For immigration purposes, a child can be any of the following:

1. A biological child born in wedlock

2. A biological child born out of wedlock:
        A. If the mother is petitioning, no legitimation is required.
        B. If the father is petitioning, legitimation is required in accordance with the laws of the father or child's place of residence.
        C. If the father is petitioning and the relationship is not legitimated under applicable laws, a bona fide parent-child relationship must be shown to have existed prior to the child's 21st birthday and while the child was unmarried.

3. A step-child, as long as the marriage creating the step-relationship occurred before the child turned 18.

4. An adopted child if the child was adopted prior to age 16 (one exception is if siblings are adopted, as long as one was under 16, the other could be older than 16 but younger than 18), AND the adopted child has resided in the legal and physical custody of the adoptive parent for 2 years prior to filing (the legal and physical custody do not have to be the same time period, but each must be met for 2 years) NOTE: Most adoption-based immigration occurs through the orphan intercountry or Hague processes. Normally, you would only use the Immigrant Petition process if your child did not meet the definition of orphan.

If your child does not fall within any of above category, you should contact your attorney or contact us. Fee based consultation may apply.

Introduction

On October 28, 2009, the President signed the FY2010 DHS Appropriations Act into law, allowing eligible widows or widowers of U.S. citizens to qualify for permanent resident status regardless of how long the couple was married. The new law amends the Immigration and Nationality Act (INA) by removing the two-year marriage requirement previously necessary for a widow(er) to qualify for permanent resident status as an immediate relative of his or her late U.S. citizen spouse. Additionally, when a widow(er) qualifies as an immediate relative under the law, his or her unmarried minor children will also qualify for the same status. The law applies equally to widow(er)s living abroad, who are seeking immigrant visas and widow(er)s in the United States, who want to become permanent residents based on their marriage.

These provisions of the FY2010 DHS Appropriations Act relate only to the impact of the citizen's death on a widow(er)'s eligibility for classification as an immediate relative. All other requirements for approval of a visa petition remain in force. Specifically, the widow(er) must still establish that:

• He or she was the citizen's legal spouse.
• The marriage was bona fide and not an arrangement solely to confer immigration benefits to the beneficiary.
• He or she has not remarried.
• He or she is admissible as an immigrant.

In an adjustment of status case, that he or she meets all other adjustment eligibility requirements and merits a favorable exercise of discretion.

Pending Form I-130, Petition for Alien Relative

As of October 28, 2009, any pending Form I-130 that was filed on a widow(er)'s behalf prior to the citizen spouse's death will automatically convert to a widow(er)'s Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, so long as, on the date of the citizen spouse's death, they qualified as an immediate relative under the INA and the FY2010 DHS Appropriations Act. Additionally, any Form I-130 that has been the subject of litigation in any Federal court on the issue of the effect of the petitioner's death is reopened for a new decision as of December 2, 2009, the date of issuance of the USCIS implementing directive. USCIS will identify those cases that are the subject of litigation that was pending on October 28, 2009. Once a case is identified, USCIS will notify the widow(er) in writing that their Form I-130 has been reopened and adjudicated as a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. Eligibility for classification as an immediate relative ceases if the widow(er) remarries.

Petition Approved Before Death

If the Form I-130 was approved before U.S. citizen petitioner's death, it will automatically convert to an approved I-360. Unmarried minor children of the widow(er) will also be eligible to seek an immigrant visa or adjustment of status based on the approved Form I-360.

Pending Form I-485, Application to Register Permanent Residence or Adjust Status

Additionally, if USCIS has jurisdiction to act on a Form I-485, Application to Register Permanent Residence or Adjust Status, that is the subject of litigation on this issue in any Federal court, USCIS will notify applicants in writing that their Form I-485 has been reopened. If the widow(er) entered the United States as a K-1 nonimmigrant and filed an I-485 after marrying the deceased U.S. citizen, he or she will be deemed the beneficiary of a Form I-360 Widow(er) petition. If a widow(er) with an approved Form I-130 and a pending Form I-485 left the United States voluntarily after his or her petitioning U.S. citizen spouse died, and thus "abandoned" his or her adjustment application, the approved Form I-130 is converted to an approved Form I-360, so that the widow(er) may apply for an immigrant visa abroad.

Widow(er)s Without Pending Cases

Widow(er)s of citizens who died before October 28, 2009, but who did not have a Form I-130 pending on October 28, 2009, have until October 28, 2011, to file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, for themselves and their unmarried minor children. A widow(er) whose citizen spouse died on or after October 28, 2009, will have two years from the date of the citizen spouse's death to file their Form I-360.

