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January 26, 2015

Why We should Increase the H-1B Cap


Once again, Congress is considering a bill to raise the H-1B visa cap. The sponsors of this bill are three Democrats and three Republicans, the group of six being spread out across the ideological spectrum. (The primary sponsor is Orrin Hatch, who is the 29th most conservative of the 100-person chamber, and one of the co-sponsors is tied for fifth most liberal.) One would thus think that the bill has high hopes. However, if things go the way they have the last couple of times a cap raise was proposed, the bill will be shelved before any serious progress can be made. It seems that there is a general fear that allowing more H-1B workers into the country amounts to outsourcing or otherwise harms U.S. workers. However, a plain consideration of all the evidence should lead one to support raising the H-1B visa cap.

The first point to consider is that the current H-1B cap of 65,000 (with an additional 20,000 for workers with master's degrees) is the same as the cap from the mid 90's. In other words, it's terribly outdated. The cap was first reached in 1997 and hit again in 1998. In response to this and increasing demand for IT workers, a law was passed to temporarily increase the cap to a height of 115,000 until returning to 65,000 in 2002. There were several reasons for instituting a temporary cap; one of those being the possible threat of Y2K related difficulties and outages, another being the experimental nature of Congress' intent. However, the higher cap accompanied the .com bubble's collapse and 9/11. Because of these and other issues, the political will and apparent need to import more specialized laborers was low at the end of the program, so the cap was not revisited.

H-1B visas are good for three years and one-time renewals are cap exempt, so the full effect of returning to the old cap wasn't felt until 2008. It may be a "cheap shot" to say this, but the reduction of H-1B workers in the country seems to have coincided with the financial collapse and the recession rather than a boon for U.S. workers. But this needs to be said, because there is significant opposition to increasing the H-1B cap on economic grounds.

This view is based on the claim that foreign workers "take" jobs from their U.S. counterparts, leading to unemployment and further strife. However, this view seems to ignore the labor certification process, which ensures that there is no U.S. worker attempting to get the job sought by the foreign national. It also makes sure that companies don't pay foreign workers less than they would for U.S. workers.

Some H-1B opponents seem aware of this--but are still unconvinced. They don't believe the labor certification process is effective--and instead argue that employers can still get away with paying less for H-1B labor. If this were true, one would expect H-1B petitions to increase during the recession. It would be a perfect time to replace expensive U.S. workers with cheap foreign labor. However, this did not happen, as H-1B petitions in fact decreased during this time. For fiscal year 2011's H-1B season (of petitions sent in 2010 for employment in 2011), it took almost ten months for the cap to be reached. In stark contrast, the cap was reached less than one week after the start of the most recent H-1B season.

When a company cannot hire an H-1B worker, in many cases it will not be able to proceed in the business plan or project that the he or she would have worked on. The worker will likely instead work in a different country but in the same field, meaning that he or she will help a foreign company compete against an American one. If the U.S. were to allow this worker into the H-1B program rather than turning him or her away, there might be one more American innovation or marketable product. These things attract investment and create jobs requiring less specialized skills, which are ones that American workers can more easily fill.

The proposed legislation would increase the cap to 195,000 and uncap those with advanced degrees in STEM (science, technology, education and math) fields. It is our view that it should be passed right away. Under President Obama's immigration executive action plan announced last November, the labor certification process is being "modernized." It should provide greater protections for U.S. workers than the old process, so very few U.S. workers (if any) would be displaced by an increase in the H-1B cap.

January 22, 2015

Working in a "Critical Field" as a Cause for Visa Delays


In the years since 9/11, there have been ongoing efforts to improve U.S. security and make the visa processing system more efficient. Several government agencies have teamed up to create new all-encompassing databases--and have been engaging in a continuous review of immigration and visa issuing practices. Along with new requirements in the system, such as interviews and other security checks, these things have caused ever-increasing delays in visa processing and issuing. Though apparently unexpected, this result is not surprising. However, one issue in all of this stands out as having the potential to cause much unforeseen and bewildering difficulty: the Technology Alert List (TAL) and export control.

The TAL has historically been a way for the U.S. to keep track of technologies developed within its borders that could be (violently) used against it--and to prevent them from falling into the wrong hands. The current TAL is in fact two lists in one: one is the list of "state sponsors of terrorism," and the other is the Critical Fields List (CFL). The CFL is an extensive set of fields of study and industry, each capable of producing what are known as "dual-use" technologies. The first use of a dual-use technology is for standard economic purposes, and the second is for war. The CFL consists of

Conventional Munitions;
Nuclear Technology;
Rocket Systems;
Chemical, Biotechnology and Biomedical Engineering;
Remote Sensing, Imaging and Reconnaissance;
Advanced Computer/Micro-Electronic Technology;
Materials Technology;
Information Security;
Laser and Directed Energy Systems Technology;
Sensors and Sensor Technology;
Marine Technology; and
Urban Planning.

At this point, the reader may be wondering how this can cause issues with visa processing. Considered alone, the CFL's connection to it is unclear. Export Control is the missing link in all of this. Products developed in the U.S., while sometimes not government property, always fall under its commerce authority. The government regulates them, and this regulation includes deciding whether foreign workers can come into its borders to work with these products.

When a foreign national (FN) starts the process of obtaining a non-immigrant visa at a U.S. Consulate or Embassy, the officers have the ability to check to see if the applicant's U.S. employment plans involve anything that might be dual-use. This is because they have the duty to check for legal inadmissibility to the U.S., and grounds for inadmissibility include an FN's attempting "to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information." This clearly includes the CFL. So, if the FN's plans in the United States involve something on the CFL, consular officers will undergo their procedure for when an FN is suspected of being inadmissible. This procedure is to create a Security Advisory Opinion (SAO).

In theory, this is only done when necessary. In practice, their policy is to always initiate an SAO unless the consular officers are 100% sure that the immigrant's plans in the U.S. aren't CFL related. If there is one created, the processing time for a temporary worker visa normally increases by at least 3-6 months, if the case isn't outright denied. Further, when the delay is due to an SAO, there is almost no way to tell. The only thing one can do about this is to take steps to avoid an SAO in the first place.

The first step is to know whether a non-immigrant's work in the U.S. could be construed as CFL related. A good way to evaluate this is to do the same thing as consular officers: just assume that it is (CFL related) unless there is a 100% chance that it is not. If it is, then the employer is advised to submit a report of technologies that the FN will be working with to the Department of Commerce, asking if they have dual-use purposes. (Not all things in the CFL are dual-use, after all.) Hopefully the answer is no, but if the answer is yes, options dwindle--but aren't exhausted yet.

If an FN with a pending visa has a CFL dual-use issue, additional evidence may be required to swing the case in his or her favor. It is advised to gather as much detail as possible on what the FN will be doing and to find U.S. sources to back this up as industry standard. This information could be brought to a visa interview and/or be included in the petition. Also, it would be very helpful to show that the dual-use aspects of the technologies the FN will be working with are already public information or able to be found in an academic course. If this is possible, then it can be shown that giving the FN trouble over CFL issues won't do the U.S. any good.

