FAQ: Can I petition for myself for the O visa?

It is absolutely possible to petition for yourself, especially if you are working in a profession that is traditionally occupied by independent contractors. Some examples of these professions are hair dressers, make-up artists, painters, musicians, to name a few.

What do I need to do before getting started on my petition?

You should find one of your “clients” to act as an Agent for you, to represent all the clients that you will have here in the U.S. This particular client will have to sign a short agent-principal agreement, which our law firm will draft for you, as well as create an itinerary for your time here on the O Visa. He/she will also provide the signature as the “petitioner” on the application. Read More

What You Need to Know About Employment-Based Green Card Interviews

Effective October 1, 2017 nationwide, USCIS will begin contacting those who filed their employment-based petitions after March 6th for interviews when they have also applied for Adjustment of Status to Permanent Residence.  The USCIS Ombudsman provided an informative Q and A session last Thursday. Here is what applicants need to know:

  • Derivatives:
    • Under 14 years old may be waived from the interview requirement – there is a waiver that applicants must complete.
    • Will receive a separate notice, but family groups should be scheduled for the interview at the same time. However, they make no promises that it will be at the same time.
    • Family members could be expected to prove relationship to the primary beneficiary – bring copies and originals of certificates. Officer may also require showing that the marriage was bona fide.
    The I-140’s will not be “re-adjudicated” at these interviews. However, in addition to considering the Adjustment of Status application, the interviewing officer will “re-assess” the validity and accuracy of the documents that were submitted in support of the I-140 petition. Needless to say, this point is troubling – “re-assessing” the validity and accuracy seems to be crossing the thin line into “re-adjudicating”.
    • USCIS does not want applicants to send in unsolicited documents after the initial application is submitted. Because of the multiple steps involved, if USCIS needs new evidence, they will request them and applicants should follow the address and the instructions on the RFE so that the documents do not get lost.
    • Questions that will be asked include those that are on the I-485 and the applicant’s eligibility for Adjustment, and admissibility issues. Also, officers may ask into what the beneficiary/self-petitioner will do, their experience, and their educational background. The main purpose of pursuing these interviews is fraud detection and national security, so referrals to ICE is possible if interviewing officer detects credible threats.
    • Processing times:  USCIS does not believe that these interviews will affect the processing times for the Employment-Based Adjustment applications, however, we may see some slow-down on family-based adjustments and naturalization interviews because of this.
    • Denials: 
      • If the defects in the I-140 were a basis for the denial, then the field office will return the I-485 and the I-140 together to the service center and recommend that it be revoked. If the service center determines that the I-140 should not be revoked, then the service center will approve the application.
      • On the other hand, if the I-140 is okay, but there are defects in the I-485, then the field office will refer the case to the consulate to be re-adjudicated in accordance with consular processing.
      • Medical Exams: Without further advice from USCIS at this moment, we would also recommend waiting until you are contacted through the Request for Evidence or at the interview to submit the medical examination. Because the medical exams are only valid for one year and it could take a year or more for the Adjustment application, it could be a waste of money and resources to submit the medical exams with the I-485 packet.

      Our office is ready to help Employment-Based adjustment applicants prepare for these interviews, collect the required documents, and go with them, if necessary. Please contact us if you wish to have some assistance in these uncertain times. Read More

VisaScreen Certificates for Healthcare Professionals

When applying for temporary visas to work in the U.S., USCIS requires many foreign national healthcare professionals to get VisaScreen certificates to certify that their degrees fits the requirements of the visa that they are seeking. The temporary visas that require this certificate are the E-3 Australian Specialty Occupation Professionals, H-1Bs, O-1s, and TNs. The certificate is also required for the employment-based immigrant visas (EB-1, EB-2, EB-3). The healthcare workers to which this requirement applies are Registered Nurses, Physical Therapists, Occupational Therapists, Speech Language Pathologists and Audiologists, Medical Technologists, Medical Technicians (general), and Physicians Assistants. The reason for this requirement is because, for many of these professions, other countries could require less than the U.S. degree requirements in order to practice in the field. Therefore, VisaScreen Certificates, like the degree equivalency certificates, certifies that the professional is qualified to practice in the U.S. under that specific profession because their coursework is the same as that of a higher degree in the U.S.  However, note that even if a foreign national obtained the healthcare degree in the U.S., in order to apply for any work visa, he/she would still have to obtain the VisaScreen Certificate. Read More

