OCTOBER 1, 2010 MAY BE APPLIED FOR ON APRIL 1, 2010
The H-1B Visa is for a person in a specialty occupation, who is coming temporarily to the U.S. Foreign residence need not be proven because an individual who intends to apply for permanent residence is not precluded from the H-1B category due to the doctrine of dual intent that is allowed by immigration law. A domestic corporation may even apply for its owner as long as the owner is qualified.
LABOR CONDITION APPLICATION
The Labor Department must certify that the salary to be paid the employee will be the prevailing wage in the specialty field. The employer must start paying the wage within 30 days of entry, or if the employee is already in the U.S., then within 60 days of the employee’s change of status. Especially important now due to the depression, if the employer discharges the employee, the employer must pay the reasonable cost of transportation home.
Due to serious unemployment last year resulting from the depression, the cap of H-1B visas was not exhausted until almost the end of the fiscal year. This year the H-1B cap may be filled somewhat sooner because the economic picture appears to be brighter and as a result, unemployment may decrease. If more jobs are available, more aliens will receive job offers and so, more people will apply for H-1Bs.
An additional 20,000 H-1B visas are also available for persons who have a Master’s Degree or a higher degree from a U.S. University.
PETITIONING EMPLOYER MUST BE A U.S. PERSON OR U.S. ENTITY
The employer must be a U.S. domestic corporation, U.S. partnership or U.S. individual who will engage the foreign employee for work in the U.S. and who has authority to hire, pay, discharge if necessary, supervise and control the work of the employee.
An H-1B employee who changes employment may begin to work for the new employer upon the filing of a new petition. It is not necessary to wait for the new approval. The new petition must have been filed, however, before the expiration of authorized stay and provided the alien employee has not engaged in unauthorized employment before the filing of the new petition.
The definition of a specialty occupation requires a theoretical or practical application of a highly specialized knowledge and the obtention of a bachelor’s or higher degree in the specific specialty or its equivalent. Examples of specialty occupations are: a computer programmer, an electronic specialist, a fashion designer, a manager for a complex business, a graphic or industrial designer, a marketing research analyst, a pharmacist, a social worker, a technical publications writer, a softwear design engineer, or a minister. This is not an exhaustive list; these are only examples.
The Courts have found that work experience alone may qualify one for an H-1B. For example, an employee with 24 years experience in engineering and a high salary has been recognized by the Court as sufficient. A company President with 20 years of experience even though without a university degree has been found by a Court enough to qualify the employee.
An evaluation of work experience can be made by an individual who has had authority to grant college level credits; or a recognized and accredited credential service organization may adjudge work and education in combination to adjudge if the work and education are sufficient to qualify as the equivalent of a college degree; or by the Department of Homeland Security by fulfilling the accepted formula that 3 years of work experience in an occupation that requires increasing levels of responsibility may be considered as the equivalent of one year of college and that the employee was recognized as having professional or specialized skill recognition.
ADMISSION, MAXIMUM PERIOD OF SIX YEARS
Time spent abroad is not counted against the time limit. The six year limit applies to spouses and children of the H-1B as well .
The limitation does not apply to an employee who resides fewer than 6 months per year in the U.S.
If a Labor Certification and a Preference Petition (I-140) based on employment has been filed, and more than 365 days has passed since the Labor Certification was filed, the H-1B status may be extended in one year increments until the employee has obtained permanent residence. If an adjustment of status application is pending, the H-1B may continue to travel abroad without an Advance Parole provided the H-1B visa is still valid and unexpired.
DEATH OF A U.S. CITIZEN SPOUSAL PETITIONER: WHAT IS THE
FATE OF THE SURVIVING ALIEN SPOUSE AND CHILDREN?
Formerly if a U.S. citizen who petitioned for an alien spouse had died within the first two years of the marriage, the widow(er) and his/her children were shown the door. The government imposed a hidebound rule that revoked any and all alien relative petitions for spouses and their children if the petitioner had died within the first two years of the marriage. This stringent rule was covered by a smokescreen, namely, that it presented fraud. This policy was in fact nonsensical because it afforded no right to the surviving spouse to prove the good faith of the marriage. A widow(er) thus suffered a double loss: the untimely death of the U.S. citizen within the first two years of marriage, and the double whammy of being excluded from the country without exception.
Now the law has been changed to be more rational and sensible. The surviving alien spouse is allowed to prove the good faith of the marriage. Thus a deserving alien spouse and children who can demonstrate that the marriage can set up an abode in the U.S. and a home for the children, which the deceased U.S. citizen would have wished for.
DEATH OF A U.S. CITIZEN PETITIONING PARENT
Even though a U.S. Petitioning Parent dies before an adult child obtaining permanent
residence, still the child may now receive permanent residence if the petition had already been approved. Usually if a parent petitions for an adult child, the petition is normally approved forthwith. However, because of the worldwide quota delays, the whole proceeding can take 5 to 6 years to be completed. Formerly over this lengthy time older parents would die, and their adult children would lose the benefit of permanent residence here.