Children of Widow(er)s

The child of a widow(er) whose Form I-360 is approved may be included in the widow(er)'s petition as long as they meet the definition for "child" under the INA. Where the deceased citizen filed a Form I-130 for his or her spouse that was pending at the time of his or her death, and the Form I-130 can now be adjudicated as a Form I-360 widow(er)'s petition, the child(ren) of the widow(er) will be included in the Form I-360.

An individual qualifies as the "child" of a widow(er) depending on their age when the visa petition was filed. For those cases that were pending on October 28, 2009, the Form I-360 filing date is the date on which the deceased citizen filed the prior Form I-130. If a widow(er) has an unmarried son or daughter who was under 21 when the deceased citizen filed the Form I-130, that individual will still be considered under 21 for purposes of the widow(er)'s Form I-360.

As we all know, to file an H1B extension petition for the alien worker, the U.S. employer is required to submit the application to USCIS before the expiration date as listed on the current H1B approval notice (a.k.a. the I-797 Notice of Action). USCIS normally approves an H-1B extension/renewal application without any problem, however, as a result of the current economy downturn and the recent changes in the administrative procedures, the US employer can no longer get the H-1B extension approved easily. It will take a much longer time to both get it prepared and receive the decision. Therefore I am writing to bring this issue of pressing urgency to the attention of our institutional H-1B employers and their H-1B workers.

1. Do not wait until the last few days to prepare for the extension; file the extension application as early as possible. Why?

When filing any H1B application, obtaining a copy of an approved Labor Certification Application (LCA) from Department of Labor is the first priority. Up to now, the attorney or accredited representative could normally receive a copy online within 24 hours after putting through an electronic request on behalf of the employer. After June 30th 2009, a new system, called the iCERT System, will be formally introduced to replace the current one in use. After its implementation, the approved LCA won't be available in a day. In fact, the latest feedback from the tryout shows that it needs at least two weeks via iCERT System to obtain an approved LCA. Even worse, there are attorneys complaining that after three or four weeks, they have not received the copy yet. According to the words of a Department of Labor Officer who was addressing AILA members last week, their TARGETED time of granting approval via iCERT is within seven days. But he then corrected it to seven business days. Be it seven days or seven "business" days, it indicates that after June 30th there will be certain difficulty to get a copy of LCA in time. Given the indispensability of LCA to H1B applications, we shall allow enough time for the preparation unless USCIS would accept later-submitted LCA after receiving the filing of the corresponding H1B extension. As the earliest time for filing H1B extension application is six months before the expiration date, you may ask what is the latest? Well, it all depends. I would suggest starting the preparation at least one month in advance. However, since you never know what will happen next, the point is, the earlier, the better.

2. Getting approval for H1B extension application won't be as easy as before. Don't take it for granted that an extension would be obtained effortlessly, since nothing actually changes in the current H1B position. Why?

USCIS, California Service Center in particular, is getting stricter with H1B applications, including H1B extension applications. Small-sized companies, especially those in the line of IT consulting, have been seeing an increasing number of "Request for Evidence" (RFE) Notices with excessive or draconian requirements on documentation. If the response to RFE fails to meet the requirements, the case would simply be denied. A few attorneys have been complaining about similar cases. And such denials caused the U.S. employers to terminate their ongoing projects prematurely. No matter whether the intent of such practice is to constrain the employment of alien workers, or there just has been an update of processing guidelines, it is worthwhile to attach importance to the H1B extension application.

3. Requirements on document are not as simple as before. The paperwork which normally would not be necessary has to be submitted now. Why?

Judging from the recent RFE notices, it reveals that the USCIS is not only examining the qualifications of the alien employees for an H1B specialty occupation, but also the eligibility of the U.S. employers for filing H1B cases. Even for well-established companies operating at a certain scale, USCIS would require the company petitioners to clearly substantiate the information concerning annual income or to evidence their sources of income to guarantee payment to workers by providing Federal Income Taxes, Quarterly Wage Reports, payroll records, contractual agreements, statements of work, work orders, and service agreements etc. A direct consequence of it is that some employers are scared away by such RFEs and would rather withdraw the application. Actually, whether to extend the employment of certain alien workers or whether the company has the ability to pay them, is an internal matter that has nothing to do with governmental agencies. Whereas, by processing the H1B extension application, the government is probing into company affairs. Small or medium sized companies, as a result, shall consider proving their financial ability to pay the offered wage as well as to identify the succession of businesses involved in the assignment of the alien worker. Therefore in our practice, we might ask for the employers' assistance to provide relevant information or documents in the initial filing to avoid RFE or denial. We are also requesting our clients who would like to retain our services for H1B applications to contact us ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it ) as early as possible. Leaving us enough time for preparation will facilitate our work as well as ensure the benefits of U.S. employers as well as alien employees.

