Sunday, October 1, 2023

U.S. Diversity Visa Lottery for FY 2025 Opening on October 4, 2023

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here and my law firm website can be found here.  Feel free to connect with me on Linkedin.

For interested Singaporean citizens who are born in Singapore*, the Fiscal Year 2025 U.S. Diversity Visa Lottery opens on October 4, 2023.  

*Eligibility for entering the Green Card Lottery is based on country of birth and not citizenship, as discussed below.

H-1B1 and the DV Lottery

Some Singaporeans seeking an H-1B1 visa have asked if registering for the Diversity Visa Lottery (also known as the Green Card Lottery) would cause issues with their H-1B1 visa application due to the nonimmigrant intent nature of the H-1B1 visa.  

The answer is: No.  

Particularly, you may encounter the question on your online DS-160 visa application form that asks "Has anyone ever filed an immigrant petition on your behalf with the United States Citizenship and Immigration Services?"  If the answer to this DS-160 question is Yes, it raises a red flag in an H-1B1 visa application because the filing of an immigrant petition with USCIS, such as an I-130 petition or an I-140 petition, generally contradicts the nonimmigrant intent nature of the H-1B1. 

However, the act of registering for the Green Card Lottery with the Department of State is NOT the filing of an immigrant petition with USCIS (and so the answer to the DS-160 question above would be NO if you had merely registered yourself in the DV Lottery program).  Therefore, it will generally not cause problems for your H-1B1 visa application.

Below is information about the Diversity Visa Lottery program.

What is the DV Lottery and Who Can Apply

The Diversity Visa program is a government lottery program for obtaining a green card; this program makes 50,000 immigrant visas available every year to applicants from countries with low rates of immigration to the U.S. and with specific education or work experience qualifications.

To be eligible for the Diversity Immigrant Visa Program, you must have been born in a country that sent less than 50,000 immigrants to the U.S. in the previous five years.  This includes being born in Singapore.  

For the FY 2025 program, people with the following countries of birth are NOT eligible** to apply due to high rates of immigration to the U.S.: 

Non-eligible countries:  Bangladesh, Brazil, Canada, China (including Hong Kong SAR, but Natives of Macau SAR and Taiwan are eligible), Colombia, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, Venezuela, Vietnam. 

**If your country of birth is not eligible, there are still two ways you could qualify: (i) if your spouse's country of birth is eligible, or (ii) if your parent's country of birth is eligible provided that neither of your parents was born in your country of birth or legally resident in your country of birth at the time of your birth.  

In addition to the country of birth requirement above, applicants must possess: (a) at least a high school diploma or its equivalent; or (b) two years of work experience in an occupation that requires at least two years of training or experience; the Department of State provides guidance on the educational and work experience requirements here.

When and How to Apply for the DV Lottery

The entry submission period for the FY2025 DV program is from 12pm (ET) on October 4, 2023, to 12pm (ET) on November 7, 2023.

Entries must be submitted online through the Department of State's website.  Online applications are free (although visa processing fees would apply if selected), and detailed instructions from the Department of State can be found here.


Disclaimer:  This blog post is for informational purposes only and should not be construed as legal advice.

Wednesday, May 31, 2023

Updates on H-1B1 Consular Processing in Singapore

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here and my law firm website can be found here.  Feel free to connect with me on Linkedin.

I am writing to provide two updates regarding H-1B1 consular processing in Singapore.


1.  MRV Fees for H-1B1 to Increase from $190 USD to $205 USD effective June 17, 2023

The MRV (Machine Readable Visa) application fee for the H-1B1 visa has traditionally been $190 USD per applicant.  As of June 17, 2023 (slightly delayed from the initial effective date of May 30, 2023), this will be increased slightly to $205 USD.

Therefore, do not be surprised by the slightly higher fee if you encounter it from June 17, 2023 onwards.


2.  Interview Waiver Process - Please use the Aramex Office in CHINATOWN for H-1B1 cases

Many eligible Singaporeans have been utilizing the Interview Waiver Process which I have written about here.  

