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Last Updated: January 15, 2020.

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Recently, the Trump administration changed a policy that places foreign nationals under advanced scrutiny.

If a foreign national takes any actions within 90 days of entering the country that are not compliant with his/her visa status, it will likely be presumed that they willfully made a misrepresentation about their motives for entering the country.

This new rule is called the 90-day rule and it replaces the 30/60-day rule. It marks a small yet significant change in immigration policy.

The change became official on September 1, 2017, when the Department of State updated the Foreign Affairs Manual (FAM). It is important to note the rule is not a statute, nor is it an official regulation; it is better seen as an advisory principle created to help consular officers if a subsequent violation of visa status qualifies as a “ willful misrepresentation” in the initial visa application.

The new rule is found in 9 FAM 302.9-4. To better understand the significance of this rule and the recent change, let’s take this rule section-by-section.

9 FAM 302.9: Discusses some of the many reasons aliens can be inadmissible for various reasons

So the FAM is a extensive handbook Department of State officials use to, among other things, make immigration decisions. Chapter 9 of the FAM deals with visas. Section 302 outlines all the myriad ways an alien can become ineligible for a visa. Section 302.9 outlines the reasons aliens can be ineligible for entry under INA 212(a)(6).

The INA is the Immigration and Nationality Act. It is codified in §1182 of the United States Code, which is basically a very large book containing all the laws of the U.S. INA 212(a)(6)(C) says:

Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible.

In layman’s terms, this means anyone who has lied — or willfully misrepresented — about something important — a material fact — in a visa application may not receive a visa.

To mere people like ourselves, it may seem like common sense is all that is needed to determine whether something is a “misrepresentation.” However, when money and people's lives are on the line, “common sense” doesn’t cut it. That’s why the State Department wrote a whole section on how to determine whether an action is a “misrepresentation.” That section is 9 FAM 302.9–4.

9 FAM 302.9-4(B)(1): Provides four criteria for finding a misrepresentation

9 FAM 302.9-4 discusses reasons for an alien’s inadmissibility due to a misrepresentation. 9 FAM 302.9-4(B)(1) outlines four criteria required for finding misrepresentation. For an alien to be inadmissible because of a misrepresentation it must be determined that:

1. There has been a misrepresentation made by the applicant;
2. The misrepresentation was willfully made;
3. The fact misrepresented is material; and
4. The alien by using fraud or misrepresentation seeks to procure, has sought to procure, or has procured a visa, other documentation, admission into the United States, or other benefit provided under the INA.

In plain English, the misrepresentation must be made by the person applying for the visa, it must have been done willfully, it must have been about something important, and it must have been for purpose of obtaining a visa or other benefit.

Let’s see what each of these criteria entail.

(B)(3): Defining misrepresentation

Section (B)(3) defines “misrepresentation.” First, it provides a basic definition: a misrepresentation is an assertion or manifestation not in accordance with the facts. Misrepresentation requires an affirmative act taken by the alien. A misrepresentation can be made in various ways, including in an oral interview or in written applications, or by submitting evidence containing false information.

Let’s look at this more closely.

a misrepresentation is an assertion or manifestation not in accordance with the facts. This provides for a broader definition than a lie — a lie being a false statement made with the intention to deceive — this encompasses a statement that was purposefully made, that is untrue, but was not made with the intent to deceive. As is discussed below, a misrepresentation must be made willfully, which means its lower limit is set somewhere above a mere mistake. Additionally, (B)(2) defines the upper limits of misrepresentation: it is something less than fraud. Fraud must be shown by evidence of the intent to deceive and an officer must actually believe the lie.

Misrepresentation requires an affirmative act taken by the alien.This statement differentiates between a statement and a silence. Here, silence, or failure to volunteer information, does not by itself amount to a misrepresentation.

A misrepresentation can be made in various ways, including in an oral interview or in written applications, or by submitting evidence containing false information.This statement suggests a few additional points. The misrepresentation must be made by the alien — or the aliens agent or attorney so long as the alien was aware of the action. The misrepresentation must be made before a U.S. Official, which means it could be made orally or in written form most likely before a consular officer or a Department of Homeland Security officer. The misrepresentation must be made on the alien’s own application, not in regards to someone else’s application.

It should be noted that a “timely retraction” could remedy the misrepresentation. Timeliness depends on the circumstances of the particular case; a retraction should be made at the first opportunity to be safe.

(B)(3)(g): States that activities that are inconsistent with an alien’s visa status are a red flag.

(B)(3)(g) dives into a tricky topic, one that is at the center of the 90-day rule: activities inconsistent with visa status. It states: In determining whether a misrepresentation has been made, some of the most difficult questions arise from cases involving aliens in the United States who conduct themselves in a manner inconsistent with representations they made to consular officers concerning their intentions at the time of visa application or to DHS when applying for admission or for an immigration benefit. Such cases occur most frequently with respect to aliens who, after having obtained visas as nonimmigrants and been admitted to the United States, either: Apply for adjustment of status to lawful permanent resident; or fail to maintain their nonimmigrant status (for example, by engaging in unauthorized study or employment).

This passage states that immigration officers are sometimes faced with the difficult task of interpreting an alien’s inconsistent behavior. Oftentimes this occurs when an immigrant applies for lawful permanent residence or fails to maintain her nonimmigrant status.

Since it’s difficult for immigration officers to know what to do in this case, the Administration created the 90-day rule.

(B)(3)(g)(2) & (3): Shows when the 90-day rule should be used

The 90-day rule is mostly about a legal concept called presumption. A presumption is an idea that is taken to be true, and often used as the basis for other ideas, although it is not known for certain. It’s similar to an assumption but not quite as strong. It is most easily exemplified in the phrase “innocent until proven guilty.” In murder trials in the U.S., a suspect is presumed innocent until proven guilty. That means it is the prosecution’s job to prove the defendant is guilty, not the defendant’s job to prove that she is innocent.

It is the same case here: an alien that behaves inconsistently with the representations made in her visa application is presumed to have made the representations not willfully — unless those inconsistent actions are made within 90 days of her entry into the U.S. This is because if inconsistent action is taken so quickly after arriving in the U.S. it is arguably likely the alien lied about her intentions for coming in the first place.

Previously, under the 30/60 day rule, if an alien made inconsistent actions within 30 days of entry, the misrepresentations made in her application were presumed to be willful. Now, under the 90-day rule, that time period has been extended from 30 days to 90 days. As the names imply, that is the primary substantial change made to the rule.

The new rule states:However, if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry . . . you may presume that the applicant's representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.

The rule also requires the immigration officer to request an advisory opinion on the case.

