This chart shows the average amount of time it takes to receive a decision in a particular type of case after the case file is received by the AAO. Processing times are directly related to the volume of cases received.

* Within current USCIS processing time goal of six months or less

Cancellation of Removal for Permanent Residents

A lawful permanent resident (LPR or green card holder) of the United States who is placed in removal proceedings before an Immigration Judge is eligible for Cancellation of Removal if he or she meets the following requirements:
(1) Has been lawfully admitted as a permanent residence for at least five (5) years;
(2) Has resided in the United States continuously for seven (7) years after having been admitted in any status; and
(3) Has not been convicted of an aggravated felony.
The term “aggravated felony” refers to a list of crimes set forth by Congress and others defined by the Courts.
The term is misleading because some offenses are included even though they are neither “aggravated” or felonies.
In short, some misdemeanors will be considered to be aggravated felonies for removal (deportation) purposes.
Cancellation of Removal for Non-Permanent Residents
A non-lawful permanent resident (non-LPR) can qualify for Cancellation of Removal if he or she meets these requirements:
(1) Has been physically present in the United States for a continuous period of at least 10 years preceding the date of the application for cancellation of removal;
(2) Has been a person of good moral character during the ten-year period;
(3) Has not been convicted of any crime(s) that can render him or her inadmissible or deportable; and
(4) Establishes that removal (deportation) would result in exceptional and extremely unusual hardship to his or her spouse, parent, or child who is a citizen or lawful permanent resident of the United States.
“Good Moral Character”
Although the term “good moral character” itself has not been defined by Congress, the Immigration and Nationality Act (“INA”) does list persons who are NOT of good moral character.
Persons not of good moral character include, but are not limited to, the following:
• Habitual drunkards;
• Persons who have engaged in prostitution, commercialized vice, and/or alien smuggling;
• Aliens previously removed;
• Aliens who have committed a crime involving moral turpitude or a controlled substance offense;
• Aliens suspected of being controlled substance traffickers;
• Aliens with multiple criminal convictions for which the sentence was a total of 5 years or more of confinement;
• Aliens with 2 or more gambling offenses or whose income is principally derived from illegal gambling;
• Aliens who have given false testimony for the purpose of obtaining an immigration benefit;
• Aliens confined to imprisonment for a total of 180 days or more during the period required of physical presence;
• Aliens who have committed an aggravated felony.
Deportable/Inadmissible Crimes
If you are an Aggravated Felon or have committed a crime involving moral turpitude, you are deportable or inadmissible to the United States.
Aggravated felonies are listed in the Immigration & Nationality Act (INA) but crimes involving moral turpitude (“CIMT”) are not defined.
The Courts have ruled that a CIMT generally refers to conduct that is “inherently base, vile, or depraved.”
Consequently, a CIMT is an illegal act that is, in itself, morally reprehensible and intrinsically wrong, as opposed to an act that is wrong simply because it is prohibited by law.
Examples of CIMT’s are offenses involving fraud and theft.
“Exceptional and Extremely Unusual Hardship”
Typically, the the most difficult obstacle to obtaining cancellation of removal for non-permanent residents is proving exceptional and extremely unusual hardship. This is defined as hardship that is substantially beyond that which would ordinarily be expected to result from an alien’s deportation.
The person or persons suffering the hardship must be a U.S. citizen or lawful permanent resident spouse, parent, or child of the removable alien.
Hardship to the applicant himself is irrelevant.
Some factors considered in determining exceptional and extremely unusual hardship include, but are not limited to:
• Age of the qualifying U.S. citizen or lawful permanent resident relative, particularly if elderly or school-age children;
• Health of the qualifying relative, especially very serious health issues;
• Circumstances of the qualifying relative. For example, a U.S. citizen child with special needs in school;
• If the qualifying relative is a child, whether he or she can speak, read, or write in the alien’s native language.

