Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. - U.S. and Canadian Immigration and Nationality Newsletter and Update.
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Dear Readers:

As we sat down to prepare our Middle-of-the-Month E-zine, we thought we were just going to be writing about the "big push" to prepare H-1B nonimmigrant worker visas for professional and specialty occupation workers for the April 1st filing deadline. We also thought that we would have no new updates about the DACA II and the DAPA programs. We also thought that we would have no news about the STEM extension litigation in the WASHTECH case.

Well, the world continues to be a changing place and the immigration and nationality law office of Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. continues to monitor each of the aforementioned U.S. immigration news items with great interest as to how the changing environment impacts our clients, their friends and the greater U.S. immigrant community.

As we prepare H-1B visas we continue to find that prospective H-1B employers require a great deal of hand-holding with regard to their potential obligations to the H-1B nonimmigrant. NPZ continues to educate prospective H-1B employers about the importance of properly maintaining Public Access File (PAFs) and the possibility for Site Visits. Also, employers need to be reminded about the no-benching provisions and the return transportation obligations. Also, and now more salient than ever, employers need to be reminded that H-1B stamps can take a great deal of time at U.S. Consulate Offices abroad given the abundance of 221G Administrative Processing holds. 

By now the passing of Justice Antonin Scalia may be old news. While many do not agree with the very conservative views of Judge Scalia, all would agree that his brilliant legal reasoning and quick-wit will be sorely missed on the U.S. Supreme Court. Now the issue becomes . . . how Judge Scalia's recent passing may impact the impending DACA II and DACA arguments before the Court. The political pundits are at work and as the projections unfold, we will continue to try to bring our readers developing updates.

We remind our readers that we are U.S. and Canadian immigration and nationality lawyers. If we can assist you, your friends, or your families with regard to any U.S. or Canadian immigration law issues, please feel free to contact us at info@visaserve.com or you can call us at 201-670-0006 (x104).
Many foreign nationals holding an F-1 nonimmigrant status in the United States, especially those who are engaged in Optional Practical Training (OPT), often intend to change their nonimmigrant status to become a professional specialty workers (H-1B workers). Most foreign nationals seeking H-1B nonimmigrant classification are subject to the 58,200 annual cap. There are an additional 20,000 H-1B visas which are reserved specifically for foreign nationals who receive a master's degree (or a higher degree) from a United States college or university.
 
Immigration practitioners, F-1 students, and prospective H-1B employers should note that not every master's degree from a United States college or university qualifies a foreign national for the additional 20,000 H-1B visas under the H-1B "master's cap". For an individual to qualify under the master's cap, a few criteria need to be met.
 
H-1B FILING SEASON (FOR THE 2016 DEADLINE ON APRIL 1ST) GETS INTO FULL-SWING FOR H-1B EMPLOYERS AND PROSPECTIVE H-1B EMPLOYEES.  
Based on the current predictions, the U.S. economy will rebound after 2015's growth rate of 2.1%. What does this mean for the immigration practitioners, professionals, and prospective H-1B employers and employees? Assuming that the economy performs as projected, it is highly-likely that we will once again, as we did in 2015, witness the H-1B lottery (technically referred to as "Random Selection Process") in April 2016. To better prepare for the H-1B cap, this article endeavors to summarize a few practice pointers which every prospective H-1B employer and employee should know. 
 
TIS THE SEASON TO BE JOLLY AND TIS ALMOST 2016-2017 H-1B SEASON.        
As a reminder to all U.S. employers, H-1B season is almost here! United States Citizenship & Immigration Services ("USCIS") will start accepting new H-1B petitions for fiscal year 2017 on  Friday, April 1st, 2016 . As such, employers should start immediately identifying current and future employees who will require sponsorship for new H-1B petitions.

By way of background, the USCIS issues H-1B visas to foreign workers serving in "specialty occupations at a professional level." A specialty occupation requires theoretical and practical application of a body of highly specialized knowledge, to be performed by a worker with at least the equivalent of bachelor's degree in the field. Both the position to be filled and the foreign worker's qualifications must meet the criteria for a specialty occupation.
 
 
PROPOSED CHANGES TO THE WORKSITE ENFORCEMENT ARENA AND EMPLOYMENT VERIFICATION (I-9 FORM) PROCESS: WHAT HR MANAGERS AND PROFESSIONALS NEED TO KNOW TO "RING-IN" THE NEW 2016 YEAR! 
At the end of 2015 there were two (2) important developments in the workplace enforcement arena that will be of great interest to Human Resources Managers and Professionals and other HR staff. First, a special memorandum was issued jointly by the U.S. Department of Homeland Security ("DHS") and U.S. Department of Justice ("DOJ") with regard to conducting internal I-9 Form audits. Second, a recent release from the DHS discusses the status of a new I-9 Form that DHS submitted for notice and comment.

On December 16th, 2015, DHS and DOJ jointly issued new guidance for employers about how to conduct internal I-9 Form audits. Oftentimes this process is referred to as the I-9 Form "self-audit" process. Self-audits remain instrumental as a methodology available for any employer seeking to minimize financial penalties due to incorrect or deficient I-9 Forms and to reduce the likelihood that the employer has inadvertently hired an unauthorized worker in contravention of the provisions of the Immigration Reform and Control Act of 1986 (as amended).
 