So, if inconsistent conduct is made, the presumption shifts against the alien, and the alien now has the responsibility to prove she did not make the misrepresentations willfully.

The section continues to list some specific conduct that would be inconsistent or in violation of an alien’s nonimmigrant status:

• Engaging in unauthorized employment;
• Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);
• A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or
• Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

So, becoming employed, enrolling in school, marrying a citizen, or doing other activities that require an adjustment of status could put an alien at risk of coming under the 90-day rule.

If inconsistent conduct only occurs after 90 days have passed, then the presumption does not shift against the alien.

(B)(4) & (5): Defines “willfully” and “material fact”

For an alien to be inadmissible under INA §212(a)(6), which the 90-day rule applies, she must make a misrepresentation willfully. Willful is a definable legal concept and the FAM states:

In order to find the element of willfulness, it must be determined that the alien was fully aware of the nature of the information sought and knowingly, intentionally, and deliberately made an untrue statement.

In other words, the alien must knowingly make the untrue statement, which is notably different from making an untrue statement with intention to deceive.

The misrepresentation must also be material. Materiality, like willfulness, is another legal concept. In this case a misrepresentation is material if:

• The alien would have been inadmissible if the true facts were revealed, or
• The misrepresentation cut off a line of questioning that would have lead to the determination that the alien was inadmissible.

So, in other words, most topics an applicant might have an interest in hiding are material.

Key Takeaways

For aliens submitting visa applications: Do not lie about your motives for application. For visiting aliens interested in changing your status: Do so very carefully, probably only after 90 days have passed since your entry.

Top 5 Reasons Green Card Renewal Applications are Denied

Before you know it, 10 years have flown by and it’s time to submit your Green Card renewal application.

According to the U.S. Citizenship and Immigration Services (USCIS), green card holders can renew their 10-year Green Card within 6 months of its expiration date.

As you probably know, getting a Green Card is not easy.

Link: The Comprehensive Guide on How to Get a Green Card

Fortunately, the Green Card renewal process is often much simpler than the initial Green Card application. We know this because hundreds of immigrants have used SimpleCitizen to create and submit their own Green Card renewal applications. Preparing your application with the support of immigration professionals can help you avoid expensive and/or time-consuming mistakes, and can even help you avoid an application denial. 

While a Green Card Renewal denial is fairly rare, it does happen. If you choose to prepare your application on your own, please consider avoiding these 5 most common mistakes that can lead to a potential rejection or denial:

5. You were “Ordered Removed”

If you were ordered removed from the United States, your green card renewal is more likely to be denied. You are ordered removed if at least one of the following has happened to you:

• A judge ordered you deported or removed
• You signed a stipulated removal order
• You were at the border, and immigration officials completed Expedited Removal paperwork on you
  (Note: This is not simply being refused entry)

Also note that you are not considered “ordered removed” simply if your visa category is Z11, Z13, Z14, or Z15. These categories are based on a “suspension of deportation” or “suspension of removal” which is different from being ordered removed.

4. You’ve committed a crime

If you have committed a felony or misdemeanor, the best course of action is to seek advice from a licensed immigration attorney before filing to renew your green card. If you speak with an immigration attorney, you are much more likely to successfully obtain a renewed green card.

3. You submitted an incomplete application

Be careful to read all the instructions. These 4 parts of the green card renewal application are often missed:

• Remember to sign in all the right places.
• Be sure to attach all required evidence (requested photocopies of official documents).
• Make sure to pay the I-90 filing fee.
• Be sure to attend your scheduled biometrics appointment.

As long as you read and follow the instructions carefully, you shouldn’t have to worry.

A few weeks after submitting, you should receive an I-797 form from USCIS with information about your scheduled biometrics appointment. Failing to attend a scheduled biometrics appointment may result in the application being denied. 

2. You gave incorrect information

Make sure everything on your application is filled out as accurately as possible.

At your biometric services appointment, USCIS will ask you to re-affirm under penalty of perjury that the information you provided is complete and true. Your application  may be denied if USCIS finds any false information.

1. You submitted the wrong Green Card renewal form

There is a big difference between a regular Green Card, and a Green Card with conditions. Most notably, the length of validity each of the two cards has, as well as which form/application should be used for the card’s renewal. 

Here’s a brief summary: 

• Green Card (regular): Valid for 10 years;  must be renewed using Form I-90, Application to Replace Permanent Residency  ‍
• Conditional Green Card: Valid for 2 years, must be renewed  using Form I-751, Application to Remove Conditions. Renewal approval results in a 10-year card being issued. A conditional permanent resident should only submit the I-90 if their 2-year green card is lost, stolen, or damaged.

Click here if you want to learn more about conditional permanent residents.

Other Common Worries

Many applicants worry about financial problems, including bad credit scores or unpaid taxes, but it is uncommon for USCIS to deny a renewal Green Card application because of these issues.

However, unpaid taxes may lead to other problems. You could be fined and prosecuted which can make it more difficult to become a U.S. citizen.

What can I do if my application is denied?

You are not allowed to appeal a negative decision, but you may submit a motion to reopen or reconsider your case. By filing the motion, you’re requesting that the USCIS office reevaluate their decision.

If you file a motion to reopen, you must state the new information you will provide and include appropriate evidence. If you file a motion to reconsider, you instead must show that USCIS’s decision to deny your application was an incorrect application of law or policy and that USCIS’s decision was incorrect based on the evidence you provided when you filed your application. For more information, see this page.

Note: If the USCIS denies your application because of an error by SimpleCitizen, subject to certain conditions, we will refund your government application fees and the SimpleCitizen purchase price 100%. Here’s our refund policy.

How to avoid these mistakes

If you have any questions, you can contact us here.

If you want to learn more about how to renew your green card, read this guide: A Guide to Renewing Your Green Card. If you’re ready to jump right in and apply, get started here!

After you’ve successfully renewed your Green Card, we would love to hear your story. Please leave a review here and tell us about your experience.

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Are you an international student that just graduated and not sure what to do next?

Do you want to stay in the United States? If so, this article covers 3 options that may be available for you.

If you came to the United States with an F-1 student visa, you have 3 way to stay in the United States:

1. OPT - Optional Practical Training

Optional Practical Training (OPT) is an option for F-1 Visa students who have recently graduated.

OPT is temporary employment authorization, and your employment must be related to your F-1 area of study. Students who are eligible may apply to receive up to one year of OPT employment authorization.

If your degree is in certain science, technology, engineering, and math (STEM) fields, you may apply for a two-year extension of your OPT.

