Tag: Employment Authorization

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Exploring Alternatives to the H-1B Visa

Exploring Alternatives to the H-1B Visa
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The H-1B visa is a popular choice for U.S. work visas, allowing individuals to work in specialty occupations. However, due to the high demand, many applicants do not secure an H-1B visa through the annual lottery. If you weren’t selected in the H-1B Cap Lottery for Fiscal Year 2025, which closed on March 25, 2024, and announced results on April 1, 2024, there are still several viable alternatives to explore.

1. H-1B Work Authorization for Cap-Exempt Employers

Not all H-1B employment falls under the annual cap. Certain employers can file cap-exempt petitions at any time, including:

  • Institutions of higher education or affiliated nonprofit entities
  • Nonprofit research organizations
  • Government research organizations

Additionally, cap-subject employers can hire H-1B visa holders who also work for a cap-exempt employer, provided they maintain their cap-exempt employment throughout the H-1B validity period.

2. F-1 Work Authorization Options

International students in the U.S. might extend their employment authorization through Optional Practical Training (OPT):

  • Non-STEM graduates can receive up to 12 months of work authorization post-graduation.
  • STEM graduates can receive up to 36 months of work authorization, provided their employer is enrolled in E-Verify.

Another option is enrolling in a new university program to work under F-1 Curricular Practical Training (CPT). However, this route carries risks, including potential requests for additional evidence in future H-1B petitions. It’s crucial to thoroughly research and maintain documentation of your student status.

3. Dependent Work Authorization Tied to a Spouse’s Employment

Spouses of visa holders such as E-2, E-3, H-1B, and L-1 may be eligible for work authorization:

  • Spouses of E and L visa holders are automatically authorized to work as indicated on their I-94 document.
  • Spouses of H-1B visa holders (H-4 visa) can work if the H-1B holder has reached a significant milestone in the green card process and the H-4 spouse has applied for an Employment Authorization Document (EAD).

4. Country-Specific Visa Categories

Citizens of countries with specific trade agreements with the U.S. can benefit from specialized work visas:

  • TN visas for Canadians and Mexicans in specified professional occupations.
  • H-1B1 visas for Chileans and Singaporeans in specialty occupations.
  • E-3 visas for Australians in specialty occupations.

These visas typically do not lead directly to green cards, so continuing to enter the H-1B lottery is advisable for long-term U.S. residency.

5. E-1/E-2 Visas for Treaty Traders & Investors

Nationals from countries with U.S. treaties can apply for E-1 (treaty trader) or E-2 (treaty investor) visas. These visas apply to executives or specialized employees of companies with the same nationality as the applicant. However, like other visas, they don’t directly lead to green cards, so participating in the H-1B lottery is still recommended.

6. O-1 Visa for Individuals with Extraordinary Ability

Individuals with exceptional talent in sciences, education, arts, business, or athletics may qualify for an O-1 visa. This category includes specific provisions for PhDs in STEM fields. Similar to other alternatives, this visa doesn’t provide a clear path to a green card.

7. L-1 Visa for Intracompany Transferees

Employees of international companies with U.S. branches might qualify for an L-1 visa if:

  • The U.S. and foreign entities have a qualifying relationship.
  • The applicant has worked for the foreign entity for at least one year in the past three years.
  • The employment is in a managerial or specialized knowledge role.

8. Green Card Options

Though not an immediate solution, applying for a green card can lead to long-term U.S. work authorization. Some categories allow self-petitioning without employer sponsorship:

  • EB-1 for individuals of extraordinary ability, requiring proof of sustained acclaim.
  • EB-2 with a National Interest Waiver for individuals with advanced degrees or exceptional abilities, demonstrating that their work benefits the U.S.

By understanding these alternatives, individuals not selected in the H-1B lottery can still find viable paths to work and remain in the U.S.

