Immigration Visa Lawyer Blog

If you have had an H-1B visa approved but never joined an employer in H-1B visa status; if you have had H-1B visa status previously but have been out without a job for a while but now wish to get back in status; if you have had H-1B visa status but are now outside the US and wish to return to the US quickly because of a job offer; if have been out of status because of a technical violation that you had not control over and now wish to get back in status, you should read this three part article to understand how to deal with some of the more complex H-1B visa scenarios. Remember that competent immigration counsel should carefully analyze your visa issues and help you find solutions, if possible, to achieving your goals.

Scenario 1. Joe Previously Received H-1B Visa Approval but Never Joined Any Employer while on H-1B Status

Question 1. Can Joe Join a New Employer and Begin Working Immediately Upon the Filing of an H-1B Visa Petition?

Joe is an example of many foreign nationals who could not join the employer that had sponsored his H-1B visa petition due to the recent economic downturn. In this example Joe may have been in student "F-1" visa status, and had an employer file a cap subject H-1B visa petition which was successfully accepted and adjudicated. However, Joe never joined the employer who sponsored his H-1B visa. Instead, Joe elected to stay in the US in a different visa status altogether. Now, Joe found another employer who wishes to have Joe join its company on H-1B visa. Does Joe need another cap subject petition to be filed? Can Joe join the new employer upon the filing of an H-1B visa petition thereby taking advantage of the portability provision? Joe knows that if he is required to have a cap subject H-1B visa filed again that he could not join the new employer until after October.

This is an awkward scenario, but believe it or not, I have seen it frequently recently. The first question in this inquiry is whether Joe requires the filing of another cap subject H-1B visa and the answer is NO. The rule states that once Joe had been counted towards the cap, he can avoid having to have another cap subject H-1B visa petition filed on his behalf for six (6) years. Once we have answered this important question in the negative, we must now answer the next question: can Joe join the new employer upon the filing of an H-1B visa petition with the new employer, and the answer again s NO.

In order for Joe to take advantage of the H-1B visa portability provision, three conditions must be met: 1) Joe must had previously held an H-1B visa or status; 2) an employer must file a bona fide H-1B visa petition on this behalf; and 3) Joe must have not engaged in unauthorized employment previously. In this case scenario, although Joe had an approved H-1B visa petition, he never joined that employer hence he never held H-1B visa status. In order to receive H-1B visa status, the foreign national must be employed by the petitioning employer, which did not happen in this example. Therefore, Joe fails to satisfy one of three required criteria for H-1B visa portability in that he never held H-1B visa status. This does not mean that Joe must take certain drastic measures to join the new employer. This means that Joe may not join the new employer upon the filing of the H-1B visa petition. Joe must simply wait for the H-1B visa to be approved prior to joining the new employer. Obviously Joe may avail himself to the Premium Processing Service and obtain adjudication of the H-1B visa petition faster in order to join the employer sooner.

Continue reading "Analysis of H-1B Visa Transfer Viability In the Face of Visa Irregularities - Part 1" »

This article discusses some common immigration law issues facing forign nationals and their quest for green card in order to be reunited with their US Citizens fiances.

The union of a US Citizen and a foreign national is one full of heightened anticipation. After all, it is the blend of two cultures into a new one and often the acceptance of religious and lingual differences. Suffice it to say, such unions bring together unique issues that are both joyful and at times, stressful. In the midst of these forces, US Citizens find themselves dealing with yet another complex system, the US immigration laws, to facilitate their union with their foreign significant others. Depending on where their foreign spouse or fiancés are located, the process to legalize the foreign national takes on different procedural and substantive strategies. This article describes different solutions for US Citizens wishing to be united with a US Citizen fiancé or spouse.

Green Card as a Wedding Present, Please?

Traditionally, when individuals get engaged, the next logical milestone in their relationship is to get married. The plans to get married, however, do not normally coincide with the immigration processes imposed by bureaucratic agencies. For instance, a K-1 fiancé visa could take more than 6 months to enable to foreign fiancé to enter the US. Unfortunately, couples sometimes resort to solutions that may be contrary to acceptable legal standards which could jeopardize their chances of receiving proper immigration documents. Such attempts are often caused by ignorance or misunderstanding of the manner in which US immigration rules work.

Changed Feelings or Changed Circumstances?

