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Litwin & Smith, A Law Corporation
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H-1B Approval as H1B1 To Be Corrected

We recently received reports that H1B I-797 Approvals are being Noticed as "H1B1" even though the petition is not an H-1B1 for a citizen of Chile or Singapore. USCIS has confirmed this was a now resolved technical error. USCIS is resending corrected H1B I-797 Approval Notices. Notices reflecting the corrected H-1B designation will be mailed this week. Petitioners should expect 10-14 days for receipt. Should there be further news in this regard. We will keep you posted.

Litwin & Smith has an impeccable record of successful H1B filings. We provide H1B petitioners and their sponsored employees a quick turn-around. The H1B is the most often employer sponsored U.S. employment authorization. This H1B petition is subject to the H1B Cap.

The H1B employment visa is limited to 65,000 new H1B visa petitions per year or the H1B Regular Cap and an additional 20,000 H1B visa petitions for the US Masters Cap. The soonest an employer may file an H1B petition is April 1, for an October 1, start date. We begin the H1B petition preparation process in February for the coming April 1 filing. Last year the H1B cap was reached April 1st. You might find out more about the H1B visa on our website. http://www.litwinlaw.com/PracticeAreas/H-Working-Visa.asp
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March 6, 2017. PERM FAQ Round 14 Requires Quantified Skills

March 6, 2017. PERM FAQ Round 14.
DOL released FAQ Round 14 Required Skills to be Quantified on the PERM actual minimum requirements entered in Section H.14 of ETA Form 9089, Application for Permanent Employment Certification. Guidance is applicable to applications filed on or after 3/20/17. The Round 14 FAQs are posted on the PERM Program Page on the OFLC website at https://www.foreignlaborcert.doleta.gov/faqs_pdf.cfm. To directly access the Round 14 FAQs, please click here.

An employer must specify the experience (such as the number of months or years), knowledge, proficiency, or coursework it requires in each skill listed in PERM Form 9089 Section H-14.

An employee must obtain employment experience verification letter(s) that specify the number of months or years of experience gained for each skill listed as required for the PERM position sponsored. If prior employment experience verification letters were previously obtained that do not specify the duration of the experience with the skill, new letters must be obtained.
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March 2017 Visa Bulletin

The Department Of State (DOS) controls immigrant visa availability. The DOS March 2017 Visa Bulletin includes "Application Final Action Dates" and "Dates for Filing Applications" for the family– and employment-based categories. There is forward movement in the final action date for the employment-based, third preference category for China, which advanced by almost six months to March 15, 2014, and the final action date for the employment-based, second preference category for India advanced by six weeks, to June 1, 2008. USCIS is expected to publish in March whether it will accept adjustment of status applications for family– or employment-based petitions based on filing dates, rather than final action dates, for March 2017.
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February 1, 2017 U.S. Customs and Border Protection Information About the January 27, 2017 Executive Order

The U.S. Customs and Border Protection provides information about the January 27, 2017 executive order, "Protecting the Nation from Foreign Terrorist Entry into the United States," on its website with an FAQ that offers some information about the Executive Order. Two of the FAQs are copied here as is a CBP summary of early actions taken.

How will the EO affect college students from the barred countries, such as F1/J1/M1 visa holders? Are they included in the ban? What kind of guidance is being given to foreign students from these countries legally in the US?

F1/J1/M1 visas are currently temporarily suspended due to the executive order. Individuals who were in the U.S. at the time of the signing of the executive order are not affected by the order. However, individuals who were out of the country at the time of the signing, or who travel out of the country and attempt to return will not be allowed to return at this time. The Department is evaluating whether those who are precluded from returning as a result of the Executive Order will be considered to have maintained their status as F1 or M1 students.

What about refugees who are considered to be “in transit?”