January 20, 2015

Understanding the Visa Bulletin, Part II: Detailed Explanation

When a foreign national (FN) begins the immigration process, his or her case will be assigned what is called a priority date. This date is generally the calendar day Citizenship and Immigration Services received the original immigration petition--and represents the FN's place in his or her line. In both case types, employment-based (EB) and family-sponsored (F), there are several legal avenues or methods an FN can use in an immigration petition. These legal avenues are formally known as "preference categories."

For the purpose of this explanation, it will be productive to say that in each of these categories, there are five "pathways" to receiving permanent residence (or "a green card"). The pathway used is determined by the nationality of the FN, and there is one for each of the four oversubscribed nationalities of India, China, Mexico, and the Philippines. The last one is for all other nationalities. If a nationality is oversubscribed, it is bumping against the annual universal per-country limit.

The metaphor of five pathways in each preference category (of both case types) is useful because it allows the further metaphor of "lines." Some pathways aren't used very often, so they don't have lines to get through them, but popular pathways do. Thus, how long an FN must wait in line to use a preference category (to get a green card) depends on his or her national pathway. Each preference category has its own annual limit as well, so if an FN's petition falls into a category that isn't at its limit--and he or she isn't of an oversubscribed nationality--the only waiting time will be how long it takes the government to consider the case. There would be no line in the pathway.

But for most FNs, there is a line to use their national pathway to permanent residence. This is where priority dates come into play. For each national pathway that has a line, the Visa Bulletin lists a "priority date cutoff," and only those that have priority dates before the cutoff date can petition for permanent residence. To continue the extended metaphor, the lines advance using a system similar to the one often employed in delis and the BMV/DMV. It is the one in which customers receive a number ticket and wait for it to be called out by a worker. If FN priority dates are the numbers on the tickets, the priority date cutoff would represent the number that one's assigned number must be lower than to receive service.

A pathway's cutoff is the priority date of the first immigrant that couldn't be given a green card due to a numerical limit. In a perfectly stable world, the priority date for each line would likely advance by one month in each monthly Bulletin. However, the real world is far from this ideal. In fact, sometimes a priority date cutoff will retrogress further into the past. When this occurs, some FNs who were able to petition for permanent residence have temporarily lost this ability--and will have to wait even longer.

This happens because of the government's goal with the Visa Bulletin. Instead of handing out green cards according to how long FNs have waited, the government's legal objective is to fill every category without violating numerical limits. FNs from oversubscribed nations filing in popular categories are sometimes made to wait longer so that other FNs from the same country--that are applying in less frequented categories--can get through. Those in the more popular categories can be replaced with FNs from other countries. However, those in the less popular categories often can't, getting them a fast green card at the expense of their countrymen.

This is also why some Filipinos and Mexicans have waited many years more than other groups in F cases but experience the same or less waiting time than them in EB cases, which is often none. It's true that the government could make the (somewhat few) EB Mexicans and Filipinos wait (longer) so their F counterparts wouldn't have to wait as long. But since all F categories are at their limits, FNs from other countries with family-sponsored cases would have to wait longer in the exchange. While not perfect, this would seem a little fairer.

However, it is the government's opinion that doing this would not be in the U.S.' best interests. The only possible use for the EB green cards saved (by making the EB Mexicans and Filipinos wait longer) would be for them to go to the non-oversubscribed national pathway of the EB category for somewhat less attractive workers. Theirs is the only EB category where this pathway has any waiting time. (It is the only one at its annual limit). But that pathway's priority date cutoff has already made it to 2014, so its ability to make use of extra green cards is minimal. Making EB Mexicans and Filipinos wait more than a negligible amount of time would cause disuse of EB green cards and make F green card distribution no fairer.

But more importantly, moving things around like this could create unwanted vacancies in other EB categories or violate other regulations. In truth, there is little the government can do to change how it handles immigration without a change in the law. It is true that the Visa Bulletin can appear like a bureaucratic nightmare. But when one considers the complexity and rigidity of immigration law, it looks more like an elegant mathematical formula.

January 18, 2015

Understanding the Visa Bulletin, Part I: Introduction to the System


Immigration to the United States is a complex and lengthy process (for most). Sometimes, when this topic is discussed, a "line" to receive a green card is spoken of. Though simplistic, this characterization is not incorrect. The fates of most immigration cases are tied to the Visa Bulletin, which represents the closest thing to the idea of the immigration line. The Bulletin is a monthly publication of the U.S. State Department (DOS), and shortly after it is released, we publish an analysis of it at It is the result of several government agencies' efforts to reconcile immigration demand with relevant laws and regulations. The way the Bulletin works is confusing for many (to say the least), and its results have made life a little more difficult for most that seek to live in the United States. It is our hope that these two articles will clear up some questions about how the Visa Bulletin works--and why waiting times are as long as they are.

Law dictates that 366,000 foreign nationals may receive permanent residence, otherwise referred to as receiving a green card, each year. This cap does not apply to those claiming an "immediate relative" relationship to a U.S. citizen or other uncapped exemption. The limit is split into 226,000 for family-sponsored (F) cases and 140,000 for employment-based (EB) ones. These limits are divided further based on the legal avenue one wishes to use in obtaining permanent residence. These legal avenues are numbered and called "preference categories," with "first preference," etc. Each preference category has its own limit, and when a lower numbered category (which denotes higher "preference") doesn't use all of its assigned green cards, the remaining ones fall to the next category. (If the bottom category doesn't use all its green cards, they are offered to the first category, and so on.) On top of this, no more than 7% of them can be given to immigrants from any one country.

The implications of the 7% limit are subtle, but when one considers that two countries (India and China) together contain over a third of the world's population, its effect is clear. People from those countries aren't going to have smooth sailing in U.S. immigration. There are four nationalities of immigrant consistently up against this limit (or are considered "oversubscribed"): China, India, Mexico, and the Philippines. Some immigrants from those countries have been waiting over 20 years for permanent residence, though one shouldn't think that there's a pre-ordained waiting period for these people. How long an immigrant waits pertains only, almost always, to how many other immigrants are attempting to obtain permanent residence from their home country--and how many are using the same preference category.

The DOS reports that there are around 115,000 EB petitions and over 4 million F petitions pending abroad. Added to this are many EB petitions pending for those in the U.S. on nonimmigrant visas. There are up to 800,000 people in the country on H-1B temporary worker visas, and likely at least half of them have domestic EB immigration cases as well. Trying to squeeze at least 4.5 million into 366,000 annually is going to take a long time, and new petitions are always coming in.

The somewhat unique system employed within the Visa Bulletin is effective at communicating what effect excessive demand for U.S. immigration has on waiting times. But importantly, it can't speak so well to how much longer those in line will have to wait--and it has an even smaller ability to predict how long future cases will take. However, given current law, the sense behind it becomes clear with a little explanation. In Part II we will discuss the finer points on how the Visa Bulletin's system is designed--and its effect of immigrants.

