Immigration Visa Lawyer Blog

U.S. Senators from the Democratic Party have recently released the first serious outline for eventual Comprehensive Immigration Reform legislation. This plan not only re-writes the rules regarding the attainment of citizenship with regard to those aliens who have entered without inspection, but it also alters the legal landscape for gaining an employment based green card through the PERM process as well as H-1B and L-1 temporary visas. While some of the changes that have been outlined largely appear to bring long needed adjustments to the employment based visa system, there is cause for concern regarding certain aspects of the plan relative to employment based immigration. The American public, petitioning employers as well as highly skilled persons from around the world are left to wonder, does this comprehensive immigration reform plan really do more to attract the world's best and brightest, or does this plan discourage highly skilled people from working in the United States. Is this plan for Comprehensive Immigration reform a wolf in sheep's clothing?

The Effect on Educated Foreign Workers

The central theme of the proposed immigration plan, relative to employment based immigration, is to encourage highly skilled laborers to immigrate permanently, while at the same time discouraging temporary visas for highly skilled persons. This goal is accomplished by simply systematically removing restrictions for obtaining a Green Card for certain highly skilled foreign nationals, while a bevy of crushing restrictions will be imposed on employers hiring temporary workers under the H-1B and L-1 categories. (See page 18. Section A.) Whether it is the unintended or simply unspoken net effect of the proposed policy changes, the number of highly skilled persons approved for employment based immigration will be reduced under this proposed plan in the form that it is written.

First the Good News

This proposed plan for immigration recognizes that the current system of assigning Green Cards for highly skilled workers on a country by country basis has few if any positive policy aspects. Under the new plan, per-country employment based immigration caps will be abolished. In contrast, the current system nonsensically imposes a five year waiting period for obtaining a Green Card on people from India or China who possess a master's degree. Additionally, Employment Based Green Cards for persons from Mexico holding a bachelors degree are currently unavailable at all, while persons with bachelor's degree from any other country in the world could theoretically obtain a Green Card, eventually. Removing the per-country preference for employment based immigration for highly skilled individuals is a welcome and needed change to the current immigration scheme.

Additionally, the proposed plan simplifies the employment process for aliens who hold advanced degrees from American universities and enter the United States with a valid offer of employment from an American employer. This change is intended to remedy the incongruence between America's open pursuit of foreign nationals to study in American Universities, but refusal to allow the same talented people to remain to work and live.
This plan also removes the "non-immigrant intent" requirement to many of the visas that are given to foreign national students. Under the current plan, most student visas require that the student have no immigrant intent when studying in the United States. This requirement is fulfilled by not allowing such students to immediately apply for immigrant visas in most situations. Some visas even require students to return to their country of origin for a period of time before returning to the United States after they have graduated.

Part of the legislative goal of the old policy was to promote American ideas by forcing students to return home and use the knowledge, skills and American experience in their native countries, thereby expanding the American cultural influence to the world. At this point in time, most countries have been exposed to American ideas and ideals and have accepted or rejected the same. Therefore, it is high time that America not snub the very people that America educates here by requiring them to move back home or wait for some ridiculous period before receiving a Green Card. The proposed plan would do much to remedy this outdated policy objective.

... and then the Bad News

The H-1B and L-1 system of temporary visas for skilled workers has come under increased scrutiny for years. Many administrative policy changes have been levied upon these visas categories in order to prevent perceived fraud, abuse and injury to Americans seeking jobs. The proposed plan would now set in stone tougher requirements for obtaining and maintaining such visas through legislation as well as imposing increased penalties on those businesses and employees attempting to obtain an H-1B or L-1 visa without adhering to the law.

Continue reading "A Wolf in Sheep's Clothing? : Columbus Immigration Attorney Discusses Comprehensive Immigration Reform's Effects on the PERM process, Green Cards as well as H-1B and L-1 Visas" »

"Fast-Track" green card through family immigration: If you have a relative residing in the United States, you may be eligible to permanently immigrate to the U.S., obtain a green card (i.e., lawful permanent resident status) and eventually apply for citizenship.

Certain relatives are able to obtain a family-based green card immediately while others must wait for an immigrant visa number to become available to them. Whether or not you have to wait to apply for a green card depends on your relationship to your U.S. citizen relative or a lawful permanent resident.

The process for applying for a family member to immigrate to the U.S. is basically involves two-steps. First, the relative in the U.S applies for what is called an immigrant visa petition (I-130). The immigrant visa petition proves to the government that the relative is a qualifying U.S. citizen or a lawful permanent resident and it establishes the family relationship with the foreign national. As will be discussed below, the "fast-track" family categories include immigrant visa petitions filed for your foreign born mother or father, children, and/or spouse.

Next, the alien applies to adjust status to lawful permanent resident by filing Form I-485. This two-step process can be accomplished in a one-time concurrent I-130/I-485 filing for certain "immediate relatives" thus expediting the process.

Immediate Relatives (IR): "Fast-Track" Green Cards
The fastest way to obtain a family-based green card is to be considered an "immediate relative" of a U.S. citizen. If you are a child, spouse or parent of a U.S. citizen, you are considered an "immediate relative." Your U.S. citizen relative may immediately petition the U.S. government for your green card by filing both the immigrant petition and the application to adjust status concurrently. If applying for a child, the child must be under the age of 21 and unmarried at the time of filing the petition. If applying for a parent, the U.S. citizen must be a son or daughter over the age of 21.

