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Post image for Fiancée Petition Approved for Petitioner from Florida and Filipina Beneficiary

CASE: I-129F Fiancée Petition and Fiancée Visa
PETITIONER: US Citizen in Gainesville, FL
BENEFICIARY: Filipina
PETITION FILED: March 20, 2013
PETITION APPROVED: July 25, 2013

Our client, a US Citizen Petitioner, met his Filipina fiancée who was living in Taiwan online. Their relationship grew and he met her in person in Taiwan in December 2012. During his visit, he proposed to her. Months after his proposal, he retained our firm to file a fiancée petition.

After retention, we informed our client of the necessary supporting documents to demonstrate the bona fide nature of their relationship. Our client retained our office on February 12, 2013. We helped him and his fiancée draft letters in support of the fiancé petition, gathered supporting documents, and we filed the petition on March 20, 2013.

On July 25, 2013, the I-129F Fiancée petition was approved.

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Post image for Tech Giants, Private Prisons Big Players On Immigration Reform

As the country anticipates the overhauling of our immigration policy, different industries are doing its best to influence the specific of the policy. Big tech firms and private prisons are just some of the industries who are vigorously showing their interest in immigration reform.

Big tech firms such as Microsoft, Facebook and Intel want to see an increase in the number of available visas for highly skilled immigrant workers. Also showing great interest in immigration reform are those who build detention facilities housing illegal immigrants in the country. Companies such as Corrections Corporation of America are pushing heavily on lawmakers to take tough stances on the matter.

Although it is tough to track how much each lobbyist would spend for their interests to be heard, it has been reported that Microsoft spent $8 million for their lobbying efforts last year and even contributed $814,645 to President Obama during his re-election campaign. Intel, on the other hand, spent $3.7 million and Facebook didn’t mind spending $3.9 million in their lobbying efforts. These companies filed not less than eight reports.

Source: CNN.Com

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Post image for H-1B Cap Gap Period and Employment for OPT F1 Students (Practical Training)

This is another post in our H-1B series. Other posts are:

We also have a page on our H-1B success stories.

So you’re an F-1 student on Optional Practical Training (OPT). You just came off graduation. You were in this stressful period trying to look for a job. And you got it. Something related to your degree.

So this bought you a year.

You work hard hoping your employer petitions you form an H-1B. The quota was still open when you started in, let’s say, June. You were hoping that they sponsor you for an H-1B in that fiscal year, before the quota closes, while your OPT is still valid.

But that was not the case.

You still work for the employer close to a year a later, still working hard, then finally they decide to petition you for an H-1B on April 1, a couple of months or so from the expiration of your OPT.

You’ve heard of this thing called the cap gap. You wonder what it means. What happens to your immigration status between the expiration of your OPT and October 1?

Below are some FAQs around the topic of the cap gap.

Can I stay in theUSduring this cap gap period? Yes.

What is my status? F-1.

But my OPT card expired, will I get an OPT extension card? If not, what is my proof that my F-1 is extended? You’d have to go to the ISO officer of the school you had your most recent I-20, and have them reissue the I-20 with an OPT extension mark, which essentially extends your F-1 status.

Can I continue working? Yes you can, and you in fact should, because the validity of your OPT is also conditioned on certain periods that you should be working for a company doing a job related to your field or degree.

Okay. I know I can stay and I know I can continue to work, but during that gap, will I continue to get paid, or do I wait until October 1 before I get paid? I often get this question. You should continue receiving your salary from your employer during this period. They are allowed to. Your OPT was extended.

What about my driver’s license, can I extend it? If so, how long? Honestly, that’s the tricky part as some BMV admin people are used to the actual card – EAD cards or OPT / EAD cards. But, and this is a hassle because you have to go there again at some point, they should extend your DL up to at least September 30. Yes, it’s a hassle, because you go through that and pay the fees to get a mere 3 – 4 month extension on your card. But unfortunately that’s the case. I went through it myself when I was on OPT before.