For example, fiancés of US Citizens whose last entry in the US was procured by utilizing a visitor's visa or a visa waiver pilot program, should exercise extreme caution when attempting to marry once in the US and subsequently apply for permanent residence. US immigration regulations could treat certain attempts by visitor entrants to subsequently legalize as means to circumvent the immigration laws by using the visitor visa program to gain immigration access to the US. In other words, a foreign fiancé who decided to enter the US on a visitor's visa and shortly thereafter marries a US Citizen and applies for green card risks being charged with procuring a fraudulent entry into the US. The exception to this rule is the passage of time and "changed circumstances" from the time of entry and the time of applying for permanent residence. So long as the foreign national could prove that her initial entry in the US was in good faith, and that the plans to get married did not precede her most recent entry, then the application may be successful. Our law firm had represented many clients and successfully proved the existence of "changed circumstances" with substantial documentation to negate any hint of misfeasance.

Foreign fiancés of US Citizens should avoid entering the US on a visitor's visa as such entry is wrought with potential legal obstacles. As explained, if the reader's fiancé or you are a foreign fiancé and you entered the US on a visitor's visa or a visa waiver program, you should carefully consult the facts of your situation with an experienced lawyer prior to applying for permanent residence.

The Fiancé Visa Process

The recommended process for foreign fiancés is to apply for a "K-1" fiancé visa. To qualify, the couple must have met at least once within the two prior years, must be able to enter into legal marriage at the time of the application and there are no legal impediments to the marriage itself. The fiancé visa process begins by applying for a fiancé visa before the USCIS by providing the aforementioned evidence. Once the fiancé visa application is approved, the application will then be forwarded to the US consulate nearest to the residence of the foreign national to conduct an interview. The foreign national must have a medical examination and pay a processing fee. The interview before the US Consulate is intended to test the truthfulness of the relationship. Once approved the foreign national's passport will be stamped with a K-1 visa. Once the foreign national enters the US, she or he has only 90 days to marry the US Citizen AND apply for adjustment of status to that of a permanent residence, or return back home.

A Breakup Can Cost More than a Broken Heart

It must be remembered that a fiancé visa recipient can never change his status to any other visa type of any kind other than through a marriage to the US Citizen who initially processed the fiancé visa petition. Take for example Majeed, a Moroccan national whose US Citizen fiancé, Sally, met him was vacationing in Casablanca. Sally instantly fell in love and petitioned for Majeed to enter the US on a fiancé visa. Majeed does enter the US on a fiancé visa and after living with Sally for 60 days, decides that he could not marry her. Instead of returning back to Morocco at the end of the 90 day period, Majeed remains in the US. Majeed remains in the US for 2 years after he breaks up with Sally. He now meets with Patricia and both fall in love and Majeed is certain that Patricia is the one for him. But Majeed's dreams to receive permanent residence soon evaporate after visiting with an immigration lawyer.

Continue reading "Columbus Ohio Immigration Lawyer On Critical Issues Facing Foreign Fiancés of US Citizens " »

In face of layoffs, most employers shy away from filing PERM applications under the erroneous perception that the PERM regulations prevent them from doing so. This article discusses the consequences of layoffs and processing PERM labor certification applications; it also discusses the employer's legal obligations in proceeding with the PERM application process despite recent layoffs.

I. PERM and Layoffs

The collapse of the financial infrastructure in the US has had a Domino effect on every sector in our economy. As a result, many organizations find themselves in economic crisis which resulted in massive layoffs almost in every aspect of our workforce. Notwithstanding layoffs, organizations still desire to process permanent labor certificate applications on behalf of certain foreign national professionals. PERM regulations, however, place certain restrictions on organizations and firms which experienced layoffs that could prevent them from taking advantage of this program.

II. History of the PERM Process

PERM stands for Permanent Electronic Review Management introduced by the US Department Labor in March of 2005 to replace the prior process which had been in existence since the 1980's. The regulatory directives of the PERM process evolved from a predecessor process called Reduction In Recruitment ("RIR"). Even though PERM regulatory provisions have their roots in the prior RIR process, RIR itself was an ad hoc administrative procedure introduced by the USDOL during the Y2K era. At that time, there was a documented shortage of certain professionals in the information technology filed which necessitated an agile administrative process for the permanent employment of certain foreign professionals. Hence, RIR was a modification of a prior process known as "supervised recruitment" for labor certification which was truly an administrative nightmare including overlapping steps between the State Workforce Agencies ("SWA")and the US Department of Labor. The SWA's approved the recruitment language and mode of recruitment and supervised all the resumes received throughout the recruitment process itself. It took more than 2 years to process a Labor Certificate application prior to the introduction of RIR. The most important aspect s of RIR process that survived the PERM regulations are the idea that all recruitment for the labor certificate application must precede the filing of the application itself.

