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Very Short and Busy H-1B Cap Filing Season Expected: April 3rd to April 7th (Five Business Days); H-1B Lottery Likely; Last Call for H-1B

By Dimo R. Michailov, Esq.|March 9th, 2017|

As we are going into the peak of the H-1B cap season, our office receives many inquiries about the duration of the H-1B filing season this year or, in other words, when will the H-1B cap be reached?      So far we have been able to compare demand with prior H-1B filing seasons and we knew that this would be a very busy and very short H-1B filing season.    According to our sources (which include clients, peer law firms and government agencies), we expect that the H-1B cap be reached in the first five business days of April with the number of filings over the first five business days far exceeding the available number of H-1B visas.  This means that there is almost a guarantee that there will be a random lottery to allocate the  available H-1B visas (65,000 regular cap in addition to 20,000 U.S. master’s degree or higher cap)  among all filings received in the first five business days of April. (more…)

USCIS Temporarily Suspends Premium Processing of All H-1B Petitions

By Dimo R. Michailov, Esq.|March 3rd, 2017|

USCIS has announced that effective April 3, 2017, they are temporarily suspending premium processing for all H-1B petitions for a period of up to six months.   This surprising announcement comes in light of the anticipated heavy demand and number of H-1B “cap” filings and also to allow the government an opportunity to catch up on long-delayed H-1B processing times. (more…)

H-1B Work Visa Cap Season Is Underway – Opens for New Filings on Monday, April 3, 2017

By Dimo R. Michailov, Esq.|January 25th, 2017|

On April 3, 2017 the U.S. Citizenship and Immigration Services (USCIS) will start accepting applications for one of the most popular U.S. work visas, H-1B, for fiscal year (FY) 2018.    Our intelligence and past experience suggest that this year’s H-1B cap season will be very short — five business days.   Our office is already preparing a number of H-1B applications for our clients and we urge employers to prepare for a very short H-1B season by identifying and initiating H-1B sponsorship cases now.

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USCIS Revises Form I-9 – Effective January 22, 2017

By Aleksandra Michailov, Esq.|November 14th, 2016|

On November 14, 2016, U.S. Citizenship and Immigration Services (USCIS) published a revised version of Form I-9, Employment Eligibility Verification which is available to use starting immediately. Starting Jan. 22, 2017, employers must use only the new version, dated 11/14/2016 N. Until then, they can continue to use the version dated 03/08/2013 N or the new version.

Among the changes in the new version, Section 1 asks for “other last names used” rather than “other names used,” and streamlines certification for certain foreign nationals.

Other changes include:

  • The addition of prompts to ensure information is entered correctly.
  • The ability to enter multiple preparers and translators.
  • A dedicated area for including additional information rather than having to add it in the margins.
  • A supplemental page for the preparer/translator.

The instructions have been separated from the form, in line with other USCIS forms, and include specific instructions for completing each field.

The revised Form I-9 is also easier to complete on a computer. Enhancements include drop-down lists and calendars for filling in dates, on-screen instructions for each field, easy access to the full instructions, and an option to clear the form and start over. When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers.

Form I-9 requirements were established in November 1986 when Congress passed the Immigration Reform and Control Act (IRCA). IRCA prohibits employers from hiring people, including U.S. citizens, for employment in the United States without verifying their identity and employment authorization on Form I-9.

How Can We Help

The Capitol Immigration Law Group can provide various levels of internal I-9 compliance audits and on-site employee training as well as training materials and guidance for performing regular audits and training. We can provide immigration compliance training and auditing to meet an employer’s specific needs. We encourage all employers to be mindful of their compliance requirements and to proactively and regularly audit their compliance before a government agency does. We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. We also invite you to contact us if our office can be of any assistance or you have any questions or comments.