Immediate relatives are not subject to numerical limitations placed on other family members in the preference categories. Immediate relatives are instantly eligible to receive a green card. The immigrant petition and adjustment of status petition are filed concurrently if the immediate relative is already in the U.S. in valid nonimmigrant status. If you are abroad, the U.S. citizen files the immigrant petition in the U.S. and the consulate having jurisdiction over your foreign residence will be notified to finalize the petition. Once the foreign relative obtains the immigrant visa at the consulate, they enter the U.S. as a lawful permanent resident (i.e., green card holder).

K1/K3 Visa Avenue to Green Card
If you are a fiancé of a U.S. citizen and you wish to enter the U.S. to conclude the marriage, you can enter on a K-1 visa and adjust status to lawful permanent resident. The U.S. citizen fiancé first files a petition with the United States Citizenship & immigration Services (USCIS) showing that there is a bona fide intention to marry (within 90 days of fiancé's entry), there are no legal impediments to marry, and that you have met in person within two years of filing the petition.

Once the petition is approved, the fiancé must obtain the K-1 visa at the consulate having jurisdiction over the foreign residence. The fiancé then enters the U.S. on the K-1 visa and the marriage must occur within 90 days of entrance. After the marriage, the K-1 visa holder may apply to adjust status to become a green card holder. Note that minor children may accompany the K-1 visa holder as K-2 dependents.

If you are already married to the United States citizen but are residing abroad, you can enter the U.S. on a K-3 visa. Your United States citizen spouse must have filed an immigrant visa petition (I-130) with the USCIS on your behalf. Once the I-130 has been received, the U.S. citizen spouse files an I-129F petition with USCIS which will be forwarded to the U.S. consulate abroad. There are certain documentary requirements that must be met for the consulate to issue the visa. Once the process at the consulate is complete, the spouse receives the K-3 visa and may enter the U.S. to conclude the green card application. Again, minor children may accompany the spouse to the U.S. on a K-4 visa as a derivative beneficiary.

Preference Categories
As discussed above, there are other relatives that may immigrate to the U.S. based on a relationship to a U.S. citizen or lawful permanent resident, but they must wait for an immigrant visa number to become available. Each preference category has its own relative classification and approximate waiting time to file for adjustment of status to lawful permanent resident:

• First Preference: unmarried adult children of U.S. citizens (over the age of 21) - 6 yrs.


• Second Preference: spouses or child (unmarried under 21), and unmarried child of lawful permanent residents: (A.) Spouses and children (under 21) - 4 yrs. and (B.) Unmarried Sons and Daughters (any age) - 8 yrs.


• Third Preference: married sons and daughters of U.S. citizens - 9 yrs.


• Fourth Preference: brothers and sisters of adult U.S. citizens - 10 yrs.

The preference categories create problems when a child "ages out" before his/her immigrant petition or adjustment of status petition is approved. The term "age out" refers to the scenario when a "child" turns 21 during the pendency of the application and is no longer eligible for the benefits sought. Immigration law defines a child as an unmarried person under the age of 21. The Child Status Protection Act ("CSPA") preserves the "child" status of certain alien children who may have aged-out due to the long delays associated with the preference categories.

Continue reading "Columbus Immigration Lawyer on Family-Based Immigration: The "Fast Track" Green Card" »

The North Atlantic Free Trade Agreement provides immediate visa solutions for Canadian Businesses and Professionals. These visa solutions include Treaty Trader "E-1" visa, Treaty Investor "E-2" visa, Intracompany Transferee "L-1" visa and Professionals under NAFTA "TN" visas.

NAFTA has powerful mechanisms which allow Canadian Professionals, Businessmen and Investors are able to present their visa applications at a port of entry (whether at an airport or land port of entry), obtain visa status, enter the US to immediately engage into gainful employment all in one day.

It is hard to believe but the US Immigration regulations under NAFTA has a built in mechanism for on-the-spot processing of visa applications at any participating port of entry. This mechanism is grossly underutilized as immigration practitioners forget that NAFTA allows the immediate processing of several key non-immigrant visa applications, a mechanism unavailable to nationals of any other country. For that purpose, Canadian Investors, businessmen and professionals certainly have an advantage. This blog article is intended to review three critical visa solutions which allow Canadians to enter the US on an expedited basis and to immediately resume their business or professional activities.

What is NAFTA?

NAFTA stands for The North Atlantic Free Trade Agreement. It is a treaty between the United States, Mexico and Canada. NAFTA is intended to ease trade between these three nations. It is one of the most expansive and powerful treaties on the planet with far reaching implications in all aspects of trade. One of the most important components to this treaty is the ease of maneuverability of investors and processionals among the signatory countries. As will be seen below, NAFTA provides instant visa solutions for investors and professionals.

Instant NAFTA Visa for Canadian Investors (E-1 & E-2 visas)

US Immigration laws allow two types of nonimmigrant visas for traders and investors.

Traders are Canadians who will engage in substantial exchange of goods, services and/or technology between Canada and the US. Such traders must come to the US to direct and operate an enterprise that is engaged in such trade. Canadian Investors who wish to carry on such activities may receive treaty trader ("E-1" visa) by submitting a comprehensive application package at the port of entry showcasing their operation in the US and containing evidence of such planned substantial trade. The application forms along with all supporting evidence must be presented along with the filling fee at the port of entry. The port of entry officer will review the evidence, process the application for approval and issue the documentation evidencing the visa status.

Likewise, Canadian investors who wish to enter the US to invest into a commercial enterprise which will produce a product or service may also apply for their visa status at a participating port of entry and receive their visas the same day. The legal criteria for issuance of treaty investor ("E-2") visa include that the investment meets the substantiality and marginality tests and it is a real active (not idle) commercial endeavor. As explained previously, the application package must be presented along with the filing fee, completed immigration forms and supporting documentation at a border port of entry or at the airport prior to landing in the US.

