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US Citizenship & Immigration Services Updates

By Dev B. Viswanath, Esq.

 

USCIS Announces Lockbox Filing Flexibilities

U.S. Citizenship and Immigration Services (USCIS) will offer filing flexibilities to provide relief to certain applicants and petitioners impacted by delays at a USCIS lockbox. These flexibilities only apply to benefit requests submitted to a USCIS lockbox and not to USCIS service centers or field offices.

The following temporary flexibilities are effective for 60 days from June 10 until Aug. 9, 2021:

  • If you submitted a benefit request to a USCIS lockbox between Oct. 1, 2020, and April 1, 2021, and that request was rejected during that time frame solely due to a filing fee payment that expired while the benefit request was awaiting processing, you may resubmit the request with a new fee payment. If USCIS concurs that it has rejected the benefit request because of the delay, USCIS will deem the request to have been received on the initial filing date it was first received and waive the $30 dishonored check fee.
  • USCIS will allow applicants and petitioners to submit documentation with a benefit request resubmission demonstrating that because of the time that elapsed between when a benefit request was originally submitted to a USCIS lockbox and when USCIS rejected it, an applicant, co-applicant, beneficiary or derivative has reached an age that makes them no longer eligible to file for the benefit requested. If USCIS agrees that the delayed rejection caused the person to be ineligible due to age, USCIS will accept the request and deem it to have been received on the date the initial benefit request was received. This flexibility does not apply to Form N-600K, Application for Citizenship and Issuance of Certificate Under Section 322.

Applicants and petitioners can contact USCIS to verify previously filed benefit requests have not been rejected in error. If USCIS concurs, the agency may allow applicants and petitioners to resubmit an erroneously rejected benefit request and deem the benefit request to have been received on the date the initial benefit request was first received at a USCIS lockbox.

Vermont Service Center Address Change

Effective June 14, 2021, the Vermont Service Center will no longer receive any incoming mail at the St. Albans, VT facility, which is being decommissioned. Mail sent to the previous addresses will be forwarded for one year, but any mail sent to the previous addresses after June 2022 may be returned to the sender by the United States Postal Service or the courier service used. For any information related to these addresses please feel free to contact our office or refer to the USCIS website.

For any information or to discuss how these changes may impact your matter please do contact an experienced US Immigration Attorney.

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India Latest News

US Consulate Mumbai starts limited Immigrant Visa Services

By Dev B. Viswanath, Esq.

 

Big news from the US Embassy in India regarding restarting Immigrant Visa Processing at the US Consulate – Mumbai, albeit at a much slower and limited pace than before the Covid-19 pandemic. Still, very good news!

As of June 7, 2021, the U.S. Consulate in Mumbai is reopening Immigrant Visa Unit appointments of all types:

  • Rescheduling of cancelled appointments
  • SB-1 status and visa applications
  • LPR services (boarding foil)
  • Reissuance of expired visas
  • K applications

The Consulate will continue to contact those people with appointments that were cancelled in April-May 2021 and Spring 2020, in chronological order, by visa category, with instructions to continue processing their cases.  The Consulate is also resuming 221(g) submission in all categories and the scheduling of routine cases through the National Visa Center, by visa category, as public health conditions allow.

Due to limited appointment availability, the Consulate is currently unable to reschedule any cancelled appointments directly, and availability for rescheduling may be very limited, with appointments unavailable at some times. Furthermore, in light of the unpredictability of the pandemics affects on the local population as well as possible outbreaks again, timelines and guarantees that the processing will continue without disruption cannot be made.

New appointments can be made through the consular website for visa appointments. The post will add appointments as often as there is availability, but please expect appointment slots to fill quickly.  Please continue to monitor the website for appointment availability.  Detailed information on the current status of visa services and restrictions related to the COVID-19 can also be found on the consular webpage.

Please note that travel restrictions remain in effect in many states in India and the availability of appointments does not mean that you will be able to travel to the Consulate or a Visa Application Center (VAC).  Please ensure you will be able to travel before making an appointment.

As appropriate, visa applicants should follow the instructions given to them for registering for appointments, and monitor their email address for confirmation and further information. Multiple separate attempts to contact the Embassy or Consulate will slow communication.  For more questions on the Consular reopening or Immigrant Visa Processing, please contact an experienced Immigration Attorney.

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Please Don’t Make Me Leave!

Cancellation of Removal for Non-Lawful Permanent Residents

By Dev B. Viswanath, Esq.