III. Current Regulatory Directives and Layoffs

PERM regulatory provisions under 20 CFR §656.17(k)(1) require employers to provide notice and to consider all similarly situated U.S. workers which it had laid off within the same geographical area in the six months immediately preceding the filing of the labor certification. Put in different words, an employer may not successfully file a labor certificate application unless it engages in a specific process for consideration of all qualified US workers which it had laid off in the six months prior to filing the labor certificate application on behalf of a foreign national for a particular occupational classification. This process is intended to prevent US workers from dismissing US workers and replacing such US workers with foreign labor who are perceived to accept less favorable working conditions and compensation. This specific regulatory provision was not necessarily mandatory in the pre-PERM rules governing the RIR process. However, the Certifying Officer had authority to deny or remand the labor certificate application for additional recruitment if he believed that the specific occupational classification experienced layoffs within the geographic area. Hence, it is important to note that the current regulatory provision is an extension of the prior position the US Department of Labor had regarding layoffs.

It is important to remember that the PERM regulations have two important criteria that must be examined more closely. If there have been layoffs in the geographic area in the occupational classification that is the subject of the labor certificate application that the employer must notify and consider all qualified US workers who had been laid off within the prior six months. It is thus critical to understand in great detail what is considered layoff, the geographic area, and the particular occupational classification.

IV. Layoffs Defined in the PERM Regulations

The definition of layoff is rather expansive and it includes any involuntary separation of one or more employees without cause or prejudice. Any such separation that is characterized as "attrition," "reduction in force," "downsizing" or "restructuring" which results in the loss of US workers without cause is covered as layoffs pursuant to USDOL directives.

V. Occupational Classification Defined

In analyzing the effect of company layoffs on the manner in which the PERM application should proceed and in deciding whether the employer has an obligation to "notify and consider" qualified US workers who had been laid off in the six months prior to the filing of the PERM application it is important to understand how the regulations define the same occupational classification. If the employer is able to distinguish the occupational classification on which the PERM application is based, then it will not be subject to the "notify and consider" requirements. The regulations define an occupational classification is rather expansive, however. More specifically, the regulations focus on the "majority of the essential duties" not necessarily on the title of the position in question to determine whether the position giving rise to the PERM application is the same or "related" occupation. If comparison of the majority of the essential duties between the occupation for which PERM is sought are the same or similar to position wherein a US worker was laid off within the prior 6 months, then the employer is required to "notify" and "consider" US workers who were laid off within the six months prior. On the other hand, if the comparison between the position on which the PERM application is based and those of the laid US workers yields a significance in the majority of duties, then the employer is absolved from notifying or considering any US workers who had been laid off within the prior six months.

Example.

ACME Insurance Company is desirous to file a PERM application for a Programmer Analyst who works in its IT Department in the Washington DC. The immigration counsel was advised that the company laid off 150 employees within the last 90 days. The immigration counsel was concerned whether these employees need to be notified considered pursuant to regulations since they were laid off within the last six months. Upon examination of the position description of these laid off employees, it was discovered that they all were call center operators and not connected in any manner to the information technology field. On that basis, the immigration counsel determined that the "notify and consider" provision of the regulations does not apply.

It is for that reason that qualified and skilled immigration counsel should be consulted to make certain that the position giving rise to the PERM application is not considered similar or related to any potential position that has been or may be subject to layoff. It is that kind of planning that could make or break a PERM application in the face of today's layoffs.

VI. How Does the Employer Effectively "Notify and Consider" Laid Off Workers?

As mentioned, under PERM regulations, the employer wishing to file a PERM application for a foreign national whose job duties are similar or are related to that of US workers who were laid off or terminated without cause within the six months preceding the filing of a labor certificate application, must notify and consider such qualified US workers for the specific position. But what constitutes acceptable norms of notification and consideration? The answer is not clear in the regulations as they do not specify how the employer is required to notify such laid off US workers. The American Immigration Lawyers Association attempted to find out through liaison communication as to what the USDOL considers sufficient forms of notification. Would email, phone calls, or other forms of written communication suffice? The USDOL had not responded in approval to any of the aforementioned methods. Hence, it continues to be a mystery as to what constitutes proper notification methodologies. Competent immigration counsel will make certain that the employer documents every conceivable mode of communication with US workers to make certain that its attempts are considered within the realm of "good faith recruitment efforts" which underlie the PERM process.