2. Apply for a Non-Immigrant Work Visa

H-1B Specialty Occupations

The H-1B visa is a nonimmigrant visa that allows immigrants to temporarily work in high-skilled occupations. Immigrants applying for an H-1B visa are required to have specialized knowledge and a bachelor’s degree or higher or its equivalent.

Most H-1B occupations are in fields such as science, engineering, and information technology.

E-1/E-2 Treaty Trader and Investor

The E-1 visa is a treaty trader visa, and it is for immigrants who come from countries that have a treaty of commerce with the United States. Applicants must have "substantial" trade in goods between the United States and their home country.

The E-2 visa is also for immigrants who are from countries that have a treaty of commerce with the United States. They must have invested, or are actively in the process of investing, a "substantial" amount of capital in a U.S. enterprise.

L-1 Intracompany Transferee Visa

The L-1 is another nonimmigrant visa, and it is for workers who are employed outside of the U.S. and are transferring to the U.S. This visa also allows a foreign company to send an executive or manager to the United States to establish a U.S. office.

While these visas will allow you to remain in the United States, they will not allow you to stay permanently. If you wish to stay in the U.S. longer, obtaining a Green Card may be necessary.

3. Apply for a Green Card

Adjustment of status is the process through which temporary immigrants in the United States (such as students, tourists, foreign employees, etc.) can become lawful permanent residents (Green Card holders) without ever having to leave the U.S. (If you are outside of the United States, the only path to immigrate to the country is through consular processing).

The best options for obtaining a Green Card as an international student are through immediate family sponsorship, asylum status, the Green Card lottery, employment sponsorship, or select military service.

For more info about getting a green card, go to our Comprehensive Guide on How to Get a Green Card.

Photo Credits:

Billetto EditorialHelloquenceJuan Ramos

Last Updated: September, 2017.

The travel ban just got bigger.

President Trump added three new countries to the travel ban list: Chad, North Korea, and Venezuela.

"Making America Safe if my number one priority. We will not admit those into our country we cannot safely vet."
— Donald J. Trump (@realDonaldTrump) September 24, 2017

Let’s rewind a bit and figure out why these new countries were added.

In March 2017, President Trump issued Executive Order 13780. The order initiated the Department of Homeland Security to conduct a review of 200 countries to determine which countries pose the largest security threat to the United States.

In July, the DHS review was completed, and then on September 24, 2017, President Trump announced indefinite travel restrictions on the three new countries: Chad, North Korea, and Venezuela. The five original countries remained on the list: Iran, Libya, Syria, Somalia and Yemen. However, Sudan, an original member of the group, was removed.

The ACLU announced that it will challenge President Trump’s new travel ban. Originally, the Supreme Court was going to hear arguments regarding the legality of the travel ban on October 10. However, the Supreme Court announced that they are postponing hearing any arguments until both the government and those opposed, file new briefs addressing the new restrictions.

Critics have noted that this new ban doesn't seem to really address its anti-terrorism and public safety goals entirely, as countries like Saudi Arabia, the United Arab Emirates, Afghanistan, and Pakistan remain off the list.

In this article we'll break down this much-discussed presidential proclamation, section-by-section:

• Section 1: Establishes baseline requirements countries have to meet.
• Section 2: Lists suspended countries Section 3: Provides some exceptions and limitations.
• Section 4: Countries can get off the list.
• Section 5: DHS will report to the President.
• Section 6: Provides various rules for enforcement.
• Section 7: Ban starts on October 18.
• Section 8: Ban will continue even if one section is invalid.
• Section 9: Ban will not impede the executive agencies.

SECTION 1: Establishes baseline requirements for countries

From the get-go, the executive order states that the purpose of the reinvigorated travel ban is to protect United States citizens from terrorist attacks and public safety threats. In order to determine which country poses a terrorist or security threat, DHS assessed each country under the following categories:

• Identity-management information: the country in question will need to have thorough in-country security processes that ensure the integrity of documents. For example, Homeland Security will assess whether the country issues electronic passports and how the government detects fraudulent documents.
• National security and public-safety information: the country in question will need to inform the United States as to whether a citizen posses a security threat by providing the U.S. background information on the traveler.
• National security and public-safety risk assessment: the U.S. will conduct an overall assessment of whether a country is a terrorist or security threat.

After assessing the 200 countries using the above-mentioned criteria, 47 countries were deemed to be “inadequate” and “at-risk.” They were given 50 days to improve their security procedures by applying the security protocols above.

Following the 50-day trial period, countries which failed were placed on travel ban due to their “inadequate” traveling security protocols in place.

After the trial period, the Secretary of Homeland Security recommended a list of countries that require travel restrictions. Not all restrictions are created equal though. Some countries such as Iran will still permit student visas, but all nonimmigrants and immigrants will be barred entry from North Korea and Syria.

SECTION 2: Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, Somalia are suspended

Nationals from the following countries have restricted entry into the United States because they have not adequately addressed the security criteria listed in section 1. Highlights from the Executive Order detailing why certain countries were included are found below:

1. Chad
   • “Chad does not adequately share public-safety and terrorism-related information and fails to satisfy at least one key risk criterion.”
2. Iran
   • “Iran regularly fails to cooperate with the United States Government in identifying security risks, fails to satisfy at least one key risk criterion, is the source of significant terrorist threats, and fails to receive its nationals subject to final orders of removal from the United States.”
3. Libya
   • “Libya fails to satisfy at least one key risk criterion and has been assessed to be not fully cooperative with respect to receiving its nationals subject to final orders of removal from the United States.”
4. North Korea
   • “North Korea does not cooperate with the United States Government in any respect and fails to satisfy all information-sharing requirements.”
5. Syria
   • “Syria has significant inadequacies in identity-management protocols, fails to share public-safety and terrorism information, and fails to satisfy at least one key risk criterion.”
6. Venezuela
   • “Venezuela has adopted many of the baseline standards identified by the Secretary of Homeland Security and in section 1 of this proclamation, but its government is uncooperative in verifying whether its citizens pose national security or public-safety threats.”
7. Yemen
   • “The government of Yemen fails to satisfy critical identity-management requirements, does not share public-safety and terrorism-related information adequately, and fails to satisfy at least one key risk criterion.”
8. Somalia
   • “Somalia has significant identity-management deficiencies.  For example, while Somalia issues an electronic passport, the United States and many other countries do not recognize it. A persistent terrorist threat also emanates from Somalia's territory.”

