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Filing Pointers for FY 2015 H-1B Cap Petitions

The number of H-1B cap filings for fiscal year 2015 during the first five business days of the filing season (April 1-7) is expected to exceed the annual quota of 65,000 for foreign workers in specialty occupations and the 20,000 allotted for graduates with advanced degrees from the U.S.

If the USCIS receives H-1B petitions that exceed the numerical cap, the USCIS will conduct a lottery which would randomly select the number of petitions required to reach the cap. It must be noted that petitions postmarked on the fifth day may not be included in the lottery. Only those properly filed petitions with the correct fee that are received by the USCIS by April 7 will be considered. Thus, it is best to file the H-1B petition on April 1.

Petitions not selected during the lottery will be rejected along with those filed after April 7. The petition and fee shall be returned.

Multiple filings by an employer for one H-1B worker will result in the denial of all petitions. USCIS will not refund filing fees in this case. Related employers such as parent and subsidiary companies, however, are not precluded from filing petitions on behalf of the same H-1B worker so long as it is for different positions and based on legitimate needs of the employers.

If the H-1B petition is accompanied by a request for premium processing, it will not increase the chances of obtaining an H-1B number. However, applications filed under premium processing will be issued receipts faster than those filed under regular processing. If the USCIS conducts a lottery, the petition filed under premium processing will know more quickly whether or not it was included in the lottery. Premium processing will not start until April 28.

Aside from early filing, the H-1B petition should be carefully reviewed to avoid rejection. Mistakes made on H-1B petitions may result in the rejection of the petition in the USCIS mailroom.

Also, in preparing the H-1B petition, employers are reminded to indicate their true intention regarding the work site of the H-1B worker. If the H-1B worker will not work at their headquarters but in a client worksite, they must indicate it in the petition. The Department of Homeland Security (DHS) has filed criminal cases against employers who indicated their headquarters as the work site in the petition even though the true intention was to put the H-1B worker in another worksite.

An employer who intends to assign the H-1B worker in another work site on October 1 should state it in the petition and the Labor Condition Application (LCA) even if the employer is still unable to specify the work site at this time.

If the H-1B petition comes with a request for change of status, the petition must be accompanied by documentary evidence of the nonimmigrant status of the beneficiary through September 30, 2014.

Work authorization for F-1 students under Optional Practical Training (OPT) who have timely filed an H-1B petition and requested for change of status shall be extended until September 30 when the petition is approved or while the petition is pending. Students who completed their OPT but are within valid grace period will receive automatic extension of their authorized stay. However, they will not be allowed to work during this period.

Enforcement Policies Under Review to Ease Deportations

President Barack Obama announced last week that deportation policies will be reviewed to make sure that enforcement is done “more humanely”. He asked Secretary of Homeland Security Jeh Johnson to conduct the review. The President in making this pronouncement also expressed his “deep concern about the pain too many families feel from the separation that comes from our broken immigration system.”

After many months of maintaining that the White House has no power to stop deportations, the President’s move is welcomed by many immigrant-rights advocates. The President has been insisting that the law must be followed and only Congress can pass a legislation halting deportations. Last year, he also indicated that he cannot ease enforcement because his priority is to push for the passage of the immigration reform bill.

With the immigration reform bill still not moving in Congress, advocates intensified their campaign to pressure the President to stop deportations.

The number of deportations under the Obama administration will reach 2 million this April, a lot more than the deportations under the Bush administration. This prompted the National Council of La Raza to call the President “deporter-in-chief”. According to Secretary Johnson, this number also includes those who were turned away at the border which were not regarded as deportation in previous administrations.

According to Angela Kelley of the Center for American Progress, around 5,000 American children end up in foster homes because one or both their parents have been deported.

The high number of deportations likewise prompted Senator Chuck Schumer of New York, Senator Dick Durbin of Illinois and Senator Robert Menendez of New Jersey to appeal to the President to slow deportations.

While the President pledged to review enforcement policies, he stressed that he would not be able to legally stop deportations nor expand the 2012 order called the Deferred Action for Childhood Arrivals (DACA) which granted temporary deportation reprieve to undocumented immigrants who were brought to the U.S. as children.

One of the proposed changes in policy being considered by officials of the Department of Homeland Security would be to ease up on the deportations of aliens who violated immigration laws but do not have criminal convictions. With this change in place, enforcement would be focused on aliens who have been charged or convicted of crimes and those who pose a threat to public safety.

Another proposed change is easing up on the program called “Secure Communities.” Under this program, immigration authorities are allowed to request local jails to hold undocumented aliens until they are transferred to federal facilities. If this proposed change is approved, local detentions will be restricted.

Meanwhile, Republican Senator Jeff Sessions of Alabama sees the President’s latest move as “further demonstrating that he cannot be trusted to enforce any immigration plan from Congress.” Speaker Boehner’s spokesman Brendan Buck also pointed out that, “the President is obligated to enforce the laws we have. Failing to do so would damage – perhaps beyond repair – our ability to build the trust necessary to enact real immigration reform.”

The White House stressed that only a legislation enacted by Congress can fix the broken immigration system and efforts are continually being made to pressure the GOP-led House to pass the immigration reform bill.

Meantime, the President has executive authority to grant temporary reprieve from deportation as part of his “prosecutorial discretion.” He used his executive authority when he deferred deportation of thousands of young undocumented immigrants by issuing the DACA order.

With the continued refusal of House Republicans to act on the immigration reform bill, millions of undocumented immigrants are hopeful that the President will exercise his executive authority once again and keep them from being separated from their families.