To help xielaw.com visitors find this important H-1B article easily we've prepared a short list of or different spellings or misspellings of H-1B related issues:  h1b visa renwal, h1b extension, h1b transfer, h1b status, h1b approval, h1B quota, h1b application, h1b fee, h1b cap, h1b visa requirements, h1b employer, h1b lawyer, h1b visa, h1b visa stamping, h1b salary, h1b prevailing wage, h1b work visa, h1b sponsor, h1b title, h1b process, h-1b visa renwal, h-1b extension, h-1b transfer, h-1b status, h-b approval, h-1B quota, h-1b application, h-1b fee, h-1b cap, h-1b visa requirements, h-1b employer, h-1b lawyer, h-1b visa, h-1b visa stamping, h-1b salary, h-1b prevailing wage, h-1b work visa, h-1b sponsor, h-1b title, h-1b process, h 1b visa renwal, h 1b extension, h 1b transfer, h 1b status, h 1b approval, h 1B quota, h 1b application, h 1b fee, h 1b cap, h 1b visa requirements, h 1b employer, h 1b lawyer, h 1b visa, h 1b visa stamping, h 1b salary, h 1b prevailing wage, h 1b work visa, h 1b sponsor, h 1b title, h 1b process, h1-b visa renwal, h1-b extension, h1-b transfer, h1-b status, h1-b approval, h1-B quota, h1-b application, h1-b fee, h1-b cap, h1-b visa requirements, h1-b employer, h1-b lawyer, h1-b visa, h1-b visa stamping, h1-b salary, h1-b prevailing wage, h1-b work visa, h1-b sponsor, h1-b title, h1-b process.

The employer is required to make a filed labor condition application and necessary supporting documentation available for public examination at the employer's principal place of business in the U.S. or at the place of employment within one working day after the date on which the labor condition application is filed with DOL. The following documentation shall be necessary:

(1) A copy of the certified labor condition application (Form ETA 9035E or Form ETA 9035) and cover pages.

(2) Documentation which provides the wage rate to be paid the H-1B nonimmigrant;

(3) A full, clear explanation of the system that the employer used to set the "actual wage" the employer has paid or will pay workers in the occupation for which the H-1B nonimmigrant is sought, including any periodic increases which the system may provide--e.g., memorandum summarizing the system or a copy of the employer's pay system or scale (payroll records are not required, although they shall be made available to the Department in an enforcement action).

(4) A copy of the documentation the employer used to establish the "prevailing wage" for the occupation for which the H-1B nonimmigrant is sought (a general description of the source and methodology is all that is required to be made available for public examination; the underlying individual wage data relied upon to determine the prevailing wage is not a public record, although it shall be made available to the Department in an enforcement action); and

(5) A copy of the job notice with which the employer has satisfied the union/employee notification requirements.

(6) A summary of the benefits offered to U.S. workers in the same occupational classifications as H-1B nonimmigrants, a statement as to how any differentiation in benefits is made where not all employees are offered or receive the same benefits (such summary need not include proprietary information such as the costs of the benefits to the employer, or the details of stock options or incentive distributions), and/or, where applicable, a statement that some/all H-1B nonimmigrants are receiving "home country" benefits (see 20 CFR§ 655.731(c)(3) for the details);

(7) If the employer undergoes a change in corporate structure, the following documents are needed:

a. A sworn statement by a responsible official of the new employing entity that it accepts all obligations, liabilities and undertakings under the LCAs filed by the predecessor employing entity;
b. A list of each affected LCA and its date of certification;
c. A description of the actual wage system and FEIN of the new employing entity (see 20 CFR § 655.730(e)(1) for the details).

