MVP "Immigration Q & A Forum" - 11/8/24 — H1B Visa Lawyer Blog

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.

1) Who is an H-1B CAP Exempt employer?

H1B petitions filed by institutions of higher education, as defined in Section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a), are exempt from the H1B cap.
H1B petitions filed by non-profit entities that are related or affiliated to an institution of higher education are exempt from the H1B cap.
H1B petitions filed by nonprofit research organizations or governmental research organizations, as defined in 8 CFR 214.2(h)(19)(iii)(C), are exempt from the H1B cap.
Third Party Petitioners – H1B petitions filed by non-qualifying organizations may still be cap-exempt as long as the employee will be working “at” a qualifying institution. The H1B employer must be able to show that the employee will spend all or most of their time working at a qualifying institution (institutions of higher education (or related non-profit entities), non-profit research organizations, and government research organizations) AND that the employee’s duties and activities further the primary purpose or mission of the qualifying institution. There must be a “nexus” between the duties performed by the H1B employee and the mission or objectives of the qualifying institution.

If a Petitioner is determined to be a qualifying CAP EXEMPT employer, they may file an H-1B petition (Form I-129) with other required paperwork (i.e., certified Labor Condition Application (LCA) and other necessary forms) with the USCIS at any time, and do not have to wait until the statutory October 1 starting date of employment. We invite you to contact our office to schedule an initial consultation to determine your eligibility as an H1B CAP exempt employer.

2) Is the Consulate allowed to require DNA testing before issuing the Immigrant Visa?

Yes, pursuant to the Foreign Affairs Manual (FAM)
9 FAM 601.11-1(B) (U) Genetic (DNA) Testing –
- a. (U) When to Recommend Genetic Testing to Verify Relationships:
  - (1) (U) Genetic testing is a useful tool for verifying an alleged biological relationship when no other form of credible evidence is available in conjunction with a visa application. Commonly tested relationships requiring DNA testing include paternity, maternity, or full-siblingship. More distant relationships cannot be proven reliably using DNA testing.
  - (2) (U) DNA technology is the only non-documentary method accepted for proof of a biological relationship. However, due to the expense, complexity, and logistical delays inherent in parentage testing, genetic testing should be used only if no other credible proof (documentation, photos, etc.) of the relationship exists. The process is time-consuming for the applicant, the petitioner, and the consular section, and it does not necessarily yield conclusive results. Note that you may recommend DNA testing but may not require it.
  - (3) (U) When genetic testing appears warranted, advise the applicant that genetic testing may establish the validity of the relationship; that such testing is entirely voluntary; and that all costs of testing and related expenses must be borne by the petitioner and/or beneficiary and paid to the laboratory in advance. In addition, caution the applicant that submitting to testing does not guarantee the subsequent issuance of a visa.

b. (U) When Not to Recommend Genetic Testing to Verify Relationships:

(U) You may recommend DNA testing to establish a blood relationship that would qualify an applicant for an immigration benefit. You may not request DNA testing in an attempt to disprove a relationship. For example, do not request DNA testing between marital partners on suspicion that they are blood relatives.
(2) (U) Recommend a DNA test of step-children only to establish paternity or maternity with the biological parent who is the spouse of the qualified petitioner. Do not recommend DNA testing to test for cousins, aunt/uncle, niece/nephew, or other such extended relationships, as these tests cannot reach the minimum requirement of 99.5 percent probability in lieu of parent or sibling testing. However additional first-degree or second-degree relatives may be tested in addition to siblings to improve the accuracy of results.

3) What countries are currently authorized for TPS?

TPS stands for Temporary Protected Status. TPS is currently designated for the following countries: Afghanistan, Burma (Myanmar), Cameroon, El Salvador, Ethiopia, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, Ukraine, Venezuela, Yemen.

As of October 17, 2024, the U.S. Department of Homeland Security (DHS) announced a new TPS designation for Lebanon.

If you need assistance with filing an initial request for TPS, or assistance with filing to re-register your TPS status, please contact our office.

4) What is the cost for submitting an H-1B CAP registration in March of 2025?

The prior H-1B CAP registration submission fee of $10.00 per eligible beneficiary will increase to $215.00 per eligible beneficiary for the March 2025 H-1B CAP registration process (FY2026).