SECTION 3: Provides some exceptions and limitations

The ban only applies to foreign nationals who:

• Live outside the United States
• Do not have a valid visa as per section 7
• Do not qualify for a visa as per section 6(d)

Exceptions to the ban include:

• Lawful resident of United States
• Documentation that is not a visa, such as a transportation letter
• Dual nationality
• Diplomatic passports
• Those with asylum

Waivers can be granted to those seeking entry on a case-by-case basis. For example, if the individual seeking entry can prove that she is not a security risk, has been issued visas previously for work or study, and if the person’s entry would be in the United State’s interest. Several more exceptions are listed under section 3(c).

SECTION 4: Countries can get off the list

Every 180 days, the Secretary of Homeland Security, in consultation with the Secretary of State, will reassess whether or not a country should remain on the banned list, using criteria from section 1. The restrictions placed on the country can be modified in various ways, whether that be by removing all restrictions or only maintaining limited restrictions on the country.

SECTION 5: DHS will report to the President

The Secretary of Homeland Security will send periodic reports and updates to the President on the United State’s procedures implemented for vetting foreign nationals, such as:

• The biometric and biographic data is the government collecting;
• The number of errors made in collecting this information;
• The procedures related to screening and vetting set forth by the Department of State's Bureau of Consular Affairs.

SECTION 6: Provides various rules for enforcement

The ban will comply with applicable laws and regulations, working with both domestic and international organizations, “to ensure efficient, effective, and appropriate” implementation. This section also notes that foreign nationals who have a credible claim of fear or persecution will have an opportunity for entry. This section addresses a slew of miscellaneous enforcement measures such as:

• The Secretary of State and the Secretary of Homeland Security will comply with all applicable laws and regulations.
• No immigrant or nonimmigrant visa issued before the applicable effective date under section 7 will be revoked.
• Any individual whose visa was marked revoked or marked canceled as a result of Executive Order 13769 of January 27, 2017 (Protecting the Nation from Foreign Terrorist Entry into the United States) will be permitted to have a traveling document.
• This proclamation shall not apply to an individual who has been granted asylum by the United States, to a refugee who has already been admitted to the United States, or to an individual granted withholding of removal or protection under the Convention Against Torture.

SECTION 7: Ban starts on October 18

On October 18, 2017, all foreign nationals from Iran, Libya, Syria, Yemen, Chad, North Korea, and Venezuela will have restricted entry into the United States.

SECTION 8: Ban will continue even if one section is invalid

This section essentially states that if any portion of the ban is held to be invalid, barring the invalid sections, the remainder of the ban will still remain in place.

SECTION 9: Ban will not impede the executive agencies

This proclamation will not be read in any way that impairs the function of the executive department or its agencies.

Key Takeaways

• Unlike the 120-day refugee ban, this travel restriction could remain indefinitely.
• Most of the countries included are primarily Muslim.
• This ban implements a more methodological framework explaining why certain foreign nationals are banned, more so than the previous travel ban.
• Countries will continuously be added or removed from the banned list depending on whether they improve their in-country security protocols.

Last Updated: Jan 15, 2020

The Department of Homeland Security (DHS) will Monitor Social Media in US Immigration Process

The Department of Homeland Security (DHS) will now be tapping into immigrants' social media beginning October 18th. If you've read the article on Trump's newest travel ban, you might find the date familiar. That's because October 18th is also the same day when the updated travel restrictions take place. This data-collection step will rope in everyone who is an immigrant, including green card holders and naturalized citizens. It doesn't stop there. DHS will also monitor communication from anyone with these individuals via social media.

Even though tapping into social media accounts has been in the discussions for a while, the DHS started to draft out a detailed plan after the mass shooting at San Bernardino, California. It aims to detect any hint of terroristic motive, primarily from groups such as the Islamic State, otherwise known as ISIS. As a response to this data collection policy, many privacy-advocacy groups voiced serious concern on the infringement of privacy. Some accused the measure as part of Trump administration's signature move on anti-immigration. Though the procedure has become comparatively draconian, the federal government was already asking immigrants and visitors to share their social media information for the four pilot screening program during the Obama administration. Through its evolution, DHS officials say this protocol listed specific items that the government will be collecting, which is more detailed than its predecessors, but privacy advocates are worried that the language regarding search results and conversations on social media still remain vague. We will walk you through the details, giving you the most recent update at your finger tips.

This implementation, DHS stated, will mark social media account information such as handles, alias, search results, and any other associated identification as official records. These collected data will become part of immigration files, also called Alien File. The department stated that the data will be collected from "publicly available information obtained from the internet, public records, public institutions, interviewees, and commercial data providers." However, it did not explain which commercial data providers are on the list. Department officials say this measure is not new because the U.S. Citizenship and Immigration Services has already been collecting information on immigrants applying for visas and citizenships. Although the department won't be recording additional social media data from naturalized U.S. citizens, officials say they may still keep information on file from when those individuals applied for citizenship up until the time they applied for citizenship.

[caption id="attachment_2248" align="alignnone" width="766"]

Opponents of data collection and social media monitoring criticizes how these actions violate the Privacy Act of 1974. [/caption]

Mikayla Mallek

Since the 2015 mass shooting in San Bernardino, lawmakers felt increasingly alert how terrorist groups are using social media to conspire with others. Tashfeen Malik, one of the two attackers, voiced strong support for jihad and carried conversations on social media but the posted comments were only available to a small group of friends. Since then, DHS has been under pressure to lay out a more detailed social media monitoring plan. It incorporated social media searches into the visa application, particularly on those who were applying for the fiancé visas. Then in 2016 the department included a new section in the travel form for visitors arriving in U.S. The addition asks for visa waivers to provide their social media handles used in the past five years. Recently, DHS proposed that it will start requesting persons coming from any one of the countries on the travel ban list to provide not only their social media accounts but also their passwords. These changes demonstrated an intensified vetting process since the Obama administration. Previously social media screening was only applied to Syrian refugees entering U.S. soil, particularly those flagged by match on the intelligence database or if an official found something of concern during the interview process. Opponents of data collection and social media monitoring criticizes how these actions violate the Privacy Act of 1974. They add that the federal government is slowly blurring the line that protects people's freedom of speech on the Internet.

Be More Aware of Your Online Presence

With each step of increasingly careful monitoring of social media, immigrants are growing weary of it being an infringement to their freedom of expression. One of Engadget's (an online publication about all things tech and then some) editor, Cherlynn Low, wrote about her struggle between authenticity and fear of being flagged for something she posed on Instagram. Another, Sam Sinai who has a Iran-U.S. dual citizen studying at Harvard University was questioned by the US Customs and Border Protection agents. They told him he was selected for extra screening and they asked him about his political beliefs. Sinai has experienced extra screenings before upon returning to U.S. from his visit to Iran, but what caught him off guard was the additional question regarding his political view. As he walked away, Sinai says he couldn't help but think why the extra question, and then it dawned on him. They checked him online. Sinai has published articles on Iran-U.S. relation and answered questions regarding Iran on the Internet. Since that experience, Sinai says now he has reasons to be more aware of his online presence.

