H1B Visa Lawyer Blog
This blog entry was originally posted on 4/26/24. We here at the MVP Law Group would like to wish every one of our blog readers Happy Holidays!
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- I was not selected in the H-1B CAP lottery process. Am I eligible for the TN visa? There may be several options available to you, you should schedule a consultation with an experienced Immigration Attorney to go through each of your options. First and foremost, the USCIS may conduct a 2nd random lottery selection process sometime in the summer if they do not receive enough filings from those selected in the initial registration process. If not selected in the lottery process, there are a plethora of other nonimmigrant visa options that may be available to you.
The TN visa is reserved exclusively for nationals of Canada and Mexico. Only certain professions are eligible, the profession must be listed in the regulations, and you must possess the qualifications necessary to practice in the profession. You must also have a pre-arranged full-time or part-time job lined up with a U.S. employer. The visa is valid for up to 3 years at a time.
- The I-129 now carries an Asylum program fee. What is this? The Asylum program fee ($600.00) is a new fee required to be paid by employers who file Form I-129, Petition for A Nonimmigrant Worker, and Form i-140, Immigrant Petition for Alien Worker on behalf of a nonimmigrant worker. If the employer is a small employer (with 25 or less full-time equivalent employees) they will only be required to pay $300.00 rather than $600.00. IRS Form I-941 is required to be included in the filing, to establish a small employer’s status. If the employer is a non-profit, they are exempt from paying the Asylum program fee. A nonprofit will be required to produce documentary proof of their status. The Asylum program fee is intended to fund the asylum program. There is no USCIS filing fee to file a Form I-589, Application for Asylum and for Withholding of Removal in the United States.
- I am in the process of getting my Citizenship in Canada, I am originally from India. As a Canadian national will I be able to work in the United States? It is likely, if you meet the eligibility requirements for the nonimmigrant visa. Many visa options may be available to you: TN, H-1B, O1, etc. You should schedule a consultation with an experienced Immigration Attorney to evaluate each of your options. Additionally, will I be able to bring my children and spouse with me to the United States? If you receive a TN visa, your spouse and children can enter on the TD dependent visa, if eligible. If you receive an H1B visa, your spouse and children can enter on the H4 dependent visa, if eligible. If you receive an O1 visa, your spouse and children can enter on the O3 dependent visa, if eligible.
- What is STEM? STEM is the acronym for the fields of Science, Technology, Engineering and Mathematics.
- What is required for a position to be a Specialty Occupation, to qualify for an H-1B? The position must require: (i) the theoretical and practical application of a body of highly specialized knowledge; and (ii) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation. In addition to establishing the requirements above, the position must ALSO meet at least 1 of the 4 below criteria: (1) a bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the particular position; (2) the degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the job is so complex or unique that it can be performed only by an individual with a degree; (3) the employer normally requires a degree or its equivalent for the position; and (4) 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.
- Can my wife work once we enter the United States? I’ve received my H-1B visa stamping and plan to arrive next month to work for my non-profit employer. If your wife’s status is dependent on yours (i.e., H4 dependent visa), she is likely not able to work if this is your first time in H-1B status and an employer has not initiated the Employment Based GC sponsorship process on your behalf. Unless your wife has applied for and received an H4 EAD, she may not work in H4 status. Your wife is only eligible to receive an H4 EAD if: (i) she is the spouse of an H-1B nonimmigrant who is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; and (ii) she is in valid H4 nonimmigrant visa status.
- What is the minimum investment amount for the EB5 program? Generally, the minimum investment amount is $1,050,000.00. For a targeted employment area, the minimum investment amount is $800,000.00.
- Do I need to extend my husband’s H4 status when I extend my H1B with my employer, or does he automatically derive status from me? Your husband does not automatically derive status from you. An H4 extension petition must be filed with the USCIS to keep your spouse in a valid status. The I-94 record available at https://i94.cbp.dhs.gov/I94/#/home governs your spouse’s period of stay in the United States. If your H-1B and your husband’s H4 are expiring at the same time, you should file the H4 extension with the H-1B extension.
As long as the H1B individual remains in status, the H4 individual(s) need only to file a request for extension of the H4, no less than 90 days before the H4 individual’s I-94 expires. Remember that if the H1B individual is out of status so are all individuals on H4 irrespective of their I-94 and our recommendation is that an “out of status” individual not remain “out of status” in the United States for over 180 days or a year because they may be subject to being excluded from the United States for a period of three to ten years respectively.
- Who do I make USCIS checks to? Our firm makes the filing fees payable to “US DEPARTMENT OF HOMELAND SECURITY”. We have yet to experience any issues. USCIS will accept filing fees via credit card, personal check, cashier’s check or money order.
- Can Form I-485 be filed electronically? No, not yet. You must file the Form I-485, Application to Register Permanent Residence of Adjust Status directly with the USCIS through a paper-based filing. You may download the form at the following website: https://www.uscis.gov/i-485 You may mail the form to the address found in the link below that relates to the primary purpose of your eligibility – https://www.uscis.gov/forms/all-forms/direct-filing-addresses-for-form-i-485-application-to-register-permanent-residence-or-adjust-status
MVP LAW GROUP –Immigration Q&A Forum – Originally posted 4/26/24
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