Removable aliens who fear returning to their home country (and who have no qualifying relative for Cancellation of Removal), should explore other forms of relief such as asylum, withholding of removal, and/or relief under the Convention Against Torture

Deportation and removal from the United States is the harshest punishment you could suffer for violating United States immigration laws and criminal laws. Many non-citizens all-too-often do not realize that even a minor infraction or a conviction, even if it occurred decades ago, could trigger deportation or removal proceedings. In many cases, you stand to suffer harsher immigration consequences than criminal consequences for a conviction. For example, if you had a conviction for which you received probation, if placed in removal proceedings on the basis of that conviction, you could be subject to indefinite mandatory detention in immigration custody far away from your home and family, and may ultimately be ineligible for a waiver of deportation, even if you have been a green card holder for decades and decades.

Many people in the U.S. with criminal convictions have not been placed in removal proceedings, but just because a person was not placed in proceedings after their convictions does not mean that it will not happen in the future. A person can be place in removal proceedings if they are stopped by the police for a minor traffic infraction such as speeding. When the police run their record and see that they are not a U.S. citizen, they call the Immigration authorities who place that person in detention. Many people upon return to the U.S. for a brief trip abroad are placed in proceedings by the airport inspectors. In Florida and other states, the police are detaining individuals who fail to show valid unexpired driver’s licenses at traffic stops. We have seen many cases in Florida where a people with old criminal convictions are placed in removal proceedings because they were stopped for minor traffic infractions by the police or upon returning from trips outside the U.S.
Detention Based on Deportation Issues

Section 236(c) of the Immigration and Nationality Act lists broad categories of noncitizens who are subject to mandatory detention based on their removability under specific criminal and security related provisions, including, among others, INA § 212(a)(2) and INA § 237(a)(2)(A)(ii), (A)(iii), and (B), (C), and (D). On April 29, 2003, the Supreme Court issued a 5-4 decision in Demore v. Kim, 123 S. Ct. 1708 (2003). The Court held that under INA § 236(c), the government may detain classes of lawful permanent residents without conducting individualized bond hearings to determine whether they pose a flight risk or danger to the community.

Only individuals who were released from criminal custody (meaning physical custody) after October 8, 1998 are subject to mandatory detention. Under the Board of Immigration Appeals decision Matter of West, 22 I. & N. Dec. 1405 (BIA 2000), this includes individuals who are released from physical custody following a criminal arrest, regardless of whether the person is sentenced to incarceration.
Individuals subject to mandatory detention will not be released on a bond pending their removal case, and they will have to fight their deportation case while remaining detained. This, of course, is a very difficult situation for both the detained individual and his or her family members.
However, whether an individual is even subject to mandatory detention is an ongoing issue of great importance and debate. If you are concerned about whether you or someone you know and love would be subject to mandatory detention if detained by the U.S. Immigration and Customs Enforcement, please contact our office for a consultation to discuss your situation in detail.

What types of crimes are deportable?

While there are many crimes that could form the basis for deportation, the most common are:
• Drug offenses (possession or sale);
• Sex offenses (including convictions for sexual abuse of a minor or endangering the welfare of a child);
• Fraud convictions (including credit card fraud and visa or passport fraud);
• Theft offenses (including burglary and robbery)
• Aggravated felonies (including murder, rape, and drug trafficking)
• Crimes of Moral Turpitude including two or more petty offenses
• Domestic violence (including stalking)
• Weapons possession (including possession of a firearm)
• Aggravated Assault
• Child abuse
• Kidnapping
• Arson

What types of crimes are not deportable?

• One Petty offense. A conviction is considered to be a petty offense if the maximum penalty possible for the crime did not exceed imprisonment for one year and if the person convicted of the crime was not sentenced to a term of imprisonment of more than 6 months.
• Simple assault
• Simple battery
• Child abandonment
• DUI
• Leaving the scene of an accident
• Breaking and entering
• Some types of burglary
• Possession of less than 20 grams of marijuana

If you have ever been convicted of any of the crimes listed above-or any other crime-it is in your best interest to speak with an immigration attorney. While you may believe your conviction was “just a violation” or “just a misdemeanor,” it may still affect your immigration status and your ability to work and stay.
Withhold of Adjudication

Many immigrants believe that if they have a withhold of adjudication rather than a conviction, they are not removable. This is an incorrect assumption. U.S. Immigration law states that a withhold of adjudication is the same as a conviction, and therefore pleading “no-contest” in exchange for a withhold of adjudication will not exempt a person from being placed in removal proceedings, depending on the crime.