Instant NAFTA Visa for Canadian Company Transferees

Canadian professionals possessing specialized knowledge and executives who wish to be transferred to a US company that is a parent, subsidiary or one that is affiliated with a Canadian enterprise may also process their visa applications and conclude their immigration case in one day by using the NAFTA provisions. This visa category is known as Intracompany Transferee visa or L-1 visa. L-1 visas are two types: 1) L-1B for Canadian professionals possessing specialized knowledge; and 2) L-1A for Canadian Executives. One important legal criterion that cannot be missed is that the L-1A or L-1B applicant must had worked for at least one year within the three years prior to his/her admission to the US in the Canadian company. As with the previously explained visa solutions for traders and investors, Canadian Intracompany transferees who wish to enter the US on an expedited basis may do so by applying at the port of entry paying the filing fee and presenting the immigration forms with all of the documentation showing that applicant qualifies for such visa status.

A recent example of this expedited visa processing pursuant to NAFTA was processed by our firm recently. I was contacted last month by a major multinational company which had branches all over the world. The company provides replacement parts to specialty automobile items and caters to consumers at large. The company engaged in a vigorous advertisement campaign in the US which spiked demand for highly trained technicians. The spike demand required service to be provided to consumers on an expedited basis through a window of opportunity. There were not sufficient technicians in the US so the company turned to its affiliate company in Canada.

Our firm immediately gathered data and produced packages which included immigration forms, documentation supporting the existence of an "affiliate" relationship between the Canadian and the US companies, as well as the fact that the required technicians met the regulatory definition of workers "possessing specialized knowledge." Within few days from being contacted the technicians arrived in the US and began to work immediately.

Continue reading "Canadian Investors, Businesspersons and Professionals Have Advantage under NAFTA" »

Governor Brewer disappointed the entire nation by signing into law the controversial statute which basically gives the Arizona State and local law enforcement personnel tools to racially profile. The law created a separate offense for foreign nationals who violate federal immigration laws and allows state and local police officers to arrest and detain such individuals upon reasonable suspicion that they have violated federal immigration laws. The Arizona's Signature of this bill means that it now is part of the Arizona laws and will be enforced immediately.

This is a sad day for America as neither Governor Brewer nor the Arizona Legislature understand the impact of this statute on our country's stance on civil liberties and on Arizona's economy. For instance the Immigration Policy Center, a Washington, D.C. think-tank organization, released a short study regarding the cost of Arizona's anti immigration Legislation. The study predicts that Arizona risks to lose about $38 billion in economic activity at a time when the state has a $3 billion deficit. You do the math; the proposed law is both unwise economically and threatens the very essence of civil liberties that our country was based.

Some States have declared that they will follow suit by instituting similar laws. For instance in Ohio, State Senator Tim Grendell of Cleveland has announced that he will be introducing a bill in Ohio modeled after the Arizona SB 1070. The Ohio Proposal is currently in draft mode and Senator Grendell is looking for co-sponsors. Frankly, these moves by Arizona, and may be soon to follow Ohio, is a sign of the frustration that the States are facing for Congress' failure to resolve the status of the 12 million undocumented aliens now present in our midst in the US.

Shortly after the Arizona Governor signed SB 1070 into law, President Obama declared that the law is "misguided." The American Immigration Lawyer Association held an emergency meeting, which I attended, and almost unanimously voted to boycott the State of Arizona from the fall Board of Governor's Board Meeting which was planned to be held in Scottsdale this September. The American Civil Liberties Union called this law unconstitutional and provided a section by section analysis of the statute.

It remains to be seen whether this law will pass constitutional muster. One positive sign is that although unfortunate, this law will bring the issue of Comprehensive Immigration Reform to the forefront again. We hope that the nation will realize that CIR must be a priority for America.

Since January 1st of 2010, the Department of Labor ("DOL") has overtaken the responsibility of determining the prevailing wage for the Labor Certification Applications used to obtain a Green Card or Legal Permanent Residency ("LPR") in employment based visa petitions. The effect of the government's change to the process intended or not, has been to substantially increase the time needed for before beginning the actual PERM process. Additionally, many institutions, such as colleges and universities, which rely on the official prevailing wage determinations of the government, have seen the same delays applied to their H-1B filing process. At a recent meeting between the Department of Labor and representatives of associations that have a stake in prevailing wage issues, the DOL was asked and answered real questions about the important issues that the government's new policy in this area has created. As a result, the DOL has offered the first glimpse of guidance for successfully completing a prevailing wage determination. In usual governmental fashion some of the answers given have been vague and unsatisfying to those working with these issues on a daily basis. Practitioners and applicants are left to wonder: Is there light at the end of the tunnel, or are these changes to the prevailing wage part of a larger policy of deterring the best and the brightest from moving to America?

Insight to common problems encountered within the Prevailing Wage Application Itself

First and foremost among the problems presented by the Department of Labor's prevailing wage system is the amount of time that it takes from submission of the form, to determination of the result. The delay in process has essentially taken a two (2) day process and created a sixty (60) day ordeal. The effect of this delay has been to severely restrict the start time for beginning the arduous Green Card process. This delay has also had the side effect of injuring large institutions such as colleges and universities that frequently rely on the prevailing wage determination for its 100% accuracy and reliability when filing H-1B applications for professors and other workers.