Faiz Shakir, the national political director for the American Civil Liberties Union, calls this the "chilling effect". He says individuals of immigrant background will feel restricted regarding what they can and cannot say. In addition, those along his school of thoughts raised several other concerns such as lack of confirmation on the success of previous pilot program, no assurance against bots automatically including even the wrong targets, no clear way of predicting people's behavior, and its effectiveness questionable. DHS' spokeswoman Joanne Talbot told NPR that the department has been collecting social media data from immigrants since a policy adopted back in 2012. Talbot says the department is not using new method rather it's continuing to collect publicly-available information as it has been since 5 years ago. She also said the department is specifying the type of information collected in an effort to be more transparent.

The DHS took additional measure to demonstrate transparency such as publishing a report in February about the department's social media data collection and providing an online platform to anyone interested in voicing their opinions on the federal tracking of immigrants' social media.

Last Updated: January 15, 2020.

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The Trump administration is carrying out a change to immigration policy, commonly known as the Travel Ban. This update aims to prohibit entry of nonimmigrants and immigrants who are nationals from 8 countries; Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, Yemen. Each country has its own set of specific restrictions. Instead of a 90-day vetting period like the first version, this ban is basically indefinite. To break it down, the new update is being carried out in two phases. September 24, 2017 marked the beginning of phase 1 and phase 2 will start on October 18. Trump administration announced that the update does not apply to refugees, but they will have a separate policy regarding refugees from these 8 countries forthcoming. We'll pinpoint the takeaways from this ban for those who may be affected in any way. Before we delve in, it helps to understand why these new regulations exist.

This new order, compared to its predecessors, takes on an even longer name: "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats".

"Making America Safe is my number one priority. We will not admit those into our country we cannot safely vet" - Donald J. Trump, Sept 24, 2017

Essentially, this newer order follows up or implements the next step to version 2 from back in March. Previously, the Department of Homeland Security (DHS) conducted a worldwide review using a set of criteria to evaluate each foreign countries' information-sharing practice, policies, as well as each governments' stability and capabilities. At the end of this review, the Trump administration blacklisted 8 countries whose information sharing practices were deemed "inadequate" or otherwise the president has "special concerns" toward. The travel ban has significant ramification for United States' diplomatic relationship on the international level, but let's take a look at what it means to the individuals who are these countries nationals.

According to this Travel Ban update, "U.S. embassies and consulates will deny visas to most cases from the 8 blacklisted countries, with few exceptions that will require extensive screening and vetting process.

• Chad: No immigrants or diversity visas will be issued; No nonimmigrants visas B-1, B-2, and B-1/B-2 will be issued; as of September 24, "bona fide relationship" exception is no longer acceptable. **Quick refresher, "bona fide relationship" extends to those who have close family members who are U.S. citizens such as parents, parents-in-law, spouses, fiancé or fiancee, child, adult son or daughter, son or daughter-in-law, sibling, brother or sister-in-law, grandparent, grandchild, aunt, uncle, niece, nephew, first-cousin, and for all listed relationships, half or step relationships is included.
• Iran: No immigrants or diversity visas will be issued; no nonimmigrant visas except F, M, and J student visas; during phase 1 (from September 24, 2017 to October 17, 2017), the "bona fide relationship" exception still applies and ends when phase 2 (October 18, 2017) starts.
• Libya: No immigrants or diversity visas will be issued; No nonimmigrant visas B-1, B-2, and B-1/B-2 will be issued; During phase 1 the "bona fide relationship" exception is still accepted, but it ends when phase 2 starts.
• North Korea: No immigrant, nonimmigrant, or diversity visas will be issued. No "bona fide relationship" exception accepted.
• Somalia: No immigrant or diversity visas; nonimmigrant visas face no restriction. During phase 1 the "bona fide relationship" exception is still accepted, but ends when phase 2 starts.
• Venezuela: No immigrant visa restrictions; No nonimmigrant visas B-1, B-2, and B-1/B-2 will be issued for officials and their immediate family members from the following government agencies: Ministry of Interior, Justice, and Peace; the Administrative Service of Identification, Migration, and Immigration; the Corps of Scientific Investigations, Judicial and Criminal; the Bolivarian Intelligence Service; and the People's Power Ministry of Foreign Affairs.
• Yemen: No immigrants or diversity visas will be issued; No nonimmigrant visas B-1, B-2, and B-1/B-2 will be issued. During phase 1 the "bona fide relationship" exception is still accepted, but ends when phase 2 starts.

From these countries, any individual who may be able to obtain a visa will still have to face extensive screening and vetting process upon entering the United States.

How will these new restrictions affect issued visas or currently processing visas?

• If you've already obtained a visa, then your visa is safely yours. The new order specified that no visas issued before its effective date will be revoked. Therefore, if you've obtained a valid visa but have yet to enter the United States, then the restrictions do not apply to you.
• If your visa expires after the effective date, then you will not be able to renew your visa if your case is under the restrictions.
• If your visa is currently in the works, then here are the specifics:
  • First, the Trump administration has stated that it won't cancel previously scheduled visa application appointments.
  • Second, it's up to the consular officer to determine if the course of interview whether an applicant's case is exempt from the new restrictions, be eligible for a waiver, or falls under the 2 phases of restrictions.
  • Third, The National Visa Center (NVC) continues to work on cases that are in process, so applicants should still pay their fee, complete all necessary forms, and submit the paperwork to the NVC.
  • For those who are currently applying for the K (fiancé) visa, the NVC is expediting all I-129F petitions. Once the petition and case files are processed, the embassy or consulate will contact you to schedule an interview.
• If you recently had an interview at a U.S. Embassy or Consulate, but your case is still being considered:
  
  • Make sure you've sent in all missing documents and completed any of the administrative processing. The embassy or consulate where you were interviewed will contact you. It's still up to the consular officer to determine the status of your case.
  • Following the two phases of implementation, all bona fide cases both familial relationship and relationship with an entity will only be available during the first phase. After the second phase starts, the bona fide relationship exception will be no longer available.

Sponsoring family members for an immigrant visa

While the Trump administration's new travel ban is underway, the Supreme Court was originally scheduled to hear arguments on President Trump’s travel ban on October 10, 2017 but cancelled it immediately.

To renew a Green Card, applicants must file Form I-90 and include the necessary filing fee. While the filing fee  can vary depending on the particular circumstances of the filing, the filing fee is typically $465 for paper filings and $415 for online filings. For more information on filing fee exceptions, see the USCIS Fee Calculator.