Sealing and/or Expungement of Criminal Records

Many immigrants mistakenly believe that if they are able to seal or expunge a conviction, that they are not removable for that conviction. That is also a mistaken assumption. The sealing or expungement of criminal records do not ameliorate the immigration consequences of a conviction.
Post Conviction Relief

Many courts are now considering post-conviction relief for noncitizens with convictions where advice on pleas may have been ineffective. One of the big issues now is whether these cases will be applied retroactively for post-conviction relief. The majority of decisions so far are coming out this way. If it is believed that post-conviction relief could be necessary to avoid adverse immigration consequences, know that time may be of the essence to seek help. Many forms of relief are time barred, and immigration removal actions move on their own calendar, without regard to prospective relief in state courts. Padilla v. Kentucky is a landmark U.S. Supreme Court decision from 2010 which held that defense counsel has an affirmative duty to competently address immigration issues presented by a client’s criminal charges. As per the Court’s decision, “Accurate legal advice for noncitizens accused of crimes has never been more important.” The Court explicitly held that deportation is not a “collateral consequence” of the proceeding, as was held by the Kentucky Supreme Court, and has been commonly thought by attorneys. This means that if a person was misadvised by their attorney that they would suffer immigration consequences as a result of their plea, they could reopen their criminal case and vacate the conviction.

How can I Stop Deportation?

If you are subject to deportation or removal, depending on the specific facts of your case, you may be eligible for relief from deportation in forms of waivers of deportation or other forms of discretionary and/or mandatory relief. Some of these forms of deportation relief include but are not limited to:
• Cancellation of deportation or removal (for green card holders and non-green card holders)
• Waivers under former INA § 212(c) (only a narrow class of people are eligible for this)
• Waivers under INA § 212(h) and INA § 212(i)
• Suspension of deportation (virtually eliminated but still available to few)
• Voluntary departure
• Adjustment of Status
• Asylum, Withholding of removal, and protection under Article 3 of United Nations Convention Against Torture
• Post conviction relief

How Do I Win My Deportation Case?

Just because you may be eligible to apply for deportation relief does not guarantee that you will win. Be wary of anyone who says he or she can “guarantee” that you will win. An immigration judge has to consider many things before deciding whether you deserve to stay in this county.
Most common factors the immigration judges look at in considering various deportation waiver applications and in deciding whether you deserve to stay here include, but are not limited to:
• How long you have lived in the United States with or without a green card (the longer you have been there, the better for you)
• Who in your immediate family (usually a spouse, parent, or a child) is a U.S. citizen of a green card holder (more citizen and green card holder family members mean you have an established family here)
• Your employment history (the fact that you are and have been working shows you are not a public liability to someone)
• History of tax payment
Tip: You should always pay taxes regardless of whether you are here legally or not. If you do not have a social security number and cannot obtain one, you must obtain and use an IRS Individual Taxpayer Identification Number (TIN). Click here to learn how to obtain a tax identification number so you can pay your taxes!)
• The nature and extent of your involvement in the community (church, volunteer work, etc.)
• The nature and extent of your history of violation of the immigration laws (being present illegally or working without authorization, etc.)
• The nature and extent of your criminal history, if you have any (convictions, jail sentence, etc.)
• The extent of your rehabilitation, if you have a criminal history (single incident, pattern of criminal behavior, etc.)
• Hardships suffered by your United States citizen or lawful permanent resident family members if you were deported (their ability or inability to relocate with you, etc.)
Note: In some cases, you may be required to show different levels of hardship to your qualifying relatives, such as “extreme hardship” or hardships that are “unusual and outstanding.” This will depend on the type of relief application filed.
• Any negative factors (this will depend on your case)
• Any positive factors (this will depend on your case)
Upon “looking into your life” and going through all the evidence and testimony you and the government lawyer submit, the immigration just is required to weigh and balance all of your negative factors and positive equities. If the good outweighs the bad, it is very likely that an immigration judge would grant you a waiver of deportation so that you can stay in the United States. However, if the immigration judge finds that the negative factors in your case, mostly, the nature and extent of any criminal history, outweigh all of your positive equities, you are likely to lose your case in immigration court.
And remember, even if you win, the U.S. Immigration and Customs Enforcement can appeal the immigration judge’s decision to the Board of Immigration Appeals, just like you can appeal if you lose. It is very rare that a deportation or removal case simply ends in immigration court with outright victory. Majority of the times, cases wind up on appeal, then go through motions, and a significant amount wind up in federal court litigation.