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U.S. Immigration Policy Hurting Entrepreneurship

by JP Sarmiento on January 14, 2013

Post image for U.S. Immigration Policy Hurting Entrepreneurship

Forbes recently had an opinion article by Bill Aulet and Matt Marx addressing how  US Immigration Policy is hurting entrepreneurship. The article was based on their thoughts on their students in MIT, one of the premier universities in the world. They in particular drew from what they saw from the opportunities or lack thereof for the international students.

In their entrepreneurship class at MIT, many of the students are international, and they need theU.S.government’s permission to work in the country. They will be left with two options; leave theUnited Statesand build their company back in their home country or look for a company who can sponsor them to get a shot at an H-1B visa. These options will not allow these students to start their own company in theUnited States.

Although Bill and Matt believe that these non-U.S. citizen students may hope to get their visa extended for “optional practical training”, the chances of them getting their H-1B visa so they can start their company to grow big enough to be recognized as a legitimate enterprise are not that great.  They have to work for someone first, and they can only hope that the employer who hires them would eventually petition them not just for an H-1B visa, but eventually also for their green card. Should they get their green card later on and quit the company after at least 6 months, only then can they start their business. That whole process, from graduation to eventually putting up a business, could take over 6 years.

Bill Aulet and Matter Marx pointed out that not all innovation-driven entrepreneurs are born American citizens. There are students, like those at MIT, who are potential drivers for economic prosperity and can create more job opportunities in the country. But the current immigration policy is hurting the chances of these promising, non-U.S. citizens.

USCIS Director Alejandro Mayorkas addressed a group of MIT students and promised to aid entrepreneurs as much as possible even with the existing strict immigration laws and policies.

Bill Aulet and Matt Marx believe that it would help the USCIS to aid foreign entrepreneurs if they consider three things; consider the potential of immigrants to build companies and job opportunities, appreciate their talents, and understand the advantages of startups on how they move fast and more responsively to economic challenges.

Source: Forbes.com

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<a href=”https://plus.google.com/107743308565341841259?rel=author”>Google</a>

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Post image for USCIS Issues Interim Memo Providing Age-Out Protection for Derivative U Status Holders

The U Visa is designed for immigrants who were victims of serious crimes. They are given the opportunity have legal status in the U.S. due to their cooperation in the investigation or prosecution of criminal activities. The visa is applicable to derivatives of those whose applications were granted, including children of U visa principal applicants who are under 21. But what about those who turn 21?

An interim memo has been issued on December 12, 2012, granting deferred action on a case-to-case basis to those U visa  holders who are to turn twenty-one.  The USCIS will also grant extensions to those who have aged out of derivative eligibility before the implementation of this memo.

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<a href=”https://plus.google.com/107743308565341841259/posts?rel=author”>Google</a>

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Post image for Another Fee! Implementation of New Added USCIS Immigrant Fee Effective Feb. 1

Another added fee for the USCIS. Foreign nationals who seek permanent residence in the United States should now also pay $165 to have their request be processed.

The USCIS has worked closely with the DOS so they can start implementing the new immigrant fee by February of 2013. They were able to come up with the said amount by taking into consideration the costs of processing immigrant visas in the U.S. The fee would cover handling, filing and maintenance of the immigrant visa package, and production and delivery of the permanent resident card.

After the applicant receives their visa package from the DOS and before they depart from the U.S., they should make the payment online. This payment process is supposed to simplify and make everything centralized. However, applicants should take note that this fee is separate from what the DOS would charge you with their other immigrant visa fees.

So yes, unfortunately, another fee.

You can check out more details about it here.

Source: AILA.Org

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Obama Talks Immigration with Mexico’s New Leader

by JP Sarmiento on December 4, 2012

Post image for Obama Talks Immigration with Mexico’s New Leader

The recent presidential election has not only provided another term for President Obama, but also allowed him to have another chance to improve our immigration legislation. One of the goals of the Obama administration is to have a better legislation that will provide better border security and at the same time a pathway to citizenship for those illegal immigrants who are already in the country.

President Obama and his aides are more open than ever to work in partnership with Mexico in order to ‘increase economic competitiveness in both countries, promote regional development, advance bilateral efforts to develop a secure and efficient 21st century border, and also address other common security challenges’.  Both countries will soon have these concerns addressed especially after that visit by President-elect Enrique Pena Nieto to President Obama at the White House days ago.