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Updates

Planning Ahead: Expediting Employment Authorization Documents

USCIS Expediting Employment Authorization Documents
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Five years ago, the United States Citizenship and Immigration Services (USCIS) routinely took 3 months to issue employment authorization documents (EADs) and advance parole (AP) travel documents. Prior to the pandemic, USCIS was taking approximately 6 months to issue them. Now, USCIS can take 9 months or longer to issue these documents. These delays create huge hardships to organizations and individuals.

Requesting Expedited Processing

The best way to handle these delays is to plan ahead. You may file for an extension up to 180 days prior to the expiration of your EAD and AP. Plan to apply for an extension of the interim benefits the full six months before they expire. If applying for the initial EAD or AP, plan that it will be several months before it is issued and budget accordingly, taking into account current restrictions on international travel.

If the applicant must be fingerprinted, USCIS will not consider an expedited request until after the applicant has been fingerprinted. Consequently, it is extremely difficult to expedite first-time applications.

USCIS may expedite the issuance of an EAD or AP in limited, specific circumstances:

  • Severe financial loss to a company or person, provided that the need for urgent action is not the result of the applicant’s failure: (1) to timely file the benefit request; (2) to timely respond to any requests for additional evidence.
  • Emergencies and urgent humanitarian reasons.
  • Nonprofit organization (as designated by the Internal Revenue Service (IRS)) whose request is in furtherance of the cultural and social interests of the United States.
  • U.S. government interests (including urgent cases for federal agencies such as the U.S. Department of Defense, U.S. Department of Labor, DHS or other public safety or national security interests).
  • Clear USCIS error.
  • Healthcare worker with a pending EAD renewal.

As a practical matter, USCIS is more likely to honor requests for expedited treatment by school districts or federal government agencies than requests based on severe financial loss or urgent humanitarian reasons. Also, non-profit organizations that have a clear, easily understood, valuable public mission are more likely to have their requests honored.

Will USCIS Grant My Case Expedited Processing?

The reason for the expedited request must be explained in a clear and simple manner, backed up with any available documentation. Even in compelling circumstances with sympathetic parties, USCIS may not expedite a case. Critically, if USCIS perceives that there is a viable alternative for the applicant or that an organization is making too many requests, the agency is less likely to grant the expedited request. Vague requests or requests that show ordinary, predictable outcomes (loss of income), are less likely to be honored.

Even if USCIS approves the expedited processing, it will take several weeks for the documents to be issued. Consequently, it may take at least a month to get an interim document.

For more information on expediting EADs and/or APs, please contact Tancinco Law P.C. at 1 888 930 0808 or at www.tancinco.com.

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Updates

USCIS proposes parole status for foreign entrepreneurs

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The U.S. Citizenship and Immigration Services (USCIS) released a proposed rule that will allow the individuals referred to as “international entrepreneurs” to enter the United States temporarily on parole.  The parole status is similar to the status given to children of Filipino war veterans in a recent policy implemented a couple of months ago but in a different context. This recent international entrepreneur rule is considered to be a significant public benefit parole program to promote entrepreneurship and job creation.

There is a gap in the current immigration law  that will permit start up entrepreneurs  who receive significant capital investment from U.S. investors to stay and operate their businesses in the United States. Foreign students who are potential entrepreneurs and founders of start-ups have limited ways  to stay on a temporary visa after they graduate. Young immigrants who are researchers, innovators specifically in new technologies are not afforded sufficient avenues to develop their own start up businesses within the United States. The proposed  policy allows USCIS to use its discretionary parole authority to fill this gap and grant parole to founders of start-up entities whose entry would provide “significant public benefit” and whose start-ups have potential to facilitate research and development , create jobs for U.S. workers or otherwise benefit the U.S. economy through increased business activity, innovation and dynamism.

The proposed rule will grant parole status to an applicant who is an “entrepreneur”  of a start-up who has an active role in the operations and growth of the business. This entrepreneur must have recently formed a new start-up entity within three years before the date of filing the initial parole application.