There are two possible document drop-off locations for this process in Singapore: the Aramex office in Chinatown, and the Aramex office in Changi.

However, it was recently brought to my attention that at least one representative from the Changi Aramex office has been telling Singaporean H-1B1 visa applicants not to drop off their LCA (Labor Condition Application).  In my view this is INCORRECT because the interview waiver confirmation letter (also known as the dropbox submission confirmation letter) that is typically issued to eligible Singaporeans indicates that the LCA is in fact required for H-1B1 cases.  Moreover, the LCA data such as the LCA number and the LCA expiry date would be annotated on a Singaporean's H-1B1 visa - I cannot see how it is possible for the Embassy to insert these LCA data annotations on the applicant's H-1B1 visa without the LCA.  In contrast to Changi, the Chinatown Aramex office continues to routinely accept the inclusion of the LCA for H-1B1 interview waiver cases.  Thus, the Changi Aramex office is problematic and should be avoided at this time.

In conclusion, for H-1B1 interview waiver cases I would recommend Singaporeans to please use the CHINATOWN Aramex office instead of the Changi one, in order to minimize issues or delays. 


Disclaimer:  This blog post is for informational purposes only and does not constitute legal advice

Saturday, March 4, 2023

I am a Singaporean citizen. When is an H-1B visa a more useful option than an H-1B1 (Singapore) visa?

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here and my law firm website can be found here.  Feel free to connect with me on Linkedin.

An H-1B1 (Singapore) visa, like any temporary (non-green-card) U.S. work visa, has its own pros and cons.  But a notable advantage is that it is NOT subject to the H-1B lottery.  Nevertheless, there is one situation where an H-1B visa may be a more useful option than the H-1B1 (Singapore) visa.

If you are a Singapore citizen but were born in China or India AND are seeking an employment-based green card, the H-1B visa may be the more useful option.  Here is why.

An H-1B1 (Singapore) visa is a pure nonimmigrant intent visa.  As such, there are at least two implications:

(A)(1) The first implication is that seeking an H-1B1 for the first time or an H-1B1 renewal would not be possible if an immigrant petition (for example, an I-140 employment-based immigrant petition) is filed on your behalf.

(A)(2) The second implication is that in practice generally H-1B1 renewals at the US Embassy in Singapore beyond the first 6 years of H-1B1 become harder and harder -- the rationale is: although in theory H-1B1 can be renewed indefinitely provided you can still show strong ties to your home country, it gets more and more difficult to show strong ties to your home country the longer you've been working in the U.S. 


In contrast, the H-1B is a dual intent visa.  As a result, there are at least two implications:

(B)(1) The first implication is that seeking an H-1B for the first time or an H-1B renewal would be possible even if an immigrant petition (e.g. an I-140) is filed on your behalf.

(B)(2) The second implication is that although the H-1B has a maximum duration of 6 years, certain milestones reached can allow a person's H-1B status be extended beyond the 6-year maximum.  One such milestone is the approval of an I-140 employment-based immigrant petition on that person's behalf if that person is not able to commence an actual green card application due to immigrant visa (green card visa) unavailability as a result of country of birth quotas.


Next, due to country of birth quotas for permanent immigration (green card cases), there are at least two implications for Singaporean citizens born in China or India:

(C)(1) The first implication is that it takes a very long time for an immigrant visa (green card visa) to be available for people born in China or India with respect to EB2 and EB3 employment-based green card cases.  EB2 and EB3 are the most common employment-based green card categories.

(C)(2) The second implication is that in every employment-based green card case, one must successfully complete the I-140 petition (the "penultimate step") AND the actual green card application (the "ultimate step").  Due to the country of birth quotas mentioned above, Singaporean citizens born in China generally have to wait several years after the I-140 approval before they can commence the ultimate step, whereas Singaporean citizens born in India generally have to wait over a decade.

Because of the significant time gap between the approval of the penultimate step (I-140 immigrant petition) and the commencement of the ultimate step (actual green card application), it is practically impossible to obtain an H-1B1 visa or renewal during the time gap because by then an I-140 immigrant petition would have been filed.

