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The Immigration and Nationality Act provides that noncitizens with exceptional abilities or who are members of the professions holding an advanced degree, may receive a waiver of the job offer requirement if the USCIS deems such waiver in the “national interest.”  The national interest waiver is available only to noncitizens in the second preference category (EB-2).  This category is backlogged for years for noncitizens born in India or China, and without the ability to apply for adjustment of status for many years, such noncitizens will have to maintain H-1B status.  The requirement to maintain nonimmigrant status puts such noncitizens in a bind and makes it very difficult to develop their endeavor even if such endeavor meets all the requirements for a national waiver.   Noncitizens who apply for National Interest Waiver should be allowed to apply for employment authorization.

To prove eligibility, the petitioner has the burden to show that the person qualifies as either (i) a member of the professions holding an advanced degree or (ii) as a person of exceptional abilities.  Either of these two qualifications is a threshold issue.  Once the person demonstrates that such person meets at least one of the categories, the person also must prove that (iii) the waiver of the job offer requirement, which requires a test of the US market through labor certification requirement, is in the “national interest.” Continue reading →

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H-1B A

H-1B Approval Notice

The Chicago H-1B attorneys of Zneimer & Zneimer remind clients and noncitizens that USCIS recently announced the opening of the new H-1B registration period.  The H-1B registrant account function will be available on March 2, 2021, at 12:00 noon EST at myUSCIS. Employers and attorneys who already have MyUSCIS accounts from last year do not need to create new accounts for this year.

To login or to createan account, go to https://my.uscis.gov/, and follow the instructions.  Before starting the process, it is a good idea to watch USCIS’s instructions and check periodically USCIS’s H-1B registration page.  The option to register as H-1B registrant will not become available until March 2, 2021, at 12:00 noon EST.

During the registration period, petitioners and representatives would be able to fill out information about employers and beneficiaries and submit registrations for H-1B petitions.  The registrants must use myUSCIS online account to register each beneficiary.  Each registration will cost $10.00 per person.  To submit H-1B registrations for beneficiaries,  potential petitioners must use the “registrant” account that will be available on March 2, 2021.  If USCIS receives enough H-1B registrations by March 25, USCIS will run H-1B lottery and will send selection notifications via users’ myUSCIS online accounts by March 31.  Remember that submission of duplicate registration by the same petitioner for the same beneficiary will result in denial of the registration.

Only selected registrants will be able to file H-1B cap-subject petitions, and only on behalf of beneficiaries selected through the H-1B Continue reading →

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The Chicago immigration attorneys are following developments in immigration law.  Today, the USCIS announced that applicants that file their naturalization applications on or after December 1, 2020, will have to pass the updated citizenship test.  The new citizenship test will include 128 questions from the prior 100, and the officer will ask 20 questions, an increase from the previously required 10 question.  The USCIS will require a pass rate of 60% of the citizenship test, which means that an applicant must answer at least 12 out of the 20 questions.   The officer will not stop once the applicant answers 12 questions correctly but will ask all 20 “to gather data on test items to aid in future updates to the civics test.”  The officer will read of questions that a computer will randomly select.

Remember that “file” in immigration parlance means that the USCIS must have received the application no later than November 30, 2020, for the old test to apply.

According to the USCIS, “the revised test will improve USCIS’ ability to assess applicants’ knowledge and understanding of U.S. history and civics as required by the INA.”  The new test is now available on the USCIS’s website.

Continue reading →

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The Chicago immigration lawyers of Zneimer & Zneimer handle employment-based immigration and are very familiar with the lengthy priority date line.  Many Indian and Chinese people who contribute to the economic engine of our country with knowledge, creativity, and skills, have been stuck for years in an invisible visa line that barely moves forward.  These neighbors and friends among us do their job and pay their taxes, but they never stop worrying if their sponsored job will last until the end of the visa line, if a whimsical regulation will deny them H-1B extension and make them out of status, if by the time they reach the end of the line, their minor kids will age out unable to become permanent residents.  Many people turn down a well-deserved promotion because it is not the sponsored job, and they need to keep the job with the same title, same description, same company, and work address, until they can file for the last step of the process, adjustment of status.

Priority date.  The law presumes that when an employer offers a permanent position to a noncitizen, the employer displaces a U.S. worker.  To sponsor a foreign worker, the employer therefore must test the U.S. market for U.S. workers, and only if there are no U.S. workers who are willing, able, qualified, and available to fill the job, the employer can receive a labor certification from the Department of Labor, and then file an immigrant petition on behalf of the foreign worker.  In some cases, where the work is in the national interest, the USCIS can waive the test of the U.S. market.  Once a petition is filed and approved, the foreign worker receives a “priority date”, which is the date in the Visa Bulletin that shows when a worker can receive his or her green card.   The “priority date” is like a number, that places the noncitizen in the visa line, and will be called when the visa becomes available.  For people born in India and China, this number is distant and the line is a decade-wait long.