Competent Legal Representation is Key
There is rarely a case that is so clear cut “winable” or “hopeless.” It is always in your best interest to find competent legal representation, so that your case can be properly presented. Many times, cases are lost because of poor submission of documentary evidence to support a deportation relief application.
If you wish to consult Barry Lieber about how we can help you with your case in immigration court, at the Board of Immigration Appeals, or in federal court, please contact our office to schedule a consultation.

We at the Law Office of Barry Lieber have years of experience in obtaining bonds and parole for detained clients.

Purpose of Immigration Bonds

A person that is in the custody of the Immigration and Customs Enforcement (ICE) is being detained and is called a detainee.

Not all detainees are allowed to be released on bond. Depending on their immigration status and/or criminal history, certain persons may be subject to mandatory detention. A person subject to mandatory detention must fight against removal and deportation from inside detention.

Persons who think they are eligible for a bond but are unable to meet with an attorney should write to the Immigration Court and request a “Joseph Hearing” to show they do not meet the requirements for mandatory detention.

Like state and federal bonds, immigration bonds are designed to guarantee the appearance of the detainee at all hearings before the Immigration Court. Immigration bonds are immediately forfeited (given up) if the detainee does not appear for a required hearing.

Immigration Bond Hearings

Generally persons who are not “arriving aliens,” criminals, or terrorists are allowed to apply for a bond.

Usually when you are taken into custody by ICE, your bond will be set by ICE. Sometimes ICE may release you on your own “recognizance.” This means you do not have to pay a bond. Even if you did not have to pay a bond to be released, you must show up for all hearings before the Immigration Court.

If ICE does not set a bond for you, you can apply for a bond determination hearing with an Immigration Judge. You do not have to wait for ICE to issue a Notice to Appear (NTA)—you can apply for a bond as soon as you are taken into custody.

If ICE sets your bond in an amount that you think is too high, you can apply for a bond redetermination hearing with an Immigration Judge. But you should be careful in asking for this hearing—the Immigration Judge may reset your bond in an amount higher than the one set by ICE.

In determining the amount of your bond, the Immigration Judge usually looks at these things:

• Your family ties in the United States;
• Your criminal history;
• Your employment;
• Your financial ability to pay a bond;
• Your membership in community organizations;
• How you came to, and how long you have been in, the United States;
• Whether you have committed any immoral acts or participated in subversive activities; and
• Your eligibility for relief from removal.

The Immigration Judge is not allowed to set a bond below $1,500.00. This means that if a bond is set for you, it will be at least $1,500.00. After the Immigration Judge sets your bond (or decides that you are not eligible for bond), you may appeal the Immigration Judge’s decision to the Board of Immigration Appeals.

If, after your bond redetermination hearing, you still disagree with your bond amount, you can apply for another bond redetermination hearing. However, you can only apply for another bond redetermination hearing if your circumstances have significantly changed since your prior bond redetermination hearing.

Your bond case is separate from your immigration case. However, even if you get released on bond, you must show up for all hearings before the Immigration Court.

Options for Paying an Immigration Bond

There are two options for paying a bond for a detainee.

1. Cash Bond – A cash bond may be paid directly to ICE. A cash bond must be paid by cash, money order, cashier’s check, or U.S. bonds or notes. After the detainee has attended all required hearings before the Immigration Court, the money is returned to the person who paid for the bond.
2. Immigration Bondsman – The second option is to pay the bond by using the services of an immigration bondsman. The immigration bondsman charges a nonrefundable fee for handling the bond (the person paying the nonrefundable fee will not get the money back). Premiums (cost) for immigration bonds can range from 15 to 20 percent of the amount of the total bond amount set by the government. Usually the cost depends on the type of collateral used. Collateral is what is given to secure the bond. Examples of collateral include cars, homes, credit cards, and stocks.