As such, a Singaporean citizen born in India or China needs to obtain H-1B status before the penultimate step of the I-140 petition is filed, so that subsequent H-1B renewal(s) would not be an issue.

Furthermore, once the milestone of I-140 approval explained in (B)(2) above is met, that person's H-1B status can be renewed beyond the 6-year maximum as needed to cover the significant waiting time prior to the ultimate step of the actual green card application. 


Finally, as I've explained in my previous blog post here, H-1B1 time counts towards H-1B time.  Accordingly, there are at least two things you should note:

(D)(1) The first thing to note is that the EB2/EB3* employment based green card case is time-consuming.  With the exception of the EB2 national interest waiver (or NIW)** sub-category, the mainstream EB2/EB3 employment based cases involve a long process called the "PERM" process before the I-140 petition can even be filed.  

*EB2 and EB3 are the labels of the two most common employment-based green card categories sought by alien workers.

**But please do not be confused: an EB2 NIW case is still an EB2 case, so the applicable country of birth quotas for an EB2 category is still the same regardless of whether it is an EB2 NIW or an EB2 PERM case.

(D)(2) The second thing to note is that, because H-1B1 time counts towards the 6-year maximum H-1B time, you cannot wait too long before getting to H-1B status.  For example, if you have used up 4 years of H-1B1 time, you only have 2 years of H-1B time left to make sure that the milestone of I-140 approval described in (B)(2) above is met to help you extend your H-1B time beyond the 6-year maximum to cover the significant time before you're able to commence the ultimate step (actual green card application) due to country of birth quotas as explained in (C)(1) and (C)(2) above. 


Therefore, if you're a Singaporean citizen but were born in China or India*** AND desire an employment-based EB2/EB3 green card, consider seeking an H-1B.  Or, if you are already on an H-1B1, consider switching to an H-1B soon before it's too late.****

***To add further complexity, if you're married and your spouse was NOT born in China or India, then the concept of "cross-chargeability" allows your spouse's country of birth to be "charged" (assigned) to you, which is helpful.

****Of course, if you're a Singapore citizen born in China or India and would only wish to work in the U.S. for 6 years or less, and do not desire a green card, then you are probably fine with just working on H-1B1 (Singapore) status for up to 6 years before returning to Singapore.


Disclaimer:  This blog is for informational purposes only and does not constitute legal advice

Sunday, February 12, 2023

Does H-1B1 time count towards H-1B time?

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here and my law firm website can be found here.  Feel free to connect with me on Linkedin.

In this blog post I address the following questions from Singaporeans who are currently on H-1B status but were on H-1B1 status immediately before that:
(1) Does H-1B1 time count towards H-1B time?
(2) If so, can any time spent outside the U.S. during H-1B1 also be recaptured and added towards my H-1B time?

I answer these questions below.

Question (1): Does H-1B1 time count towards H-1B time?

The first question is pertinent because it is not uncommon for Singaporean employees to be "converted" to H-1B status immediately after being on H-1B1 status, but H-1B status in the U.S. is only granted for a maximum duration of 6 years.

The answer is: YES. 

The reason is because of the federal regulation 8 CFR 214.2(h)(13)(iii)(A) which provides: 

An H-1B alien in a specialty occupation or an alien of distinguished merit and ability who has spent six years in the United States under section 101(a)(15)(H) and/or (L) of the [Immigration and Nationality] Act may not seek extension, change status, or be readmitted to the United States under section 101(a)(15) (H) or (L) of the Act unless the alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the immediate prior year. (Emphasis added)

Section 101(a)(15)(H) of the Immigration and Nationality Act (or "INA") technically also includes Section 101(a)(15)(H)(i)(b1) which refers to H-1B1.  

For example, if you have already accumulated 2 years of H-1B1 status in the U.S., you will only be entitled to 4 years (instead of 6 years) of H-1B status.