Source: USA Today

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Post image for Aged Out Children Can Now Retain Old Priority Date and Speed Up Immigrant Visa and Green Card Process

The Ninth Circuit in De Osorio v. Mayorkas held that the plain language of CSPA (Child Status Protection Act) unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries.

Before this case, when these beneficiaries aged out prior to their parents becoming permanent residents, a new I-130 petition filed by their parents for them would have a new priority date, which means they would have to wait several years before they can immigrate or apply for a green card, in some cases over ten years. With this decision, the old priority date of the I-130 filed for their parents, for which they were derivative beneficiaries, would be retained. So that new I-130 that the LPR (lawful permanent resident) parent files for the aged-out son or daughter, could have that old 1985 or so priority date, speeding up the immigrant visa or permanent resident (green card) process by over a decade in some categories.

I have come across probably over a hundred consultations over the past three years in which parents have asked about what could be done for their aged-out children. Being Filipino myself, I’ve heard stories from several Filipino F4 (sibling petition) beneficiaries who waited at least twenty two years for their immigrant visas to be approved, only to realize they cannot bring their children, most of whom were just babies when they were first petitioned. In most cases, the honest answer has been to file an I-130 again and wait in line, and “hope” that a new case comes out.

Well, this new case has come out in De Osorio v. Majorkas. The decision in the class-action lawsuit against the United States Citizenship and Immigration Service is a victory for tens of thousands of people who lost their priority status upon turning 21, as their parents faced long waits due to backlogs in the immigration systems. Filipino immigrants for example who were petitioned by their siblings were never able to bring their children with them because the waiting time for priority dates to be current has been over 21 years for a while. So all their children aged-out by the time immigrant visas become available. You can have a one month old child when your brother petitioned for you, wait 22 years for priority dates to be current, and your child will automatically over-age. So you needed to petition your child and wait over a decade again. But with this new case, if that parent files an I-130 for their 25-year old daughter, the I-130 F4 priority date in the 1980s would be retained, which obviously is now current.

Below is a quoted section from the 9th Circuit in their decision, providing you with their summary and the relevant portion of the case.

“Appellants became lawful permanent residents and immigrated to the United States. However, due to visa quotas and a serious backlog, by the time Appellants received their family-sponsored visas, their children were no longer eligible to accompany them as recipients of derivative visas, which are available only to children under the age of twenty-one. Their children had “aged out” of eligibility.

‘The question before us is whether these children are entitled to relief under the Child Status Protection Act (“CSPA”), 8 U.S.C. § 1153(h). The CSPA provides, among other things, that when certain aged-out aliens apply for visas under a new category for adults, they may retain the filing date of the visa petition for which they were listed as derivative beneficiaries when they were children. This ensures that visas are available quickly, rather than requiring the now-adult aliens to wait many more years in a new visa line.

‘The United States Citizenship and Immigration Services (“USCIS”) denied Appellants’ requests for priority date retention under the CSPA. USCIS relied on the Board of Immigration Appeals’ (“BIA”) decision in Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009) that the CSPA does not apply to all derivative beneficiaries. The district court, deferring to the BIA’s interpretation, granted summary judgment to USCIS in two separate cases. We reverse.

‘We conclude that the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries. The BIA’s interpretation of the statute conflicts with the plain language of the CSPA, and it is not entitled to deference.”

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The Cap

H-1B petitions per year are capped at 65,000, with an extra 20,000 for those who are petitioning someone with a U.S. earned master’s or higher degree. These cap numbers only apply to initial H-1B filings. Thus, H-1B extensions and transfers are not subject to the cap. April 1 of each year is the earliest that an H-1B petitioner can file an initial cap-subject filing. A few years ago, this quota was filled on the first day. Applications outnumbered the quota. The US Citizenship and Icemmigration Service (USCIS) resorted to a lottery system. Thus an employer may have filed at the earliest possible time and still got rejected. This year, the quote was filled by July, merely two months from April 1. A lot of people are thus wondering if there is anyway an employer can file an initial H-1B petition without having to wait for April 1, 2013.