Types of Immigration Bonds

The two types of immigration bonds are:

1. Delivery Bond – A person that is arrested by ICE and issued a Warrant of Arrest (Form I-205) and a Notice of Custody Conditions (Form I-286) may be eligible for a delivery bond.
2. Voluntary Departure Bond – If a person is granted Voluntary Departure, the person is allowed to depart the United States voluntarily after being placed in removal proceedings (or instead of being placed in removal proceedings). A person granted Voluntary Departure may have to post a bond to guarantee the person will depart the United States within the required time.

Parole:

Immigration and Customs Enforcement (ICE) has the authority to parole or release on bond foreign nationals not subject to mandatory detention.  Parole is granted in very limited circumstances.  It is available on a case-by-case basis for urgent humanitarian reasons or when there will be a significant public benefit.  A serious medical condition, pregnancy, or compelling reason why detention would not be in the public interest could form the basis for a grant of parole.

H-1B Persons in Specialty Occupation: The H1B visa program is the primary method for employers to recruit & hire international professionals to work in the USA. The H1B visa enables U.S. employers to hire foreign professionals for an initial period of three years and up to a total of six years, and in certain instances beyond six years.

H-1B1 Status for Nationals of Chile and Singapore: As a result of the United States-Chile Free Trade Agreement Implementation Act (Pub. L. 108-77) and the United States-Singapore Free Trade Agreement Implementation Act (Pub. L. 108-78), both of which became effective on January 1, 2004, a new nonimmigrant classification is available to nationals of Chile and Singapore. This new classification is known as the “H-1B1″.

Visa for Fashion Models – The H-1B3: The H-1B3 category applies to a fashion model that is nationally or internationally recognized and will be employed in a position requiring someone of distinguished merit and ability.

H-2A Temporary Agricultural Workers: The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature.

H-2B Temporary Non-Agricultural Workers: The H-2B nonimmigrant program permits employers to hire foreign workers to come temporarily to the U.S. and perform temporary nonagricultural services or labor on a one-time, seasonal, peakload or intermittent basis. The H-2B visa classification requires the

OVERVIEW

The H1B visa program is the primary method for employers to recruit & hire international professionals to work in the USA. The H1B visa enables U.S. employers to hire foreign professionals for an initial period of three years and up to a total of six years, and in certain instances beyond six years.

One of the things that makes the H1B so desirable is that, unlike many other nonimmigrant visa categories, it is a “dual intent” visa. This means that a visa will not be denied simply because a person has intentions to become a permanent resident. The assumption is that if for some reason the permanent residency petition is denied, the person would still have the intention to return home.

Aside from documenting that the position offered is in a specialty occupation and that the employee has the appropriate credentials for the job, the employer needs to verify that the H1B visa worker is being paid the prevailing wage for the work being performed and that employment of a foreign worker is not harming conditions for US workers.

H1B Visa Qualifying occupations include the following:  engineer, architect, teacher, professor, computer programmer,  financial analyst, accountant, market research analyst, public relations manager, advertising manager, marketing manager, art director, creative director, copywriter, lawyer, management consultant, scientific researcher, graphic designer, interior designer, industrial designer and human resources administrator.

Question: I am being offered a position in sales.  Does this qualify me for and H-1B visa?

Answer: Normally, a position in sales is not a “specialty occupation” and therefore does not qualify a person to obtain an H-1B visa.  There are, however, are many instances where a sales position does require an extensive body of knowledge, and would qualify for an H-1B.

The length of time that a worker can have an H1B visa is usually an ‘initial’ period of up to three years. The initial H1B visa can then be extended one time for up to a combined total of six (6) years.
Other regulatory provisions permit;
(1) the employer to request a period of less than three years,
(2) the employee to be employed on a part-time basis
(3) the employee to work for more than one US Employer simultaneously.