(8) Where the employer utilizes the definition of "single employer", a list of any entities included as part of the single employer in making the determination as to its H-1B-dependency status (see 20 CFR § 655.736(d)(7) for the details);

(9) Where the employer is H-1B-dependent and/or a willful violator, and indicates on the LCA(s) that only "exempt" H-1B nonimmigrants will be employed, a list of such "exempt" H-1B nonimmigrants (see 20 CFR § 655.737(e)(1) for the details;

(10) Where the employer is H-1B-dependent or a willful violator, a summary of the recruitment methods used and the time frames of recruitment of U.S. workers (or copies of pertinent documents showing this information) (see 20 § 655.739(i)(4) for the details.

Above list is not an inclusive list.  It is strongly suggested that an H-1B employer seek professional legal assistance to get all paperwork complied with the regulation requirements to eliminate or reduce the corporate liabilities.  For assistance from this office, please send an email to This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

June 21, 2005

Washington, D.C.- U.S Citizenship and Immigration Services (USCIS) announced today that employers of
H-1B1 Free Trade nonimmigrants from Chile and Singapore must file fees required by the H-1B Visa Reform Act of 2004. Since the new fee structure took effect on December 8, 2004, USCIS has received a number of petitions from employers of H-1B1 Free Trade nonimmigrants from Chile or Singapore without the additional filing fee. USCIS announced that after July 20, 2005 it will reject all cases filed for H-1B1 Free Trade nonimmigrants from Chile and Singapore without the proper filing fee. In the interim, the Nebraska Service Center will continue to accept H-1B1 cases without the correct fee and seek the proper fee payment through a Request for Evidence.
In particular, the additional filing fee is required for H-1B1 Free Trade nonimmigrants from Chile and Singapore in the following situations. Employers should complete and file the Petition for a Non-immigrant Worker (Form I-129), the Nonimmigrant Classification based on Free Trade Agreement Supplement to Form I-129 and the H-1B Data Collection and Filing Exemption Supplement (previously Form I-129W).

• Employers seeking to employ a current H-1B1 Free Trade nonimmigrant from Chile or Singapore presently employed by another H-1B1 employer.

• Employers requesting an initial extension of H-1B1 status for an H-1B1 Free Trade nonimmigrant from Chile or Singapore they presently employ.

• Employers seeking to change an alien's status and employ an alien as an H-1B1 Free Trade nonimmigrant from Chile or Singapore in "new employment."

The additional fee required by H-1B Visa Reform Act of 2004 for H-1B1 employers is $1,500 for businesses with 26 or more full-time employees and $750 for businesses with 25 or fewer full-time employees. In each instance, the number of full-time employees is determined by including any affiliate or subsidiary of the petitioning employer in the United States. Employers who are exempt from the additional filing fee are identified in section 214(c)(9)(A) of the Immigration and Nationality Act (INA).

The $500 Fraud Prevention and Detection Fee, also authorized by the H-1B Reform Act of 2004, is not required for aliens from Chile or Singapore seeking an initial grant, extension, or change of status to a H-1B1 Free Trade nonimmigrant or filing an amendment to authorize a change in H-1B1 employers.

The H-3 visa is for an alien coming to the United States to receive training from an employer in any field other than graduate education or training. When an application is made in this category, the employer must state that the training is not available in foreign nationals, and why it is necessary for the alien to take training in the U.S. The training program may consist of formal classroom training with written materials and study guides, and the training may also contain a component of "hands-on" on-the-job activities, so long as those activities are merely incidental to the training program, do not constitute "gainful employment", and do not by-pass or displace U.S. workers or the availability of an employment position for a U.S. worker.

In addition to the general requirements for admission, the employers must meet the following requirements:

• Receiving no graduate medical education or training in the U.S.
• Not have the opportunity to receive this kind of training in his/her home country.
• Needs this traineeship to advance his/her career outside the U.S.

To make the application successful, the employer has to submit a training program explaining the necessity and specialty of this traineeship by showing:

• That the training won't result in productive employment.
• That it is highly structured and organized.
• That the alien beneficiary is trained for a position abroad but not necessarily for one with the U.S. employer.

There is a time limit of two years for the initial issue of an H-3 visa. Usually, it is issued for the time of the traineeship. It means that the approval could be only for several months to one year. If the alien stays in the U.S. for a full two years, he/she has to leave the U.S. for six months in order to receive a new H or L visa.

There are some other specific requirements on H-3 visa. For more information, please Contact Xielaw.