 

            A non-lawful permanent resident (someone without a green card) who is in removal proceedings may be eligible for cancellation of removal. If a non-LPR is not scheduled to have a hearing in Immigration Court or they already appeared in Immigration Court and their case is closed, they will not be able to apply for cancellation of removal. To apply for cancellation of removal, the non-LPR must submit Form EOIR-42B with supporting documents showing that they meet all of the eligibility requirements to the Immigration Judge and the determination to grant this relief is discretionary.

            Am I eligible for cancelation of removal? 

In order to be eligible for cancellation of removal the non-LPR must have been continuously physically present in the United States for at least ten years. The ten-year physical presence period starts at the date of entry and stops either when a Notice to Appear in immigration court by the Department of Homeland Security is issued, or if certain criminal offenses are committed, or if they have a single absence from the United States of 90 days or multiple absences from the United States adding up to 180 days or more. A Notice to Appear is a document given to a non-LPR to put them on notice of deportation or removal proceedings.

The non-LPR must also have been a person of good moral character during the ten-year period of presence. The non-LPR must also not have any criminal convictions which would render them ineligible for Cancellation. The non-LPR would need to show that possible deportation would cause “exceptional and extremely unusual hardship” to their LPR or U.S. citizen qualifying relative. A qualifying relative is a spouse, child, or parent. To meet the standard of exceptional and extremely unusual hardship the non-LPR must show that their deportation would cause the qualifying relative to suffer hardship which would be substantially worse that the hardship normally expected from deportation or separation.

Cancellation of removal can be granted only by an Immigration Judge and the non-LPR needs to present a convincing case in order to avoid an Order of Removal. Factors to be considered are whether there are many family members here; whether there are US born children who will have difficulty relocating, medical problems, financial considerations and other equities which may get weighed by the Judge.  Witnesses, medical professionals, and other experts may often be used.  However, if granted, the person will not only be prevented from being deported, but he will also be granted a green card.  There are a limited number of Cancellation of Removal grants that are allowed per year, and currently there is a backlog, which means that even if one were to be granted by the court, it may not happen immediately.  However, this relief is sometimes the only chance that an individual may have to remain in the US if in proceedings and is a very valuable and useful form of relief to the right individual.

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Latest News USA

National Interest Waiver – Employment Based US Immigration

By Dev B. Viswanath, Esq.

Certain foreign individuals who would like to work in the United States may be eligible for an employment-based, second preference visa if they have an advanced degree or its equivalent, or have an exceptional ability. Exceptional ability means having a degree of skill considerably higher than usually encountered in the fields of science, art, or business.

A national interest waiver petition is part of the employment-based, second preference visa category which is when a foreign employee requests that the labor certification be waived because it is in the best interest of the United States. There is no definition that clearly states which jobs qualify for a national interest waiver, but they are usually granted to those foreign employees who have an exceptional ability and whose employment would benefit the United States. A foreign employee does not need to have both an advanced degree and an exceptional ability, it can be either one. Foreign employees may petition for a national interest waiver for themselves and do not need an employer for the waiver.

The supporting documents for the national interest wavier are very important and key in submitting a successful waiver application.

There are a few important factors that are considered in determining whether a foreign employee will be granted a national interest waiver:

  • If the foreign employee’s admission will be beneficial to the American economy;
  • If the foreign employee’s admission will improve the working conditions and wages of U.S employees;
  • If the foreign employee’s admission will improve training and educational programs; and
  • If the foreign employee’s admission is asked for by an interested U.S. government agency.

Any dependents of EB-2 visa holders, spouse and children under the age of 21, may be eligible for derivative immigrant status.

The National Interest Waiver (NIV) allows for a much faster process towards getting a green card, by removing the step of the labor certification with the Department of Labor and the obstacle of having to recruit for the position.

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President Biden’s Proclamation for India Ban – Not Everyone is Excluded!

By Dev B. Viswanath, Esq.

On April 30, 2021, President Biden signed a Proclamation suspending the entry of certain nonimmigrant travelers who have been physically present in India, which went into effect on Tuesday, May 4. This is related to the 2nd Covid 19 outbreak in India, which has been determined by the CDC to be particularly dangerous.

Immigrants, U.S. citizens, and lawful permanent residents (LPR) are not subject to the proclamation.  Some other exceptions include, but are not limited to: foreign diplomats traveling to the United States on A or G visas and certain family members of U.S. citizens or lawful permanent residents including spouses, minor children, parents (provided that his/her U.S. citizen or lawful permanent resident child is unmarried and under the age of 21), and siblings (provided that both the sibling and the U.S. citizen or lawful permanent resident are unmarried and under the age of 21).