How to Pay the Form I-90 filing fee

In the United States, you may pay the filing fee to USCIS using a check or money order drawn from a U.S. financial institution and payable in U.S. funds. You can also pay online or with Form G-1450, Authorization for Credit Card Transactions..  For more information on paying USCIS filing fees, check out this article. 

How to Waive the Fees

If you are unable to pay the fees, you may request to waive them by filing  Form I-912, Request for Fee Waiver. When filing Form I-912, you must provide documentation showing that you qualify based on one of the following criteria:

• You, your spouse, or the head of household living with you, are currently receiving a means-tested benefit (Medicaid, SNAP, TANF, SSI).
• Your household income is at or below 150% of the Federal Poverty Guidelines.
• You are currently experiencing financial hardship that prevents you from paying the filing fee, including unexpected medical bills or emergencies.

Note: If you are waiving the fee, you are not eligible to submit Form I-90 online. You must mail in a paper document.

Getting Help with your Green Card Renewal

Although renewing your Green Card on your own is the least expensive option, getting it done right the first time can save a lot of time, stress, and money in the long run. Small mistakes on your application can lead to delays or even having to reapply—which means paying the $465 fee again and waiting much longer to receive your new Green Card.

If you’d like some extra help to make sure your application is complete and correct the first time, here are two great options:

Option 1: Work with an immigration attorney 

Find licensed immigration attorneys near you.

Option 2: Renew your Green Card with SimpleCitizen

Start your renewal application here.

Whichever path you choose, the goal is the same: get your Green Card renewed quickly, easily, and with confidence.

Renewing a Green Card with SimpleCitizen

SimpleCitizen’s  time-saving software makes completing a green card renewal application easy! All you need to do is add your information and documents, then our software assembles the forms. Your entire application is then reviewed by a member of our independent network of immigration attorneys. Afterward, we will guide you step-by-step through understanding the attorney’s recommendations. When finished, we can even print, assemble and mail your immigration application in a beautiful box right to your door so that you can submit it to the government!

Click here to get started on your renewal application today.

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Last Updated: December 2022.

The Form I-797 is a document the United States Citizenship and Immigration Services (USCIS) uses to communicate with applicants.

The most common reason we see form I-797s be sent to our customers is when USCIS is issuing them receipt notices for their application. USCIS will send applicants Form I-797 approximately 4-6 weeks after the applicant submits an application to them. The purpose of this form is to notify the applicant that USCIS has received the application and has started processing it.

Please Note: Make sure to keep a copy of all I-797 forms for your personal records. They can commonly be used as evidence for other USCIS forms you may fill out.

How to Read an I-797 Form? 

This is what an I-797 Form looks like: 

Here are some general areas to look for when reading your receipt notice: 

There are seven different I-797 forms and each serve a different purpose as outlined in this article: 

1. Form I-797, Notice of Action: Receipt Notice
2. Form I-797A, Notice of Action: Replacement for an I-94 Form 
3. Form I-797B, Notice of Action: Form I-140, Petition for Alien Worker
4. Form I-797C, Notice of Action: Important Information
5. Form I-797D: Includes a Benefit Card
6. Form I-797E, Notice of Action: Request for Evidence
7. I-797F, Transportation Letter: Travel Permit

1. Form I-797, Notice of Action: Receipt Notice

This I-797 form is simply a receipt informing you that the application or petition has been received or approved. Note that this is just the receipt, not the official document. Therefore this document cannot be used to work or travel. 

However, the form is still very useful. It gives you information about your application, including your receipt number. Your receipt number is a 13-digit-long code you can use to track your case online. Simply use this USCIS Case Status Checker.

If you lose your receipt number, you can schedule an InfoPass appointment where you’ll meet with a USCIS officer who can provide you with information about your case. USCIS will require that you bring valid identification to the appointment. You may also request this information through USCIS’s live chat option, or call USCIS directly at 1(800) 375-5283. 

For many cases, USCIS also sends out a separate notice that will have instructions for setting up your Online USCIS Account.  

2. Form I-797A, Notice of Action: Replacement for an I-94 Form

Form I-797A Notice of action is sent as a replacement for the Form I-94 for applicants already in the U.S. This typically means that a change of status application has been approved and the immigrant is legally able to stay in the U.S. up until their new I-94 expiration date. The Form I-94 can be found at the bottom of Form I-797A and functions as the official document. The body of the document will provide additional guidelines. This form includes the date of admission, the class of admission, and the date to which they are admitted to stay.

Here is what an I-797A, with the replacement I-94 Form looks like. It includes an I-94 number, which is usually the same number as your original I-94, new VALID FROM and ADMIT UNTIL dates, and the new, or extended Class of Entry description. 

To find the new I-94 portion, you can check in the following spots of the form: 

Please note: If you have not filed for a change or extension of status within the U.S., you will need to obtain your I-94 directly through the U.S. Customs and Border Protection website. To increase efficiency, reduce operating costs, and streamline the admissions process, U.S. Customs and Border Protection (CBP) has automated the I-94 Form. The paper document is only given in limited circumstances. If you need a copy of your Form I-94, you may request it here.

Please note: If you originally received a paper I-94 before the CBP automated them online, and it has since been lost, you may need to submit a Form I-102 with USCIS in order to receive a replacement. For more information on this, please see here. 

3. Form I-797B, Notice of Action: Form I-140, Petition for Alien Worker

Form I-797B is issued when the applicant submits Form I-140, Immigrant Petition for Alien Worker. The body of the document will include instructions. The bottom section will include important information for admission to the U.S. depending on the applicant’s circumstance, like all I-797 forms, this form will include details about your application. 

Please note: The I-797B Form is required for any Employment-Based Adjustment of Status Applications. 

4. Form I-797C, Notice of Action: Important Information

This is perhaps the most common I-797 form. It is very important that you read this document carefully as it usually tells you the next step in the application process. In addition to the regular information, the Form I-797C will inform the applicant of a rejection, transfer, re-opening, or scheduled/re-scheduled appointment.

Form I-797C is also the form that will come separately, at the same time or a few weeks after, the initial receipt notices that will include instructions for setting up your Online USCIS Account. For more information on this, please go to USCIS’s website here.

Typical appointments include a biometrics appointment or an interview with a USCIS officer. If you receive a Form I-797C, pay close attention to what it says. Ignoring or misreading the instructions can delay your case.

5. Form I-797D, Notice of Action: Includes a Benefit Card

The Form I-797D will generally include a benefit card. This could be a green card or another official document such as an Employment Authorization Document (EAD) or Advance Parole. Like the regular I-797 form, you will not need to do anything with this form. However, it is still important to keep a copy for your personal records.