Unlike an investors visa where the entrepreneur must show infusion of capital to the business that is formed from his own resources, an international entrepreneur seeking parole must show that the start-up business has potential for a “rapid growth and job creation.”

There are 3 alternative ways to prove this: first, that the business has significant U.S. capital investment of $345,000 or from established U.S. investors such as venture capital firms, angel investors and the like who have a history of substantial investment in successful start-up entities; second, the business received government funding of grants totaling $100,000 or more; and, third, any reliable and compelling evidence that will prove significant public benefit to the United States.

It is expected that this proposed rule will be implemented before end of this year; and, as soon as the rules are final, the USCIS will start accepting applications on new USCIS Form 941. The filing fee for this application is $1200. Once the application is approved, the entrepreneur, his/her spouse and minor children will be paroled into the United States and will receive employment authorization documents. Parole will be granted for up to 2 years and may be renewed for up to 3 years.

Recently it is noticeable that the current administration has been releasing new immigration policies. Even with a few months left before President Obama leaves office, he has somehow made good his promise to use his Executive power to fill in the gaps that have been left open by the failure of a divided Congress to pass any form of immigration legislation that is responsive to the competitive new global economy.

(For inquiries, you may reach Atty. Lourdes Santos Tancinco, Esq., at 1 888 930 0808 or email law@tancinco.com. This article also appears in the Philippine Daily Inquirer.)

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Updates

Revisiting the “Parole in Place” Policy for Children of WWII Veterans

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When U.S. Citizenship and Immigration Services officials visited the Philippine Consulate in San Francisco in July 2015 for a briefing on the Filipino World War II Veteran Policy, the issue that was of serious concern is about the eligibility of those who are in the United States in unlawful status. It was emphasized that the the FWVP parole is only for those outside the United States. Those who are in the United States must leave the country to get the parole but risk being barred for 3-10 years.

Those who are in the United States in unlawful status may still consider applying for a parole in place under the November 15, 2013 USCIS policy memorandum. However, parole in place has limited applicability.

Parole in Place

The U.S. Citizenship and Immigration Services released a Policy Memorandum titled “Parole of Spouses, Children and Parents of Active Duty Members of the U.S.Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act§ 212(a)(6)(A)(i)”. Pursuant to this Memorandum the children, parents and spouses of active duty members of the US Armed Forces as well as the veterans of the US Armed Forces are entitled to a “parole” status.

Parole status means that those eligible will be considered granted temporary relief from removal and that they will be provided with employment authorization document. The new policy also shall allow immediate relative who are eligible for this parole in place status to adjust their status if they have an approved petition visa petition from their US citizen immediate relative. Parole status does not erase any period of prior unlawful presence.

Usually “parole” status is granted to those who are entering the United States but have no valid visas. The U.S. Citizenship and Immigration Services has the authority to grant parole based on humanitarian or emergency circumstances of the applicant for parole. In this new policy memorandum, the grant of parole status is extended to those who are already in the United States in unlawful status but who have entered the United States without inspection or admission. Those who have entered with a valid visa and later on had the visa expired are not eligible for the parole in place.

Considering that the “parole in place” relief has limited applicability to spouses, children and parents of members and veterans of the military service, only children of war veterans who entered without inspection are entitled to parole. Most Filipinos who enter the United States have in their possession valid nonimmigrant visas. At the time of their entry, they are inspected and admitted. Since they were inspected, even if there are those who failed to maintain lawful status, they still will not be eligible for the parole in place.

The case will be different for children of veterans who crossed the Canadian or the Mexican border. When someone crosses the border without the appropriate visa, these are considered to have entered without admission or inspection (known as “EWIs”). If such is the case, then the “parole in place” may be applied with the U.S. Citizenship and Immigration Services.

Yet. those who are not eligible for parole in place may explore the option of adjustment of status under Section 245(i) since most of the veterans petition for their children were filed in before 2001.

(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her principal office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 1 888 930 0808 or email at law@tancinco.com or go to their website at tancinco.weareph.com/old or at www.facebook.com/tancincolaw.)

