The American Competitiveness In the Twenty-First Century Act, or AC21, section 105(a), created an important benefit for H-1B nonimmigrants known as H-1B portability. (This is not to be confused with the permanent portability provision, also created by AC21). The American Competitiveness In the ...
Immigration Newswire
Immigration law is composed of statutes, regulations, case law and non-binding agency guidance. The primary statute with which we deal as immigration attorneys is the Immigration and Nationality Act.
The regulations we reference are all included in various volumes of the Code of Federal Regulations (“CFR”). We primarily use 8 CFR, which is USCIS regulations; 20 CFR, which is Department of Labor regulations; and 22 CFR, which is Department of State regulations.
In addition, we cite to precedent decisions by the Board of Immigration Appeals (BIA) and the Administrative Appeals Office (AAO).
Finally, the various federal agencies with which we deal provide frequent administrative guidance which is not binding but which governs their internal policies.
By providing you with the latest immigration legal news, we hope to offer practical insights into the ways various legal provisions are being construed by the government.
New USCIS Policy: Same or Similar Occupation Classifications for the Purpose of Job Portability
USCIS releases memorandum on determining whether a new job is in the same or similar occupational classification for the purposes of Section 204(j) job portability. By Noelle McLaughlin For background on Permanent Portability Under the American Competitiveness in the Twenty First Century Act, o...
What Is a Management Consultant, really?
The North American Free Trade Agreement (NAFTA), Appendix 1603.d.1, contains a list of professions, the members of which may enter the U.S. to work... The North American Free Trade Agreement (“NAFTA”), Appendix 1603.d.1, contains a list of professions, the members of which may enter the U.S. to ...
Department of State Issues Final Rule on Procedures for Issuing Visas
On November 2, the Department of State (DOS) issued a final rule regarding procedures for issuing visas. By Tabitha O'Connell On November 2, the Department of State (DOS) issued a final rule regarding procedures for issuing visas. 22 CFR 41.113 is being amended to remove the mention of a visa ...
Updates on STEM OPT Program and Comment Period for New Rules
In 2014, the Washington Alliance of Technology Workers filed a lawsuit against the Department of Homeland Security (DHS) which claimed that DHS had overstepped their authority by implementing an interim rule in 2008 that expanded the OPT (optional practical training) program for students with STE...
Permanent Portability Under AC21
The American Competitiveness in the Twenty First Century Act (P.L. 106-313), or AC21, provides permanent portability for long delayed applicants for adjustment of status. The American Competitiveness in the Twenty First Century Act (P.L. 106-313), or AC21, provides “permanent portability” for lo...
Joint Sponsorship for Family-Based Permanent Residence Applications
As part of the process of immigrating to the U.S. based on an I-130 petition, it is required that the I-130 petitioner submit a Form I-864, Affidavit of Support. By signing this form, the petitioner attests they will financially provide for the intending immigrant if necessary. By Tabitha O'Con...
Abandonment of Residence: Can You Live Outside the United States and Still Maintain your Permanent Resident Status?
The process of becoming a permanent resident of the United States is a lengthy one, involving a myriad bureaucratic red tape, extended processing times, and, for some, worrisome interviews with the U.S. Citizenship Immigration Services. (USCIS). The process of becoming a permanent resident of th...
Diversity Visa Lottery Program is Open for FY2017 Filings
The Diversity Visa Lottery Program opened for filing on October 1, 2015. Those who are eligible to file may do so from any time from now until November 3, 2015. The Diversity Visa Lottery Program opened for filing on October 1, 2015. Those who are eligible to file may do so from any time from no...
U.S. Department of State Issues Revised Visa Bulletin
On September 10, 2015, we reported that the Department of State (DOS) issued a new Visa Bulletin format for October 2015, with two separate cut-off dates one relevant to when an I-485 application may be filed and the other controlling the date on which DOS or USCIS could approve an immigrant visa...
What is Automatic Visa Revalidation?
Most foreign nationals entering the United States on a temporary basis as nonimmigrants are required to first obtain a visa at a U.S. consular post abroad. A visa grants its holder permission to apply for admission to the United States. The visa does not guarantee admission, however. Most foreig...