Continue reading "Immigration Lawyer in Columbus, Ohio Re: PERM Processing in An Envorenment of Layoffs" »

The Regional Center Pilot Program is a subcategory of the Employment Based Fifth Preference Immigrant category also known as EB-5 or the Alien Entrepreneur Program. The program was first instituted in 1992. Three thousand of the 10,000 total available EB-5 visas are set aside for aliens who invest in a US Citizenship & Immigration Service ("USCIS") designated "regional center" in the United States organized ''for the promotion of economic growth, including improved regional productivity, job creation, and increased domestic capital investment.''

A Regional Center is defined as any economic unit, public or private, which is involved with the promotion of economic growth, improved regional productivity, job creation, and increased domestic capital investment. The advantage of creating a "regional center" is that it is pre-approved by the USCIS for investors to receive permanent residence on an expedited basis.

The alternative to a creating a regional center is when a foreign investor establishes his or her own enterprise for the purpose of investing capital which would lead to permanent residence. This is what is called an individual (in comparison to a regional) EB-5 application. Such foreign investor must show that he had invested or is actively in the process of investment of at least $1,000,000 (or $500,000 in a targeted employment area) into a new commercial enterprise which would employ at least 10 US workers. A foreign investor investing in a new commercial enterprise affiliated with and located in a regional center is not required to demonstrate that the new commercial enterprise itself directly employs ten U.S. workers; a showing of indirect job creation and improved regional productivity will suffice. Another advantage of creating a regional center is that it provides permanent residence to the foreign investor on much more expedited basis that would an individual EB-5 application. For instance, once the regional center is approved, a foreign investor could receive permanent residence in 6 months as compared to at least one year when an individual EB-5 application is sought.

The Process of Creating a Regional Center

III. Creating the Organizational Infrastructure of the Regional Center
It is imperative to retain the services of experienced legal counsel who would draft the corporate or organizing documents which would establish the legal entity or entities operating the regional center and the future investment opportunities. There are several issues that must be considered when selecting the most appropriate organizational structure that would achieve the regional center administrator's short and long term goals. The organizational structure must weigh the regional center's liabilities in the face of capital raising endeavor. There are potential securities regulations issue that must also be considered as well as the corporate matters. Ultimately, the corporate lawyer will not only draft the organizational structure of the Regional Center, she will also draft the agreements between the future foreign investors and the regional center administrators. There has been numerous incidences of litigation in this area, and the corporate counsel must carefully study the failures of others in order to avoid the same pitfalls.

A. The Geographic boundaries of The Regional Center

The first step in creating a regional center is identifying the geographic area which would encompass the boundaries of the planned commercial enterprise. Any jobs claimed to have been created either directly or indirectly by the planned commercial activity that forms the basis of the regional center must be located within the geographic boundaries of the regional center itself. In addition, the regional center planners must show that their planned commercial activities will benefit the area. While there exists a natural desire to enlarge the regional center boundaries to include as many "indirect jobs" as possible, there is also the desire to limit the boundaries of the regional center to maximize on the positive economic impact brought about the planned commercial endeavor. Hence, the delineation of the boundaries of the regional center must be undertaken with great care thereby balancing these opposing objectives.
Put in other way, the higher the population of the area encompassing the regional center, the less impact per capita will the regional center inure.

The boundaries of the regional center should not be gerrymandered to avoid pockets of high population concentration as the USCIS will look disfavorably at such application as lacking in genuineness. The choice of the boundaries of the regional center in this case must be done in consultation with a credible economic and legal counsel to study the benefits and costs of including some or all of the proposed dairy operations into one regional center.

B. The Economic Study

The regulations require the planners of a proposed regional center to present a credible economic study which has the following main components:

• How the regional center plans to focus on a geographical region within the U.S., and must explain how the regional center will achieve the required economic growth within this regional area;

• That the regional center's business plan can be relied upon as a viable business model grounded in reasonable and credible estimates and assumptions for market conditions, project costs, and activity timelines;

• How in verifiable detail (using economic models in some instances) jobs will be created directly or indirectly through capital investments made in accordance with the regional center's business plan; and

• The amount and source of capital committed to the project and the promotional efforts made and planned for the business project.