A priority date is assigned when an alien files an immigrant application or for whose an immigrant petition is filed. For example, the date the I-130 petition is filed will be generally the priority date; the date I-140 petition is filed with USCIS will generally the priority date. If the PERM labor certification application must be filed and approved before the I-140 petition is filed, the date PERM labor certification application was filed will be the priority date. You can find your priority date on the top portion of your I-140 or I-130 approval notice. If your I-140 or I-130 has not been approved, you will need to wait for the approval notice to determine your official priority date.  In summary, The priority date is the date on which the USCIS received the application, either an I-130 application for an alien relative or an I-140 application for an immigrant worker (or the filiing of a labor certification if that is a component of the green card petition process).

How can I Read the Visa Bulletin?

First of all, you need to identify what category your petition falls under: family based or employment based.  Then you needs to identify which sub-category your case belongs to.  For example, if your US citizen parent has filed immigrant petition for you and you are older than 21 and unmarried, your application is a family "1st" on the Bulletin.  If you filed the NIW I-140 petition, your application will be under "Employment Based 2nd".  AND if you were born in the mainland China, you need to look for the date "15FEB05" (for March 2009) under "China-Mainland Born" and "2nd"   for you, but if you were born in any country other than the mainland China, India, Mexico or Philipines, you need to find the letter or date under "All Charge-ability Areas Except Those Listed" and "2nd".  For March 2009 Visa Bulletin, the letter is "C".

If your category is "C", that will be an excellent news to you.  "C" means "Current", which means the visas are immediately available for issuance by the consulate. If a category is oversubscribed, tables on the Visa Bulletin indicate this fact with a date, such as 15FEB05 under the appropriate chargeability area. When a category is oversubscribed, only individuals with a "Priority Date" earlier than the one listed on the Visa Bulletin may be issued visas.  "C" is the most important letter you cannot ignore on the visa bulletin table if you are waiting for your priority date.

How does the Priority Date Move?

The Priority Dates on the Visa Bulletin table do not necessarily advance one month at a time, and depend upon the number of applications filed around the time of an individual's application. It can go back (retrogression) or forward A surge in applications for a particular chargeability area at the time of filing could lead to priority dates advancing only one week per month. Similarly, a sharp drop in applications for a particular chargeability area when the application was filed might result in priority dates that advance six months at a time.  For some case categories, such as US citizen's brothers and sisters, the priority dates moves only days per months.  Some of you may ask, how can I know when will my priority date become current?  Can you predict it for me?  Unfortunately, the answer is no... No one can tell it.  What you can do is to wait for your priority date patiently...

Above introduction is provided for general information only.  If you have your own attorney, you should contact the attorney for details or specific assistance.  Xielaw clients can feel free to contact us if you have any specific questions.

An H-1B employer is required to file an amended petition when the following material changes occur:

(1) The job duties of the H-1B worker change significantly to the extent the duties are no longer those of the position identified on the original petition and the supporting LCA-state differently the change in duties arises to the level of a change in the specialty occupation., e.g., a physician is admitted to teach or conduct medical research and then seeks to provide clinical care;

(2) When the H-1B worker is assigned to a location in an area of employment not listed on the original LCA. A new labor condition application is required by the DOL.

(3)  When the H-1B job needs to be changed from a full time position to a part time position, or from a part time position to a full time position.

If there is one of any above changes on your H-1B workers' status, please contact Attorney Jeff Xie about preparing and filing the petition to amend the approved H-1B so that your company is in compliance with the regulation requirements.

However please also note that the following changes in employment do not require that an amended petition be filed:

(1) a change in job title without significant change in job duties;

(2) minor changes in job duties that do not affect the basic requirements of the job being performed by the H-1B worker;

(3) a promotion to a higher position within the same occupation provided that the alien is required to utilize the same academic training as was required in the former position, e.g., a promotion of an accountant to a supervisory accountant would not require amended petition because supervisory accountant would still be required to possess the theoretical knowledge of accounting normally possessed by an H-1B accountant;

(4) a change in salary, unless the change is so dramatic that it indicates a significant change in responsibility or duties;

(5) assignment to a new location for which a new LCA is not required (i.e., only a new posting is required under DOL rules);

(6) the employer's name changes but the underlying nature or terms of the H-1B employment does not;

(7) the employer is involved in a corporate restructuring, including but not limited to a merger, acquisition, or consolidation provided the new entity assumes all of the obligations and rights of the predecessor companies, and the terms and conditions of the H-1B employment remain the same.

If you have questions about any of above changes, please feel free to contact us.

F-1 foreign students who meet the following conditions must read this section:

1. Are in a valid F-1 status
2. Have a proper job offer from an employer in the United States
3. OPT will expires before October 1 the current year
4. Will or have filed H-1B petition sponsored by the private employer who is not H-1B quota exempted.

