The USCIS released final regulations regarding J-1 Student Intern visa. This new visa will allow a student, enrolled in post secondary education, to intern with private or Government sector employers for training. This will provide much needed work experience to foreign students. Previously the students could only work on CPT or OPT, and the length of time was highly restrictive. In contract, USC students could enter into any number of internships. Thus US students could have a competitive advantage in graduate studies or the job market.

It is nice to note that ALL students (and not just STEM students) can avail of this situation. The OPT extension, l by contract is ONLY available to STEM (Science, Technology, Engineering and Math) students. I still fail to realize how technology cannot include Engineering. Also I am appalled by the cold world era emphasis on Science in this day and age. If one looks at great works of literature, movie, music, it is primarily produced by hyphenated Americans, (like Chinese-American, Indian-Americans, etc.) Scan the Pulitzer or Oscar list. Same is true of any Management Degree holders, whose international experience is greatly necessary for global business. Yet the government only recognizes the need for STEM students. This is so reminiscent of the Cold War. But then, so is the War on Terror.

You filed your I-485 under the July 2007 Visa Bulletin (VB No. 107). It has been more than 180 days. You cannot stand your employer, and have found a new employer who will continue the process. Can you Port your I-140 under AC21?

Below are some pointers to consider before you switch employers:

1. Is your I-140 approved?

If your I-140 is not approved yet, you need to decide if that case will be approvable. You have to decide if your first employer who sponsored you have the ability to pay, a valid job offer, etc.

If your first I-140 is approved already then porting becomes much easier

2. Is the new job same and similar?

The new ported job has to be same and similar. Both those jobs have to have the same DOT Code (for RIR and traditional cases) or SOC Code (for PERM cases), and the salary range offered in the underlying Labor certification has to be within a similar range. It is much better to have a copy of your original labor certification and the I-140 approval or receipt notice, to determine if the new job is same and similar.

1. What if my first Employer withdraws the I-140?

It is not a problem if your first employer withdraws the I-140 after 180 days of the filing of the I-485.

1. Can you port to a different Geographical location?

Yes, you can take a new job anywhere in the US and port the I-140

5. Should the new employer have the ability to pay?

Although technically the only factor that counts is whether the two employments are same and similar, the question of whether the new employer has the ability to pay can be a factor in adjustment of status

1. What’s the worst case scenario?

If the I-140 Portability is denied for some reason, you can always retain the Priority date of the old labor for the adjustment under 8 C.F.R 204.5(e). But you have to start with a fresh PERM filing. This means if your 6 years of H-1B are over, you might have to go back to your home country until you can get your green card.

The US Government signs treaties with various countries for nationals of those countries to come over temporarily.

These are strictly non immigrant visas and do not lead to Permanent Residency.

They can be filed either with the United States Citizenship and Immigration Service in the United States (as an extension or change of status) or with the Consular Posts

Note: India does not have any of these treaty benefits.

E-1 (Treaty Trader)

REQUIREMENTS:

1. The applicant must be a National of the Treaty Country
2. The Company in the US must have more than 50% of ownership in the foreign country
3. Must be engaged in TRADE ie, international exchange of goods, services, and technology
4. The Trade must be SUBSTANTIAL
5. The Trade must be principally between the US and the Treaty Country (ie more than 50%)
6. The Applicant must be employed managerial position or possess essential skills-similar to L-1 Requirements

E-2 (Treaty Investor)

REQUIREMENTS

1. The applicant must be a National of the Treaty Country
2. The Company in the US must have more than 50% of ownership in the foreign country
3. The Investment must be substantial—- We will need to trace the source of that investment from the foreign country
4. The Investment cannot be marginal- (a) must generate a net profit and (b) Create US Jobs
5. The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed
6. Investor must be in a supervisory/managerial position

Caveats

1. Both these visas continue until such time as the business continues
2. The dependent wife and children can live in the US
3. Please see list of necessary documents at the end of this page

E-3- for Australians

Given to 10,500 Australian Nationals. Very similar to H-1B visa, except that these are Temporary and cannot convert to the Green Card

The Procedure and Requirements are the same as the H-1B, ie Certified LCA, Educational Requirement, Professional Job, etc. Please read those requirements in the H-1B section of this web page.

VWP

Citizens of certain nations (Mostly European nations, Japan, and Singapore) do not need a Visa to visit the US. The allowable time limit for this Visa Waiver is a maximum of 90 days. This cannot be extended from the US, nor be converted to any other type of visa. Applicants must have a machine readable passport

Every country has a set amount of immigrant visas (green cards) that they get per year. (The DHS year starts on Oct 01). Thus a visa number must be available at the time when you get your green card. Naturally countries with huge populations (like India and China for Employment based, and Mexico for Family based) use up their visa numbers quickly and thus the people born from those countries have to wait longer. The USCIS gives visa numbers based on “Priority dates.” Priority dates is the on which the USCIS receipts your case, ie the I-140 for Employment based and I-130 for Family based applications. This ensures that the first come application gets served first.

Immigration Laws have also devised categories. The Employment based categories are as follows:

Employment Based (EB) 1: No labor certification required. File only I-140 and I-485
Available for
L-1A Managers
Outstanding Professor or Researcher
Extraordinary Ability Aliens

EB-2 Labor Certification required
Available for
Advanced Degree Holders (at least a Master’s Degree)
Exceptional Ability

EB-3 Labor Certification required
Members of a Profession (at least Bachelor’s Degree)

EB-4 Religious Workers

EB-5 Investor (No labor certification or I-140 petitions. Instead file I-526)
Must invest $1 million in cities Or
$500,000 in areas of “Targeted Employment” and
Employ 10 full-time U.S. workers

The Family Based numbers are as follows:

NO WAIT: US Citizens’ spouse, parents and children under 21 have no wait time, and can come over or adjust status immediately

First Preference: Over 21 unmarried children of citizens

Second Preference-2A: Spouses, minor children (less than 21) of permanent residents (green card holders)

Second Preference 2B: Unmarried sons and daughters over 21 of permanent residents (green card holders)

Third Preference: Married sons and daughters of US Citizens
Fourth Preference: Brothers and sisters of adult citizens

Thus the wait time depends on your priority date, Preference Category and of course your country of birth.

For Employment based visas you can use either your country of birth or your spouse’s country of birth.

The visa bulletin, published by the Department of State every month gives the dates/Preference category/country. To see the visa bulletin, click here:

http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

H-1B cap

The CIS issued a preliminary report today that nearly 163000 H-1Bs have been filed for the ordinary cap, and 31200 for Master’s Degree Candidates. The CIS will do the lottery of the Master’s Degree Cap next week. The 11200 advanced Degree Holders not selected by that lottery will be put into the general lottery for the 65,000 people. For more on the OPT extensions, please see BLOG below

FBI-Name Checks

The CIS and FBI have reported that they have already eliminated all name checks pending for more than 4 years ago. Their goal is to eliminate:

For Name Checks pending more than 3 yrs——- May 2008

For Name Checks pending more than 2 yrs——-July 2008

For Name Checks pending more than 1 yr——-November 2008

98% of all Cases ——————————–June 2009

The date for the name check is your receipt date for your 485 or N-400 petitions