Cap-Exempt

Other than extensions and transfers, there are other ways where a petitioner gets exempted from the cap. A beneficiary of employment petitions from an institution of higher education, or related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations are not subject to the cap. Thus, for these employers, H-1B petitions could be filed all year round, regardless of whether the cap is closed.

Institution of Higher Education

By law, an institution of higher education is defined as one which: 1) admits students who have completed secondary education; 2) is licensed to provide education beyond secondary school; 3) provides education programs for which the institutions award bachelors’ degrees or provide programs of not less than 2 years that are acceptable for full credit toward bachelors’ degrees; 4) is a public or nonprofit institution; and 5) is accredited or has been granted pre-accreditation status by a recognized accrediting agency. Each of these elements should be met to be cap-exempt.

Primary or Secondary Education Schools

Based on statutory language and legislative history on the definition of “institutions of higher education,” primary or secondary education schools are not within this definition, and if the argument for making these schools cap-exempt is solely based on including them within the definition of an “institution of higher education,” the USCIS will not find the petition cap-exempt.

Related or Affiliated Nonprofit Entity

However, primary or secondary schools can still meet the cap-exempt requirement through the second prong of the exemption category, that of the “related or affiliated nonprofit entity” (with an institution of higher education).

In filing the H-1B cap-exempt petition, the cover letter should demonstrate how the petition is cap-exempt by explaining how the petitioner, beneficiary, line of work, and how they fit the exemption clause and the entities covered. Citing specific language from two important documents on this issue, the 2006 Aytes Memo on H-1B Cap Exemption and the Administrative Appeals Office (AAO) 2006 Texas decision (EAC 06 216 52028) is a must in arguing whether the petitioner is cap-exempt, especially if one is using the “related or affiliated” argument.

The AAO case mentioned (2006 EAC 06 216 52028) has been one of the most cited sources for “related or affiliated” cap-exempt based H-1B petitions. This case addressed the issue of whether a Texas nonprofit public school district as the petitioner was cap exempt. The USCIS in Vermont initially denied the case and one of the grounds was that the petition was subject to the cap. After appeal, the AAO granted the H-1B, finding that the school’s Teachertrak program is related or affiliated with an institution of higher education. The AAO provided citable language, stating that in order to demonstrate that the petitioner is an affiliated or related nonprofit entity, it should show one or more of the following: a) shared ownership or control by the same board or federation; b) the petitioner is operated by an institution of higher education; or; c) the petitioner is attached to an institution of higher education as a member, branch, cooperative, or subsidiary. The AAO found that the petitioner in this case met the third prong, that of a member, branch, cooperative, or subsidiary, and thus made a finding that it was related or affiliated with an institution of higher education.

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On July 20, 2012, the Board of Immigration Appeals (BIA) held that K-4 visa holders could only adjust status based on the I-130 filed by the K visa petitioner, and not on the basis of her own subsequent marriage to a U.S. Citizen.

In Matter of Valenzuela, 25 I&N Dec. 867 (BIA 2012), the respondent came to the U.S. with K-4 visa as a derivative of her mother’s K-3 visa (as the spouse of a United States citizen).  Her mother adjusted her status to that of a lawful permanent resident based on her marriage to the K visa petitioner (U.S. Citizen husband). The respondent also sought to adjust her status based on the visa petition filed on her behalf by the K visa petitioner (Respondent’s step-father).  However, the I-130 petition was denied as a result of the Respondent’s failure to attend the interview. Later, she married her U.S. citizen husband, and she sought to adjust her status again based on marriage to a U.S. citizen.  However, the Immigration Judge denied her adjustment application because she is ineligible to adjust her status on any basis other than I-130 filed by the K visa petitioner (her step-father in instant case).

The issue was whether a derivative of a K visa (K-4 visa holder) may adjust her status to that of a lawful permanent resident based on her own subsequent marriage to a U.S. citizen.  The BIA concluded that the statute clearly bars the adjustment of K visa derivative through a different petition.  The BIA held that “if the respondent were correct that a K visa derivative beneficiary is eligible to adjust through a different petitioner, then a K visa derivative would be in a better position than the principal K visa holder.”  The BIA also added that they cannot presume that one type of petitioner may be substituted for another in order to make an alien eligible for adjustment of status.

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