There are also several national interest exceptions that are allowed to travel and enter the United States.  The determination of what would be in the national interest has been determined by the Secretary of State.  Thus far, the Secretary has determined these groups:

  • Immigrants
  • Fiancé(e)s
  • Students and certain academics covered by exchange visitor programs. Students subject to these geographic COVID proclamations due to their presence in India, China, Iran, Brazil, or South Africa, may qualify for a National Interest Exception only if their academic program begins August 1, 2021 or later.
  • Travelers who are seeking to provide vital support for critical infrastructure sectors
  • Journalists
  • Pilots and aircrew traveling to the United States for training or aircraft pickup, delivery, or maintenance, including individuals who are traveling to the United States on B-1/B-2, B-1, or M-1 visas, or Visa Waiver Program authorizations. This also include certain M-2 dependents when the principal’s necessary training is four weeks or more.
  • Certain exchange visitors, including:
  1. i)Travel by a variety of au pair groups.
  2. ii)Travel for an exchange program conducted pursuant to an MOU, Statement of Intent, or other valid agreement or arrangement between a foreign government and any federal, state, or local government entity in the United States that is designed to promote U.S. national interests if the agreement or arrangement with the foreign government was in effect prior to June 24, 2020.

iii)    Travel by Interns and Trainees on U.S. government agency-sponsored programs (those with a program number beginning with “G-3” on Form DS-2019): An exchange visitor participating in an exchange visitor program in which he or she will be hosted by a U.S. government agency and the program supports the immediate and continued economic recovery of the United States.

  1. iv)Travel by Specialized Teachers in Accredited Educational Institutions with a program number beginning with “G-5” on Form DS-2019: An exchange visitor participating in an exchange program in which he or she will teach full-time, including a substantial portion that is in person, in a publicly or privately operated primary or secondary accredited educational institution where the applicant demonstrates ability to make a specialized contribution to the education of students in the United States.
  2. v)Travel in support of critical foreign policy objectives:
  • Derivative family members accompanying a noncitizen who is excepted from or otherwise not subject to the Proclamation and who is engaging in certain types of long-term employment, studies, or research of four weeks or longer.

Travelers in these categories who wish to visit the United States and have a valid visa in the appropriate class, or who are seeking to apply for a visa, and believe they may qualify for a national interest exception should contact the nearest U.S. embassy or consulate before traveling. If you or a loved one have any questions about the President’s India Travel Suspension Proclamation, please contact a knowledgeable professional.

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Latest News USA

O-1 Visa: The Cream of the Crop, Rise to the Top!

By  Dev B. Viswanath, Esq.

The O-1 nonimmigrant visa is a temporary work visa available for an individual who has an extraordinary ability or achievement. The O nonimmigrant visa can be divided into four different categories:

  • O-1A: individuals with a special ability in the sciences, education, business, or athletics
  • O-1B: individuals with a special ability in the arts or special achievement in the motion picture or television industry
  • O-2: individuals who will join an O-1 nonimmigrant visa holder to assist in a specific event or performance. If an O-2 is assisting an O-1A visa holder their assistance must be an “integral part” of the O-1A’s activity. If an O-2 is assisting an O-1B visa holder their assistance must be “essential” to the completion of the O-1B’s production.
  • O-3: dependents, spouse and children under the age of 21, of O-1’s and O-2’s.

To meet the requirements for an O-1 visa, an individual must show an extraordinary ability and the receipt of national or international acclaim for it. This visa is a temporary visa allowing an individual to continue work in the U.S. in the area of extraordinary ability. If an individual is applying for an O-1 visa in the motion picture or television industry, they must show some sort of special achievement coupled together with a degree of skill and recognition above that of an ordinary individual in the same field.

To apply for an O-1 visa the petitioner must file documentary evidence such as the contract between petitioner and beneficiary, an advisory opinion from a peer group or person with expertise in the beneficiary’s area of ability, and other supporting documents should also be submitted. An O-1 visa petition can also be filed by an agent who may be the actual employer of the beneficiary, the representative of both the employer and the beneficiary, or the person or entity authorized by the employer to act for, or in place of, the employer as its agent. And an O1 Visa Holder may apply on their own, depending on the circumstances as a self-petition.

Under this visa individuals may live and work in the United States for an initial period of up to three years and then apply for an extension. USCIS will determine the time necessary for the extension to accomplish the initial event or activity in increments of up to one year. Any dependents of O-1 nonimmigrants, spouse and children under the age of 21 may be eligible for O3 nonimmigrant status. However, dependents are not allowed to work but they may participate in full or part time study. O3 status is granted for no longer than the period of time granted to the principal O-1/O-2 nonimmigrant.