The department of labor has stated that the delays have been caused by the increased workload and the lack of staffing available to make such determinations. While one would think that the DOL should have anticipated a flood of prevailing wage applications when they centralized this process by wrestling it away from the states, the government claims that it is working diligently to resolve the issue. The DOL hopes to hire more adjudicators in order to take control of this situation and reduce processing time. While the government's acknowledgement that sixty days (60) is too long of a wait time, the admission is little solace to those who have been squeezed for time by this process.
Incomplete Applications and Requests for Clarification

One advantage of filling out a prevailing wage under the iCERT format is that the website warns the applicant when fields on the application are not filled in. Specifically, there are red asterisks next to all vital fields warning the user to fill in the blank. There are also various pop-up warnings and alert signs that remind the user that a field has not been completed in one of the necessary areas of the application. This system of alerts has a distinct advantage over the paper submission format, where any omission would result in a denial.

The DOL has recently explained the process for denying incomplete or ambiguous prevailing wage applications. First, incomplete prevailing wage applications will be denied. The immediate effect of a denied prevailing wage application is that a great deal of further delay will occur. If one is to assume that the error will not be found until the application is processed, and applications are not processed for up to sixty days, than it is easy to see that such a denial could be disastrous.

A more encouraging sign of progress is the DOL's stance on instances where more information could remedy an ambiguous field. The DOL has stated that where the DOL needs more clarification or more information to resolve an issue on the application, the DOL will e-mail the employer or attorney and request such additional information. The recipient of the e-mail will have seven (7) days to respond to such an e-mail request. What is not exactly clear is what constitutes a situation where a request for additional information is warranted, as opposed to a situation where a denial is issued. The best practice, as always is to be meticulous and clear when filling out such forms.

Guidance on some common issues relating to specific fields of the application

Abbreviations for Education Majors - It is common in the real working world for people of many different college majors to qualify for a working position. If one wishes to report all of the majors that are applicable to a certain position on the prevailing wage form, he or she must do so in a very limited amount of characters. If the majors applicable to a position are very wordy, it has been common practice to abbreviate the major in the field to fit all majors that may apply. A college major that is left out could theoretically be used to limit the potential qualified applicants. The DOL has stated that they will accept common abbreviations for college majors and that they have retrained their staff accordingly. One is left to wonder what a "common abbreviation" is. However, the small recognition of the reality of the process is encouraging.

Alternate Education and Experience Requirements - It is also common in the real world for employers to accept different, but equivalent levels of education and experience for a position. In the world of PERM, this is a delicate and intricate balancing act to show. For the sake of this blog, we can assume that a bachelor's degree plus five years of job experience is equivalent to a master's degree plus two years of job experience. The prevailing wage application only allows for one "set" of work and experience in the applicable field. The DOL has stated that a second "set" of education and experience may be placed in the "special skills" section of the application. It must be noted that practitioners should clearly refer the reader to see both fields for the total of the education and experience required.

Using Experience Rather than a Bachelor's Degree - If the applicant does not have a bachelor's degree, but does have a sufficient amount of experience to add up to a bachelor's degree, the common practice has been to state so with specific, legally operative language on the prevailing wage application. The DOL's prevailing wage application does not allow enough room to type the specific language needed. The DOL has addressed this problem by recommending this language be placed in the "special skills" section with a clear reference to and from both applicable fields.

Roving Employees - Where an employee will carry out his or her work in various locations, some of which are not presently known, the DOL has referred practitioners again back to the special skills section of the application to input the necessary information. Essentially, if it in not known where all of the work locations will be, check the box that says "no" to multiple work locations, and clarify the answer in the special skills section. Stating "various locations" or "unknown" may result in delay or denial of the application.

Continue reading "Department of Labor Prevailing Wage Guidance: A Light at the End of the Tunnel for PERM and H-1B Filings?" »

If you are residing abroad and have recently had your immigrant or nonimmigrant visa application denied by a consulate officer, you may request an advisory opinion from the Department of State's Visa Office Advisory Opinions Division (AOD) and "open the door" to a denied case. With the powerful advisory opinion, a foreign national has the opportunity to obtain the original visa classification sought instead of filing an entirely new case from the start.

When a foreign national files for an immigrant or nonimmigrant visa from a consulate abroad, the consulate officer may erroneously deny the petition taking an incorrect legal position. The foreign national may not feel that s/he has any options for appeal. However, an attorney may request an advisory opinion from the Department of State's Visa Office Advisory Opinions Division (AOD). If the AOD agrees with the attorney and issues the advisory opinion, the consular officer's determination will be overturned allowing the foreign national to obtain the visa s/he is seeking. This is a very powerful tool that not many foreign nationals know exists. This article discusses the various advisory opinion procedures and discusses the benefits of requesting the advisory opinion especially when the foreign national's petition has been incorrectly denied.

The Advisory Opinion
A request for an advisory opinion is a appropriate when your immigrant or nonimmigrant visa petition has been denied at a consulate abroad due to an incorrect application of law. The advisory opinion addresses legal questions involving proper visa classification, specific grounds of visa eligibility, and other legal issues concerning visa applicantions. The most common questions pertain to misrepresentation of material facts, nonimmigrant visa classifications (particularly E, H-1B and R), inadmissibility due to commission of crimes involving moral turpitude, diplomatic visas, visa revocation requests, and unlawful presence.

An attorney should seek an advisory opinion if it appears that there was a legal error, i.e., when a visa application is denied without an applicable legal basis. The advisory opinion may result in a favorable decision for the application. The consular officer will generally inform the alien of the suspected substantive reason for denying the visa. This will form the basis for the attorney's request for advisory opinion as often times the consulate officer may err as a matter of law.