January 17, 2015

Grey Areas and Potential Pitfalls of Direct EB-5


EB-5 is an option for employment based immigration to the United States. To gain permanent residence by it, immigrant investors must invest in U.S. economic development and save or create at least 10 jobs. Within it, there are two sub-options. An immigrant may (1) use a regional center or (2) undergo "direct" EB-5. When using a regional center, the process is more stable, but the immigrant has less control over the investment. Conversely, when using EB-5 Direct, the immigrant has more control, but the process is less clear-cut. In fact, it involves several legal grey areas and potential immigration pitfalls. However, EB-5 direct investors have an advantage: a greater apparent capacity to profit from their investment. The option is thus, perhaps rightfully, seen as high-risk-high-reward. In order to illuminate some concerns our law firm has with the process, we have compiled this list of things EB-5 direct investors should take into consideration before committing to investment.

1. When an immigrant is acquiring a company for direct EB-5, there are cases in which the business will need to grow by at least 40% in either employees or net worth for the immigrant to be eligible for permanent residence. This seems clear enough until one attempts to actually calculate the company's growth. The present total amount of employees and net worth can be easily calculable (the former more so than the latter). However, in order to show a change over time, one needs two points of time. It is obvious that the present is one of those times, but the other is guesswork. There are several potential options are, including past tax returns and quarterly reports.

2. It is possible for immigrant investors to pool the investment with each other (if each immigrant invests at least the minimum amount and saves or creates ten jobs). It is also possible for non-immigrant foreign investors to be involved in this as well, so long as their invested funds are shown to have been lawfully acquired. However, it has not been officially specified what evidence the USCIS is looking for in this regard.

3. It is said in many places that immigrant investors need to create (or save, in the case of a "troubled business,") 10 jobs within two years of the start of conditional residence. But there is a significant caveat to this: when the two years have elapsed, the immigrant needs only to show that the jobs were created or that they can be expected to exist within a reasonable period of time. What is reasonable in this case? It is accepted as sufficient for the immigrant to show that the jobs will exist within one year of the end of the conditional two-years, but the upper limit of this reasonableness us unknown.

4. It is unclear how early the immigrant investor can liquidate (all or part of) the investment. In theory, he or she should be able to do so as the petition to remove residence conditions is pending. If at least 10 permanent jobs already exist (meaning the immigrant will not need to take advantage of the extra time mentioned in the prior point), the immigrant should be able to completely liquidate the investment. If the immigrant can show that the jobs will exist within a reasonable amount of time, he or she should be able to begin divesting. (This assumes the divestment won't delay the job creation.) These moves seem incautious at best, but in theory they shouldn't harm the immigrant investor's chance at permanent residence. In other words, they probably can be done--but shouldn't be if there isn't much to gain from it.

5. The immigrant investor can be paid a salary for his or her role in the business, but, put bluntly, the USCIS finds this suspicious. It appears the agency is quick to decide that the funds are divestment rather than being a fair salary. The minimum investment must be maintained throughout the conditional residence for permanent residence eligibility, so caution is necessary here. Immigrant investors that are taking a salary would thus be wise to have a lower one than average (for their role in a company of their size) and/or to not take a salary when the company is experiencing a loss.

6. When the investment is made in a Target Employment Area (rural or a place with 1.5 times the national unemployment rate), the minimum investment requirement falls to $500,000. However, when some of the investment is made in these areas while some is not, taking advantage of the lower minimum while not endangering one's pathway to permanent residence becomes difficult. The guidance given by the USCIS is not sufficient to apply to many circumstances, so immigrants should consult with an attorney before deciding that they can use the $500,000 minimum (rather than $1,000,000).

7. If an alien invests in a U.S. business on a non-immigrant visa and makes money from that investment, it is unclear if this money could be reinvested to count toward EB-5 requirements. Attempting to do so is not recommended if it can be avoided.

January 10, 2015

Buying a U.S. Business to obtain Permanent Residence through EB-5


The EB-5 visa category is an immigration option for those who can afford to invest at least $1,000,000 in job creation or entrepreneurship in the U.S. (The investment requirement is half as much if it is to be made in a designated "Target Employment Area," which is either rural or suffering from an unemployment rate at least 1.5 times the national average.) There are two routes to accomplishing this: directly, or through a Regional Center. A simple way of differentiating them is that Regional Centers are for those who want to invest in order to immigrate, while the direct option is for people who want to immigrate in order to invest. EB-5 Direct is the method one uses when the investment is geared toward buying a business, and it allows more personal control over one's investment, giving the immigrant the chance to maximize his or her profit from the venture. However, without the guidance of a Regional Center, the process can be complex and difficult to navigate. Due to some unpredictable USCIS methods of evaluating EB-5 Direct cases, there are many ways an immigrant can err and potentially delay or lose their chance at the unconditional permanent residence that follows a successful EB-5 investment. This is an area where the right immigration council and make a huge impact in the client's favor.

For all forms of EB-5, in order to obtain unconditional permanent residence, an immigrant investor is given a two year period in the country (with up to an additional year in many cases) to show that their investment led to the creation or preservation of at least 10 jobs. One needs to only show the "preservation" of jobs if the company being bought is a "troubled business." (Out of its at least two years of existence, to be classified as "troubled," a business must have had at least a 20% net loss over the one year or two year period prior to the investor's I-526 priority date.) Things are difficult on the onset, as the immigrant investor must be able to know how the USCIS will view the acquisition of business assets. In most cases, unless the investor is purchasing a troubled business, he or she should try to avoid becoming a successor in interest of the company selling the assets.

Becoming a successor in interest means obtaining a company's tax liabilities (among other things). A buyer of all or "substantially all" goods of a business can be considered a successor in interest of that business. While the owner and the name of the business can change, the immigrant buyer can be viewed by USCIS as only continuing the prior business. In such a situation, proving that the immigrant investor is the source of any new jobs becomes more difficult. There have been cases where immigrant investors put the necessary amount of money at risk in starting a business and hiring at least 10 employees, only for USCIS to say that there was inadequate evidence of the employment criterion being met. It appeared that the USCIS suspected that the new employees of the immigrant investor we either carryovers from the prior business or just their replacements. In this sort of case, the net creation of opportunity for U.S. workers is not evident.

Worse, an investor can be treated by the USCIS as a successor in interest of the company that he or she is buying from, even when truly not one. However, there are some ways this can be avoided. The investor could

  • avoid buying all the assets of a company, allowing it to continue operating or be merged with or bought out by a third party;
  • purchase the assets from a different kind of company than one wishes to start;
  • purchase the assets from a company in a different physical territory; or
  • wait at least a year after the selling company closes to start the new one.

However, should the immigrant investor choose the route of investing in a "troubled business," this advice is reversed. Because he or she is aiming to show that the investment was the cause of a company's no longer being "troubled" and the subsequent preservation of its jobs, he or she should want to be seen as a successor in interest for that business. However, there are other difficulties. A big hurdle up front is proving that the company meets the definition of "troubled business." Further, and seeming somewhat unreasonable, the USCIS may argue that the preservation of at least 10 jobs hasn't been proved if the company loses even just one worker despite the investment. (Thus, the argument that even more jobs would have been lost isn't fail-safe.)

December 23, 2014

Problems with my Visa Stamping?