After an O visa holder has completed their stay in the U.S. the employer is responsible for the reasonable cost of return transportation to the O nonimmigrant’s last place of residence. If an agent filed the petition for the employer, then the agent and the employer would be equally responsible for paying the return transportation cost. However, if the O nonimmigrant voluntarily resigned from their employment then they will have to pay for their own cost of transportation back home.

The O-1 Visa is a fantastic type of visa to have and utilize for work and temporarily living in the United States for a person who qualifies.  Moreover, a person who qualifies for an O-1 Visa will likely also qualify for an EB-1 Visa should they ever want to live permanently in the United States.  If you or someone you know have gained widespread recognition in a particular field of study which you think fits into what we have described above, and are interested in finding out more, please consult with an experienced attorney.

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H-3 Nonimmigrant Trainee or Special Education Exchange Visitor Visa

By Dev B. Viswanath 

An H-3 visa is a work visa for foreign individuals who would like to come to the U.S. for a specific period of time to receive training or special education.  If an individual comes to the U.S. to receive training, they must enroll in a training program which is not available to them in their home country. Some areas of training can be in the fields of agriculture, commerce, communication, finance, or transportation. The individual cannot receive a full academic degree while in the training program or receive any medical training. An individual’s purpose for attending a training program should be to obtain advanced skills which are not available in their home country and then go back home and apply them. The training should also help the individual advance in their career. If an individual comes to the U.S. to receive special education training they must enroll in an academic or hands-on program in order to advance their understanding of children with special needs. Special needs may include physical needs, mental challenges, or emotional challenges. 

In order to qualify for an H-3 visa a foreign individual must receive an invitation from the training organization to attend their program. The individual should provide USCIS with a letter describing in detail the training organization and the program they will be enrolled in. The letter should include information such as: 

  • The syllabus of the program;

  • The schedule of when lectures will be held, when, and if necessary, how many hours of practical work will take place;

  • What benefits the organization receives by providing that specific type of training; 

  • How the applicant will be benefited by the program; and/or

  • Why this type of program is not available in the individual’s foreign home.

Similar to other H visas, the H-3 visa cannot be applied for by a foreign national themselves, the organization where the training will be held needs to petition for the foreign national to be granted an H-3 visa. The organization is required to send a petition to USCIS with a description of the training or special education program, proof that such program is offered at the organization, and supporting documents as to why the applicant should be granted an H-3 visa. Supporting documents can include information about an applicant’s educational background, employment history, and if they received any training in the past. An applicant who would like to receive special education training must show that they are almost done with a baccalaureate or higher degree program in special education, or has already received a baccalaureate or higher degree program in special education, or have lot of prior training and experience teaching children with physical, mental, or emotional disabilities. A form I-129 must also be filled out and included in an H-3 visa petition.

An H-3 visa holder is not allowed to work in the U.S, the only type of work that is allowed is practical work that is part of the course work of the training program. There are not many H-3 special education visas granted yearly, only 50 H-3 special education visas may be granted in a fiscal year. An H-3 visa holder in a training program may be allowed to stay in the U.S. for up to 2 years and an H-3 visa holder in a special education program may be allowed to stay in the U.S for up to 18 months. Spouses and children under the age of 21 may come with an H-3 visa holder to the U.S. as an H-4 nonimmigrant. Spouses and children are not allowed to work while under the H-4 visa status but they are allowed to attend school.

 

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US Consular Update – India!

By  Dev B. Viswanath, Esq.

Pursuant to a recent announcement by US Consular Post – Mumbai, effective immediately, U.S. Consulate General in Mumbai will only provide essential services to U.S. citizens and limited visa services until further notice due to rising COVID rates and for the safety and protection of our customers and staff.  Accordingly, some scheduled visa appointments will be cancelled.

The Consulate has been notifying applicants directly by email regarding appointment cancellations. Applicants not notified of an appointment cancellation should plan to attend their interview appointment on the scheduled date and time.  Appointments in the U.S. Embassy in New Delhi and consulates general in Chennai, Hyderabad, and Kolkata are unaffected at this time.

U.S. Embassy New Delhi and the consulates general in Chennai, Hyderabad, and Kolkata continue to accommodate a limited number of regular visa appointments across all visa classes. Appointments will be added as often as they have availability, but the Consulate expects appointment slots to be filled quickly. Other routine services remain temporarily suspended.

Due to significant backlogs from the past year in pandemic, the US consular services cannot confirm when delayed immigrant visa appointments may occur.  If you have received written notification from the Immigrant Visa Unit at U.S. Consulate General Mumbai requesting you schedule an appointment for a visa interview then you should inquire right away to see if you still can attend your interview.