9.1. Basic Provisions

The eligibility date is the date a USCIS Service Center receives a properly filed Form I-129, Petition for a Nonimmigrant Worker, naming the student as a beneficiary of the petition from the prospective employer.

The cap gap extension starts when the student’s current period of F-1 status ends, regardless of whether the student was in a period of OPT. However, if the student was not in a period of authorized post-completion OPT on the eligibility date, the extension of status starts on the day after the student’s initial grace period expires.

9.1.1. What determines the length of the cap gap extension?

The following chart shows how the length of the cap gap extension is determined.

Note 1: If a student’s regular period of OPT extends to June 2, the student does not need to make the request

Note 2: If a student’s regular period of OPT extends to July 28, the student does not need to make the request

9.1.2. If a student was not in an authorized period of OPT on the eligibility date, can the student work during the cap gap extension?

No. In order for a student to have employment authorization during the cap gap extension, the student must be in an approved period of OPT on the eligibility date.

9.1.3. Do students need to file an application or pay a fee to receive a cap gap extension?

No, the extension is granted automatically at no cost. However, as noted on the chart of events impacting the length of the cap gap extension, the student may need to notify the DSO of his or her eligibility for extensions prior to the date USCIS issues a receipt for the H-1B petition listing the student as a beneficiary.

However, it is important to note that although the extension is automatically granted, SEVIS may not be automatically updated to show the extension. Students are responsible for checking with their DSOs and verifying that their SEVIS record has been updated with the extension. See the section on how students will know they have a cap gap extension.

9.1.4. What is the length of the cap gap extensions?

For students with active post-completion OPT, the cap gap extension for both employment and F-1 status starts the date the student’s original OPT expires and ends September 30 unless the H-1B petition for the student is rejected, denied, or withdrawn. In those cases, the employment authorization ends and the grace period begins.

For students whose post-completion OPT expired prior to the filing date of the H-1B petition, the cap gap extension starts at the end of their grace period and ends September 30 unless the H-1B petition for the student is rejected, denied, or withdrawn. However, these students will not have work authorization.

Due to the complexities involved, students will receive cap gap extensions in increments, as the petition goes through the steps of filing, receipting, and adjudication.

• A student who is the beneficiary of a properly filed H-1B petition will have his or her OPT extended to June 2, 2008, and F-1 status extended to August 2, 2008
• A student who is the beneficiary of wait listed H-1B petition will have his or her OPT extended to July 28, 2008, and F-1 status extended to September 27, 2008
• A student who is the beneficiary of a receipted H-1B petition will have his or her OPT and F-1 status extended to September 30, 2008
• A student whose H-1B petition is withdrawn or denied will have his or her OPT extension terminate 10 days after the date of the withdrawal or denial and their F-1 status extension will end 60 days after that. Termination of the automatic extension will not prematurely terminate a student’s period of approved OPT, as shown on the student’s employment authorization document or the student’s original period of F-1 status.

9.1.5. Will students receive personal notification when they have a cap gap extension?

Students will not automatically receive notification when they have a cap gap extension. Students must request a Form I-20 from their DSO showing the period of the extension. In some cases, students may need to notify their DSO they are eligible for the extension.

9.1.6. How will students know they have a cap gap extension?

Students must remain in contact with the employer that filed the Form I-129, Petition for a Nonimmigrant Worker, on their behalf and with their DSO.

Until USCIS issues receipt notices, only the petitioning employer will know when the application was properly filed or wait listed. The student may obtain evidence from the employer for either of these two events and ask the DSO to request a data fix from SEVP. If the student’s current OPT expires before June 2, 2008, it is possible that the student will have to request such a data fix.

When USCIS has receipted an H-1B petition, the information is entered into CLAIMS (the system used by the USCIS Service Centers) and will be used to update SEVIS. However, there are some cases where the data from the interface does not properly update SEVIS. Students are responsible for checking with their DSOs and verifying that their SEVIS record has been updated with the extension.

9.1.7. How will students know if their cap extension is terminated before September 30 due to a withdrawn or denied H-1B petition?

Students will not be personally notified by DHS of a withdrawn or denied H-1B petition, so they must remain in contact with the sponsoring employer and their DSO. It is the student’s responsibility to check regularly on his or her status.