Legal Effect of the Advisory Opinion
The Department of State's regulations provide that advisory opinions concerning interpretations of law "shall be binding upon consular officers." AOD lawyers state that consular officers never refuse to follow a purely legal opinion. This means that if the consular officer "gets it wrong" as a matter of law, the advisory opinion will cure the defect. More problematic is the situation of applying the law to the facts of a particular case. When the case involves factual interpretations as well as legal matters, the consular officer's determination on the factual issues is binding. Hence, only incorrect applications of the law may be scrutinized by a request for advisory opinion.

If you are a foreign national whose case has been denied due to an incorrect application of law, you should seek an advisory opinion. You must request an advisory opinion within one year of the date the visa petition was denied. Do not delay since after one year you cannot obtain relief. You may begin by calling the consulate officer who denied the application and request that the decision be overturned due to the error, but this approach is a far stretch given the tendancy of these officers not to overrule themselves. Thus it becomes necessary to ask the AOD to overrule the consulate officer through the issuance of an advisory opinion.

Continue reading "Columbus Immigration Lawyer: When a Consulate Shuts the Door on a Visa Petition, The Key to Victory is to Request an Advisory Opinion" »

It is the best kept secret in American farming: foreign investors are coming to the US to start mega farming operations in all aspects of the farming industry including dairy, swine and poultry. For instance, Ohio, Indiana and Michigan have witnessed the migration of at least 80 families to operate multimillion dollar dairy farming operations during the previous decade. Most of these families entered the US on a treaty investor "E-2" visas or Intracompany transferee "L-1" visas.

The declining dollar value has provided European farmers with stronger purchasing position in the face of a significant US recession and dwindling real estate values. European farmers come to the US armed with formal agricultural education and mastered techniques in their respective industries. No wonder European farmers are better equipped than their US counterparts as they are used to working in adverse farming conditions in their homeland dealing with more restrictive environmental, zoning, as well as quota production regulatory systems than in the US. Hence, the US offers a freer and more favorable working environment. These conditions lead foreign farming investors to cause a recent spike in applications for treaty investor (E-2 visa), alien entrepreneur (EB-5) as well as Intracompany transfer (L-1) visas for farming investors.

The Dairy & Swine Farming Experience

About 80 European families entered the US within the last 10 years to operate multi-million dollar farming operations in the midwest alone. These farmers moved to Ohio, Indiana and Michigan. The typical dairy farm operation included 1500 to 3000 dairy heifers with a value between 5 to 12 million US dollars. In many instances entire families moved in to the US, including parents, grown children wives and girlfriends. Our law firm has applied innovative ideas to bring an entire family into the US to operate such farms. Most families initially entered the US on treaty investor visas (E-2) visas. In order to bring in their grown children and their wives, our law firm had to spilt their operation into several pieces (real estate, crops & feed operations, etc.) in order to create separate self sufficient entities to sponsor the various family members. For instance, the parents may retain ownership over the real estate operations including farming, manure hauling and structures into a separate leasing entity, while the grown children may partner on a company that will own the inventory, equipment, feed and other components of the operation into one entity. By bifurcating the operation in this manner, we were able to bring in several extended family members under the treaty investor visa (E-2) visa vehicle.

The problem with the treaty investor visa (E-2 visa) is that it somewhat difficult to move such investors to permanent residence. The E-2 visa requires the foreign investor to maintain non-immigrant visa intent. Hence, careful planning must be undertaken when applying for permanent residence through the alien entrepreneur program. Certain alien investors are able to take advantage of the lower investment threshold ($500,000)if their farms are located in lower population area.

The Intracompany Transferee Alternative

Certain farming investors are able to take advantage of the more practical Intracompany transferee visa (L-1A). This visa scenario allows for the change from non-immigrant visa to permanent residence in a more efficient and cost effective manner. In order for this work, the US entity must be a parent/subsidiary, affiliate or joint venturer with an overseas company and the foreign investor must had worked for the overseas company for at least one year during the three years preceding his entry into the US. Most of these requirements are not difficult to meet in most instances. The more difficult requirement is that the foreign entity must continue to provide a product or service after the foreign investor's entry to the US. In most scenarios this is not possible because the foreign investor will have liquidated the bulk of his or her foreign assets to facilitate the investment of the farming operation in the US. I cannot but stress that early planning and consultation with a competent corporate and immigration counsel can make a big difference in the success of an investment operation in the US.

Continue reading "US Investor Visa Solutions for Foreign Dairy & Swine Farmers" »

Colleges and Universities have a unique option when applying for the Green Card/Legal Permanent Resident Status of Professors and Teachers through Labor Certification under the PERM process. Many of the additional recruitment steps required by the PERM process for Alien Labor Certification can be avoided by use of what is called "Special Handling." Obtaining a Green Card through the Special handling option is often a desirable alternative to the traditional PERM process used for the majority of professional positions. This option benefits both the College/Universities and the hired Professor as it allows the employer to pick the Professor that they want, while saving the Professor the time that it would have taken to conduct the normal recruitment steps under PERM.

The Theory of Special Handling: Colleges and Universities are in the best position to know which applicant is "more qualified" than the next

The PERM process for applying for a Green Card is based on the theory that employers need to show that there are no ready, willing and available workers to fill a specific job before an employer is allowed to apply for the Green Card of an alien. Wisely, the Federal Government has recognized that Universities and Colleges are different than the normal employer. Specifically, Universities and Colleges have a need to recruit the best and brightest minds in the world to fill teaching positions. Therefore, all that is needed to show on a Labor Certification application filed under the Special Handling option for PERM, is that the selected alien is "more qualified" than the other applicants.

