Sunday, November 29, 2015

Can an employer Revoke an approved form I-140 after 180 days?

We often get the question whether an employer can revoke an approved I-140 once 180 days has passed.  The short answer is yes unless there was an I-485 adjustment of status filed attached to it. Nonetheless many have confused this rule and understand that after 180 days an employer cannot revoke the I-140 petition.

The rule of "irrevocable I-140" is attached to AC 21 rules where the employer loses the ability to revoke the approved I-140 or approval I-140 once the adjustment of status (AOS) aka I-485 form is filed. However, the USCIS reserves the right to still revoke the I-140 approved petition based on "fraud and misrepresentation".

Therefore, make sure that in case you need an I-140 to file for extension or transfer beyond six years, your employer has not 'secretly' revoked such a petition.

We recommend people before they make a move to actually consult with an attorney experienced in I-140 and H1B issues. Our law firms has handled hundreds of those, please call us at (510) 742 5887.

Thursday, November 26, 2015

Happy Thanksgiving

Remember that thanksgiving is not only about eating food or spending time with the family. It is also about sharing. For those who are immigrants or intending immigrants, life is sometimes difficult so we call on those who are settled to be there for the immigrant community and for one another.
Happy Thanksgiving!

Wednesday, November 18, 2015

OPT Stem extension might not happen because of too many negative comments!

Unlike the H4 EAD, the OPT 24 months extension proposed rule has been receiving an awfully number of negative comments which lead us think that the rule might not go through. Having said that it is not the number of negative comments as much as negative comments which makes sense. The Obama administration has already prepared to keep the STEM extension with added restrictions. However, if the public is overwhelmingly against it, we might not see them continue on the rule. We recommend that more and more people who care about the OPT extension to continue commenting positively on the registrar and explain exactly how America is negatively affected by a reduction of foreign student in this country.

Note that the foreign student industry is a billion dollar industry which actually helps Universities to thrive in the United States.  In fact, many of the foreign students help the economy according to the Institute of International Education:

"In 2015, the continued growth in international students coming to the U.S. for higher education had a significant positive economic impact on the United States. International students contributed more than $30.5 billion to the U.S. economy, according to the U.S. Department of Commerce."

By decreasing the opportunities on the STEM OPT, many of the foreign students will not willing to the United States and will prefer to choose another destination. This will turn affect US schools and the US economy.

We encourage all of you to go on the OPT 24 months extension proposed rule and comment how this law will not only be helpful to the students but also to the US economy.

Immigration Guide by the Shah Peerally Law Group

Monday, November 16, 2015

IT consulting companies make sure you are not underpaying your employees!

The H1B visa has one main requirement is that you place the employee accordingly. Many times the position which an employee is being placed determines the salary of that employee. Before filing an H1B visa, transferring an H1B visa holder or even amending an H1B visa, you need to make sure that a Labor Condition Application (LCA) is approved by the Department of Labor (DOL). As such putting entry level positions on non-entry level to circumvent the prevailing wage, can have dire consequences. See article Indian-American owned companies fined for misuse of H-1B visa

Many times it is tempting for employers to pick an entry level rather than an adequate level for your employee and ultimately the employer might be fined or even have their ability to file H1B visas be stripped.

We recommend an employer make sure he or she is complying with all the rules of the H1B visas and the H4 visas when placing their employees or hiring their employees.

The DOL has recently been very severe regarding such issues. We recommend both employers and employees to make sure that the requirements are met.

If you are an H1B employer or an H1B employee, and you are having issues, please call us at 510 742 5887.

Saturday, November 14, 2015

Be careful if you are using CPT!

During the time when H4 did not have an EAD, one of the options of those who wanted to get an education and work was to use a student visa and ultimately get an OPT (Optional Practical Training). During the school courses, one option which has been common is the use the CPT (Curriculum Practical Training) to get experience through work while completing a degree. This option is quite useful in many fields where practical training are part and parcel of the industry.

Adapting to this situation, many schools have successfully converted their curriculum to accommodate such needs and ultimately become CPT day-1 issuers. Many F1 students have opted for this option. Eventually some of the students who are eligible for a CPT who are now not willing to continue their studies on F1 and who are eligible for the H4 visa EAD, have decided to change status to H4 and an EAD. During the process, many cases are being hit with requests for evidence (RFEs) requesting the applicants to explain the eligibility for CPT.  USCIS is also requesting some to explain how the CPT employment was obtained and the school to explain why a CPT was required in the curriculum.