Here are some additional updates from the Consular Post:

Negative COVID-19 Test Required for Travel: Effective January 26, the Centers for Disease Control and Prevention (CDC) will require all air passengers entering the United States to present a negative COVID-19 test (a viral detection test for SARS-CoV- 2 approved or authorized by the relevant national authority), taken within 72 hours of departure.  Airlines must confirm the negative test result for all passengers before boarding.  Airlines must deny boarding of passengers if they do not provide documentation of a negative test or recovery.

Drop Box Applications:  Consular sections across India are now accepting drop box applications for renewals of all nonimmigrant visa categories up to 48 months after expiration of your visa at Visa Application Centers across India expired within the 48 months prior to the date of application is eligible for an interview waiver for a visa application in the same classification.

Employment-based Visa Appointments:  Presidential Proclamation 10052, which temporarily suspended the entry of certain H-1B, J (for certain categories within the Exchange Visitor Program), and L nonimmigrants, expired on March 31, 2021.  The U.S. Embassy and Consulates in India are accommodating a limited number of employment-based visa appointments, including those previously affected by the suspension. Please note that processing time for nonimmigrant visas varies, but generally takes at least one week.

Visa Fees Validity Extension:  The U.S. Embassy and Consulates in India understand that many visa applicants have paid the visa application processing fee and are still waiting to schedule a visa appointment.  They state: We are working diligently to restore all routine visa operations as quickly and safely as possible.  In the meantime, rest assured that the U.S. Mission will extend the validity of your payment (known as the MRV fee) until September 30, 2022, to allow all applicants who were unable to schedule a visa appointment as a result of the suspension of routine consular operations an opportunity to schedule and/or attend a visa appointment with the already paid fee. Please continue to monitor our site for information on when we will return to routine visa operations.

How to Request an Expedited Appointment:  Applicants can request an expedited appointment through the online appointment system. You must already have a confirmed interview appointment date in order to request an expedited appointment.  If your emergency appointment request is approved, you will be notified with instructions via email.  You should not cancel your existing appointment unless you receive a confirmation that your request for an emergency appointment has been approved.

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Missed out on being selected for H1B pre-registration?

Not to worry, there is still hope and options to consider

By Dev B. Viswanath, Esq.

The H1B Pre-registration period for fiscal year 2022 has ended and those who were selected have been notified. That is roughly 57,500 general pool applicants and an additional 20,000 for US Master’s Cap case. So, we have recently received several inquiries from people who have been devastated to find out that they were not picked in the lottery. I am sorry to hear that you were not picked, but as long as the matter was not rejected or denied, you are still in the race and can be selected in round 2 or round 3 picks.

The pre-registration process is fairly new, in 2nd year to be precise, and now we have a new Administration and things could change, so please do keep that in mind.

Typically, this is how it works:

  1. First round pre-registration candidates are randomly selected from all the Quotas. Those who are picked will have 90 days to file their H1B – earliest date they can start to file would be April 1st 2021.

  1. Anyone who is not selected, outright rejected, or denied because of duplicate filings, will be kept as “submitted” until a short bit after 90 days.

  1. Within and up to that 90-day period, some H1B petitions will be filed and denied, and some will be filed and withdrawn, and still some will just never be filed within the 90 days.  So, all the leftover visas that were not positively used will be utilized for 2nd round picks.

  1. Typically, 2nd round picks will happen around the 2nd or 3rd week of July, after USCIS has had a chance to tally all the visas left and available.  And then a random selection will occur again.

  1. After all the visas available are used to pick random folks for round 2, those people will have 90 days to file and everyone else will remain as “submitted”.

  1. Sometime around October/November round 3 will begin after the 90 days for round two and also to account for any additional denials starting from Round 1.

  1. That is basically the outline and breakdown. It gives the government and the Employers and Employee Candidates to maximize the chance and opportunity for usage of the full H1B visas allotted in any given fiscal year, which was not the case in previous years.

Having said that, I think it worthwhile to consider options too.  Assuming that the candidate is in the United States. How long does the Foreign National’s current visa/OPT continue until?   A few options may be: 1) Return to the Home Country; 2) File for a change of status to visitor visa; or 3) Take on another course or degree to maintain the F1 visa he/she has.   There are some long term options that could be considered if the equities are correct such as: preparing for an L1A intracompany transfer, considering the great options available in Canada and the EB-5 investment based green card option just to state a few thoughts.

But rest assured, there are options available and just because you were not picked yet in the H1B lottery does not mean you are 100% out for the fiscal year selection. If you or a loved one have any questions at all, please reach out to a knowledgeable Immigration Professional!

 

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