The process of employment based non-immigrant visa stamping before a US Consulate abroad has experienced a revolutionary change--both procedurally and systematically--in the past decade by the US Department of State ("DOS"). These changes continue to evolve on an ongoing basis to improve security background measures and cross agency sharing of information. Such measures have caused consular processing to become more complex, and in some cases, time consuming. But on a positive note, the nonimmigrant visa application process itself has taken on a digital format. This digital format has streamlined the application process and caused an expeditious scheduling of the visa stamping interview. The DOS stated that its digital application process will enhance US national security and cause better cross agency communication. On another note, however, the revamped nonimmigrant visa application process and concerns for national security have caused a heightened consular practice and the issuance of letters of visa rejection pursuant to Immigration and Nationality Act (INA) section 221(g). In addition, some consular processes have exhibited heightened scrutiny of visa applications (especially in the H-1B and L-1 employment visa areas) which in some cases resulted in the consulate's return of the underlying visa petition to the US Citizenship & Immigration Service ("USCIS') with a request for revocation of the approved petition itself. In other cases, the visa application resulted in the launching of investigation by the USCIS field offices, or by the consulate itself.

What is a 221(g) Letter and What does it Mean?

When a non-immigrant avails herself to a consular stamping process, the US Consulate reviews the application and any other information available on the DOS intranet. Incidentally, that is the reason why our law firm always posts an additional copy of any nonimmigrant visa petition and any other responses to the Kentucky service Center for uploading on the DOS intranet. If the consular officer is not satisfied that she has everything in place to issue a visa, she is required by regulations to issue a letter explaining the reason for the denial, which invariably mirrors the language set forth in INA 221(g). The 221(g) refusal letter could also include a laundry list of documents that the consulate needs to make a final decision on the visa application. It is important to note that the applicant has one year to respond to the 221(g) letter with documents or information within one year from its issuance. Otherwise, the application will be deemed abandoned. In most cases, the visa applicant can submit the required information or documentation to the consulate by email.

What Happens if My Visa Petition is Being Requested to be Revoked by the Consulate?

One of the most devastating things for a foreign national is if the consular officer returns the visa petition to the USCIS with a request for revocation. This usually happens when the consulate feels that there was a mistake in the petition which the USCIS had not picked up on during the adjudication process. In such a situation, the foreign national applicant is not told that the petition is being returned for revocation. Normally, the petitioning employer receives a letter from the USCIS called a "Notice of Intent to Revoke" (NOIR). Unfortunately, months could pass between the consular interview and the receipt of the NOIR. Many foreign nationals lose their employment prospect in such situations, as many employers are not willing to wait out such long periods.

When a NOIR is issued, the employer is provided thirty (30) days to respond with evidence to overcome the attempt to revoke the approved petition. The bases for a NOIR could be simple or could be very complex requiring competent legal representation. Once the response to the NOIR is received by the USCIS it could be several more months before a decision is made. If the decision is favorable, the USCIS will send a letter to the consulate with instructions to issue the visa. If the visa is revoked, the employer has the ability to file an appeal to the revocation with the Administrative Appeals Office ("AAO") or to file a motion with the USCIS to reopen or reconsider. The employer can also seek a judicial review of the decision in federal courts.

What Happens if My Employer is Investigated?

If, during the visa application or interview process, the US Consular officer has doubts about some of the statements or documentation made in the underlying employment based visa petition, the consulate could undertake one of many several actions. The consulate could begin its own investigation by contacting local agencies, universities, employers, etc. to validate one or more statements made by the employer or applicant during the visa interview, or to validate a document attached to the visa petition. An example of that is a college diploma. The US Consulate could contact the local university where the diploma was allegedly issued to ascertain whether it was authentic. Another example is that the US consulate could contact the USCIS to request an onsite visit to the employer's premises to validate the number of employees or services offered by the employer as stated in the underlying petition. Such visits are normally unannounced and could be very disruptive to the employer's business.

These investigative efforts could take up to a year in some cases to be completed. If the result of the investigation is favorable, the US Consulate will issue the visa. But if it determines that the investigation uncovered fraud or misrepresentation in the visa petition by the US employer, it will then return the visa petition to the USCIS for revocation. It could also request that the US Solicitor's office launch additional investigations for possible sanctions. But if the investigation resulted in the finding of fraud on the part of the foreign national, it will deny the visa application with a finding of visa inadmissibility due to fraud or misrepresentation. Such a finding could have serious implications on the foreign national's ability to procure future entry into the US.

What Happens if My Visa Application is Denied?

There are numerous reasons why an employment based non-immigrant visa stamping application may be denied. Included are the following: (1) a finding by the consular officer that the applicant is not eligible for the visa requested, (2) an abandonment of the visa application by the applicant after a 221(g) letter is not properly or timely responded to, (3) because the underlying petition was withdrawn or revoked by the USCIS, or (4) because the US consulate determined that there was fraud or misrepresentation by the employer or foreign national in the underlying petition itself or in the interview process. Immigration lawyers understand that the decision of the US Consulate in most situations is absolute. That is to say, their decision may not be legally appealed. Unfortunately, too often, visa denials are the result of a consular officer's mistake or inexperience. The good news is that in some instances, the visa applicant can renew her visa application again if the denial's reasons are not serious in nature. Even if the denial was on serious grounds, the foreign national or ultimate employer may seek review of the denial by the Chief Consular Officer at the Consulate or by requesting an Advisory Opinion at the US Visa Office in Washington, DC. Such processes rarely lead to favorable results, however competent immigration lawyers can advise when such measures could be fruitful.

December 23, 2014

How to File PERM Applications for Traveling Employees


This year marks the 10th anniversary of the PERM regulations, which govern the labor certification process for the permanent employment of immigrant foreign workers and establish responsibilities of employers who wish to employ these workers permanently in the United States. The Department has not comprehensively examined or modified the PERM requirements and process since its inception in 2004. However, pursuant to President Obama's Executive Action on Immigration, the U.S. Department of Labor recently announced its plan to review the PERM labor certification program and relevant regulations, in an effort to modernize the program to be more responsive to changes in the national workforce.

As part of its review, the DOL has specifically stated it plans to seek input on the following, with aims of modernizing processes and improving efficiency:

  • Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;
  • Methods and practices designed to modernize U.S. worker recruitment requirements Processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers;
  • Ranges of case processing timeframes and possibilities for premium processing; and
  • Application submission and review process and feasibility of efficiently addressing nonmaterial errors.

One factor that has led to the need for change of the PERM regulations is the advancement of technology and information dissemination. With a global workforce, it is now common to find employers headquartered in one state and employees working and residing in another. The relationship between the employer's location and the employee's location can affect the pre-PERM and PERM stages, the I-140, and the final green card application. As a result, it is essential that the employer, employee and attorney work together to create a clear definition of, and congruent expectations for, the job position (now and in the future).

Employees and Travel - What this means for PERM applications

At the initiation of the green card process, employers are looked to for a definition of job duties the employee will perform. With new trends, employees are traveling more, and what was once the traditional definition of worksite has become less clear. Traveling employees can be divided into four categories: telecommuters, roving employees, employees required to travel to non-worksite locations, and employees relocated for long-term placements. It is essential for all parties involved to understand the differences between these categories and the impact they may have upon the PERM and future applications. This clear understanding not only allows for more efficient PERM preparation, but also protects the employee from problems that may potentially arise years after the filing of the PERM application.