Now the rules have changed. The government may grant permanent residence to an adult child of a deceased U.S. parent if the petition has been approved. The government now has the right to grant permanent residence to an adult child based on concluding that the immediate family of the U.S. citizen parent would suffer hardship as a result of denying permanent residence to the adult child. Age, health, existing ties to the U.S. of the adult child are all elements that may be taken into account by the government for the sake of the immediate family of the deceased parent. Disruption to the family unit if the adult child is not admitted, the age, the health, the period of time spent in the U.S., the lack of a home, and even undue processing time delays, are all factors that may be considered by the government to enable an adult child of a U.S. citizen to become a permanent resident.
ASYLUM FOR DOMESTIC ABUSE ABROAD
The new administration has now left the door ajar for persons who have suffered domestic abuse abroad by allowing these victims to apply for asylum in the U.S. In many countries, in Latin America, Africa and Asia, these victims may now be considered a social group by our government, and thereby come under the protection of our asylum laws. These abused persons often are not protected by local constabulary even if they move to other parts of their country. Local authorities often take the approach that these are private matters, the authorities refuse to take cognizance of their humane obligations under international law. When these persecuted individuals flee their country and seek refuge here, the United States now recognizing that we as a matter of national pride consider ourselves as a haven for the oppressed and encouraged by the change of attitude by the current administration, now allow these persecuted persons to apply for asylum.
The previous government consistently rejected these claims, first because it did not believe that these victims were encompassed by our asylum laws in spite of the fact that these persons were afflicted by rape, sexual assault, and threats to life and limb, and second because the previous administration believed that we would be overwhelmed by such cases from all over the world.
The present administration has taken a different direction, namely, that in accord with our traditions of protecting the oppressed throughout the world that we would carefully consider these cases, and individually review them for conclusive proof of the abuse and in meritorious cases grant asylum.
CANCELLATION OF REMOVAL AND ADJUSTMENT OF STATUS
Entrants to the U.S. who came here more than 10 years ago, with or without a visa, and have remained in the U.S. continuously since coming, and who have a U.S. citizen or permanent resident spouse, child or parent, who would suffer extreme hardship if the entrant were required to leave, would be eligible to apply for the remedy of Cancellation of Removal and Adjustment of Status.
Proof must be adduced of 10 years of continuous presence in the U.S. This proof may consist of leases during the 10 year period, filed tax returns, job evidence, proof of births of children, marriage or other vital statistics, bills and/or receipts for TV, electricity or telephone, witnesses who have personal knowledge and a bank account, just as examples.
GOOD MORAL CHARACTER
The absence of the commission of a crime of moral turpitude or of an aggravated felony, would indicate good moral character. Petty offenses would not indicate a bad character but a conviction for domestic violence would. Witnesses may testify as to the good character traits of the applicant which would be effective as well in showing the extreme hardship if the applicant were required to leave, to a spouse, child or parent.
EXCEPTIONAL AND EXTREMELY UNUSUAL HARDSHIP
To prove a case for cancellation an applicant must demonstrate that a spouse, child or parent would suffer hardship that is substantially beyond that which would normally occur to a spouse, child or parent whose immediate relative were deported. Such factors as the following may be introduced as proof:
- that the alien facing deportation has been gainfully employed and is the sole support for his children;
- the importance of the alien’s work to his/her employer;
- the emotional dependence of older parents to the alien, as well as financial dependence;
- the emotional inability of a child to go with his/her alien deported parent because of the close ties to the U.S. of U.S. or permanent resident child, especially children who are of school age. The Courts have held that the proof must be compelling. Thus as an example we have been successful in a case of a 12 year old child who suffered nightmares over the prospect of departure from the U.S., and who suffered a paralysis in succeeding at school because of the prospect of a separation from the close friends at school and her teachers, especially in light of the fact that prior to the institution of removal proceedings, the child had excelled in school and had been popular with her classmates;
- Other important factors to be considered include:
- family ties in the U.S. and abroad;
- length of residence in the U.S.;
- the health of the deportable alien and his immediate family members;
- the political and economic conditions in the country of return;
- the possibility of other means of adjusting status in the U.S. by the deportable alien;
- the deportable alien and his/her immediate family members’ involvement and position in the community, and
- the deportable alien’s immigration history.
An aged parent who is solely dependent for support, or a child with a serious health problem, or a child with special needs in school are issues to be considered by the Immigration Judge. All hardship factors are to be considered in the aggregate in assessing exceptional and extremely unusual hardship.
BATTERED SPOUSE, CHILD OR PARENT
A spouse, child or parent who has been the victim of extreme cruelty by a U.S. citizen or permanent resident may qualify for Cancellation of Removal if the applicant has been present in the U.S. for at least 3 years and the applicant has been a person of good moral character during these three years. Proof must b e presented that the applicant would suffer extreme hardship or to his/her child or parent.
APPLICATION AND APPEAL
The application must be submitted at the removal hearing. The Judge’s decision is reviewable by the Board of Immigration Appeals.
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