New H-1b Visa Rule Calls for Lottery Selection Based on Wage Level

UPDATE: The Biden administration has put a 60 day hold or “freeze” on implementation of this new rule. Therefore it will not apply in this year’s lottery selection process.

Last Friday, January 8, 2021, USCIS published a final regulatory rule which changes the way that H-1b visas will be evaluated in the H-1b visa cap season lottery.

What is the new rule?

Under the existing rule, H-1b visa lottery winners are chosen based on a random selection process. The new rule calls for lottery selection based on the wage level used in an H-1b visa petition. This means that H-1b visa numbers will be allocated according to salary levels, giving priority to those earning the highest salaries in their respective occupations and geographic areas of employment.

Will the new rule affect this year's H-1b cap season?

As of now, that is unclear. The rule is scheduled to go into effect on March 9, 2021. Incoming President Biden has the authority to put a freeze on all unimplemented rules that exist at the time he takes office, including this one. The freeze could be up to 60 days, which means this rule would not apply to this H-1b cap season. However, Biden has not committed to freezing this rule, and he has expressed support for allotment of H-1b based on wage levels. Therefore we will need to wait and see.

Need assistance with an H-1b visa cap season petition? Contact us today at theteam@huwelaw.com or 415-849-1199.

Trump Extends Immigrant and Employment Visa Bans

On December 31, 2020, President Trump issued a new proclamation continuing Proclamations 10014 and 10052, which suspend the entry of certain immigrants and nonimmigrants into the United States. The ban has been extended until March 31st, 2021.

Will Biden rescind the bans?

It is possible but not guaranteed. The situation is complex, and he may decide to let them reach their natural expirations.

How will this affect me?

If you are seeking an immigrant visa (green card at a consulate) in a preference category, such as the child of a permanent resident, or as the parent of a US citizen, then that visa may not be able to be issued until April. The same is true for certain employment-based visas issued at a consulate.

Need more information or assistance with your green card or employment-based visa application? Contact us today at theteam@huwelaw.com or 415-849-1199.

Immigration Officers Have Discretion When Deciding Green Card Cases

Did you know: Even if you prove that you meet all general legal requirements for eligibility for a green card, the immigration officer deciding your case still has discretion to deny it?

This is a surprise to many green card applicants. And in the San Jose and San Francisco Bay Area where we practice, the use of discretion to deny a green card application has not been common practice thus far. However, recently United States CItizenship and Immigration Services (USCIS) updated their Policy Manual and added consolidated guidance on the issue of discretion. We expect that this new guidance will prompt increased scrutiny and denials moving forward.

The USCIS Policy Manual now states that the adjudicating officer "should review the entire record and give appropriate weight to the negative and positive factors relative to the privileges, rights, and responsibilities of LPR [Lawful Permanent Resident] status. Once the officer has weighed each factor, the officer should consider all of the factors cumulatively to determine whether the positive factors outweigh the negative ones."

So what types of factors will the officer consider when evaluating your case? Some of the biggest factors are:

-Your family ties in the US 

-Your history of education and employment in the US, and current US investment or property ownership

-Whether you have any type of criminal history, including arrests or citations (even if those would not otherwise bar you from receiving the green card) 

-Whether you have ever violated US immigration laws (even if the conduct would not otherwise bar you from receiving the green card)

Because immigration officers are likely to focus more on these and other additional factors when deciding a green card case, green card approval is becoming more challenging. 

How can Hurtubise Weber Law help? Our team has the knowledge and experience to support, guide, and represent you throughout the green card process, to give you the best chance of success. Contact us at theteam@huwelaw.com or 415-413-8760 to get help today!

TPS extended for El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan

Some great news for anyone from El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan holding Temporary Protected Status (TPS): USCIS has extended eligibility until October 4, 2021. This means that TPS holders from these countries will remain in status and authorized to work through that date.

Is your TPS scheduled to expire on October 4th? You may have options to remain in the U.S. beyond that date. We specialize in Deferred Action for Childhood Arrivals (DACA) and adjustment of status (green cards) sponsored by family members and employers. Contact us today at 628-877-0197 or theteam@huwelaw.com to see if you may qualify for one of these benefits!

Military Parole-in-Place as a Path to a Green Card: What You Need to Know

Do you meet the following criteria? (1) You are an immigrant who entered the U.S. without a visa, (2) you are the spouse, parent, or child under 21 of a U.S. citizen, and (3) you have a close relative who is a member or former member of the U.S. Military? If so, you may be eligible for a green card via a special immigration benefit called “Parole-in-Place.”

In general, a “lawful admission” to the U.S. is required for the spouse, child, or parent of a U.S. citizen to be eligible for a green card. Parole-in-Place is a program that was created in year 2013 to help certain immigrants who do not have a “lawful admission” to obtain one without leaving the country.

What are the eligibility requirements for Parole-in-Place?

• You are physically present in the United States, but were not lawfully admitted

• You are the spouse, parent, or son or daughter (of any age) of an active duty member of the U.S. Armed, the Selected Reserve of the Ready Reserve, or former member of the U.S. Armed Forces or Selected Reserve of the Ready Reserve (including individuals who served in the military but are now deceased)

• You have no prior criminal convictions or other serious adverse factors 

Even if you are eligible for Parole-in-Place, you must have a U.S. citizen spouse, parent, or child over the age of 21 who can serve as your sponsor for a green card. 

If you believe you may be eligible for this amazing benefit, please contact us at theteam@huwelaw.com, or 415-496-9040 to learn more.