1. F-1 student on OPT until April 7, 2020, may have a problem with timing for H-1B under new rules for employer registration.
I am on F-1 visa and my optional practical training in journalism ends on April 7, 2020. My employer has agreed to sponsor me for the H-1B petition this year. I heard that there is a new procedure for this year. What should I and the company be aware of?
Mr. Lee answers,
USCIS has instituted an employer registration procedure under which persons will be selected without first putting in complete H-1B packages. Employers will set up accounts with USCIS with or without assistance from legal representatives beginning on February 24, 2020. The USCIS website will open for H-1B registrations at 12:00 PM Eastern Standard Time on March 1, 2020 and end at noontime on March 20, 2020. USCIS has stated that it will conduct the selection on or before March 31, 2020, and those selected will have at least 90 days to submit H-1B petition packages. You and the company must make a choice in your case of whether to begin your actual case prior to learning whether you will be selected because of your OPT ending date of April 7, 2020. There is most likely not sufficient time between when the company learns of your selection and filing your H-1B package to USCIS by April 7. That is because obtaining a labor condition application (LCA), a necessary part of the H-1B filing, takes seven days to process by the Department of Labor (in addition to the time required to set it up before filing with the Department). The inability to file a complete H-1B package to USCIS by April 7 means that you would not be able to obtain cap-gap work authorization until September 30, although USCIS would allow you to stay in the country to await the adjudication of the H-1B petition.
2. New H-1B rule for employer registration gives more opportunities but also potential danger to those who will soon obtain US Masters degrees.
I will soon graduate with a Masters degree in public administration from a university in New York (should finish the requirements by May 2020) and I am working with the company on curriculum practical training which is interested in sponsoring me for the H-1B petition in April. The company is now registering itself under the new immigration requirement and is asking me questions about my status including whether I have a Masters degree or will have a Masters degree and if so, when would I have it. I am confused and would like some advice on what I should say to the company.
Mr. Lee answers,
The company is asking you these questions because the new H-1B employer registration process asks whether you are applying under the US Masters cap or not. Persons applying under the US Masters and higher US degree cap will have a higher percentage of being selected. The rule is that you must have finished the Masters degree by the time that the actual H-1B petition package is filed with USCIS. That does not mean having the degree in hand, but having completed all requirements of the degree. If you are very confident that you will complete the requirements by May 2020, your employer can mark that you are applying under the US Masters cap. If selected, the employer would wait until you have completed all the requirements prior to submitting the actual H-1B petition. I note that you would not be qualified for the H-1B if the employer could not submit your petition within the period of time that USCIS allows for selectees to file petitions (likely 90 days after being notified of selection). In addition, you and the company would most likely not be able to file a petition under the Bachelors degree cap if you did not obtain your Masters degree in time since your selection was based upon the company’s representation that you have attained a US Masters degree or higher US degree by the time of filing.
3. Sponsoring my sister and her daughter – one or two petitions?
I was just naturalized and now want to sponsor my sister and her daughter. Should I file one petition for my sister and one petition for my niece? Also how long will it take before they are able to come to the US?
Mr. Lee answers,
To apply for your sister and her daughter, you would submit form I-130 petition for alien relative to U.S.C.I.S. You only have to submit one petition as you do not have the requisite relationship with the niece to sponsor her, but she can come over with her mother as long as she has not aged out by the time that there is visa availability for the petition. Current waiting time is approximately 12 years.
4. Brother’s circumstances have changed since I started sponsoring almost 12 years ago – what to do?
As a US citizen, I first began petitioning for my brother in early 2008. It has now been almost 12 years, and the petition was approved by Immigration in 2017 and we received notice from the National Visa Center that they have the case. Recently we checked and we are now able to pay for my brother’s visa fee. However, since I began petitioning, my brother became married and now has two sons. What do we have to do at this time? Can we add his wife and two sons on, or do I have to fill out more forms and petition for them separately?
Mr. Lee answers,
You or your brother must notify the National Visa Center (NVC) of your brother’s changed circumstances in order that the NVC can add his wife and two sons. The NVC can be contacted by letter or email, and the request to add the wife and children should include copies of marriage and birth papers. Once they are included in your brother’s case at the NVC, the Department of State fees can be paid and your brother can begin to send in requested documentation to the NVC for consular processing.
5. Application to change status pending, can I travel across the country to Los Angeles and tour around?
I came to the United States on a visiting visa and before it expired filed an application to change my status to F-1 student. My application is still pending. With all the talk of a tough attitude towards immigration, am I safe if I travel from New York to Los Angeles to see friends and tour the city and surrounding areas?
Mr. Lee answers,
Technically you are in a quasi-legal status as you filed a timely change of status application. You should be okay to tour in LA this month. I do note, however, that with the present Trump administration, it would be much better if you did not go near the border with Mexico as border patrol officers may have a different idea of your legal status and give you problems. Please note that the border is considered to extend for 100 miles from each boundary.