However, you can be entitled to the full 6 years of H-1B status if (after ending your time in the U.S. working on H-1B1 status) you have resided and been physically present outside the U.S. for 1 year immediately prior to seeking H-1B status, per 8 CFR 214.2(h)(13)(iii)(A) above.

Footnote:  For avoidance of doubt, note that unless your employer is a "cap-exempt petitioner" you would be subject to the H-1B lottery if you're seeking H-1B status for the first time, even if you have been on H-1B1 status before.


Question (2): If so, can any time spent outside the U.S. during H-1B1 also be recaptured and added towards my H-1B time?

As you can see from the response to Question (1), your H-1B1 time in the U.S. counts towards your H-1B time, unless you meet the exception of physically residing outside the U.S. for 1 year in between described above.

The understandable follow-up question is:  If so, for the purposes of H-1B can I also recapture time spent outside the U.S. back when I was on H-1B1 status?  

The answer is:  YES.

For example, if you have been working in the U.S. for 4 years on H-1B1 status, but out of that 4 years you've spent a total of 45 full days outside the U.S., you can recapture those 45 days and add them to the amount of remaining H-1B time you will seek.

Federal regulations provide that "[t]ime spent physically outside the United States exceeding 24 hours by an alien during the validity of an H-1B petition that was approved on the alien's behalf shall not be considered for purposes of calculating the alien's total period of authorized admission ... such remaining time may be recaptured in a subsequent H-1B petition on behalf of the alien" (See 8 CFR 214.2(h)(13)(iii)(C)). 

However, to the best of my knowledge the regulations appear to be silent on whether time spent outside the U.S. when the alien was on H-1B1 could be counted towards the recapture of H-1B time.

Nevertheless, as a matter of practice USCIS allows time spent outside the U.S. when the alien was on H-1B1 to be counted towards the recapture of H-1B time.  

Practical tip:  Typically your I-94 travel history is the most efficient way of checking and proving your time outside of the U.S. because it shows your departure and arrival dates.  This can be accessed online here (click on "VIEW TRAVEL HISTORY").


Disclaimer:  This blog post is for informational purposes only and does not constitute legal advice.


Monday, January 9, 2023

How do I extend my H-1B1 with the same employer?

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here and my law firm website can be found here.  Feel free to connect with me on Linkedin.


Singaporeans who wish to continue working for their H-1B1 employer will inevitably face the question of: how can I extend my H-1B1 with the same employer? 

There are two mechanisms for this:

#1.  Apply for a new H-1B1 visa at the U.S. Embassy in Singapore*

#2.  Have your employer file an I-129 petition with USCIS in the U.S. to extend your stay on H-1B1 status


*Prior to the pandemic, some Singaporeans have tried to visit a different U.S. Embassy/Consulate in a different country (e.g. Mexico or Canada) to apply for a new H-1B1 visa.  However, I personally do NOT recommend it because of the following disadvantages: 

(a) After the pandemic, U.S. Consulates in Mexico and Canada would likely prioritize Mexican or Canadian citizens or legal residents over third country nationals like Singaporeans (unless you're also a legal resident of Mexico or Canada), so you would likely face a significantly longer delay, and 

(b) More importantly, should your passport be collected in Mexico or Canada for administrative processing but there is a delay in administrative processing, it puts you in a very difficult position as a Singaporean in a foreign country without your passport.  Practically speaking it is always better to be "stuck" in Singapore without your Singapore passport than in another country. 


I compare Mechanism #1 and Mechanism #2 in the chart below.  

 

 

Mechanism #1. 

Apply for a new H-1B1 visa at the U.S. Embassy in Singapore

Mechanism #2. 

Your H-1B1 Employer timely files an I-129 petition to extend your stay on H-1B1 status

Need to depart the U.S.?

Yes.

No.

USCIS Fees payable?

No.

Yes.

 

As of Jan 1, 2023, USCIS fees are as follows (subject to change by the government):

USCIS I-129 Fee: $460

USCIS ACWIA Fee: $750 (if 25 or less employees) or $1500 (if more than 25 employees)

 

The above USCIS fees must be paid by the employer

MRV Fees Payable?