The H1B worker’s family may also be permitted to live in the US during the period that the H1B visa is in effect, but can not be a paid employee while on an H4 visa. An H1B holders Spouse and children (under the age of 21) can move to and live in thh US with the H1B holder – but they can not work unless they obtain their own work visa.

During the term of the H1B visa the employee can also apply for permanent residency. This is called “Dual Intent“, and is a privilege some other U.S. visas do not enjoy.

The H1B Cap – quota of H1B visas issued each year
The number of H1B visas issued each year is subject to a cap that is determined by US Congress. The current H1B cap is set at 65,000 plus an additional 20,000 for professionals with an masters degree or higher from a U.S. institution of higher education.

The H1B cap does NOT include or affect:
1) current H1B holders transferring their visa to a new employer / sponsor
2) ‘new’ applications for an H1B with: non profit organizations, Government Research organizations, and institution of higher education.

Basic Required Documentation for H1B visa

• University diplomas and/or transcripts
• High school diplomas if the worker has no university education
• Detailed resume/CV
• Job letters from previous employers, if needed
• Job offer letter from U.S. employer, detailing duties and proposed salary.

WHO QUALIFIES FOR AN H-1B VISA?

To qualify for an H-1B, you must have ONE of the following

1) A Bachelor’s degree or higher in the area of the specialty occupation (or the foreign equivalent degree from your Country), OR

2) 12 years work experience in the specialty occupation, OR

3) A combination of post-secondary education and work experience which is the equivalent to a bachelor’s degree.  The H-1B requirements for individuals with a combination of post-secondary education and work experience are as follows:  Your education and work experience must total 12 points.  For every year of university completed you get 3 points and for every year of work experience, you get one point.  For example, if a person has completed 2 years of university she has 6 points.  Therefore, to qualify for the H-1B she needs to show that she has 6 years of work experience.

Question: I am a graphic designer and have 2 years of university and 8 years of self employment.  Does my work as a self-employed graphic designer count?

Answer:  Yes, but you would have to document the self-employment by letters and/or affidavits from clients and other proof that you have worked as a graphic designer. 

Question: I have a bachelor’s degree in history and a U.S. company is hiring me as a market research analyst?  Do I qualify for an H-1B visa?

Answer: That depends.  Just having a degree doesn’t automatically qualify a person for an H-1B visa.  Normally USCIS issues H-1Bs for business-related occupations to those with degrees in business, finance, marketing, etc.  The degree should be in the area of the occupation, but there are instances where a liberal arts degree will qualify.

H-1B PROCESSING

H1B visa applications can be filed by U.S. employers by one of 2 methods:
- H1B Regular Processing, or
- H1B Premium Processing (15 day processing time)

The difference is that H1B Premium Processing is a faster method to obtain an H1B visa. However, the US Government does charge an extra fee of $1,225 for Premium Processing.

Regular Processing is a more cost-effective method but it takes longer. There is no set timeframe for a visa to be processed by the USCIS when filed through Regular Processing (it can take anywhere from 1 month to 6 months)

H1B Visa  Application Process:

1. Offer & Acceptance of H1B Employment – H1B Sponsoring Company files a petition on your behalf.
An employer can be an individual, partnership or corporation . Applications are “job specific.” If you change employers, your new employer must file a new H1B visa petition. The visa is only valid for work with the employer that filed the original petition. The USCIS requires employment letters which provide:
» Specific information addressing the positions held
» The exact duties of the position
» The exact dates of employment
» Information regarding the supervisors and co-workers of the beneficiary.

2. The ‘Prevailing Wage’ and actual wage must be determined and compared. The H1B sponsoring company is required to pay the higher of the two.

The prevailing wage is determined by the Department of Labor.   .

3. File the Labor Certification Application (LCA).

This is a form that contains information about the H1B sponsoring employer and the proffered salary. By completing and signing the form, the sponsor company is agreeing to pay the prevailing wage, that the employment of this individual will not adversely affect the conditions of other workers and that there is no strike for their occupation at the workplace. The LCA approval process takes approximately 7 days.