9.2. Proof of the extension of status and work authorization

9.2.1. What proof will students have that they are entitled to the extension of work authorization and status?

SEVP is working to update SEVIS with the ability to print a Form I-20 showing the dates of continued F-1 status and employment authorization.

SEVP is also coordinating with other components of DHS to provide additional guidance on work authorization. This guidance will be updated as soon as the functionality exists or a workaround is developed.

9.3. Issues with SEVIS and the cap gap extension

9.3.1. What if SEVIS does not show that an eligible student’s work authorization and status have been extended?

Students are responsible for checking with their DSOs and verifying that their SEVIS record has been updated with the extension. If the student’s SEVIS record does not properly reflect his or her status, the student should ask the DSO to request a data fix and provide evidence that the student is entitled to the extension.

The evidence needed to support a data fix is:

• For a properly filed H-1B petition
  • A statement from the employer that the student is the beneficiary listed on a properly filed H-1B petition
  • Proof of delivery to a USCIS Service Center showing the date of receipt
• For a wait listed H-1B petition
  • A copy of the wait list letter from USCIS to the employer
• For a receipted or approved H-1B application
  • A copy of the receipt (Form I-797) and/or the receipt number

9.3.2. What are the responsibilities of the DSO for ensuring that SEVIS properly shows the student has a cap gap extension?

DSOs are responsible for:

• Providing status information in response to a student’s request
• Requesting a data fix by calling SEVIS help desk at (800) 892-4829 and forwarding evidence provided by the student

DSOs are not responsible for initiating any actions in connection with the cap gap extensions.

9.4. Student responsibilities during the cap gap extension

9.4.1. Can students travel outside the United States during a cap gap extension period and return in F-1 status?

Yes, provided the student has a valid EAD. See 8 CFR 214.2(f)(13).A student may choose to leave the United States and obtain an H-1B visa to return to the United States to assume H-1B employment.

9.4.2. Do the limits on unemployment time apply to students with a cap gap extension?

Yes. The 90 day limitation on unemployment continues during the cap gap extension.

9.4.3. What do students on a cap gap extension need to report to their DSO?

As with all students on post-completion OPT, the student must report any change of address within 10 days, any legal name change, and interruptions of employment. See 8 CFR 214.2(f)(12),(17).

In addition the student should follow directions in the section on what students should report to ensure that their status does not expire due to excessive unemployment time.

9.4.4. What are the restrictions on the type of employment for a student with a cap gap OPT?

See the section on acceptable post-completion OPT employment.

• Work in a paid position for an E-Verify employer at least 20 hours per week
• Work in a position related to the STEM degree
• Report to their DSO within 10 days of:
   
  • Legal name changes
  • A change in residential or mailing address
  • Changes in employer, giving the employer name and employer address
  • Loss of employment
    
• Send the DSO a validation report every six months starting from the date the STEM extension starts and ending when the student's F-1 status ends or the STEM extension ends, whichever is first. The validation report must include the student's:
  • Full legal name
  • SEVIS identification number (if requested by the school)
  • Current mailing and residential address
  • Name and address of the current employer
  • Date the student began working for the current employer

• Students pursing a period of STEM extension OPT must not:
  • Work in a paid position for any employer that is not an E-Verify employer
  • Have more than 120 days of unemployment time during the entire period of post-completion OPT (regular post-completion OPT and STEM extension OPT).

Dear EB-5 Investors,

Below is the steps our clients will do to complete your investment based green card application:

STEP 1:  Investor selects the regional center investment project for investment and fills out our Personal Net Worth Questionnaires.  For a list of active regional centers approved by USCIS for EB-5 investment based green card application, please click here.  Please contact Xielaw for the details about the specific investment project(s) that you are interested in.

STEP 2: Investor receives Regional Center's Offering Memorandum and other investment documentation for review and approval.

STEP 3: Investor signs the Retainer Agreement with Xie Law Offices, LLC. and pays the initial attorney's fee as provided in the agreement.

STEP 4: Investor signs the subscription agreement with the regional center and forwards a deposit to the regional center.

STEP 5: Xielaw sends instructions/document list to Investor and Investor prepares and collects the requested documents and forwards all requested documentation to Xie Law Offices, LLC.

STEP 6:  Xielaw and regional center work together to prepare the documentation and prepare immigrant petition.

STEP 7:  Xielaw or regional center sends notification to the investor that Immigrant Petition is ready to be filed along with wire transfer instructions. Investor wires $500,000 to escrow account (to he held by a third party bank).