The main points of recruitment under the Special Handling Option

The hiring University of College must show that the selection of the professor was made only after a competitive, nationwide search for qualified applicants. The position must have been advertised in a national professional journal. The College or University must document the recruitment process in detail, keeping meticulous records of the applicants and interview process. It is usually beneficial for the University or College to conduct additional avenues of recruitment including newspaper advertisements and advertisements in journals that are targeted toward a particular category or type of professor. Taking additional recruitment measures will re-enforce to the Federal Government that the recruitment campaign was indeed competitive, resulting in the best person for the job being hired.

Timing Issues and Other Mandatory Steps Under Special Handling

The hiring University of College has 18 months to file the Labor Certification Application (ETA 9089) after the selection of a professor has been made. The employer must also apply for and obtain a prevailing wage determination for the position. Finally, posting notice or notification to the collective bargaining representative needs to be made, stating that the University or College plans to file a Green Card petition on behalf of a professor.

Continue reading "Go to the head of the class: Obtain your Green Card through Special Handling option under the PERM Process" »

The K nonimmigrant visas are available to fiances (K-1) or spouses (K-3) of a U.S. citizen to enter the U.S. and eventually apply for permanent residence (i.e., a green card).

This article addresses the question of which K visa is the best option. It also discusses whether the K visa is the best option when you are already married to a foreign national residing abroad. Finally, it discusses the benefits of consular processing in lieu of the K-3 visa.

The K-1 Visa
The K-1 nonimmigrant visa allows a fiance residing abroad to marry a U.S. citizen and come to the U.S. permanently. The U.S. immigration law for K-1 visas requires that you meet your alien fiance personally within two years prior to filing the K-1 visa application. Additionally, both the U.S. citizen and the foreign national must be free to marry. This involves showing that all previous marriages have been terminated. Copies of prior divorce decrees are sufficient to show freedome to marry. Dependants of the alien fiance may enter the U.S. with the K-1 visa beneficiary on a derivative K-2 visa. Dependants include minor, unmarried children of the alien fiance. A fiance may work in the U.S. by applying for a work permit with USCIS.

The K-1 fiance may stay in the U.S. for 90 days on a K-1 visa and must marry the U.S. citizen during that period. The K-1 visa cannot be extended and can only be used to enter the U.S. one time. Once married, the K-1 visa holder should immediately apply for adjustment of status to obain conditional permanent residence (i.e., a conditional green card). The green card will be conditional for two years so that USCIS knows the marriage is bona fide. 90 days before the expiration of the two-year period a petition to remove conditions must be filed.

The K-1 visa holder cannot go for consular processing, an option available to K-3 visa spouses discussed below.

The K-3 Visa
The K-3 visa allows foreign national spouses of U.S. citizens to enter the U.S. temporarily while they wait to apply for a green card. The foreign national must be married to the U.S. citizen and be residing abroad. The U.S. citizen spouse must have filed Form I-130, Petition for Alien Relative with USCIS to prove the marital relationship. Once recieved by USCIS, the K-3 visa application can be filed. Similar to the K-1 visa, minor, unmarried children of the foreign national spouse may enter the U.S. on a K-4 visa. Again your spouse may apply for a work permit once they arrive in the U.S. on a K-3 visa.

A spouse will be admitted into the U.S. for a period of two (2) years on a K-3 visa. The spouse may apply for an extension of stay no more than 120 days prior to the expiration of the K-3 visa. To obtain the extension, a K-3 visa holder must have filed the I-485 or an application for an immigrant visa, or if the I-485 was not filed, the spouse must be awaiting approval of a pending I-130; and the foreign national must still be married to the U.S. citizen.

Upon arrival in the U.S. the foreign national spouse should apply for adjustment of status to permanent resident in order to obain their green card. If any of the following circumstances happens upon arriving in the U.S. the K-3 status will terminate within 30 days: the I-130 is denied, the application for immigrant visa is denied, the I-485, Adjustment of Status application is denied, or divorce from the U.S. citizen petitioner.

Choose Between K-1 and K-3: Which Nonimmigrant Road to Travel?
There are various routes that your foreign national fiance or spouse can take to enter the U.S. Each depends on the amount of time you and your foreign fiance or spouse are willing to wait apart from each other. While the K-1 visa remains a widely used and very favorable visa category, the K-3 visa is becoming less advantageous because of the ease in which to obtain a green card through consular processing.

Continue reading "The K-1 or K-3 Visa and Consular Processing: The Choice of Marriage in U.S. or Overseas" »

Legal Permanent Residency/ Green Card: Tax Issues

Foreign nationals seeking legal permanent residency (LPR Status or a Green Card) through the PERM process, other employment based petitions or through the various family based avenues will inevitably face various tax issues. All foreign nationals applying for such status must abide by certain federal regulations and burdens of proof addressing the tax issue. As the deadline for filing personal income tax returns bears down upon all persons who derive income from the United States, now is an opportune time to discuss some of the common issues that Green Card applicants and Legal Permanent Residents face.

Required Taxation Evidence Submitted with the I-485 application

All Green Card applications require proof of whether or not the alien was taxable in the previous three years. The federal regulations state that the alien must provide proof of whether or not he or she was required to file an income tax return for the past three tax years. Certain visa holders are free from from this requirement when filing an application for adjustment of status. Visa holders that may not need to pay US income tax include J, H-4, H-3 and F visa holders as long as they have received no gross income from within the United States.

Who is to be taxed?

Everyone who derives income from sources within the United States will be taxed. Foreign nationals are either taxed as an alien resident or non-resident alien basis. Resident aliens are taxed on all income that is derived from any source around the world, just like any US citizen would be. Non-resident aliens are only taxed on income that they have gained from sources within the United States.

How do I tell if I will be taxed as a resident or nonresident alien?