U.S. Department of State Introduces New Visa Bulletin Format for FY2016
On September 9, 2015, the U.S. Department of State (DOS) released the October Visa Bulletin. This is the first Visa Bulletin of the Fiscal Year 2016, which for the federal government runs from October 1, 2015 through September 30, 2016. On September 9, 2015, the U.S. Department of State (“DOS”) ...
Overview of How Admission Documents Affect A Nonimmigrant's Authorized Period of Stay
When a foreign national applies for admission to the United States as a nonimmigrant, there are several documents which could affect the duration of his admission. When a foreign national applies for admission to the United States as a nonimmigrant, there are several documents which could affect...
Overview of the Child Status Protection Act and Its Application to Derivative Children of Employment-Based Immigrants
The Immigration and Nationality Act, section 101(b) defines a "child" as someone who is unmarried and under the age of twenty-one. Prior to the passage of the Child Status Protection Act in 2002, the child of an employment-based immigrant could only obtain an immigrant visa... The Immigration a...
What is Unlawful Presence? An Overview of Historic Agency Interpretation of the 3 and 10 Year Bars, and CBPs Radical Departure from Longstanding Guidance
Any discussion of unlawful presence should begin by differentiating unlawful presence from being out of status. Anyone who violates their nonimmigrant status is immediately out of status until they or the government acts to restore that status. Any discussion of unlawful presence should begin by...
TN Status for Software Engineers
NAFTA provides that Canadian and Mexican citizens who have been offered U.S. jobs in certain professions, may enter the U.S. to work temporarily. NAFTA provides that Canadian and Mexican citizens who have been offered U.S. jobs in certain professions, may enter the U.S. to work temporarily. One ...
USCIS Resumes Premium Processing Service for H-1B Extensions Early
On May 19, 2015, USCIS announced that they would be suspending premium processing service for Form I-129 extension of stay H-1B petitions from May 26, 2015 to July 27, 2015 by Noelle McLaughlin On May 19, 2015, USCIS announced that they would be suspending premium processing service for Form I...
Does My Degree Have to Be Related to My TN Profession?
In order to qualify for TN status under NAFTA, the Canadian or Mexican citizen applicant must be entering the United States to perform prearranged business activities for a U.S. entity, at a professional level, in one of the professions listed in Appendix 1603.d.1 to the NAFTA. In order to quali...
Regulatory Requirements for Education Experience Evaluations for H-1B Petitions
H-1B status is reserved for aliens working in a specialty occupation, which is defined in 8 CFR 214.2(h)(4)(ii) as an occupation which requires theoretical and practical application of a body of highly specialized knowledge and which requires the attainment of a bachelors degree or higher in a sp...
Transitioning from F-1 Status to H-1B
Many international students who attend school in the United States in F-1 status seek U.S. employment upon graduation. Most commonly, they seek employment in H-1B status. Many international students who attend school in the United States in F-1 status seek U.S. employment upon graduation. Most ...
What is the H-1B Cap?
Congress has imposed an annual limit on the number of new H-1B petitions that can be approved in each fiscal year. The cap is set at 65,000. Congress has imposed an annual limit on the number of new H-1B petitions that can be approved in each fiscal year. The cap is set at 65,000. There is an ad...
CBP to Open 10 New Pre-Clearance Operations
U.S. Customs Border Protection (CBP) has announced that it plans to open 10 new Pre-Clearance Operations. U.S. Customs & Border Protection (“CBP”) has announced that it plans to open 10 new Pre-Clearance Operations. Pre-Clearance operations currently exist in several Canadian airports as well as...
Southern Border Tour
On May 5 and 6, 2015, Attorney Danielle Rizzo was among a select group of AILA members invited to attend a southern border tour with members of U.S. Customs and Border Protections Washington, D.C. headquarters office. On May 5 and 6, 2015, Attorney Danielle Rizzo was among a select group of AIL...
E-1 Visas For Start-Up Consulting Companies
The E-1 visa is a very practical option for individuals who have something significant to contribute to the U.S. economy but no other means of doing so. E-1 visas are available for treaty traders. In order to qualify, the foreign national must: Be a national of a treaty country; Bear the sa...
Filing Strategy During H-1B Premium Processing Suspension
On May 19, 2015, USCIS announced that it will be suspending Premium Processing on all H-1B petitions requesting extension of stay for a temporary period between May 26 and July 27, 2015. On May 19, 2015, USCIS announced that it will be suspending Premium Processing on all H-1B petitions requesti...