Four Types of Traveling Employees

1. Telecommuting employees

Telecommuting employees, or remote workers, are typically employees that work from home, and periodically report to an office. Although not typical in the U.S., workers who work 100% of the time from home are also included in this category. In this situation, it is important to identify whether the employer allows or requires the employee to work from the specified geographic location. If it is a benefit afforded to the employee by the employer, then recruitment should typically be performed in the state where the employer is headquartered, while apprising potential workers of the possibility of working from home. If the employer requires the employee to be working from home in a specific geographic location, it may be more prudent for the recruitment to take place in the geographic region of intended employment.

2. Roving employees

Roving employees are those whose job duties are characterized by frequent travel. They begin by working at the employer site, but then move around to other worksite locations. In these situations, recruitment should be done for the headquarter location. An exception may arise if the employer has other offices throughout the U.S., and the employee routinely works out of and reports to an office different than the headquartered location.

3. Employees required to travel

Employees required to travel are typically those that attend 2-3 conferences for short periods of time, travel to locations that do not constitute worksites, and do not necessarily engage in productive employment while on these assignments. In this case, the area of recruitment should be the permanent office location.

4. Long-term placements

If it is determined that the employee is one that has been relocated for a long-term project, but it is unknown whether the employee will still be assigned to the same geographic area several years from now, it has been generally agreed upon that all recruitment activities should be performed for the location in which the employer's headquarters is located. This is because, while the employee is assigned to long-term projects which may last for several years, the employment opportunity will always originate from the employer's headquarter location.

It is important to remember that each and every job opportunity is unique, and therefore must be analyzed independently to determine the best course of action in the recruitment stage. Regardless of the job duties required, it is essential that the employer apprise potential U.S. workers of the requirement for frequent of travel and or relocation to perform the job duties. Short-term non-productive travel, such as attending conferences, is inconsequential and disclosure in advertisements may not be required. International travel, however, even if only 2-3 times per year, should be disclosed to the potential employee, as international travel is more demanding than domestic.

Looking Ahead

With more than 70,000 PERM applications submitted this past fiscal year, and the change in the demand for and availability of qualified U.S. workers, it is clear that this area is ripe for improvement. Unfortunately, revised PERM rules aren't set to be finalized until spring of 2016, and as a result, employers must be able to navigate murky waters under outdated regulations. PERM applications require careful preparation, so as to ensure a smooth finish of the PERM process all the way through to the application for permanent residency.

December 23, 2014

The Uncertainties of the H-1B Cap


Last month we discussed alternatives to the H-1B visa. One very important reason to consider all options for potential employees revolves around the uncertainties of the H-1B cap process, discussed below.

As the H-1B cap season for FY 2016 approaches, employers and potential employees alike must be prepared. For the uninitiated, the H-1B cap refers to the statutory limit placed on visa's available for temporary workers in specialty occupations. Currently, this limit is set at 65,000, with an additional 20,000 reserved for those with advanced degrees (also known as the Master's cap). As more and more employers seek to benefit from highly skilled workers available internationally, particularly in the IT industry, the H-1B visa becomes more highly sought after. Additionally, the ability to extend the H-1B status past the standard six years with the approval of an employment based immigrant petition adds exceptional benefit to both petitioner and beneficiary.

USCIS begins accepting cap-subject H-1B petitions on April 1. In the past two years, the Service has received enough petitions to fill the numerical cap within 5 days. Thankfully, due to this massive influx of potential visa beneficiaries, a lottery system has been implemented. So long as USCIS receives the cap-subject petition within 10 days of the start of the filing period, it will be placed in a random lottery for selection. Those petitions eligible for adjudication under the 20,000 Master's cap will be selected first. Those that qualify for the Master's cap but were not selected are placed with all other petitions for possible selection in the 65,000 general cap. With over 172,000 petitions received by USCIS for the H-1B cap last year, there is only about a 1 in 3 chance of any petition being accepted for filing. All petitions that are not selected in this process are rejected and all documents and filing fees returned. Those not selected may have alternative visas available to them, though many will have to wait and resubmit a new petition the following year in the hopes of being selected in the lottery.

Why has there been such a push for these visas? In addition to the need to fill positions in areas which there are not enough qualified U.S. workers, the recent scrutiny and subsequent denial rates in the L-1 visa have forced many employers to take the H-1B route. Additionally, with the ability to extend nonimmigrant status continuously while an immigrant visa is unavailable, many employees that seek to begin the permanent residence (also known as a Green Card) process will attempt to switch to H-1B status. With the recent proposal by the administration to allow H-4 visa holders (dependents of H-1B's) to gain work authorization, the number of H-1B cap petitions for those already in an employment based status will cause an additional increase in petitions this cap season.

Not all H-1B petitions are subject to this annual numerical limit. The H-1B visa follows the beneficiary, and as such, when one chooses to change employers, they are not required to resubmit and be counted under the cap again. Additionally, there are often options for those that have held H-1B in the past but are currently in a different status, or outside the country. Finally, certain organizations are not subject to the numerical cap. These cap-exempt organizations must be a non-profit or governmental research organization, or a non-profit affiliated with an institution of higher learning. The idea behind this exemption is that the employee will help to further the purpose of higher education or research.

There are many reasons for companies to seek international talent through the H-1B visa. First, the type of positions these employees hold are difficult to fill with qualified U.S. workers. This is one of the reasons recent administrations have pushed to increase U.S. education in Science, Technology, Engineering and Mathematics. While the United States workforce is getting up to speed in these areas, U.S. based companies still require professional services in order to thrive. Hence the use of the H-1B visa in these instances. Next, these international employees often provide their organization with a different world-view and way of thinking, driving innovation. Alternative approaches to common problems expose all employees to new ideas, creating a better business environment.

Though still a few months away, employers should prepare themselves and potential employees for the requirements associated with the H-1B visa petition, in order to provide their legal counsel with all necessary information in a timely manner. Our firm has assisted in preparing thousands of these petitions, and would be happy to lend our expertise to your business, whether seeking one or one hundred specialty occupation workers.


December 22, 2014

Time May be Running Out for China EB-5 (Investors)


Late in the previous fiscal year, something happened for the first time: the EB-5 investor immigrant visa category's quota of 10,000 annually was reached. Once the visas allocated to this visa category run out, (which is what happens when the quota is reached) annual per-country limits are designed to come into effect. This outcome has not been properly planned for and would have serious consequences for the many local economies that benefit from international investment. Luckily, the quota was reached at the very end of the fiscal year, after the State Department (DOS) released its official monthly visa bulletin saying that the visas would be available until the very end of the year based on its calculations. With its hands somewhat tied, DOS decided to act as if though it had more visas to give out by borrowing some from the following fiscal year's supply.

Because of this, DOS has not yet instituted the per country limits. However, the problem has nowhere near resolved itself. In fact, this is evidence that the clock has almost run out on EB-5 investment immigrants from (The People's Republic of) China. This is because almost 80% of the people who receive visas under the EB-5 category are from China. In order to prevent an oversubscription of visas, there will most likely soon be a priority date cut-off introduced for Chinese immigrants, but likely not for anywhere else (though this may happen too). (This translates to an introduction of a "waiting period" for the visa to Chinese immigrants.)