The IRS has formulated a test to determine whether or not an alien is a resident alien for tax purposes. This test is called the Green Card Test or the Substantial Presence Test. In most instances, a foreign national who is present in the United States for 183 days out of the year will meet the Green Card test and will be taxed as a United States Citizen would be. A foreign national may also meet the Green Card test and be considered taxable as a United States Citizen if he or she is present in the US for 31 days of the tax year, and has been present in the US for one-third of the days in the previous tax year and one-sixth of the days of the second most recent tax year.

Some days of presence in the United States are not counted toward the Green Card test. Some visa holders are exempt from paying US taxes such as F, J, M and Q visa holders, so usually days spent in the United States on these types of visas are no counted toward the Green Card test. Some visa holders that can be present in the United States for an indefinite period of time are also not liable such as A and G visa holders. Persons who are physically incapable of leaving the US or persons go back and forth to work in the US from Canada and Mexico are usually not taxable in the same manner as nonresidents. Also foreign nationals who are only in the US temporary, using the US as a stopping point while they travel between two locations outside of the US, will not have these days counted in the Green Card test.

Finally, even if the alien meets the Green Card Test, he or she will not be taxed as a US resident if it is shown that the foreign national was not within the US for 183 days in the most recent tax year and that the alien keeps a home in a foreign country, to which country the alien maintains a nearer relationship than he or she has to the United States.

What if I am a dual citizen?

The United States maintains certain tax treaties with other nations. A dual citizen may be able to show non-residency by providing the treaty and citing to the section of the treaty regarding residency. Two specific countries do not address this issue in their treaties with the US; Greece and Pakistan.

Estate Tax Issues for Foreign Nationals who Pass Away in the United States

The rate of estate taxation also depends on whether the alien is considered a resident or nonresident alien. The residency test for estate tax purposes is different that the test for income tax purposes. Specifically, a deceased person is considered a nonresident if that person was neither a citizen nor a resident of the United States. Residency for estate tax purposes is determined based on the persons' domicile (where the person lives daily).

The property owned by a non-resident within the United States is subject to a transfer tax, the same as US citizens. Foreign nationals who are residents are subject to the same estate tax rules that US citizens must meet. For both nonresidents and residents, an unrestricted spouse deduction is available for property that passes to a US citizen spouse. However, if the spouse is not a US citizen, there is no marital deduction unless the property passes to a special type of trust. A marital deduction may be available to non-residents if they are citizens of a country that has a tax treaty with the United States.

Continue reading "Legal Permanent Residency/ Green Card Holder and Non-Immigrant: Tax Issues" »

In deporation and removal, a Notice to Appear ("NTA") charges an alien a crime involving moral turpitude ("CIMT") may not necessarily be removable in deportation and removal proceedings.

Prior to deportation or removal, if you are a foreign national and you have been issued a Notice to Appear ("NTA") subjecting you to deportation and/or removal citing that you are deportable or removable from the U.S. due to the commission of a "crime Involving moral turpitude," you are probably asking yourself, what is a crime involving moral turpitude? You are probably wondering what - if any - grounds do you have to avoid being removed in deportation? As Columbus, Ohio immigration lawyers, we are asked these questions by our clients frequently. Hence, this article focuses on defining the term "crime involving moral turpitude" as used in deportation and removal proceedings. More importantly, it provides guidance on what is not a CIMT and discusses the common exceptions under current immigration law.

What is a Crime Involving Moral Turpitude ("CIMT")?
According to the federal immigration courts, a CIMT is defined as a crime that is "inherently base, vile, or depraved, and contrary to accepted rules of morality and the duties owed between persons or to society in general." In determining whether a crime is one involving moral turpitude, "base, vile, or depraved" conduct must be found in the elements of the statute. This means that it is the definition of the criminal statute that determines whether one is removable.

The determination is necessarily driven by the statutory definition or by the nature of the crime not by the specific conduct that resulted in the conviction. When you are charged with having committed a CIMT, you must look at the criminal statute (usually a state law violation) to make the determination. Some conduct resulting in a criminal conviction may be "base, vile, or depraved," but it is simply not considered a CIMT. Other conduct may seem innocuous; however, it is sufficient to make a finding of having committed a CIMT.

CIMT Requires a Conviction
A formal conviction of one CIMT will trigger inadmissibility. Any disposition in criminal court that does not constitute a "conviction" for immigration purposes will not trigger these adverse immigration consequences. A conviction is defined as a "formal judgment of guilt of the alien entered by the court," and also for less formal dispositions. A conviction can result from a trial or plea of guilty or no contest. A state or federal conviction can trigger this ground. A finding of guilt followed by commitment to a state mental hospital is considered a conviction, as is a finding of guilt followed by commitment to another institution or agency.

A dismissal, diversion (if no plea of guilty has been entered), dispositions entered in juvenile court, and convictions that are still on direct appeal are not "convictions" for immigration purposes. Convictions that have been vacated or voided as a result of post-conviction relief no longer constitute convictions (as long as the order was entered on some ground of legal invalidity of the conviction). Thus, the first step is to determine whether you were truly "convicted" of a crime; if not, you are not subject to deportation on the grounds listed whether or not you committed a CIMT.

The Petty Offense Exception to Inadmissibility
Since so many offenses can be classified as involving moral turpitude, many noncitizens risk being excluded even for minor convictions. The Petty Offense Exception excuses the inadmissibility on account of a conviction of one CIMT. Under this exception, a noncitizen is automatically not inadmissible on account of a conviction or admission of a CIMT if (1) she committed only one CIMT, (2) she was not sentenced to a term of imprisonment in excess of six months, and (3) the offense of conviction carries a maximum sentence of one year or less.