While the schools have so far done a good job in explaining the CPT requirements for the courses, it is still incumbent on the applicant to answer the RFE in order to allow a change of status.  Failure to promptly or appropriately answer will result in a denial.  As such we recommend having an experienced attorney help in the case.  So far we have answered many of such cases successfully and we are proud to be able to help. Feel free to call us at 510 742 5887 for any information.

Thursday, November 12, 2015

Liquidated Damages v/s punitive damages on H1B contracts - Employers and...

Now that many are moving on H4 and using their H4 EAD, many employers especially consulting companies are not very happy about the event. As such many of them are acting in an oppressive fashion when being told about the H4 EAD. This video tell you about some of your rights if you were on H1B, changing employment or moving to H4 EAD. Please share.

Wednesday, November 11, 2015

Can I go back to my H1B visa after I move to H4 visa status and work H4 EAD?

Many of those who are having issues or for flexibility reasons, have opted to move from H1B to H4 EAD. Note that the status is still H4 and the EAD is just a benefit for those who qualify.  The frequently asked question, is whether when one has moved from the H1B to H4 and the EAD, can he is or she move back to H1B visa?  The simple answer is yes provided:

1. There is time left on the H1B either before six years or if there is potential H1B extension beyond based on AC 21 104(c) or an approved I-140 petition.
2. There is a good offer which complies with the specialty occupation of the H1B visa.

However, the person can only start using the H1B visa once it is approved not when the extension or transfer is applied.

We recommend that before changing your status from H1B to H4 or vice versa, you speak to a good lawyer who can analyze your case accordingly. You can call us at 510 742 5887 if you need a consultation.

Tuesday, November 10, 2015

Possible predictions on the Visa Bulletin for the next few months.

Few days ago the December 2015 Visa Bulletin came out and many are again disappointed because not only the acceptance time for EB2 India has not moved from the July 1 2009, the card issuing time has actually not moved a lot.  As such those who were waiting to obtain their permanent residence above May 2007 will not be able to get anything soon.

The question is what can we expect in the next few months. According to our estimates and note those are purely speculative, we believe that there might be no movement on the acceptance date from July 1 2009 until January 2016 and we believe that the processing GC (greencard) will move to 2008 probably in December 2015 for the January 2016 Visa Bulletin and peak to the the same date of July 2009 by January 2016 for February 2016 Visa Bulletin when actually we will see a possible move forward on the acceptance date to probably January 2010.

Having said that, there is also a possibility of retrogression or status quo until the next fiscal year calculation. Noting that 2016 is an election year, we should be ready to expect the unexpected.  Until then we wish all you the best and hope that hopefully we will be able to get some positive results. Please keep signing our petitions to reduce the EB2 and EB3 time for India.

If you need help on any of your immigration case, please call us at 510 742 5887.

Sunday, November 8, 2015

H4 EAD - to work or not to work!

Unlike the H1B or the OPT EAD, the person who has actually obtained an H4 EAD (work permit) is not required to work if they do not want to do so.  Many are worried that because they are not using their EADs, the work authorization card is invalidated after some time just like the OPT EAD. Nothing is further from the truth. A person who has has an H4 EAD can elect to work or not to work, and the person can work full time or part time.  The H4 EAD holders can work work multiple places and does not have to report to the USCIS where they work. However, the H4 visa holders have to still inform the USCIS in case they are changing their addresses.

If you need assistance in applying or deciding on your H4 EAD, please feel free to call us at 510 742 5887.

Tuesday, November 3, 2015

DHS urgent DC Court to grant summary judgment on the SAVE Jobs USA Case

According to The U.S. Department of Homeland Security has again pushed a D.C. federal court to rule in its favor and end a case over a new H-4 visa rule that permits some immigrant spouses to get work permits, saying computer workers fell far short of establishing standing to mount a challenge of the regulation.

In a pair of reply briefs filed Friday, the DHS asked the court for summary judgment in a case brought by Save Jobs USA alleging the H-4 visa rule transcends the agency’s power...

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