The EB-5 category is for those wishing to move to the United States to invest. The process is slightly different than usual employment based immigration. In most cases, the immigrant must invest $1,000,000 dollars in U.S. enterprise and create or save at least ten jobs. (The immigrant may only have to invest $500,000 if they are doing so in a high-unemployment area.) Comprehensive business plans and proof of irrevocable investment and risk must be prepared before petition submittal. For immigrants wishing to move to the U.S. to work (and not to invest), they must prove to the U.S. Department of Labor that they are not displacing American workers by either lowering the average wages or taking a job that one of them is seeking. In the case of investors, they must show that they are helping American workers by improving the job market with their investment.

Once the evidence for this is secure and ready to be submitted (hopefully having been prepared by a competent immigration law firm), an I-526 may be filed. Upon approval of this petition, the alien and his or her family may apply for conditional green cards, unless a "priority date" cut-off is introduced. The priority date represents the date the I-526 was filed, and will be printed on form I-797, which is used for receipt and approval notices. When a priority date is introduced, the immigrant will have to wait until the DOS' monthly visa bulletin prints a date (in this category) that is on or after the immigrant's given priority date. The date listed on the visa bulletin can be thought of as the most recent place in line to which the government is issuing visas.

This all may seem fine, but there is a serious problem To begin with, the waiting period could be much longer than anticipated. While there may be only 8,000 people petitioning from China (out of the 10,000 available visas), these people will have family members. Because the wait time will be newly introduced, people may assume that the wait time will be somewhere from six months to two years. But if every Chinese investor brings only two family members, there will be around 21,000 visas to be issued from fiscal year 2014 from China alone. So if it will take up to three years for all of 2014's investors and their families to be given visas, how long will it take for those that petition in 2015?

While extensive wait periods are nothing new in U.S. immigration, the nature of the I-526 (that gets the EB-5 process started) makes it very unfriendly to wait times. This is because filing it requires that the investment money be irrevocably invested. Further, once again, the green card one can immediately apply for when there is no further waiting is conditional; it is only valid for two years. The immigrant may only apply for a non-conditional green card if the investment sustains ten jobs over that two year period. But once the money is originally invested, priority date waiting period or not, those ten jobs must be continually sustained over the entire period (of priority date waiting time plus the two years) in order for the immigrant to be eligible for the eventual unconditional green card. However, the immigrant may not be in the country actively overseeing the investment until the conditional green card has been issued.

This would make investment immigration very unattractive for Chinese nationals, who compromise the vast majority of EB-5 applicants. Substantial improvements will require congressional intervention, either to rework the process or to add new visas. However, the political climate, especially on immigration, is such that this is not likely to happen. These immigrants may look for other ways to enter the country that don't have as much of a wait time, or look elsewhere to place their money. The only advice we can give to Chinese nationals looking to invest here in order to immigrate is to do so as soon as possible before the wait time is instituted. Here at The Law Firm of Shihab and Associates, we are very experienced at processing EB-5 cases as fast as possible. Waiting only a few weeks now could mean waiting for a few years and getting caught in a vicious cycle of government regulations.

December 22, 2014

New Wave of Immigration Representation Fraud Imminent


As the President's expansion of DACA and the creation of DAPA under his immigration executive action plan are rolled out, sadly, we can expect to see a spike in the unauthorized practice of law (UPL). (These things will extend protections to many undocumented immigrants.) While all UPL is a crime and can mean serious consequences for those involved, immigration UPL is one of the most dangerous kinds. Mistakes or inaccuracies on filed petitions can create the perception of carelessness or even fraud on the part of the immigrant, when he or she is in fact the victim of fraud. This is why one must be careful when choosing immigration council. Victims of immigration UPL have had negative consequences ranging from paying unnecessary fees to removal proceedings being filed against them.

The undocumented immigrant population is a vulnerable group. They expect little to nothing from government--and will avoid doing most things that might cause them to reveal their secret. According to Pew Research, there are 11 million undocumented immigrants in the United States, with up to 9 million of them being from Latino countries. While the exact number of these who are not English fluent isn't immediately discoverable, over half of the entire foreign born population is of "Limited English Proficiency." One can intuit that the proportion of undocumented immigrants from south of the Rio Grande that also have "Limited English Proficiency" is much greater than 50%, because immigrants from overseas tend to have had better education, or come from countries where English is a secondary, or even primary language.

Following the announcement of the Deferred Action for Childhood Arrivals program in 2012, many undocumented immigrants found themselves eligible to stay and work in the country without fear of deportation, if they filed the proper paperwork. Most of these people had never dealt with an immigration attorney, and as a consequence, may not have known what to look for when choosing one. Widespread language obstacles included, these factors provided the necessary conditions for the community to be victims of fraud. In many Spanish speaking countries, a holder of the title Notario Público can provide the same, if not more, legal services as a lawyer in the United States. However, the title Notary Public in the United States provides one with a legal authority that extends not much further than the attesting of signatures on forms. As if often the case, a direct translation of words causes a great difference in meaning. In this one, the results can be devastating for a vulnerable population.

The title "Notary Public" is not difficult to attain, and advertising one's services under its direct translation to Spanish can lead many to overestimate the services that one such person may legally provide. One need not spend more than $200 to attain the title Notary Public, but some can spend well over $150,000 to become an attorney. This creates an obvious opening for these Notarios to charge much less than an immigration attorney, though they can often get away with charging the same or more, walking away with ridiculous profits. A major advantage they have that allows them to get away with this is their ability to create ties to the Hispanic American community and advertise their services through word of mouth. They can use these ethnic and cultural ties to make themselves accessible and approachable, and once their "clients" are through the door, they use their skill of making themselves appear capable of providing a favorable immigration outcome.

It is physically possible for these people to correctly, though illegally, file a DACA petition on behalf of a "client." But, there are many cases of their fraud not being limited to false advertising. In other words, they have been known to take people's money without any intention of doing what their "clients" think they are going to do. Also, their lack of legal training and networking resources, unsurprisingly, is a further detriment. Even ones that do mean to do their best on a petition may only make matters worse through serious errors or faulty legal strategy. The conclusion is clear: Notarios are not immigration attorneys, and with how much is at stake, there's no reason to risk it on them.
The Law Firm of Shihab and Associates is a highly rated full service immigration legal team of fully licensed professionals. We are committed to affording maximal legal protection to our clients, and that includes filing DACA petitions for DREAMers. We also are participating in efforts to fight Notario Fraud. Any information pertaining to Notarios or any immigration scams can be submitted here at the USCIS' website: You can also call or email the ABA at 202-442-3363 or

December 18, 2014

Provisional Waivers and Demonstrating "Extreme Hardship"

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On November 20, 2014, President Obama's executive action on immigration effectively brought millions of our country's unauthorized immigrants out from the shadows and onto a legitimate path toward citizenship. While the executive action promises to relax the threshold for extreme hardship while expanding the scope of who can experience hardship, the elements of what constitutes hardship stands to change very little in the world of Provisional Waivers.