STEP 8: USCIS approves the immigrant petition. The investment transaction is closed with Escrow Agent unconditionally releasing funds to the investment project (regional center).

STEP 9: Xielaw submits immigrant visa application to US consulate or application to adjust status to permanent resident to USCIS.

STEP 10:  Investor receives temporary Green Card.

STEP 11:  Xielaw files an application to remove conditional resident status application to the USCIS in two years.

STEP 12: Investor receives permanent Green Card.

STEP 13:  After 60 months, investor may choose from one of several investment exit strategies. Please read the Subscription Agreement for more information.

STEP 14:  Investor is eligible for filing application for US citizenship when Investor has been a US permanent resident (green card holder) for five years.

Above steps are informational only and it does not apply to all EB-5 applications. Contact Jeff Z Xie, Attorney At Law at This e-mail address is being protected from spambots. You need JavaScript enabled to view it  to request the document list and get it started today. Thanks!

This provides general information concerning displacement of U.S. workers by H-1B workers under the H-1B program. Special attestations (e.g., displacement) applicable to H-1B-dependent and willful violator employers sunset on October 1, 2003, but were restored effective March 8, 2005 by the H-1B Visa Reform Act of 2004.

A U.S. worker is displaced from a job under the H-1B program if the employer lays off the U.S. worker from a job that is essentially the equivalent of the job for which the H-1B worker is sought.

There are several requirements on H-1B work visa. To qualify for the H-1B visa category, the prospective H-1B employee must meet the following requirements:

1. The alien worker must have earned a bachelor's or higher degree.  If the degree was earned in a foreign country, the degree must be evaluated by a third agency to make it a U.S. equivalent 4 years bachelor's or higher degree from an accredited college or university.  If the foreign degree is 3 years bachelor's degree , a 3 years of work experience in same or similar field /occupation can be considered to one year additional education.
2. The alien worker must have a job offer from an employer in the United States.
3. The offered job must require at least a Bachelor's degree and it is related to the degree.
4. The offered wage (salary) must meet the prevailing wage requirement.
5. The US employer is willing to sponsor the H-1B petition.

In addition, if the offered job is in the occupations that require licensure or professional credentials (e.g., doctor, dentist, attorney, registered nurse, teacher), the alien worker must already hold such qualification before the H1B visa petition can be filed or the licensure requirement has been waived.

If you have met above requirements, we can get your H-1B prepared and approved.  If the job offer was issued by a private company and you do not have an H-1B before, your H-1B might have the quota or CAP issue.  Contact Xielaw to have your H-1B case evaluated.

The term "place of employment" means the worksite or physical location where an H-1B nonimmigrant worker actually performs his or her work. A Labor Condition Application (LCA) (Form ETA 9035 and/or ETA 9035E) must be filed for the geographic area where an employer intends an H-1B worker to be employed. The LCA will apply to any worksites within this "area of employment," and thus will control the prevailing wage determination, posting, and other worksite-related obligations of an employer. Certain temporary work performed by an H-1B

The H-1B employer is not required to recruit U.S. workers, unless it is H-1B-dependent or is a previous willful violator of H-1B requirements. Such employers must take good faith steps to recruit U.S. workers for any job for which they seek H-1B workers.

Who is a "U.S. worker"?

This section provides general information concerning H-1B-dependent employers under the H-1B program. Special attestations applicable to H-1B-dependent and willful violator employers sunset on October 1, 2003, but were restored effective March 8, 2005 by the H-1B Visa Reform Act of 2004.

An employer is considered H-1B-dependent if it has:

The H-1B employer must pay its H-1B worker(s) at least the "required" wage which is the higher of the prevailing wage or the employer's actual wage (in-house wage) for similarly employed workers.

What is the prevailing wage?

H-1B workers must be paid the required wage rate for all nonproductive time caused by conditions related to employment, such as lack of assigned work, lack of a permit, or studying for a licensing exam.

No payment is required under the H-1B program for nonproductive time due to reasons not related to employment, such as a worker's voluntary absence from work or a hospitalization, etc. Employers, however,

The H-1B Visa Reform Act of 2004 amendments to the law (effective March 8, 2005) provides a provision under which an H-1B employer is "considered to have complied" in good faith with the program requirements notwithstanding a "technical or procedural failure" to meet such requirements if the employer:

• Made a good faith attempt to comply;

The employer must offer benefits to H-1B workers on the same basis, and in accordance with the same criteria, as the benefits the employer provides to similarly employed U.S. workers.

What are benefits?