers [see 78 FR 535]. We discussed these rules in our archived article on provisional unlawful presence waivers [see blog]. The new final rule makes several important changes to the provisional unlawful presence rules that are generally favorable to potential applicants.

The new rules will allow any alien who can qualify for an unlawful presence waiver to apply for a provisional unlawful presence waiver. Under the previous rules, only an alien who was the beneficiary of an approved immigrant visa petition as an immediate relative of a U.S. citizen was eligible to apply for a provisional unlawful presence waiver. Under the new rules, an alien who is (1) the beneficiary of an approved immigrant visa petition in the family-sponsored, employment-based, or diversity visa categories and (2) who can demonstrate that the refusal of his or her admission would result in extreme hardship to a U.S. citizen spouse or parent or lawful permanent resident (LPR) spouse or parent is eligible to apply for a provisional unlawful presence waiver.

A second significant change is the elimination of the “reason to believe” standard. Under the previous regulatory scheme and in the provisional rule, an application for a provisional unlawful presence waiver would be denied if the USCIS had a reason to believe that the applicant was inadmissible on a different ground than that which would be covered by an unlawful presence waiver. Under the new rule, the reason to believe standard has been eliminated, and the applicant may apply for a provisional unlawful presence waiver even if the DHS has reason to believe he or she may be inadmissible on a different ground. However, it is important to note that if the applicant is found to be inadmissible on a different ground during consular processing, the provisional unlawful presence waiver would become invalid, and the applicant would have to apply for an unlawful presence waiver from abroad (in addition to a waiver for any other ground(s) of inadmissibility).

Under the previous rules, if the DOS had acted prior to January 3, 2013, to schedule an alien's immigrant visa interview, the alien would be ineligible to apply for a provisional unlawful presence waiver. These restrictions were also included in the proposed rule. However, in the new final rule, the DHS decided to eliminate temporal restrictions on applying for provisional unlawful presence waivers.

Finally, as discussed in the previous section on changes from the provisional rule, the DHS will now allow those with administratively final orders of removal, deportation, or exclusion to apply for provisional unlawful presence waivers provided that they have been granted permission to reapply for admission in the form of an approved Form I-212. Under the previous rules, such individuals would be ineligible to apply for provisional unlawful presence waivers.

To learn about more of the changes, please consult the opening paragraph of this article for links to our extensive articles on the new and old provisional unlawful presence waiver rules.

ANALYSIS OF THE NEW RULES

The new rules for provisional unlawful presence waivers are favorable to potential applicants in that they greatly expand the pool of people who may be eligible. A petitioner and petition beneficiary are well advised to consult with an experienced immigration attorney throughout the immigrant visa petitioning and application processes. If the beneficiary may have issues pertaining to the 3- and 10-year bars of inadmissibility, an experienced immigration attorney will be able to assess the situation and counsel the beneficiary on whether he or she may stand to benefit from applying for a provisional unlawful presence waiver.

Please make sure to read our full article on the new rules to learn about provisional unlawful presence waivers in greater detail [see article].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

What is International Adoption?

What is International Adoption?

When a U.S. citizen or lawful permanent resident (LPR) decides to adopt a child from overseas, one of the most important legal considerations is following the proper set of international adoption procedures to lawfully adopt the child and in order to confer U.S. citizenship or LPR status to the newest member of his or her family.  In this article, I will provide a brief overview of the main international adoption programs to give readers a general picture of how the international adoption laws and procedures work. Due to the complicated nature of the process, it is important to consult with an experienced immigration attorney who has experience working as an international adoption attorney.

Hague Convention Process

The Hague Convention Process for international adoption is available to U.S. citizens only.  If a certain U.S. citizens seek to adopt a child after the effective date of the Hague Convention, April 1, 2008, from a Hague Convention country, he or she must follow the Hague Process.

The Hague Process is required if all of the following are true:

• The child is under the age of 16;
• The child habitually resides in a Hague Country;
• The parents are married and U.S. citizens who habitually reside in the United States, both of whom sign the application; or
• The parent is an unmarried U.S. citizen who is at least 25 years of age and who habitually resides in the United States.