 
THE MARCH 2016 VISA BULLETIN: DOS REPORTS MARCH 2016 VISA NUMBERS - IS YOUR PRIORITY DATE CURRENT?  IF SO, PLEASE LET US KNOW.       
The U.S. Department of State (DOS) March 2016 Visa Bulletin shows advancement in the employment-based third preference (EB-3) worldwide category.

The final action (FA) cutoff date in the employment-based second preference category for India also advances, but at a slower pace than in recent months. The EB-1 and EB-4 categories remain current in the March 2016 Visa Bulletin. DOS predicts that EB-1 will remain current in upcoming months.

Read More . . .


"IMMIGRATION NEWS AND VIEWS" - NPZ'S NEW PRACTICAL SERIES ON YOUTUBE ABOUT VARIOUS U.S. AND CANADIAN IMMIGRATION LAW ISSUES.

BASIC REQUIREMENT TO FILE H-1B VISA.
 
 
 
The  H-1B  is a non-immigrant   visa in the United States  under the   Immigration and Nationality Act, section 101(a)(15)(H). It allows U.S. employers to temporarily employ   foreign workers  in specialty occupations. If a foreign worker in H-1B status quits or is dismissed from the sponsoring employer, the worker must either apply for and be granted a change of status to another non-immigrant status, find another employer (subject to application for adjustment of status and/or change of visa), or leave the U.S.
The regulations define a "specialty occupation" as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor [1]  including but not limited to biotechnology, chemistry, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor's degree or its equivalent as a minimum [2]  (with the exception of fashion models, who must be "of distinguished merit and ability"). [3]  Likewise, the foreign worker must possess at least a bachelor's degree or its equivalent and state licensure, if required to practice in that field. H-1B work-authorization is strictly limited to employment by the sponsoring employer.
 
FAMILY BASED IMMIGRANT VISA - SPONSORING MARRIED SON OR DAUGHTER OF A U.S. CITIZEN PARENTS. DOES MARRIAGE CHANGE A CASE?
   
 
Two groups of family based immigrant visa categories, including immediate relatives and family preference categories, are provided under the provisions of United States immigration law, specifically the Immigration and Nationality Act (INA).
Immediate Relative Immigrant Visas (Unlimited): These visa types are based on a close family relationship with a United States (U.S.) citizen described as an Immediate Relative (IR). The number of immigrants in these categories is not limited each fiscal year. Immediate relative visa types include:
  • IR-1: Spouse of a U.S. Citizen - Learn More 
  • IR-2: Unmarried Child Under 21 Years of Age of a U.S. Citizen
  • IR-3: Orphan adopted abroad by a U.S. Citizen - Learn More 
  • IR-4: Orphan to be adopted in the U.S. by a U.S. citizen - Learn More 
  • IR-5: Parent of a U.S. Citizen who is at least 21 years old
Family Preference Immigrant Visas (Limited):  These visa types are for specific, more distant, family relationships with a U.S. citizen and some specified relationships with a Lawful Permanent Resident (LPR). There are fiscal year numerical limitations on family preference immigrants, shown at the end of each category. The family preference categories are:
  • Family First Preference (F1): Unmarried sons and daughters of U.S. citizens, and their minor children, if any. (23,400)
  • Family Second Preference (F2): Spouses, minor children, and unmarried sons and daughters (age 21 and over) of LPRs. At least seventy-seven percent of all visas available for this category will go to the spouses and children; the remainder is allocated to unmarried sons and daughters. (114,200)
  • Family Third Preference (F3): Married sons and daughters of U.S. citizens, and their spouses and minor children. (23,400)
  • Family Fourth Preference (F4): Brothers and sisters of U.S. citizens, and their spouses and minor children, provided the U.S. citizens are at least 21 years of age. (65,000)
Note: Grandparents, aunts, uncles, in-laws, and cousins cannot sponsor a relative for immigration.
 
 
THE U.S. SUPREME COURT AGREES TO ACT ON PRESIDENT'S EXPANDED DACA AND ON DAPA - WHAT IS THE IMPACT OF JUSTICE SCALIA'S RECENT PASSING (SEE BELOW)?
   
 
With Scalia's passing, the Supreme Court now has eight judges, though cases will still be reviewed. If the court is split 4-4, then the decision from the previous lower court stands. So, if the Supreme Court decision is a tie, then the U.S. Court of Appeals for the Fifth Circuit's decision, which supports Judge Hanen's ruling, would reinforce the pause of DAPA and DACA's expansion. 
With Scalia absent, the court has four consistent liberal-leaning justices -- Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan -- and three conservative-leaning justices -- Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. Justice Anthony Kennedy has regularly joined both sides in the past. For the DAPA and DACA expansion case, the attention will be on Justices Roberts and Kennedy, as both have previously given the Obama administration victories on the Affordable Care Act and same-sex marriage cases.