There are currently 872 refugees who are considered to be in transit who are scheduled to arrive in the United States this week. The Secretaries of State and DHS have coordinated and will process the 872 individuals consistent with the terms of the Executive Order, which we’ve operationalized by assessing each traveler on a case-by-case basis. Below are the actions CBP has taken as of January 30, 2017, in accordance with the Executive Order signed January 27, 2017.

Below are the actions taken in accordance with the Executive Order signed January 27, 2017.
CBP Executive Order Actions
Recommended Denial of Boarding 721
Legal Permanent Resident (LPR) waivers 1,059
Visa holders granted waivers 75
(Statistics are valid as of 1500 hrs, January 30, 2017)
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DHS Secretary Kelly Affirms Recent ICE Enforcement Actions Includes persons with DUI including them as a public safety threat, criminal aliens and gang members, as well as violators of immigration laws.

Of those arrested, approximately 75 percent were criminal aliens, convicted of crimes including, but not limited to, homicide, aggravated sexual abuse, sexual assault of a minor, lewd and lascivious acts with a child, indecent liberties with a minor, drug trafficking, battery, assault, DUI and weapons charges. The STATEMENT:

Statement From Secretary Kelly On Recent ICE Enforcement Actions https://www.dhs.gov/news/2017/02/13/statement-secretary-kelly-recent-ice-enforcement-actions

Release Date:
February 13, 2017

For Immediate Release
Office of the Press Secretary
Contact: 202-282-8010

WASHINGTON – Last week, U.S. Immigration and Customs Enforcement (ICE) launched a series of targeted enforcement operations across the country. These operations targeted public safety threats, such as convicted criminal aliens and gang members, as well as individuals who have violated our nation’s immigration laws, including those who illegally re-entered the country after being removed and immigration fugitives ordered removed by federal immigration judges.

ICE officers in the Los Angeles, Chicago, Atlanta, San Antonio and New York City areas of responsibility arrested more than 680 individuals who pose a threat to public safety, border security or the integrity of our nation’s immigration system. Of those arrested, approximately 75 percent were criminal aliens, convicted of crimes including, but not limited to, homicide, aggravated sexual abuse, sexual assault of a minor, lewd and lascivious acts with a child, indecent liberties with a minor, drug trafficking, battery, assault, DUI and weapons charges.

ICE conducts these kind of targeted enforcement operations regularly and has for many years.

The focus of these enforcement operations is consistent with the routine, targeted arrests carried out by ICE’s Fugitive Operations teams on a daily basis.

President Trump has been clear in affirming the critical mission of DHS in protecting the nation and directed our Department to focus on removing illegal aliens who have violated our immigration laws, with a specific focus on those who pose a threat to public safety, have been charged with criminal offenses, have committed immigration violations or have been deported and re-entered the country illegally.

I commend the heroic efforts of the dedicated officers of ICE’s Office of Enforcement and Removal Operations and those who provided assistance from ICE Homeland Security Investigations, the U.S. Marshals Service, as well as cooperating state and local law enforcement agencies. These professionals put their lives on the line to protect our communities and country. There is no greater calling that to serve and protect our nation – a mission that the men and women of ICE perform with professionalism and courage every single day.
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Temporary Restraining Order Blocking US Travel Ban - TRO Still in Place - BREAKING NEWS

The US Ninth Circuit Court of Appeals refused to grant the US federal government’s request for an emergency stay of the lower district court’s nationwide temporary restraining order (TRO). Translation: the travel ban still is blocked nationwide.

The link to the decision follows:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf
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B1/B2 Canadian Visitors Can Avoid Unintended Visitor Violations

We encourage all Canadian visitors to routinely check the CBP I-94 website after being admitted to the U.S. to avoid an unintentional overstay.

Canadians, when entering the U.S. by air, like all travelers, are issued electronic I-94 cards. To determine the duration of their authorized admission travelers should check the CBP I-94 website for their authorized period of stay in the U.S. At land ports of entry, I-94 cards are not typically issued and a Canadian visitor may not know they have been issued an I-94. Or, a Canadian visitor may assume that they have been admitted for six months and not check their I-94 or the CBP website to verify their period of admission.