Under section 101(b)(1)(G) of the Immigration and Nationality Act (INA), the birth sibling of a Hague Convention adoptee may qualify to be adopted if he or she is over the age of 16, but under the age of 18.

In order to complete an adoption through the Hague Process, the applicants must work with a Hague Accredited Adoption Service Provider (ASP) and must complete a Hague adoption home study.  The applicant(s) must have approved a Form I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country, to move forward with adopting the child.  After the provisional approval of the Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative, the applicants may work with the Department of State (DOS) to obtain a visa for the child and complete the adoption.  It is important to note that it is illegal to adopt a child from a Hague Convention country without undergoing the proper Hague Convention international adoption process. If the adoption will be completed overseas, the child may receive an IH3 visa, whereas if the adoption will be completed in the United States, the child will be classified as an IH4.

If the child is inadmissible for any reason (most commonly for health grounds), the applicant or applicants may file a Form I-601, Application for Waiver of Ground of Inadmissibility.

Orphan Process

The Orphan Process is used in cases where the Hague Process would be used, but in cases where the adoption is from a non-Convention country.  Like the Hague Process, the Orphan Process may only be used by married U.S. citizen parents who habitually reside in the United States or by an unmarried U.S. citizen parent who habitually resides in the United States and is over the age of 25.

To begin the process, the applicants must undergo a home study completed by an person authorized to conduct a home study in the applicant’s state.  If the identity of the intended adopted child is known, the applicant or applicants must file the Form I-600, Petition to Classify Orphan as an Immediate Relative.  If the applicant or applicants do not know the identity of the child, the correct form is the Form I-600A, Application for Advance Processing of Orphan Petition.  The Form I-600A may also be used if the country from which a child will be adopted is not yet known, although this will not allow the applicant or applicants to adopt a child from a Hague Convention country.

The age requirements for a child to be defined as an “adopted child” are the same in Orphan cases as in Convention cases.  The application must be filed before the child turns 16 years of age, except in the case of the natural born sibling of an Orphan Process adoptee, in which case the application may be filed after the child turns 16 years of age but before the child turns 18 years of age.  The USCIS is required to investigate whether the intended adoptee is actually an orphan as defined by U.S. law and that the applicant or applicants obtained a valid adoption or grant of custody in the child’s home country.

After completing these requirements, the applicant or applicants may work to complete the process by obtaining a visa for the child with DHS.  The child will receive an IR3 visa if the adoption is being completed overseas or an IR4 visa if the adoption child is being admitted for the adoption to be completed in the United States.

If the child is inadmissible for any reason (most commonly for health grounds), the applicant or applicants may file a Form I-601, Application for Waiver of Ground of Inadmissibility.

Immediate Relative Petition

Finally, if a legal adoption has taken place, if the child has resided with the legal adoptive parent(s) for at least two years, and if the child qualifies as an adoptive child under the immigration laws, the parent(s) may file an immediate relative petition to confer status to the child.  Unlike the Hague Convention and Orphan international adoption processes, this process is open to LPR parents as well as to U.S. citizens.  The child must meet the following requirements to qualify as an adoptive child under the immigration laws:

• Have been adopted before his or her 16th birthday (or 18th birthday in the case of the natural sibling of an adopted child);
• Have resided with the adoptive parent(s) for at least two years (unless the child is subjected to battery or extreme cruelty by an adoptive parent or by a family member of the adoptive parent residing in the same household).

An adopted child entering the United States through the immediate relative petition process may be granted an IR2 visa.

Conclusion:  International Adoption

It is important for parents seeking to obtain an international adoption to carefully consider whether they are ready to provide a child from overseas a loving home in the United States.  Provided that the answer is yes, parents should carefully consider how they want to adopt a child and obtain good counsel for guidance through the immigration components of the international adoption processes.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Resources and materials:

Alexander J Segal - "International Adoption"

Lawyer website: http://myattorneyusa.com