Immigration Visa Lawyer Blog

If you are the beneficiary of a family-based green card based on a petition filed by your U.S. citizen family member, you can be required to attend a green card interview. If you miss the green card interview, your case will be denied. However, if you need to reschedule your green card interview or if you have missed your green card interview, USCIS allows a solution to correct the problem. This articles addresses USCIS's guidance.

Request to Reschedule Interview: Biometrics
First, there are two types of appointments you will be required to undergo in a green card case through family. You will need to have a biometrics appointment then a green card interview. The biometrics interview will be set before the green card interview. If you need to change the date of the biometrics, simply follow the instructions on the notice (Form I-797). The instructions basically tell you to mail the original notice back to the local USCIS field office asking to change the date of the biometrics. Once you do that, you will receive a notice with a new date. Be sure to attend this biometrics as USCIS must have your fingerprints on file to issue your green card.

If you have missed the biometrics appointment through excusable neglect, you can be given a chance to reschedule. Disclaimer: this guidance is merely instructional. Do not miss your biometrics appointment without notifying USCIS in advance. USCIS local offices differ on how they treat a missed biometrics appointment. This advice is a last option for those who have missed their biometrics appointments due to exigent circumstances. If you have missed your biometrics appointment, schedule an info-pass appointment with the local USCIS office and explain the reasons you missed. Generally, they will let you go that same day and get your fingerprints taken. However, it is a risk and I do not recommend relying on any favors from USCIS. Once you have USCIS has taken your fingerprints, you will be required to attend your green card interview.

The Green Card Interview
The green card interview is a chance for USCIS to sit down with you and your U.S. citizen (or LPR) family member to discuss the relationship. If your green card is based on marriage to a U.S. citizen, USCIS will ask you questions regarding the bona-fides of the marriage. If you are a brother, sister, son or daughter, mother or father of a U.S. citizen, USCIS will ask questions regarding your family relationship and ensure that you are actually related in the manner indicated on the Form I-485. This is the last chance for USCIS to verify the bona fides of the relationship. If you do not show up to your interview, USCIS is required to deny the petition for abandonment. Hence, your attendance is absolutely mandatory. Therefore, the question arises: what do you do if you cannot attend the interview? USCIS offers the following guidance.

Request to Reschedule Interview: Green Card Interview
Prior to the date of the green card interview, you may either withdraw the petition or request to reschedule the interview based on good cause. USCIS's guidance to its adjudicators indicates that in order to reschedule the interview, the adjudicator must be convinced that the applicant is unable to attend the scheduled date because of circumstances beyond his or her control. If the adjudicator finds good cause for the applicant's inability to appear, the adjudicator will reschedule the green card interview and mail a new Form I-797C, Request for Applicant to Appear for Initial Interview. If, however, the adjudicator determines that no good cause exists, the adjudicator is instructed to deny the case for abondonment.

Continue reading "Columbus Immigration Lawyer: Guidance on Rescheduling a Green Card Interview " »

Innovation and start up businesses are going to be the driving force in the Columbus, Ohio economy over the next 20 years. Our firm provides immigration solutions in a variety of forms to businesses of all sizes and varieties, including H-1B visas and E-2 visas. Below, we have listed some of the most popular and useful visas for business owners, managers and human resources professionals to use in order to attract and retain the world's top talent. Our firm will help you grow your business along with the dynamic city of Columbus, Ohio as new business as well as social and economic diversity lead this city to the forefront of United States business centers in the 21st Century.

E-2 Visa Solutions for Small Business Investors

The E-2 investor visa is one of the most popular and useful of all visas for start up and small businesses. In fact, the basic purpose of this visa is to promote foreign investment into the United States. The variety and type of business that is eligible to use the E-2 visa is almost limitless. Some of the most useful advantages of this visa include the relatively low investment threshold of $100,000 that needs to be made by the foreign national into the business. The E-2 visa is also renewable for an unlimited amount of time so long as the business and foreign nationals continue to qualify for the visa. Additionally, the E-2 visa allows for the foreign national to bring their family's over to live and work in the United States.

Non-owners can also obtain E-2 status through a company held by a person on an E-2 visa. Such employees must be executives, supervisors or essential employees so long as the worker holds the same nationality of the E-2 owner.