Sponsoring Your Relative as an Employee: Importance of Good Faith Efforts in PERM Recruitment

Our immigration law firm represents many small business employers, many of whom, for many legitimate reasons prefer to hire their family members to assume important functions in their businesses. On October 21, 2016, BALCA released decisions on two cases dealing with PERM labor certification and audits for hiring relatives, Tyrrell Limited on behalf of Espino, Jose Miguel Tantoco and Johnman U.S.A., Inc. d/b/a Karoke Champ, on behalf of Kida, Takuya, with opposite rulings. Read More

Five Ways for International Entrepreneurs to Stay and Work In the U.S.: No Need to Depend on Employer Sponsorship!

With the increasing interest in the pending Parole for International Entrepreneurs Rule, entrepreneurs from other countries are unaware that even before this rule, there were many ways to start your own business and stay in the U.S. Here are some of the methods to allow those that are here on temporary visas, student visas, or other work visas to do just that: Read More

How Can You Avoid The Frustrations of The PERM Recruitment Process?

Our firm had an consultation with a company regarding the PERM recruitment process and as a result of the convoluted and outdated process, the employer was not able to hire a foreign national. It was extremely unfortunate because they thought she was the perfect fit for their business needs. However, because of the lengthy PERM Labor Certification process, they could not hire and train her in time. As a result, the foreign national had to plan to leave the country once her H-1B expires and back to the drawing board for the employer. This is just one example of many of how the immigration process contributes to the U.S. talent drain. Read More

Exceptions to the H-1B Six-Year Limit Under American Competitiveness in the 21st Century Act of 2000 (AC21)

My previous post, Is My Potential Employee Cap-Exempt?, explains the six-year limitation for an employee working under H-1B and the concept of recapturing unused time. This is a follow-up to explain the options that may be available for those H-1B employees that are approaching the end of their six years or have exhausted their six years.

American Competitiveness in the 21st Century Act of 2000 (AC21) has two important implications for H-1B employees: (1) a “one-time” protection for H-1B employees by extending their H-1B visa in 3 year increments if the I-140 has been approved under section 104(c), and (2) one-year extensions are available if prior to the exhaustion of the beneficiary’s H-1B time, the beneficiary’s PERM application or the I-140 petition had been pending for more than 365 days under section 106(c). Read More

H-3 Visa As An Alternative to H-1B

As promised in my tweet earlier, here is a report on the H-3 visa as an alternative to H-1B. First of all, special thanks to Margaret Holland-Sparages, a Senior Associate at Deutsch Williams, for sharing your experience and knowledge with the attendees. It really is a great and under-utilized program and I will very likely be suggesting this program to those of my clients that are concerned about the H-1B quota and the H-1B rejections. Below is a brief background of the program and why this program should be considered. Read More

Ombudsman Recognizes Immigrant and Non-Immigrant Employees Should Have Standing, No Guidance From USCIS

The Office of Citizenship and Immigration Services Ombudsman (the “Ombudsman”) presented their 2016 annual report yesterday. Our office aims to highlight one unsettled issue regarding the rights of the employee to have standing as the beneficiary in the I-140 and H-1B petitions. We have received numerous inquiries from beneficiary employees regarding their rights and their lack of information about their own cases. At this time, unfortunately, we must continue to reluctantly turn them away by stating that they have to communicate their issues with their employer. Read More

Is My Potential H1B Employee Cap-Exempt?

As our law firm begins to accept and work on new H1B petitions, many of which are filed subject to the 65,000 cap, it is important to remember that potential employees with petitions filed within the last 6 years could have their H1Bs refiled cap-exempt. Taking advantage of this exemption could provide H1B-dependent employers with unparalleled benefits when continuing to employee or when hiring a foreign national. Read More