Yes. MRV Fee is $205 (previously $190) for the visa application at the Embassy. 

Not applicable.

Does it result in a valid H-1B1 visa inside the passport?

Yes.

No.  Therefore, if you subsequently depart the U.S., you are required to obtain a valid H-1B1 visa embossed in your passport through Mechanism #1 in order to enter the U.S. again.

Strictness of adjudication

Generally speaking, the U.S. Embassy in Singapore is more understanding than the USCIS

Generally speaking, the USCIS is much stricter than the U.S. Embassy in Singapore and thus adjudicates your case with a higher degree of scrutiny. In many instances USCIS can issue a “Request for Evidence” which further delays the processing of your case with USCIS. 

Waiting/processing time

The waiting time really depends on how swiftly you can obtain an available interview appointment slot in Singapore (which is normally a substantially shorter waiting time compared to USCIS processing times as described in the right column)

 

The present visa appointment wait time in Singapore is only about 1 week (although in the past, it can be as long as 1 month, but it is overall still substantially shorter than USCIS)

The processing time with USCIS is approximately 2.5 months on average, but can be further delayed if USCIS issues a “Request for Evidence.”

 

Also note that USCIS currently does not provide for premium processing (expedite) for H-1B1 I-129 petitions.

 

During the pendency of the I-129 petition containing an extension request with the same employer, you are authorized to continue working for your employer for up to 240 days from your current status end date, or from the date of USCIS’s final decision, whichever is shorter.

 



After comparing the mechanisms, in my view for the purposes of extending your H-1B1 with your existing employer, it is generally easier to apply for a new H-1B1 visa in Singapore.  The U.S. Embassy in Singapore is very accustomed to adjudicating H-1B1 visas for Singaporeans, and is also generally more understanding than the USCIS.  The process in Singapore is also substantially more efficient compared to USCIS.  Furthermore, eligible Singaporeans can take advantage of the current interview waiver process in Singapore involving the Aramex office implemented by the U.S. Embassy in Singapore.  I have written more on the interview waiver process in Singapore here.


Disclaimer:  This blog is for informational purposes only and does not constitute legal advice.

Wednesday, December 7, 2022

Is there a grace period after my H-1B1 employment is terminated?

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here and my law firm website can be found here.  Feel free to connect with me on Linkedin.

Singaporeans working on H-1B1 status in the U.S. may wonder if they have any grace period after their employment is terminated.  

The answer is Yes, but some discussion is warranted. 

The applicable federal regulation is found in 8 CFR 214.1(l)(2), which provides as follows: 

An alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien’s classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60-day period as a matter of discretion. 

From the above, in general a Singaporean on H-1B1 status has a 60-day grace period counting from the date of cessation of employment.  However, this 60-day grace period can be shortened if the "end of the authorized validity period" is earlier than your 60th day. 

Here's an example to illustrate.  If a Singaporean H-1B1 visa holder was admitted into the U.S. on February 14, 2022 (and admitted for a one-year duration until February 13, 2023 as reflected on the I-94 expiry date) to work for the H-1B1 employer, and the H-1B1 employment was terminated on June 30, 2022, then the Singaporean has the full 60 days of the grace period.  However, if the Singaporean's H-1B1 employment were to terminate on January 1, 2023, the Singaporean would have less than 60 days of the grace period because the "end of the authorized validity period" falls on February 13, 2023.  

In summation, if you are an H-1B1 worker facing employment termination, it would be helpful to seek customized feedback from an experienced business immigration attorney so that you can better understand how the grace period works in your situation and plan your next steps accordingly.

A footnote:  There is an additional layer for USCIS petition-based H-1B (not H-1B1) workers to consider that is beyond the scope of this H-1B1 blog post because of how USCIS interprets the above 60-day-grace-period regulation 8 CFR 214.1(l)(2) in the context of H-1B change-of-employer petitions that are being filed during the grace period when the terminating employer sends a letter to USCIS under another regulation 8 CFR 214.2(h)(11)(Revocation of approval of petition).  If you are an H-1B worker facing employment termination, it would probably benefit you to speak to an experienced business immigration attorney as well.