These are legal immigrants, in jobs that U.S. workers were not willing, able, qualified, or available to take, but employers and our economy needed to be filled.  They may be doctors in rural and medically underserved areas, software engineers with unique skills, cancer researchers, radiation oncology physicists, and others.  All have Bachelor or higher degrees.  Due to the per country quota, a janitor born in another country does not have to wait for an immigrant visa, while a Nobel Prize winner from India must wait at least 2.5 years. Immigrants from India with Master Degree, M.D., Ph.D., even when the USCIS has found that their employment is in the national interest, must wait to receive an immigrant visa, or green card, for many years.

Visa Bulletin. That is why, when the State Department published the Visa Bulletin for October 2020, it created a stir.  Visas that could not be used due to the pandemic for consular processing, were released for people waiting on the employment line, moving the priority date forward.  The category for EB-3 (skilled workers and workers with Bachelor Degrees) moved faster than the category for EB-2 (advanced degrees or petitions in national interest). Continue reading →

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The Government must “turn square corners in dealing with the people” said on June 18, 2020, the United States Supreme Court in rejecting the Administration’s explanations why it wants to terminate DACA.  The Government instead of “turning square corners” skipped a few corners and the Court decided that its action in terminating DACA was arbitrary and capricious.   The Chicago Immigration lawyers of Zneimer & Zneimer PC finds very significant that  Supreme Court acknowledged that “there is so much at stake” and  characterized the relationship between the Government and the people as one that has demands on both sides.

Justice Holmes famously wrote that “[m]en must turn square corners when they deal with the Government.” Rock Island, A. & L. R. Co. v. United States, 254 U. S. 141, 143 (1920). But it is also true, particularly when so much is at stake, that “the Government should turn square corners in dealing with the people.” St. Regis Paper Co. v. United States, 368 U. S. 208, 229 (1961) (Black, J., dissenting).  DHS et al. v. Regents of Univ. of California, et al.  591 U. S. ____ (2020)(emphasis added)

On June 18, 2018, the United States Supreme Court determined that the Trump Administration violated the Administrative Procedure Act in their 2017 attempt to terminate DACA.  The Supreme Court did not answer the question whether or not DACA is lawful.  The Court only answered the question whether or not the DHS “complied with the procedural requirements” to provide a “reasoned explanation for its action.”  The Court stated that the Administrative Procedures Act requires agencies to engage in “reasoned decisionmaking” and that the DHS’s decision making was inadequate.

The Court stated:

Whether DACA is illegal is, of course, a legal determination, and therefore a question for the Attorney General. But deciding how best to address a finding of illegality moving forward can involve important policy choices, especially  when the finding concerns a program with the breadth of DACA. Those policy choices are for DHS.  DHS et al. v. Regents of Univ. of California, et al.  591 U. S. ____ (2020)

Continue reading →

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The Chicago immigration attorneys of Zneimer & Zneimer follow closely regulatory changes in the J waiver process and learned that recently the U.S. Department of Health and Human Services (HHS) has revised its guidelines for J Waivers for physicians subject to the 2-years foreign residency requirement.  HHS will now process applications for waivers from any facility in or with a health professional shortage area (HPSA) score of 7 or higher for foreign physicians to practice in a primary care specialty (family medicine, general internal medicine, general pediatrics, obstetrics & gynecology) or general psychiatry.

HHS acts as an Interested Government Agency (IGA) on behalf of  foreign physicians subject to the 2-years foreign residency requirement who agree to work for 3 years in certain areas.  Previously, the HHS only processed applications for facilities which were either:

  • A health center as defined under Section 330 of the Public Health Service Act, and  which is receiving a grant from the U.S. Health Resources and Services  Administration under this section;
  • A rural health clinic as defined under Sections 1102 and 1871 of the Social Security Act; or
  • A Native American/Alaskan Native tribal medical facility as defined by the Indian Self-Determination and Education Assistance Act (P.L. 93-638)

Continue reading →

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Our Chicago immigration lawyers have sifted through the DHS’s regulations and answers to the regulatory comments to understand the DHS decision making process when applying the public charge rules.  The Public Charge rule prescribes how DHS and the State Department will determine whether a foreign national who is applying for admission or adjustment of status is inadmissible in the United States because the foreign national is likely at any time to become a public charge.  The rule defines as a public charge a person who receives one or more public benefits for 12 months during a 36-month period.  If the person receives two benefits in one month, this will count as two in the 12 months, and a person who receives two benefits for 6 months within any 36-months-period will be considered a public charge.