Current doctrine

Under current doctrine, practitioners must show that 1) "refusal of admission to the United States would result in extreme hardship to the U.S. Citizen or Legal Permanent Resident spouse or parent, and 2) a waiver is warranted as a matter of discretion." Not surprisingly though, extreme hardship is not statutorily defined and practitioners and their clients must instead rely on case law to decipher what rises to the level of extreme hardship. Guideposts identified by USCIS however, such as in the Matter of Andazola-Rivas, where the court found that "[e]xtreme hardship does not need to be unique or unusual," and in the Matter of Nagi, holding, "extreme hardship is hardship that is greater than common consequences of the bar to admissions, i.e. separation, financial difficulties, etc...," have proven to be quite helpful. With this in mind, practitioners have decidedly focused on demonstrating three to four factors that either in themselves, or in aggregate, rise to the level of extreme hardship: economic hardship, psychological or emotional hardship and physical hardship.

Economic hardship

Not every situation lends itself to economic difficulties, but the availability of receipts, annual income tax reports and other financials makes evidence for economic hardship by far the easiest to compile. Of particular importance is demonstrating the potential for lost income if the alien is forced to relocate or if the citizen spouse or parent is forced to relocate with them. This method has its roots in the personal injury model and seeks to quantify and contrast future earnings with potential for lost income. By far the best way to clearly demonstrate this is through submission of income reports charting potential income for an individual of the petitioner's age and socioeconomic status. In a recent case, an attorney petitioner was faced with potential relocation to Guatemala should her husband relocate. Due to language barriers, cultural differences and pervasive violence, the petitioner stood to forgo over five million dollars over the course of her lifetime in the event of relocation. It was a clear demonstration of hardship made possible by the economic data she provided.


Demonstrating emotional hardship is by far the most difficult element to establish. While depression, stress, anxiety and feelings of worthlessness are all natural feelings stemming from the sudden loss of a spouse, our clients often find it hard to put into words the pain and mental anguish they stand to suffer. Recently, after an extensive hardship interview with a client, it was only after much time did we discover that the client's sole remaining kidney will in fact fail within five years, something that was not evident through her medical reports or other evidence we had gathered. As a result, we have found that including a detailed psychological evaluation of the petitioner and their family is a great way to memorialize and document hardship that the client and the attorney may either not be aware of or is simply unable to document.

Child Hardship

Although the November executive action stands to broaden the definition of who may satisfy the definition of "qualifying relative," under current law, children are not seen as qualifying relatives for whom hardship may be demonstrated. What practitioners and their clients should bear in mind, however, is that the minor status of the child makes their care and therefore any medical or psychological anguish they may suffer the direct responsibility of the petitioner parent. In other words, while the child's hardship in and of itself is inadmissible, it is permissible to impute that hardship onto the parent as they will be additionally burdened by caring for the child's own hardship.

Physical Hardship

Perhaps the second easiest element to establish, physical hardship is often comes to light in psychological evaluations but are best demonstrated by a letter from the attending physician. Recently, a client suffering from chronic pain as a result of herniated disc and subsequent surgery following pregnancy provided us with extensive evidence documenting her injury. The two most demonstrative pieces of evidence, though, were letters from her attending surgeon and mental health therapist explaining in plain English what she went through and her prognosis for recovery.


Demonstrating the suffering another stands to experience is never easy, especially when he or she hasn't experienced it yet. As such, obtaining both evidence documenting the existence of hardship and professional summations tying everything together are key to submitting a successful Provisional Waiver.


December 17, 2014

The Economic Benefits of Obama's Immigration Action


Whether or not one thinks the immigration action that President Barack Obama is about to implement is the morally right thing to do, according to groups like the Immigration Policy Center, it is economically expedient. It's true that the comprehensive immigration reform passed by the Senate last year would have been a great deal better for the economy, and Republicans have said that this executive action is (somehow) causing them to not work on the immigration reform bill. However, that bill was killed in the House last year, and the new Congress coming in next month appears to be even less friendly to the kind of reforms that the President supports. Thus, it seems like the choice is between executive action and no action at all.

The benefits of the reform will stem from two major areas, one being the modernization of the PERM process. (The PERM process is a step that those who would hire employment based immigrants must take in the greater process of hiring a foreign worker). It is a means of making sure immigrants aren't displacing the U.S. citizen workforce.) As part of the President's plan, the Department of Labor is working to make it smoother and more responsive to today's labor needs. On the DOL's website, it acknowledges that "advances in technology and information dissemination have dramatically altered common industry recruitment practices, and the Department has received ongoing feedback that the existing regulatory requirements governing the PERM recruitment process frequently do not align with worker or industry needs and practices."

The DOL is planning a few things to combat this. It will address labor shortages, most likely by easing regulations on employers trying to hire in those fields with the biggest shortages (while tightening them in more crowded fields). The Department will do everything it can without additional tax revenue to make these regulations fall more in line with today's job and labor practices. While these practices may not increase the net amount of visas available, the eventual changes should work toward the goal of admitting those immigrants that will make us (as a whole) as competitive as possible. The department will also look into the possibility of introducing premium processing and overlooking harmless errors on petitions. In addition, the USCIS is considering extending work authorization to H-4 spouses and those who are waiting "in line" for an employment based green card. These kinds of steps are what will keep the U.S. in the lead on innovation, because it will make immigrating here more attractive for innovators and high-potential families overseas.

However, most of the economic improvement will come from the expansion of the deferred action program, which promises to increase GDP, decrease the deficit, and even raise wages. For almost five million undocumented immigrants (that have proven to be non-dangerous and that have strong ties to this country), the deferred action expansion will temporarily erase the threat of deportation and replace it with the right to apply for work authorization. Considering that most of these people are already working, it should be easy to see that giving them work authorization will increase the amount of taxable revenue in this country. Removing the threat of deportation will allow them to "come out of the shadows" and fully participate in the economy.

Increased labor participation will lead to greater spending. These millions of undocumented immigrants will feel better able to buy houses and send their kids to college. Work authorizations will allow the immigrants to market themselves for better jobs. This will allow for more specialization and labor flexibility, because there will be a bigger labor market with a more diverse set of skills. This leads to greater productivity. Along with greater labor certainty, these things should increase the GDP and average wages.

The economic impact of President Obama's immigration executive action is a major reason to support it. It may seem at first glance like expelling undocumented immigrants is sound economic policy because they are "taking our jobs." However, the costs associated with expelling around 3.5% of the population notwithstanding, anyone making that kind of argument is ignoring the fact that new workers, especially when added on a large scale, create enough economic activity to create more jobs than they take up. An exclusionary viewpoint is a perhaps understandable product of a jobs crisis borne out of economic collapse. However, cooler heads will prevail, and policies like the ones discussed in this post will help us grow our way out of the economic downturn, rather than exacerbate it.

December 7, 2014

Why Obama's Immigration Action is Legal


Almost as soon as President Obama unveiled his plan for executive action as a means of helping to fix the broken immigration system, Republican members of congress and state attorneys general began putting together a lawsuit to stop it. They claim that he is overstepping his authority as president and seek to nullify these executive orders. The Republican controlled House of Representatives voted 219-197 to make the plan "null and void and without legal effect." (However, while President Obama is still in office, the Republicans are unable to pass any bills into law without his consent, because in order to override his veto power, they need at least 66% of the seats in both houses of Congress. They will still have less than 60% in both in the upcoming session.)