President-elect Trump and Immigration: Initial Thoughts

By Dimo R. Michailov, Esq.|November 11th, 2016|

During the election campaign, President-elect Trump put immigration at the center of his agenda and platform and made a commitment to the voters to take immediate steps relating to immigration upon taking office on January 20, 2017.   There are certain immigration-related steps that can be done immediately upon taking office, by executive action, and there are certain steps which require congressional approval. Our office seeks to provide our initial thoughts on what immigration-related changes we may expect during the Trump presidency. (more…)

H-1B Cap Lottery Lawsuit Allowed to Proceed

By Dimo R. Michailov, Esq.|September 29th, 2016|

Many of our readers are aware of the way first-time H-1B work visas are allocated – via a random lottery conducted as part of each year’s H-1B cap filing season in early April.    The way the lottery is conducted has been kept secret and a recent lawsuit seeks to uncover details of the lottery’s mechanics while also seeking to change the way H-1B work visas are allocated. (more…)

H-1B Dependent Employer – Definition and Responsibilities

By Dimo R. Michailov, Esq.|August 24th, 2016|

The definition of an H-1B dependent employer is important in a number of ways, including due to the H-1B regulations’ certain additional recruitment and attestation requirements to such employers.   For H-1B employers, it is important to understand the definition and apply the analysis during each H-1B filing. (more…)

Appeals Court Creates Right of I-140 Revocation Notice to New AC21 Sponsor Employer

By Dimo R. Michailov, Esq.|August 18th, 2016|

In an August 3, 2016 opinion, the U.S. Court of Appeals for the Seventh Circuit held that in situations where beneficiaries of I-140 petition have ported their I-485 adjustment of status application to a new employer pursuant to the AC21 portability provisions, USCIS is required to provide a notice of its intent to revoke the earlier I-140 petition to the new AC21 employer but not to the beneficiary.

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L-1A Visa – Recognizing The Global Role Of Managers

By Aleksandra Michailov, Esq.|May 19th, 2016|

The Administrative Appeals Office (“AAO”) recently issued a decision in a case focusing on the correct interpretation of the L-1A visa requirements for functional managers. In Matter of Z-A-, Inc., the AAO clarified that when determining whether the foreign national will primarily manage an essential function, USCIS must consider all relevant factors, including the foreign national’s role within the wider qualifying international organization. Importantly, USCIS designated this AAO opinion an Adopted Decision, making it a policy guidance binding all USCIS employees.

The L-1A classification allows a foreign business to transfer its executives or managers to the related U.S. office. According to the U.S. immigration law, there are two types of managers: a personnel manager who oversees other professionals and a functional manager who oversees an essential function of the business. Functional manager cases have been difficult to prove, especially for smaller business entities. With small staff in the U.S., it can be a challenge to show that the foreign national would primarily manage an essential function rather than perform it.

In Matter of Z-A- Inc., the foreign parent company had over $900 million in annual sales, while the U.S. office employed only three individuals. The L-1A petition sought to classify the foreign national beneficiary as a functional manager due to his market development duties. USCIS denied the petition based on the small number of employees in the U.S., arguing that the foreign national beneficiary must necessarily be engaged in day-to-day sales and other non-managerial duties. The AAO reversed the initial decision and approved the L-1A petition.

The AAO criticized USCIS for focusing on the number of individuals employed in the U.S. office. The opinion stated that to determine whether the beneficiary’s job duties are primarily managerial in nature, USCIS must consider the totality of the record and weigh all relevant factors, including the petitioner’s organizational structure and the beneficiary’s position within the petitioner’s organization. The decision clarifies that staffing levels alone are not dispositive on whether the beneficiary is a functional manager. USCIS cannot focus on the size of the U.S. business, but rather must analyze the overall needs of the corporate family.

How Can We Help

This new guidance allows us to bolster functional manager cases with binding precedent. It also serves as a reminder to our clients that sound evidence on overall corporate structure is essential for a successful L-1A petition.

Capitol Immigration Law Group PLLC offers a wide range of immigration law services. Please do not hesitate to contact us if our office can be of any assistance or you have any questions or comments. We stand ready to help analyze any time-sensitive cases. We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

USCIS Publishes Rule Seeking to Raise Filing Fees

By Dimo R. Michailov, Esq.|May 11th, 2016|

The Department of Homeland Security has just released a proposed rule seeking to amend (increase) most of the Citizenship and Immigration (USCIS) application filing fees. The weighted average of the increase is 21 percent and USCIS is adding one new fee.  The proposed fee increase rule is under a comment period until July 5, 2016 with an anticipated effective date for the new fees around Fall of 2016.

Update October 24, 2016:  the final filing fee increase rule has been published with an effective date of the new fees December 23, 2016.

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