This definition seems very simple but it is wrought with traps for the unwary. Each element (1)-(3) above raises legal questions that must be delicately analyzed by experienced legal counsel. For example, the sentences imposed must be of six months or less. The 1996 IIRAIRA established a statutory definition of what constitutes a sentence for immigration purposes. A sentence includes "the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or part." For immigration purposes, if imposition of sentence has been suspended, there is no sentence (since the court has not ordered any confinement). But, court-ordered confinement of probation now counts as incarceration for this purpose. As you can see, the criminal sentence itself may preclude deportation. An experienced lawyer will be necessary to make this determination.

Is My Conviction a Crime Involving Moral Turpitude?
Once you have determined that you have a "conviction" for immigration purposes and that you do not fit within the exceptions, you must determine whether the crime itself involves moral turpitude. The easiest way to make this determination is to analyze crimes that do not involve moral turpitude.

The following are some common convictions that raise CIMT issues. Whether they will be found to involve moral turpitude depend on the statutory language of the offense and whether any of the above exceptions apply

Theft is a CIMT
Generally, if you are found guilty of stealing something, a judge will find you inadmissible for having committed a crime involving moral turpitude. For example, if you are caught stealing a pack of gum, you have committed a CIMT! Even petty theft will suffice. These theft offenses have different categories and names under state law. If you are found to have committed an offenses called larceny, larceny by trick, shoplifting, embezzlement. swindling, grand theft, burglary, or stealing, you will be found to have committed a CIMT so long as the theft was permanent. While a non-permanent theft will not suffice, practically speaking it will be extremely difficult to argue to a judge that you did not intend to permanently take something.

Continue reading "Immigration Lawyer Discusses Crimes Involving Moral Turpitude in Deportation and Removal" »

The popular H-1B Visa category allows foreign nationals to work inside the United States in a specialty occupation. This particular non-immigrant visa is specifically designed to allow persons with a college education or its equivalent to find employment with a United States employer. The foreign national need not have attended college in the U.S. in order to obtain an H-1B visa. In certain circumstances, the foreign national need not have attended college at all! What a prospective H-1B Beneficiary needs in the way of initial evidence is the appropriate credentials for the specialty occupation that the employer is hiring them for. These credentials may be proven in a variety of ways depending on the facts of the case.

H-1B Beneficiary's holding at last a Bachelor's degree

The completion of a bachelor's degree in the specialty occupation that the worker is hired for fulfills the minimum educational requirement for an H-1B visa. A foreign national who has obtained a bachelor's degree in an academic field related to the specialty occupation that they have been recruited for will usually have no problems fulfilling the academic credential requirements of the H-1B Visa.

Furthermore, many foreign nationals who obtain H-1B visas have gained their bachelor's degree at colleges outside of the United States. When this situation arises an academic equivalency evaluation needs to be done on the foreign degree. An academic equivalency evaluation can be done by several different types of organizations. Among the most popular and reliable ways to have an equivalency carried out is to hire a private company that specializes in researching foreign degrees and finding their equivalent in the United States degree nomenclature. Many times these private firms will offer a variety of specialized services for foreign nationals such as translation services and letters showing that a clooge degree is needed by a person attempting to fill the proposed job position.

These private credential evaluation services will require certain documents to carry out their research. First, the company will need a copy of all diplomas. Secondly, the company will need a copy of all academic transcripts in order to examine the courses that you have taken. Thirdly, any government issued licenses or certificates may also be submitted to show full eligibility for the specialty occupation that the alien wishes to fill. It is important to note that the United States Government as well as most private academic credential evaluation companies will need a certified English translation of all of the academic documents that are to be presented as evidence.

Translation of academic documents can be costly, so foreign nationals and/or employers must plan for this expense in advance. Credential evaluations can usually carried out by private companies in a week or less as a matter of course. Rush services are almost always available, however, as with any rush service, the cost will increase in hurried situations.

H-1B Visa for those foreign nationals who do not have a bachelor's degree

In certain situations, those foreign nationals who do not possess a bachelor's degree may be eligible for H-1B status based upon their prior work experience and/ or technical training. In most instances, those persons who have a technical degree or some formal training plus work experience in a specialty occupation will have an advantage over those who possess only experience. In cases of mixed education and work experience, an evaluation of the foreign national's work experience is conducted in conjunction with an analysis of the person's education. Many reputable private companies will conduct an evaluation of work experience.

What is usually required to conduct an evaluation of work experience is a detailed resume and letters from previous employers giving the dates of the work performed and the duties undertaken. The fee for this type of evaluation is usually more than that of an academic evaluation alone. This is because such an evaluation is often carried out by a professor. The USCIS prefers to have work experience evaluations carried out by a professor in the field and it is worth the added expense for this service if there is any doubt regarding educational requirements in a case.

Work experience alone may even qualify for the requisite education level to obtain an H-1B visa. The USCIS is usually more critical of those who rely solely on their experience to obtain an H-1B, so it is important to leave e no doubt in the minds of the adjudicator on this issue. The work experience must involve a gradual increase of responsibilities and increase in complexity over time. On-the-job training of ordinary tasks will usually not qualify for such an equivalency. Rather, the foreign national must show that he or she has applied specialized knowledge in their job that could only be learned from many years of experience or through formal education. As far as the years of experience necessary, the most cited successful cases involve H-1B Beneficiary's that possess twenty or so years of experience. However, it is important to remember that these cases are highly fact specific, so the years of experience necessary may vary.

Continue reading "H-1B Visa for Workers in a Specialty Occupation: The Educational Requirement" »