If you need assistance with analyzing your candidates eligibility for an H-1B CAP filing, we invite you to contact our office to schedule an initial consult.

5) How long does the Consulate typically have after the Interview to issue the passport with the Immigrant Visa in it?

It depends upon the Consulate. If the Consular Officer recommended the immigrant visa be approved, then the passport should be returned to the applicant within 7-14 business days after the Interview date. If additional evidence is required by the Consular Officer, it can take an additional 15-60 days+ for a decision to be made by the Consular Officer after the additional evidence is submitted.

If you need assistance with Consular processing, please consider contacting our office to schedule an initial consultation with our Attorney.

6) Can I upgrade a pending I-765 for a STEM OPT to premium processing?

Yes, you may upgrade your pending I-765 to premium processing to obtain a decision on your STEM OPT within 30 business days of the USCIS receiving your Form I-907, Request for Premium Processing. If you have any questions, please feel free to contact our office to schedule a consultation.

7) My spouse is my sponsor and is in school and doesn’t make any money, we have another financial sponsor, so does my spouse still have to submit a Form I-864?

Yes, nearly all petitioners filing a Family Based Green Card sponsorship filing must submit a Form I-864, Affidavit of Support whether they have any income or not. All joint sponsors are also required to submit their own Form I-864 with the I-130/I-485 filing, along with documentary evidence of their ability to support the applicant at 125% of the poverty guidelines. If you need assistance with preparing and filing the applications with the USCIS, please consider contacting our office.

8) What form is required for filing a request for a Re-Entry Permit? Is that the same form for requesting Advance Parole?

Form I-131, Application for Travel Documents, Parole Documents and Arrival/Departure Records.

Form I-131 is required to request a Re-Entry permit for Lawful Permanent Residents. Form I-131 is also required to request an Advance Parole Document to seek parole into the United States for a non-citizen returning from an international trip abroad. The USCIS filing fee for a Re-Entry permit is $630.00. The USCIS filing fee for an Advance Parole Document is $630.00. Both petitions require physical presence within the United States at the time of filing. If you have any further questions surrounding the Re-Entry permit or the grant of Advance Parole, please contact our office.

9) Should I apply for AP/EAD when submitting my family-based application? I am on a valid H-1B nonimmigrant visa.

It depends on the specific circumstances of your case. If your H-1B nonimmigrant visa status is set to expire and you are not eligible for an H-1B extension, you will want to apply for the Advance Parole Document (Form I-131) and Employment Authorization Document (Form I-765), in order to travel and continue to work after the H-1B status expires. Having both of these documents (AP/EAD) are helpful in an emergency situation. Questions, contact our office to schedule a telephone consultation.

10) What filing fees are required for the H-1B petition?

There are several USCIS filing fees required when submitting Form I-129, Petition for Nonimmigrant Worker on behalf of a foreign national seeking H-1b status.

A filing fee of $780.00 is required for Form I-129, unless you are a small employer (25 or fewer employees) or a non-profit, then the filing fee of $460.00 applies.
A filing fee of $1500.00 is required for Form I-129DC, unless you are a small employer (25 or fewer employees), then the filing fee of $750.00 is required. If you are a qualifying H-1B CAP exempt employer, you may be exempt from paying this filing fee. If you are filing a 2^nd or subsequent H-1B petition on behalf of the beneficiary, or an amended filing on behalf of the beneficiary, no I-129DC filing fee will apply.
A filing fee of $500.00 is required for ALL initial H-1B filings, it is referred to as the Fraud fee. It is not required in subsequent H-1B extension filings through the same employer or amended filings.
A filing fee of $600.00 is required for the Asylum program, unless you are a small employer (25 or fewer employees), then the filing fee of $300.00 applies. If you are a non-profit entity, you are exempt from paying the Asylum program fee.
A filing fee of $2805.00 for Premium Processing is entirely optional. Filing with premium processing is expected to get you a decision within 15 business days of filing the case, rather than waiting for an approval to be issued through regular processing which can range from 2 months to 6 months+ depending upon the posted processing times.

If you have any questions about the H-1B nonimmigrant visa process, please contact our office to schedule a consultation.

MVP Law Group would like to thank everyone who contributed a question or comment.

Our next “Immigration Q & A Forum” is scheduled for Friday, November 22, 2024!

Please remember to submit your questions/comments on our H1B Visa Lawyer blog!

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