The planning and execution of an economic study is a major undertaking as the economic, business and legal objectives may not overlap and the parties representing these interests must work closely and in tandem to achieve the "point of equilibrium" of these competing goals. Once the economic study is complete and reviewed, the next step in the establishmnet of a regional center is to present it to the USCIS with the required immigration forms. The USCIS will review the proposal and may have several questions before approving the petition which would establish the regional center. Once the regional center is approved, it is now ready for foreign investors to apply for permanent residence through investing capital into the regional center directly.

It must be noted that subsequent to the approval of the regional center the USCIS expects the regional center administrators to stand in the shows of the USCIS in managing the regional center moving forward. The USCIS has recently expressed that it will withdraw approval from regional centers which will not comply with the regulatory directives relative to the basic EB-5 program itself insofar as they apply to regional cetners. The relevant points the USCIS identified recently include:
• Establish representative point of contact with USCIS;
• Documentation of due diligence relative to alien's source of funds;
• Documentation of evaluation, oversight and follow up of any proposed commercial activity that will be utilized by the alien investor to create new jobs.
• Inventory of all participating aliens, nationality, address in the US, etc.
• Categories of business activities within the geographic boundaries of the regional center;
• Documentation relative to each job creating commercial enterprise located within the commercial enterprise;
• Amount of alien investor capital and amounts of other domestic capital that has been invested together in each job creating commercial enterprise.
• Total aggregate of approved EB-5 alien investor petitions for each fiscal year.
• Total aggregate of "new" direct and/or indirect jobs created by the EB-5 investor through the regional center for each fiscal year from inception.
• Total aggregate "preserved" jobs by the EB-5 alien investors into troubled business if applicable.
• Notification of any fiscal year not having investors participating with explanation and plans to procure investments.
• Notification within 30 days of any material change.

C. The Permanent Residence Application Process

The process begins by filing an Immigrant Petition for Alien Entrepreneur with the USCIS at the California Service Center which has jurisdiction over the administration of the alien entrepreneur program.

As mentioned previously, the foreign investor can only file for his or her immigrant petition after proof of investment is submitted and after the regional center had been approved by the USCIS. Once the Immigrant petition is approved, the foreign investor is now ready to apply for permanent residence along with his immediate dependents.
Permanent residence is initially issued conditionally for 2 years after which the foreign investor must file again to remove the conditions. In the subsequent application, the foreign investor must prove that the terms and conditions on which the regional center was created continue and remain intact throughout the 2 year period. Once the USCIS is satisfied that such conditions are met, the foreign investor receives permanent residence for 10 years.

Sen. John Kyl, R-Ariz. said yesterday in an interview on "Face the Nation" that illegal aliens' children should not be citizens.

Senator Kyl Wants to Abolish the 14th Amendment
In an interview on "Face the Nation," Senator Kyl said that he supports Congressional hearings to repeal the Fourteenth Amendment. Basically, the 14th Amendment to the U.S. Constitution grants citizenship to any person born on U.S. soil by what is called "birthright" citizenship.

The argument by Senator Kyl is that the U.S. should not grant citizenship to children if both parents are present in the U.S. illegally. Senator Kyl speciously argues that repealing the 14th Amendment would stop illegal immigration. What would stop illegal immigration is by providing comprehensive immigration reform giving unskilled workers a path to U.S. citizenship both from abroad and within U.S. boundaries. The 14th Amendment was a terrific advancement of civil rights. It was enacted shortly after the Civil War to advance the rights of slaves. The 14th Amendment allowed slaves' children to be citizens just by being born in the U.S. The 14th Amendment has provided citizenship to millions of persons born in the U.S. and has become a cornerstone of American civil rights.

Hey Senator Kyle: Don't Tread on Me!
The 14th Amendment's "birthright" citizenship, along with due process and equal protection, is enshrined into the fabric of U.S. constitutional history. Putting an abrupt end to birthright citizenship would be unconstitutional, impractical, expensive, complicated and it would not stop illegal immigration. France does not grant automatic citizenship to children of undocumented aliens and that country has a real crisis on its hands. Parents are denying they have kids, hiding them from authorities in attics and closets. Authorities are even picking kids up at schools and on playgrounds! Imagine the photographs of incarcerated children and crying mothers hugging their kids - the U.S. should be a party to this and as President Obama said in the run-up to the 2008 presidential elections, "We can do better!"

We cannot fix the problem of illegal immigration by stripping the fundamental civil liberties that the U.S. Constitution provides. We must address comprehensive immigration reform in a thoughtful and deliberate manner. We can do better! Senator Kyl needs to understand bowing to his neo-fundamentalist constituants is not the way build a brighter future for America and those people who call it home.