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Updates

Yemen: Deadline for TPS Registration is March 1, 2016

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March 1, 2016 is the deadline for the Yemen to get registered for Temporary Protected Status (TPS). The TPS designation for Yemen runs from September 3, 2015, through March 3, 2017.

Eligibility Criteria for Registration
To get registered with TPS, you must validate all eligibility criteria. This includes:

  • You must undergo security checks if you are 14 years old or older
  • You must have been “continuously residing” and “continuously physically present” in the United States since September 3, 2015.
  • Persons with criminal records are not eligible for TPS.

Registration Process:

To get registered for TPS, You must submit the following forms:

  • Form I-821, Application for Temporary Protected Status.
  • If you are more than 14 years old then biometric services fee applies.
  • Form I-765, Application for Employment Authorization, regardless of whether you want an employment authorization document (EAD).
  • The Form I-765 application fee or a fee-waiver request, but only if you want an EAD. No application fee is required if you don’t want an EAD.
  • There is no Form I-765 fee for initial applicants under the age of 14 or 66 years of age and over.

If you cannot pay the fee, you can submit a written request. However, you must file Form I-912, Request for Fee Waiver. TPS application will be rejected, if you do not submit the required filing fees or a properly documented fee-waiver request.

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Global Pinoy

Fear of deportation arises over court-issued injunction

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A day before the US Citizenship and Immigration Services was scheduled to receive applications for Obama’s program known as Deferred Action on Childhood Arrivals (DACA) expansion, District Judge Andrew Hanen issued a temporary injunction. This ruling will temporarily put a hold on the implementation of Obama’s immigration programs.

Joseph was looking forward to filing his application for his employment authorization document. Having entered the United States when he was 10 years old, his parents never took necessary steps to legalize his stay.

On Nov. 20, 2014, when President Barack Obama announced his executive actions expanding the Daca, he became hopeful about getting a temporary work permit. Joseph completed his degree in computer science from a state university but could not get a better job because he does not possess a work permit.

When he heard about the temporary injunction on Obama’s executive actions, Joseph was disheartened and is now apprehensive again about his situation.

States’ lawsuit
In the case of Texas v. United States of America, a lawsuit was filed by 26 states against Obama’s executive actions. The plaintiffs questioned the constitutionality of the executive actions as it bypassed the US Congress on an immigration matter. This case is pending before Federal District Judge Andrew Hanen of Brownsville, Texas.

Judge Hanen was a nominee of George W. Bush, assigned to the United States District Court for the Southern District of Texas. He is a known conservative who has been a critic of Obama’s immigration policies. So when the decision to suspend the implementation of the program that will offer work permits and offer a three-year reprieve from deportation was issued on Nov. 16, 2014, immigrant advocates were not surprised.

The Obama administration has already announced that they are filing an appeal to a higher court on this decision.

In the meantime, thousands of undocumented Filipinos, potentially eligible for the Dapa (Deferred Action for Parental Accountability) and Daca programs of the executive actions in question and who are similarly situated as Joseph, are anxious about the effect of this injunction. The excitement about filing for benefits under the executive actions was suddenly cut short by this temporary injunction. It was an affirmation of the uncertainty of the executive actions, which validates the skepticism of many on Obama’s Daca and Dapa programs.

There is always the concern whether coming out of the shadows means risking one’s fate to becoming vulnerable and risk being sent back home to the Philippines after the three-year deportation reprieve is over. There are some who are placed in a situation of accepting any type of odd job just to earn and be able to send money to their families back home.

The fear of the consequences of the unknown may deter many from filing. Yet, there are also many who are hopeful as this may just be a one-time opportunity to obtain work permits. Thus, to some this may be a poisoned apple. To others, this is an apple that is already ripe and should be picked before it rots and falls to the ground.

Many experts agree that the Nov. 16, 2014 district court judge’s injunction is only a temporary hold and that full implementation of Obama’s executive actions will just be a matter of time.