Canadian visitors have reported to us circumstances where, subsequent to the issuance of a 6-month electronic I-94 at an airport, the Canadian visitor returned to Canada and then reentered the U.S. at a land border crossing during the original I-94 validity period only to find they did not receive an extended period of admission, but an admission for the original period of authorized stay. In this scenario, it is common practice for CBP at the land border to "revalidate" the existing I-94 and original period of admission rather than create a new I-94 record with a new period of admission. For example, a Canadian visitor enters the U.S. by air on June 1 and is given a 6-month period of admission, through December 1. When s/he departs the U.S. in August and seeks readmission in September, s/he may only be readmitted until December 1, without any notice from CBP. The Canadian visitor would not necessarily know that s/he was admitted pursuant to a pre-existing I-94 unless s/he checks the CBP website. As a result, Canadians who frequently travel to the United States may unknowingly overstay and may only find out upon a later attempt to reenter.

The lack of notice given to Canadian visitors is problematic, and the practice of revalidation, at least for B-2 entrants, may also violate 8 CFR §214.2(b)(2), which states:
Minimum six month admissions. Any B-2 visitor who is found otherwise admissible and is issued a Form I-94 (see §1.4), will be admitted for a minimum period of six months, regardless of whether less time is requested, provided, that any required passport is valid as specified in section 212(a)(26) of the Act. Exceptions to the minimum six month admission may be made only in individual cases upon the specific approval of the district director for good cause.

We have raised this issue with CBP and CBP is reviewing their practice.
Canadian citizens re-entering the United States as B-1 or B-2 visitors can avoid an unintended overstay of their admission by checking the website after being re-admitted to the U.S.
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Win – Win With TN and H1B

Most of the technical professional graduates of U.S. colleges and universities are foreign students. U.S. employers seeking to employ this talent find the TN and H1B employment authorization are the most favorable employment options available to them.

While President Trump has criticized the H1B program he has not said he will push regulations to eliminate the H1B program. The Trump plan calling for a Cracking down on those who abuse the system would create more H1B opportunities for smaller U.S. firms to retain and bring foreign talent to the U.S.

In contrast President Trump has stated he will eliminate the NAFTA agreement. President Trump can exit NAFTA without Congress by invoking NAFTA's Article 2205 which provides a party may withdraw from the agreement six months after giving written notice. The result of which would be the end of the NAFTA TN-1 along with the end of NAFTA.

An employer with this political climate in mind can still consider both the TN and H1B. When the TN-1 is available it is immediately available. An employer can immediately sponsor a TN professional for employment without waiting for an approval under the H1B Cap. Then the employer can then sponsor the valued TN professional by filing an H1B petition with long term permanent employment in mind.

In addition to the longer term certainty of the H1B over the TN. An employer would file the H1B petition with long term employment in mind. TN employment authorization is not available for permanent employment. On the other hand, the H1B specifically permits an employer’s petition and employee’s application for permanent employment.

Litwin & Smith limits our practice to U.S. immigration related law. We have an impeccable record of TN and H1B filings. Our firm is nationally recognized as the premiere employment immigration firm. We represent companies in all industries seeking to employ foreign nationals. We have been very successful in preparing and obtaining nonimmigrant and immigrant visas for them and the subsequent green card application. The TN and H1B visas are often the first nonimmigrant employment visa obtained for foreign nationals. We prepare hundreds of nonimmigrant employment petitions each year. We routinely provide immigration assistance to foreign nationals from all over the world. We offer excellent service at a competitive price. Of course, price isn’t everything. We also have an excellent reputation for our availability, responsiveness, timeliness, professionalism and expertise.

Please call (650) 588-7100 to make a free consultation with one of our professionals to discuss your particular situation. We look forward to assisting you.
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