The public charge rule does not apply to U.S. citizens, even if the citizens are related to the foreign national that is subject to the public charge inadmissibility ground.  However, if a U.S. citizen sponsor receives public benefits, the DHS will consider this receipt a negative factor for the alien.  The public charge inadmissibility does not apply to aliens whom Congress has exempted.  In addition, DHS has statutory discretion to waive the grounds of inadmissibility for public charge.

DHS does not have a crystal ball to determine whether an alien is likely to become a public charge.  Instead, the agency adopted a totality of the circumstances framework. Under this framework, the DHS adjudicators will review several factors and make a decision based on all of the evidence that supports each factor, and all of the evidence that supports all factors.  Because each factor can be positive or negative, and some factors are heavily positive or heavily negative, it is essential to recognize which factors can tip the scale in either direction and to offset the negative factors with positive evidence.  If overcoming a negative factor is not possible, for example,  age,  concentrate on increasing the weight on other factors to tip the scale in your favor.  Remember that the burden is the preponderance of the evidence, which means more likely than not.

Age

As already mentioned, some factors are immutable.  You cannot change your age at the time of the application, and the age will be either a negative or a positive.  However, other factors provide more flexibility, and with good lawyering, one can make a convincing argument in one’s favor.  For example, a person may be elderly. Still, if the person has an education, good health, work experience, or is a caretaker of someone else,  these positive factors will offset the negative factor of age.   To show age, you can submit your passport or your birth certificate.  If your age is between 18 and 61, this is a positive factor.

Applicant’s Health

Good health is a positive factor.  Poor health is not necessarily a negative factor.  A negative factor will be a medical condition documented by the civil surgeon as likely to require extensive medical treatment or institutionalization or that will interfere with the applicant’s ability to provide and care for himself or herself, to attend school, or to work upon admission or adjustment of status.

If you have a medical condition, don’t despair as the agency is willing to review expert reports that can mitigate the negativity of this factor.  Your treater can provide a description, explaining that your condition is Continue reading →

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IMG_2890-225x300Our Chicago immigration attorneys at Zneimer & Zneimer PC assist people who need immigration help.  With the Coronavirus closing borders and keeping airplanes grounded, many foreign travelers are scared that they may not be able to leave the United States before their periods of admission expire.   The inability to leave the United States, however, does not suspend the application of the U.S. immigration laws.  Stranded passengers should apply for extension of status, if their current status can be extended, or change to a different status if it cannot, so that they do not accrue unlawful presence.  Yet travelers participating in the Visa Waiver Program (VWP), which enables citizens or nationals of participating countries to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa,1 are ineligible to either change their status or to extend their stay.  The only option for people admitted on ESTA is to make a Satisfactory Departure request that, if granted, provides additional time for them to leave the country without overstaying their authorized stay.  

According to the Code of Federal Regulations, “If an emergency prevents an alien admitted under [the VWP] from departing from the United States within his or her period of authorized stay, the district director having jurisdiction over the place of the alien’s temporary stay may, in his or her discretion, grant a period of satisfactory departure not to exceed 30 days. If departure is accomplished during that period, the alien is to be regarded as having satisfactorily accomplished the visit without overstaying the allotted time.”2 This is called a Satisfactory Departure.  Continue reading →

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The Chicago immigration attorneys of Zneimer & Zneimer follow closely the legal developments and litigation in the application of the Public Charge Rule.  The Department of Homeland Security’s regulations interpreting the Public Charge Inadmissibility include definitions and explanations about what factors DHS will consider in determining that a person is likely to become a public charge.  The DHS has enumerated the following factors:

  • Applicant’s Age
  • Applicant’s Health
  • Family Status
  • Applicant’s Assets, Resources, and Financial Status
  • Applicant’s Education and Skills
  • Applicant’s Immigration Status and Expected Period of Admission
  • Sponsor’s Ability to Support
  • Previous Public Charge Inadmissibility

The DHS will weigh each factor individually and cumulatively.  The DHS will assess the weighed degree to which each factor is negative or positive.  The factors will be weighed as positive, heavily weighed positive, neither positive or negative, negative, or heavily weighed negative.  The DHS (USCIS) and the DOS (Consulates) will apply the totality of circumstances framework to determine whether an alien is more or less likely to become a public charge in the future. Continue reading →

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The immigration attorneys of Zneimer & Zneimer PC have compiled a comprehensive checklist with resources for gathering the documents required to meet the public charge inadmissibility provision.   People who apply for an immigrant or nonimmigrant visa, unless statutorily exempt from the public charge inadmissiblity must complete form DS-5540.  People who apply for adjustment of status, unless statutorily exempt from the public charge inadmissibility must submit Form I-944.

Where applicable, you must also submit an Affidavit of Support.   You can download and use our checklist to gather your documents.

Checklist – Public Charge (Z&Z)

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