6. Form I-797E, Notice of Action: Request for Evidence

Many USCIS forms require additional evidence. This is called a Request for Evidence (RFE). If the USCIS does not receive all the required evidence in an application, they will send the form I-797E. In this form, they will explain the issues with the evidence already provided or simply state that no evidence was included.

If you receive this form, make sure to read it carefully! The Form I-797E will often include a time limit and specific instructions. If you never respond to a request for evidence, your application will most likely be denied.

When responding to a Request for Evidence: Only submit photocopies of official documents unless original documents are specifically requested because the USCIS will not return evidence to you and will most likely destroy it after the case is closed.

Click here for more information about responding to Requests for Evidence.

7. Form I-797F, Transportation Letter: Travel Permit

This is the only I-797 form that is not a “Notice of Action.” This document allows overseas applicants to travel. If you receive Form I-797F, simply follow the guidelines provided in the document as they are specific to your case type.

What to do if you lose an I-797 Form and want, or need, a replacement? 

If your I-797 has been lost or stolen, you will need to reach out directly to USCIS to help obtain your receipt number. To do so, you can schedule an appointment with them online here, or call them directly at 1-800-375-5283. 

Updated: Feb. 10, 2020.

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So you've mailed your green card application and are anxiously waiting for whatever comes next. What happens now?

After you submit the Form I-485, along with all the other required forms, there are still a few more steps to take before you become a permanent resident in the United States. This guide will help you understand each one of those steps.

Have not submitted your application yet? Here's a guide on how to prepare your application.

1. Receipt of Application

Approximately 30 days after filing

Once USCIS has received your application, they should send you a receipt within approximately 30 days.

If you attached a Form G-1145, E-Notification of Application/Petition Acceptance along with your Form I-485, you will also receive a confirmation email or text message within 24 hours of your application being accepted.

Both the physical receipt and the e-receipt will have a receipt number on them. You can use this number to check your case status and see how far along your case is in the application process.

Note: If you submit the Form I-485 without a signature or without the correct filing fee, USCIS will send you a notice that your form is incomplete. You may then fix the problem and re-submit it. If they need more evidence, USCIS may request (RFE) originals of the copies you provided them. These original documents will be returned to you when they are no longer needed.

2. Biometrics Services Appointment Notice

Approximately 3-5 weeks after filing

After your I-485 is filed, you will receive a notice in the mail about your biometrics services appointment, which will be held at a local Application Support Center (ASC). The notice will tell you the date, time, and location of your appointment. At this appointment, you will provide your fingerprints, photograph, and/or signature, which will be used to verify your identity and run background checks. Sometimes this can happen within 3-5 weeks, but the timeline varies considerably.

You should review your Form I-485 information before the biometrics appointment. Your signature at the biometrics appointment will indicate that your application was complete, true, and correct. When you go to your appointment, take with you:

• Your ASC appointment notice.
• Valid photo ID (such as a passport, driver's license, or state-issued photo ID card).
• A translator if you cannot understand spoken English.

3. Interview Notice

Approximately 4-10 months after filing

You will probably be requested to appear at a USCIS office to answer questions about your Form I-485. You will receive a notice that will tell you when and where the interview will take place. Bring with you original:

• Passports
• Official Travel Documents
• Form I-94
• Copy of your Form I-485
• All other originals of the documents that you submitted with your Form I-485, even if the documents are now expired.

It is best to appear at all USCIS appointments (including interviews and biometrics appointments) on the scheduled date. However, if you are sick, you can follow the instructions on your appointment notice to reschedule.

4. Receive Permanent Residence

Approximately 8-14 months after filing

After your interview, the USCIS will send you a written notice of their decision. If you are approved, you will receive your green card in the mail soon after. If your application is denied, the decision notice will explain why. It will also state whether you can appeal the decision or not. Even if it says that you cannot appeal the decision, you may still be able to file a motion to reconsider. To file an appeal or a motion you will use Form I-290B, Notice of Appeal or Motion.

Other Tips

Avoid leaving the United States while your application is pending.

If you plan to leave the US while your application is pending, even if it a short trip to Mexico or Canada, make sure that you have the right documentation to leave and re-enter the US. You will probably have to file Form-131 to obtain either an Advanced Parole Document or a refugee travel document. You will not need to file Form-131 if you are an H, L, V, or K3/K4 nonimmigrant who is maintaining lawful nonimmigrant status, and you return with a valid H, L, V, or K3/K4 nonimmigrant visa. If you leave the country without proper documentation, your Form I-485 may be denied, or you may not be able to lawfully re-enter the US.

Moving & changing your address.

If you move, it is important to promptly inform the USCIS so that you do not miss any mailed notifications about your application. Update your address with the USCIS within 10 days of moving. In most cases, you can do this online at the USCIS website.

Ask for help.

If you have questions or need help with any part of your application, please feel free to reach out to our support team. We're here to help!

Last Updated: March 11, 2021

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Human resources professionals must understand the hiring needs of their organization and how to recruit and retain qualified workers. For many companies, this means hiring foreign nationals. Recent headlines have focused on one of the most common types of work visas: H-1B. More than 460,000 H-1B visas — nonimmigrant visas for specialty occupations — were granted in 2013, the Economic Policy Institute reports. According to the 2017 Forbes survey, there was a 21% year-over-year increase of companies that said they would sponsor workers from overseas. This increasing work visa demand juxtaposed with tightening regulations on immigration has created a more intense environment for attracting and keeping foreign talent. It is more important than ever for companies to understand how to navigate the current immigration landscape in order to hire the best resources and help their companies maintain a competitive advantage.

This guide walks human resources professionals through how to successfully hire foreign nationals.

Step 1: Petition USCIS for a Nonimmigrant Visa

There are many different types of nonimmigrant visas. Some of the most common work visas are H-1B, TN, L-1A, L-1B, E-3, and O-1. This article will focus on H-1B.

What is the H-1B Visa?

The H-1B visa is a nonimmigrant, employment-based visa that U.S. companies can use to hire employees in specialty fields that require theoretical or technical expertise, such as computer science, finance, math, engineering, health care and architecture. U.S. immigration law requires that the visa holder have a bachelor’s-level education or higher. If the applicant doesn't have at least bachelor’s degree, in some cases they may be able to show degree equivalence through work experience or other qualifications.

What is H-1B season?

Every year, the deadline for filing an H-1B is April 1, and the earliest possible date a foreign worker could start employment is October 1. H-1B "season" is the time of year leading up to the April 1 deadline when employers are preparing their H-1B visa petitions. Most companies start this process in January or early February.