Disproving Marriage Fraud

The alien spouse of a U.S. citizen is considered an “immediate relative” for immigration purposes. This means that a visa number is immediately available and the alien spouse who is already in the U.S. may adjust status right away. The alien spouse who is living outside the U.S. will have to apply for an immigrant visa at a U.S. consulate abroad.

The process of sponsoring a spouse for a green card is initiated by filing Form I-130 petition with the USCIS. A lawful permanent resident (LPR) may also petition his alien spouse for lawful permanent residence. However, since the petition falls under the second family preference (F2A) category, which is subject to numerical limit, there is a wait period.

To be eligible for immigration benefit, the alien must be legally married to the U.S. citizen or LPR. Common-law spouses may also benefit depending on the laws of the country where the common-law marriage takes place. Moreover, same-sex spouses of U.S. citizens and LPRs are eligible for the same immigration benefits as opposite-sex spouses.

To establish the relationship, the Form I-130 must be accompanied with a copy of the marriage certificate and all divorce decrees, death certificates and decrees that demonstrate that all prior marriages were terminated. An affidavit of support made on Form I-864 must also be submitted along with supporting documents to show that the beneficiary will not become a public charge.

The marriage must be bona fide. The parties must have entered into the marriage with the intent of establishing a life together as husband and wife. If the USCIS finds that the marriage was entered into solely for immigration benefits, the marriage is considered fraudulent and will not be recognized for immigration purposes.

Also, Section 204(c) of the Immigration and Nationality Act (INA) bars the approval of a subsequent petition filed on behalf of a beneficiary who was previously petitioned as a spouse of a U.S. citizen or LPR and the prior marriage was found to be a sham.

In a recent case, the Board of Immigration Appeals (BIA) set aside the decision of the Field Office Director of the USCIS revoking the approval of a visa petition on the ground of prior marriage fraud.

In that case, the BIA stressed that visa petitions on behalf of aliens who have attempted or conspired to enter into marriage solely for the purpose of evading immigration laws cannot be approved. However, substantial and probative evidence of the attempt or conspiracy must be found in the alien’s file.

The court cited instances where there can be a finding of marriage fraud. One is where the former spouse admitted that he colluded to evade the immigration laws. Another is where the former spouse received monetary compensation for marrying the alien spouse. Lastly, where there was no cohabitation since marriage and the spouses never held out themselves as husband and wife.

The court pointed out that in this case the marriage of the beneficiary and her former husband lasted for four years, from 2002 to 2006. The discrepancies during the interview and failure to respond to the Notice of Intent to Deny were due to the ex-spouse being emotionally unstable and depressed.

Evidence of good faith marriage on record included bank statements and photographs. There was also no evidence that payment was made or that the marriage was never consummated. In addition, there was no statement on record that the marriage was fraudulent.

The BIA therefore ruled that absent substantial and probative evidence of prior marriage fraud, it sustained the appeal and ordered the continued processing of the visa petition.

New Naturalization Form Has Substantial Changes

Form N-400, Application for Naturalization, has been revised to include more questions relating to good moral character and national security. It also has a new simplified format and uses a 2D barcode technology which will allow the USCIS to capture data more accurately. The barcode located at the bottom of each page and the additional questions account for the length of the new form.

The revised form is now 21 pages in length. The ten-page old version of the form is still being accepted. However, starting May 5, 2014, the USCIS will no longer accept previous versions of the form.

Although the new form contains additional questions and has double the number of pages, the USCIS stressed that eligibility requirements for naturalization remain the same.

Eligibility requirements are better outlined on the new form. To be eligible, an applicant must satisfy the basic requirements, namely, continuous residence as a lawful permanent resident (LPR) for five years and if married to a U.S. citizen, three years; residence in the state or USCIS district claimed as residence for at least three months prior to filing; physical presence for a specified period of time; good moral character; attachment to the principles and ideals of the U.S. Constitution; basic knowledge of U.S. history and government; and ability to read, write and speak basic English.

A question relating to English language test exemptions was added to the revised form. It specifically enumerates those who are eligible based on age and residency of the applicant. Those who are exempted from taking the English language test will still have to take the civics test. But if the applicant is 65 years old and has been living in the U.S. as a permanent resident for 20 years, he will take a simplified form version of the civics test.

Also, a section about the applicant’s parents is also added to determine whether the applicant is eligible for citizenship through derivation or naturalization. If the USCIS finds that an applicant acquired citizenship through his parents, the applicant does not need to undergo the naturalization process. In this case, the applicant is issued a Certificate of Citizenship.

Questions relating to national security have been added to conform with the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004 and the Child Soldier Accountability Act of 2008.

The sections on employment and education history were revised to make the form more user-friendly. Also, the new form only requires the applicant to list trips outside the U.S which were made in the last 5 years. The previous version requires all trips made outside the U.S. since becoming a lawful permanent resident.

The USCIS revised the preparer’s statement to make sure that all parties especially the applicant “understands the form’s information requests and that his responses were communicated as completely as possible.” The interpreter’s statement has also been revised. A section on renunciation of foreign titles is also added to the new form. Additional questions on membership in the U.S. Armed Forces are likewise incorporated.

When data is entered on the form electronically the 2D barcode located at the bottom of each page changes. The USCIS scans the barcode and the customized information will be directly uploaded in their system. This allows the USCIS to process the data more efficiently and accurately. An application form with a damaged barcode or which was not completed electronically will still be processed.

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