In order to defeat this executive action, it seems they will have to do so in the courts. However, it is our opinion that these executive orders are legal (and constitutional). The only politically (and perhaps legally) divisive aspect of the plan is the expansion of the deferred action program that will apply to over 4 million undocumented immigrants. The largest part of this is Deferred Action for Parental Accountability (DAPA), which for three years at a time grants relief from deportation to undocumented parents of U.S. Citizens who pay back taxes and pass a background check. (In addition to this, there is an expansion of the existing DACA program).

Nearly all of the claims against the executive action's legality have to do with this deference of action. (In fact, the lawsuit doesn't mention much else.) Some are arguing that President Obama is ignoring his executive duty by refusing to deport these people. Granted, they are eligible for legal removal. It may thus appear that offering them the opportunity to not be deported is ignoring the law. However, more extensive review indicates that it isn't as simple as this.

Understanding whether or not these executive orders are legal requires knowing what they are. In the case of deferred action, what the executive is saying to qualifying undocumented aliens can be translated as "if you meet these criteria, you have our word that we won't deport you for a while." What's interesting about this is that there is no legally binding aspect to this promise of non-deportation. The status of deferred action is no true status at all. As was hinted at in the italicized text, the government may decide at a future point that the alien is in fact fit for deportation and begin removal proceedings. Further, deferred action is a time-honored immigration practice. Past presidents have done things very similar to this (though those executive actions did not affect as many people and there wasn't as much political opposition).

However, the main reason we feel this aspect of the action is legal is that in truth, President Obama is still appropriately using all the money that Congress is giving the federal government to enforce immigration laws. There are over 11 million undocumented aliens in the U.S., but congress gives the federal government only enough money to actually deport at most 400,000 of them a year. There are at least three million undocumented immigrants that do not qualify for DACA or DAPA in addition to the aliens who attempt to illegally cross the border today. Last year, around 370,000 people were deported, and over 235,000 of them were apprehended along the border. Just under 135,000 people were deported from the interior of the U.S. last year, which means that if there is no decline in the amount of people trying to cross the border illegally, it will take at least twenty years to deport everyone.

With this in mind, it is clear that the executive must make decisions on who to deport. DACA and DAPA in this sense can be seen as the executive gaining information from undocumented aliens and using it to determine if it would be a good use of national defense resources to pursue them for removal (or to focus these resources elsewhere). Deferred action approval would imply that the executive feels the aliens in question are not a threat to this nation at this time. (And, it gives them incentive to not become a threat because approval requires that they submit a great deal of personal information, including biometrics.) It can then be argued that DACA and DAPA are, in reality, only attempts to help improve national security with limited resources. (This argument appears especially cogent when it is taken into consideration that DACA and DAPA are funded by petition fees.) Taken in this light, it seems President Obama is acting within his executive authority and enforcing the law as written.

November 25, 2014

L-1A Intracompany Transferee: Making Sure to File it Right


In planning an L-1A visa petition for a foreign investor, it is essential to take into careful consideration several qualifying requirements. Below is a description of some of these qualifying criteria, which have in recent years caused L visa denials or requests for evidence. Navigating these criteria requires a high degree of sophistication and planning on the part of immigration counsel.

Executive vs. Managerial

These terms are often misunderstood, since the job responsibilities for each may share some commonalities. However, it is critical to remember that each has a distinct statutory meaning and purpose. For instance, an L-1A coming to the US to occupy an executive position may not necessarily have any supervisory roles. Hence, if the foreign national is entering the US to "direct" the petitioning company rather than supervising subordinate employees, a better argument exists that the L visa recipient will fill an executive, not a managerial position.

Whether the L visa argument is for an executive or for a managerial position, the immigration counsel should present visual evidence to illustrate the role of the L visa recipient in the petitioning company. Such evidence may include an organizational chart clearly showing how the foreign national will undertake his or her duties. If the foreign national will occupy an executive role, then the organizational chart should show the level of supervision the beneficiary will exert, whether internally within the organization or externally through the use of outside professionals.

For smaller organizations, the immigration counsel might present evidence by expert opinions from renowned professionals in the field who would opine that the foreign national would indeed occupy such roles.

Functional Managers
L-1A visa regulations allow a foreign national to enter the US to oversee an "essential function" within the US enterprise. In such situations, the L-1A visa recipient is said to be a functional manager. However, extra care must be exercised when presenting such a case, as the foreign national must be positioned in a demonstrably higher-level position within the company's organizational chart exerting wide latitude in the exercise of her daily tasks. In such a position, the foreign national should not directly oversee any staff. Rather, the functional manager exercises control over a major "function" such as fiscal matters, productivity, optimizing operations, or to commit the company in agreements by interacting with similarly situated higher-level professionals internally or externally.

L-1A Considerations for Small Companies
When reading the L-1A visa regulations and guidance memoranda issued by the USCIS, one cannot help notice that these provisions seem to describe larger international corporations. However, L-1A visa petitions may be submitted on behalf of smaller corporations as well. But in doing so, the immigration counsel must exercise extra caution in providing the USCIS with sufficient details on how each L visa criterion is met. It must be remembered that the USCIS will examine an L visa petition submitted by a smaller corporation more closely; in some ways, a smaller corporation has a higher burden in proving that all the qualifying criteria are clearly met.

Does My Small Company Require the Services of a Manager or an Executive?
When planning an L-1A visa petition for smaller companies, one of the biggest challenges is to show that such an organization requires the services of a higher-level executive or a manager. It is easy to foresee that in smaller organizations, the L-1A visa applicant might in fact have overlapping duties between executive, managerial and sometimes lower level duties. Immigration counsel must be keen in recognizing the dangers of such overlap in roles; as the USCIS might determine that an L-1A visa in such situations is not warranted because it believes the foreign national will primarily exert lower-level functions.

Luckily, USCIS rules provide some guidance in dealing with such situations. The test is whether the foreign national will "primarily" spend his or her time in higher-level managerial or executive duties. The USCIS has given examples of what it constitutes as lower level duties, which include the operation of machinery, engaging in sales activities, and in supervising lower level employees.

Hence, in planning an L-1A visa petition for smaller companies, it is critical to phrase the position description to conform to the guidance issued by the USCIS insofar as the primary duties are concerned. One may have to point to the secondary duties of the position within the realities of running a small business such as conducting sales, or performing lower level duties. If the company is starting with relatively few employees, it might be helpful to describe outside independent contractors such as lawyers, accountants, marketing consultants and other vendors wherein the L-1A visa recipient will exercise control over in order to carry out the mission of the enterprise.

Planning an L-1A visa petition requires a deep understanding of the adjudicatory posture of the USCIS and the various regulatory provisions. It must be remembered that the USCIS will pay closer scrutiny to petitions submitted for smaller companies. Hence, immigration counsel must be keen to present sufficient illustrative evidence to present a persuasive case for visa approval.