What is the H-1B cap?

USCIS limits the number of H-1B visas that are granted each year. Current limits are as follows:

• Regular H-1B visas: 65,000.
• H-1B visas for people with a U.S. master's degree or higher: 20,000

If USCIS receives more than 65,000 regular petitions and 20,000 advanced degree petitions during the first five business days after April 1, they use a lottery system to randomly select petitions to be granted. If an employee’s petition is not selected, USCIS will notify you and return the filing fees.

Are there exemptions to the H-1B cap?

Yes, there are. The following types of employers are not subject to the annual H-1B visa petition limits:

• Colleges and Universities.
• Nonprofits that are part of or associated with a college or university (such as a hospital associated with a university).
• Nonprofit research organizations and governmental research organizations; and
• Employees whose H-1Bs have already been counted against the annual H-1B cap (includes employees transferring their H-1B from one employer to another, as well as those filing for an H-1B extension).

It should also be noted that 6,800 of the 65,000 H-1B visas are reserved for Chilean and Singaporean nationals (known as H-1B1 visas).

H-1B Visa Eligibility Requirements

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The position being offered must meet one of the following criteria:

• Bachelor's or higher degree or its equivalent is normally the minimum entry requirement for the position;
• The degree requirement for the job is common to the industry or the job is so complex.
• The employer normally requires a degree or its equivalent for the position; or
• The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

The person you wish to hire must also meet one of the following criteria:

• Completion of a U.S. bachelor's degree or higher required for the specific occupation from an accredited college or university.
• Completion of a foreign degree that is the equivalent to a U.S. bachelor's degree in the specialty occupation (requires academic equivalency evaluation).
• Have an unrestricted state license, registration, or certification which authorizes the employee to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment; or
• Completed education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty occupation.

Are there filing fees associated with the H-1B?

There are a number of filing fees that you, as the petitioning employer, are required to pay:

• Base filing fee: $460 (no exemptions)
• Fraud prevention and detection fee: $500 (no exemptions)
• Employer sponsorship fee: $1,500 for employers with more than 25 full-time employees; $750 for employers with fewer than 25 full-time employees. This fee may be waived under certain circumstances.
• Public Law 114-113 fee: $4,000. This fee is required if the employer has more than 50 employees AND more than 50 percent of employees are on H-1B or L-1 status. This fee may also be waived under certain circumstances.

How long is the H-1B Visa good for?

An H-1B visa is granted for three years and may be renewed for another three years, for a maximum of six years — minus any documented time spent outside of the U.S. This time may be “recaptured" and added to the end of the 6-year period.

The H-1B visa cannot be renewed at the end of the six-year period unless certain steps have been taken toward the filing of a permanent resident (green card) application.

Human Resources Checklist

1. Review the background of the potential hire to ensure they meet the specialty/degree requirements.
2. Review the recruitment and selection process to ensure the sponsorship criteria are met.
3. Review the rate of pay for the position, ensuring it is the prevailing wage for the position and geographical area.
4. Collect and submit the following (in duplicate):
   • The certified labor application from the Department of Labor (form ETA 9035)
   • Letter on company letterhead and signed by the company representative describing the nature of the U.S. job opportunity, including the job description.
   • Support letter confirming the job offer to the foreign worker and explaining the terms and conditions of the offered employment.
   • Form G-28, if an attorney or accredited representative is being used.
   • Form I-129, two copies with original signatures on both.
   • H-1B Supplement to Form I-129.
   • H-1B Data Collection pages.
   • Visa history (two originals)
   • Resume
   • Clear copy of unexpired passport
   • Clear copy of Form I-94
   • Clear copy of transcripts, diplomas, and degrees; if necessary, include a U.S. academic equivalency evaluation.
   • Required government filing fees.

Prepare to maintain a public access file

Finally, it is the employer's responsibility to maintain a public access file on each H-1B employee, and this file must be made available to the public upon request. Each file must contain:

• A signed copy of the certified labor condition application (LCA) from the Department of Labor.
• A statement of explanation outlining how the employer set the employee's salary.
• Documentation of the appropriate prevailing wage for the position and geographical area.
• Notice that the certified LCA has been posted at the company.

Note: Do not included the employee's personnel file in the public access file. The personnel file should be kept separately.

Step 2: Start Permanent Residency for Your Employee

Most companies start the permanent residency (green card) process for their employees after 6 – 12 months of employment. The permanent residency process is expensive, often costing between $10,000 and $20,000. However, because most nonimmigrant visas have strict time limits, companies that hire foreign talent can only keep those employees long term if they sponsor them for a green card.

For most professional employees, the first step in the permanent residency process is PERM Labor Certification. This step is very complex in terms of timing and requirements. The Department of Labor is very strict with PERM cases, and there are seemingly innumerable missteps that can result in a denial. Denials are very frustrating to employees who want their green cards as soon as possible and look very disapprovingly on any delay. Because PERM Labor Certification is so expensive, denials are also very costly to the company.

What does the PERM Labor Certification process look like?

The DOL is primarily looking for two things:

• Evidence that there are not enough qualified U.S. workers to fill the position being offered; and
• Hiring a foreign worker will not hurt the wages and working conditions of similarly employed U.S. workers.

As the employer, you'll be asked to prove:

• That you've performed an extensive and unsuccessful hiring search among U.S. workers. This includes notifying the U.S. workforce at your company; and
• That the salary you're offering either equals or exceeds the "prevailing wage" for the position in that geographical area.

How is "prevailing wage" determined?

The Department of Labor provides for the prevailing wage for each position sponsored under PERM Labor Certification. Most prevailing wages are determined through a request to the Office of Foreign Labor Certification. In some instances, employers may use a relevant salary survey to “challenge” the Department of Labor’s prevailing wage assessment and thereby secure a lower prevailing wage.

Is there a filing fee to apply for PERM Labor Certification?

There is no government filing fee for PERM Labor Certification, however, the mandatory recruitment includes two Sunday newspaper ads. These ads must be placed in a newspaper of general circulation in the geographic area where the position is located, and these ads can be very expensive – sometimes costing $2,000 - $3,000. Most companies also hire an attorney to complete this process, and the legal fees typically cost several thousand dollars.

What Comes Next?

PERM Labor Certification typically takes about 9 – 12 months from start to finish. The company must then file the Form I-140 and Form I-485 for the employee. Depending on several factors, including the employee’s country of origin, the rest of the permanent residency process can take anywhere from 1 – 12 years – sometimes longer. During that time, visa employees should maintain a nonimmigrant visa status until they are able to get an EAD work card as part of their I-485 process.