4. When the LCA is approved, the Department of Labor (DOL) will issue a certified copy to the H1B sponsoring company.

5. The sponsor company must post notices at two conspicuous places at their business of the H1B visa filing for 10 days or provide notice of the filing to the collective bargaining representative for their employees.
The LCA form can be used for the actual posting as well. After the Department of Labor accepts the LCA, then your employer can file your H1B visa petition.

6. H1B Petition is assembled and then filed with appropriate USCIS Service Center.

The filing must include the required forms, fees, documents and information; form I-129 and the H supplements, education & experience evaluation & documents, training certificates, professional memberships, employment agreement and letter of support.

7. Receipt issued by USCIS
The petitioner (sponsoring company) is sent a receipt by the USCIS Service Centre which bears a 9 digit reference number pertaining only to that particular case, H1B processing times and general information about the petitioner and foreign worker. This is the petitioner’s first confirmation that the petition is in the adjudicating queue.

8. Wait for the H1B petition to be processed.
Processing times vary depending upon service center but normally take one to six months. Employment cannot begin, however, until a USCIS approval.

9. Petition Approval
An approval notice (Form I-797) is issued to the petitioner. The Form I-797 shows dates of validity for the foreign worker to work in H1B status for the petitioner .

10.  Change of Status or Consular Processing:

a.  Change of Status:

If the worker is in the U.S. in another visa classification, he can change status in the U.S. and upon the H-1B approval, his status is automatically changed from the previous classification to H-1B.

b.  Consular processing:  If the H-1B worker is outside the U.S., she then applies for the visa at a U.S. Consulate.  The consular process takes up to one week.

Once the passports are returned with valid H1B visa stamp, the Consultant and his/her family may enter the U.S. in ‘H’ status.

General

As a result of the United States-Chile Free Trade Agreement Implementation Act (Pub. L. 108-77) and the United States-Singapore Free Trade Agreement Implementation Act (Pub. L. 108-78), both of which became effective on January 1, 2004, a new nonimmigrant classification is available to nationals of Chile and Singapore. This new classification is known as the “H-1B1″.

The H-1B1 classification is similar to the H-1B classification for specialty occupations. However, it is also similar to the TN classification under the North American Free Trade Agreement (“NAFTA”).

No Prior Petition Required

The employee applies directly to the U.S. Consulate rather than waiting for a petition to be approved by USCIS.  According to §41.53 N28.2 of Title 8 of the Foreign Affairs Manual (“FAM”), an employer of an H-1B1 professional is not required to file a petition with United States Citizenship and Immigration Services prior to applying for a visa. Instead, the alien presents his or her application for classification as an H-1B1 directly to the consular officer at the time of visa application. To this extent, the H-1B1 classification is similar to the TN classification.

American Visa

Numerical Limitations

Annual numerical limits are set for aliens who may obtain H-1B1 visas. A total of 6,800 (1,400 professionals from Chile and 5,400 professionals from Singapore) H-1B1 nonimmigrants are allowed to enter the United States each fiscal year. However, nationals of Chile and Singapore are still free to apply under the regular H-1B classification.

The block of 6,800 H-1B1 numbers are taken from the existing annual numerical limit (currently 65,000) for H-1B aliens. At the end of each fiscal year, unused H-1B1 numbers will be returned to that year’s global numerical limit and will be made available to H-1B aliens during the first 45 days of the new fiscal year.

Only principal applicants (and not dependents) are counted against each country’s respective numerical limitation. Initial applications for H-1B1 classification, as well as the sixth and all subsequent extensions of stay, are counted against the H-1B1 annual numerical limitations.

The new H-1B1 category allows for the entry of nonimmigrant professionals in “specialty occupations.” The statutory definition of “specialty occupation” is found at INA §214(i)(3) and is defined as an occupation that requires:

1. Theoretical and practical application of a body of specialized knowledge; and
2. Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”

The regulatory definition at 8 CFR §214.2 incorporates the language of the statute verbatim.

This definition is almost identical to the definition of specialty occupation for regular H-1B nonimmigrants [contained at INA §214(i)(1)], except that it refers to “a body of specialized knowledge” instead of “a body of highly specialized knowledge”.