Disclaimer:  This blog post is for informational purposes only and does not constitute legal advice.



Saturday, October 29, 2022

Three Misconceptions about the H-1B1 (Singapore) Visa to Avoid

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here and my law firm website can be found here.  Feel free to connect with me on Linkedin

Similar to a common adage about our health, "prevention is better than cure", the same applies to navigating US immigration.   As such, in this blog post I am going to identify three misconceptions about the H-1B1 (Singapore) visa that you can try to avoid.


Misconception #1:  The expiry date of the H-1B1 visa in my passport tells me how long I can stay in the U.S.

Correction to the misconception:  The expiry date of the H-1B1 visa tells you the expiry date of when you can use it to enter the U.S. from abroad (To put it in a different way, the visa in your passport serves as the "entry ticket" only).  Instead, how long you are allowed to stay in the U.S. is determined by the CBP officer at the airport when you arrive and the record of the expiration date of your duration of stay is found in your online I-94 record that you can access here.*

[*Unfortunately, to compound matters, some CBP officers are not familiar with the H-1B1 Singapore visa classification and make the same mistake of confusing the visa expiry date with the duration of stay expiry date.  The correct approach is illustrated in the examples I have described in my previous blog post herePractical tip: If the CBP officer is confused and cannot find the H-1B1 Singapore visa classification in the computer system, mention "HSC" to the officer; HSC stands for H1B1 for Singaporeans or Chileans.]


Misconception #2:  My H-1B1 visa sponsored by my H-1B1 employer is transferable between / usable for multiple employers

Correction to the misconception:  Your H-1B1 visa is employer-specific.  For example, if you have been sponsored by Employer A for an H-1B1 visa and have been admitted into the U.S. on that H-1B1 visa, you CANNOT simply then work for Employer B instead of Employer A (or work for Employer B in addition to Employer A).


Misconception #3:  I need to change my H-1B1 status to regular H-1B status in order to be eligible to apply for a green card

Correction to the misconception:  This may sound surprising to some (due to the non-dual-intent nature of the H-1B1), but technically it is not necessary for you to be on regular H-1B status to be eligible to apply for a green card (although being on regular H-1B status could be helpful).  Having said that, you need to be very careful in terms of strategizing the timing of commencing the green card process (and the components thereof) when you are still on H-1B1 status to avoid immigration problems down the road:

-- In the context of seeking a marriage-based green card when a Singaporean is on H-1B1 status, I have provided my cautionary notes in my previous blog post here.  

-- In the context of seeking an employment-based green card** when a Singaporean is on H-1B1 status, the following components of an employment-based green card case will negatively affect any subsequent H-1B1 renewals: (a) an I-140 immigrant petition filed on behalf of that Singaporean by an employer sponsoring that Singaporean for a green card, (b) when that Singaporean files an I-485 adjustment of status application to obtain a green card.  Thus, if you are on H-1B1 status it is important to only commence (a) and (b) after your H-1B1 has been renewed.


*Special note:  In the context of an employment-based green card, if you are a Singaporean citizen but was BORN in China or India, then generally you would want to change to H-1B status.  This is generally due to "priority date" issues for people born in China or India that significantly protracts the amount of time for such people to be permitted to file the I-485 adjustment of status application.


In conclusion, just as it is helpful for your long-term physical health for you to go for a "checkup" with an experienced doctor to identify and prevent health problems, it is likewise helpful for your long-term immigration status for you to go for a "checkup" with an experienced immigration attorney to see if you can avoid any issues arising from any inadvertent misconceptions about US immigration law and procedures, especially with regard to lesser-utilized visa classifications like the H-1B1 (Singapore).


Disclaimer:  This blog post is for informational purposes only and does not constitute legal advice.  The views expressed here are the author's own.


U.S. Diversity Visa Lottery for FY 2025 Opening on October 4, 2023

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar rec...