Although the normal minimum requirement for H-1B1 status is a bachelor degree in the specific specialty, both free trade agreements permit alternative credentials in certain professions. Alternative credentials will be accepted for Chilean and Singaporean nationals in the occupations of Disaster Relief Claims Adjuster and Management Consultant; such nationals may qualify for H-1B1 status with a combination of specialized training and 3 years experience in lieu of the standard degree requirements. For Chilean nationals only, Agricultural Managers and Physical Therapists can also qualify with a combination of a post-secondary certificate in the specialty and 3 years experience in lieu of the standard degree requirements.

Labor Condition Application (“LCA”) Requirement

Employers must submit a labor attestation for foreign workers under the H-1B1 program; the requirements are virtually identical to the labor attestation requirements in regular H-1B cases. The Department of Labor (“DOL”) must certify to the Department of State that the appropriate Labor Condition Application (“LCA”), ETA Form 9035 or ETA Form 9035E, has been filed with DOL. Further information regarding the LCA requirement appears in our H-1B article.

Once certified, the employer transmits a copy of the signed, certified LCA to the alien together with a written offer of employment. At the time of visa application, the alien will present a certified copy of the LCA, clearly annotated by the employer as “H-1B1 Chile” or “H-1B1 Singapore,” as proof of filing.

As in H-1B cases, LCAs are valid for a period of three years. An H-1B1 visa may not be issued for a period that exceeds the remaining validity period on the LCA.

Temporary Intent Required

Both free trade agreements permit the temporary entry of professionals under the H-1B1 classification. The term “temporary entry” is defined in both free trade agreements as “an entry into the United States without the intent to establish permanent residence.” The alien must satisfy the consular officer that the proposed stay is temporary. A temporary period has a reasonable, finite end that does not equate to permanent residence. The circumstances surrounding an application should reasonably and convincingly indicate that the alien’s temporary work assignment in the United States will end predictably and that the alien will depart upon completion of the assignment. This concept is temporary entry is virtually identical to that applied in TN cases.

Despite the above language, 9 FAM §41.53 N28.5 states that an intent to immigrate in the future, which is in no way connected to the proposed immediate trip, need not in itself result in a finding that the immediate trip is not temporary. An extended stay, even in terms of years, may be temporary, as long as there is no immediate intent to immigrate. This more closely tracks the concept of dual intentapplicable to H-1B nonimmigrants.

H-1B1 nonimmigrant professionals are admitted for a one-year period renewable indefinitely, provided the alien is able to demonstrate that he/she does not intend to remain or work permanently in the U.S.

Licensing Requirements

While classification as an H-1B nonimmigrant requires licensure, classification as an H-1B1 nonimmigrant professional does not require licensure. According to 9 FAM §41.53 N28.6, licensure to practice a given profession in the United States is a post-entry requirement subject to enforcement by the appropriate state or other sub-federal authority.

Proof of licensure to practice in a given profession in the United States may be offered along with a job offer letter, or other documentation in support of an application for an H-1B1 visa. However, 9 FAM §41.53 N28.6 states that admission/classification should not be denied based solely on the fact that the applicant does not already hold a license to practice in the United States. [Note: Aliens seeking classification as H-1B1 are subject to the INA §212(a)(5)(C) ground of inadmissibility for uncertified foreign health care workers.]

Filing Fees

According to 9 FAM §41.53 N28.7, a special fee may be imposed for initial classification or certain extensions of stay as an H-1B1 worker, if such a fee is also required in the normal H-1B program. However, the Department of State is not currently imposing any special fees on H-1B1 visa applicants. The alien will simply pay the normal fees for a visa application (the Machine Readable Visa application fee and the reciprocity fee, if applicable).

However, if the alien is in the United States and seeks a change of status or extension of stay to H-1B1, additional fees will apply. USCIS confirmed that, after July 20, 2005, it would reject H-1B1 petitions filed without the H-1B fee mandated by the H-1B Visa Reform Act of 2004. This fee is $1,500.00 for businesses having 26 or more full-time workers and $750.00 for businesses having 25 or fewer full-time employees. However, the Fraud Prevention and Detection Fee, also authorized by the H-1B Visa Reform Act of 2004, will not apply to H-1B1 petitions.