E-2 Visa Requirements that all start up / small business owners must know

E-2 visas are not just handed out by the USCIS or consular posts. They take some intensive collaboration between attorney and client in order to showcase a startup ventures' attributes. There are also numerous pitfalls for the unwary that must be avoided such as the following:

The funds to be used in the business must be at risk. This means the non-recourse loans will not make the grade when it comes to E-2 investments. The capital invested in the venture must be secured by the investor's own assets. If a loan is required for the business start up, the loan must be tied to the investor's personal assets of some soft.

The funds must be in the process of being invested in the business, within immediate control of the investor. This means that money that is not in hand or is tucked away in some other investment cannot be used to show the investment necessary for the E-2 visa. Rather the funds must be in the investor's control at the time of filing for the visa. One way to nullify the risk of pinning hopes on an E-2 visa that is never won is to place the funds into escrow pending the approval of the E-2 visa.

The business must be a commercial enterprise that is for profit and not for the mere passive ownership of assets.

The investment must be substantial and not fractional compared to the value of the investment. If the business is not worth much money, the ownership stake of the E-2 visa holder must be higher. If the business is worth multi-millions of dollars, the E-2 visa holder can have a lower amount of the worth of the business at risk and invested in the business.

The business cannot be marginal, meaning it must have the potential to eventually provide for more than just a living for the E-2 investor. This proposes a problem for startups as many start ups start small, with little in the way of salary to show for a few years. However, with the aid of a five year business plan, it can be shown to the USCIS that the business has the potential to provide profits for the owner and job opportunities to American Workers.

An E-2 owner must show that he or she is gaining the visa to develop and control the business. This means that the investor must be taking a leadership role in the direction of the activities of the business and has the voting power to veto decisions regarding the business that he or she disagrees with.

Our firm has procured E-2 visas for various types of endeavors from franchises to farms and from grocery stores to gas stations. We have the experience and the ingenuity to aid your start up business as it ventures out in our states capital.

H-1B Visa Solutions for Small Business and Startup Organizations

The H-1B visa is an excellent non-immigrant visa solution for companies who seek to hire a foreign national who holds a bachelors degree in a specialty occupation or its equivalent. Many types of positions can be hired on an H-1B visa basis. Persons who work in a specialty occupation, persons providing assistance to the department of defense through research and development projects and even fashion models can all qualify for an H-1B visa.

H-1B visa requirements that every startup business should know

The employer must pay the employee the prevailing wage for that occupation as decided by the Department of Labor. This can place a financial strain on some start up businesses with limited budgets; however there are four levels of prevailing wage for each occupation. Usually it can be shown that the experience and e4ducation of the foreign national is commensurate with a wage level that is acceptable to the business and the Department of Labor

The employer must be a US employer that has control over the foreign national's day to day work activities. This means that the business must have a federal tax identification number and that the employer must be able to direct the work that the foreign national is doing even when he or she is off site.

H-1B visas are not for self petitioners. This means that the H-1B visa holder cannot be the owner of the business for which they work. There is some debate as to whether holding any type of ownership interest may defeat the H-1B petition, so such issues must be addressed on a case by case basis.

Many of the problems that small or startup organizations face involving H-1B petitions are showing that the occupation is a specialty occupation and the foreign national will not carry out only menial tasks that any person could be trained to perform without a formal education. There a four standards that guide employers in whether or not a position is a specialty occupation:

• A bachelor's degree or its equivalent is normally required for entry into the position
• A bachelor's degree is the norm in the industry for similar organizations, or the position is so complex or unique that a bachelor's degree is required
• The employer normally requires a bachelor's degree
• The nature of the specific duties are so complex that the attainment of a degree is usually associated with the position

These requirements are sometimes difficult for a start up business to show given that start ups usually do not have a long track record of positions with similar duties to highlight. However, with the aid of innovative legal counsel, at least one of these criteria can be successfully argued, and one is all that is needed to succeed.

Finally, it must be shown that the foreign national has the education or experience to qualify for the position offered. Most of the time this requirement is easily met where a person holds a bachelor's degree in a field that is related to the business. When a person's degree is not as congruent with the position offered, some extra time and effort is required to argue that person into the position. This is common where a foreign national does not have a bachelor's degree or holds only a three year bachelor's degree. Equivalency evaluations and experience evaluations can be conducted in order to show that the foreign national qualifies for the job offered.

Continue reading "Columbus Ohio Immigration and Visa Attorney Discusses Temporary Immigration Solutions for Start-up Companies and Small Business" »

This question has been raised by a few of our clients. If you have not turned in your I-94 upon departure, the US will have no record of your departure. This means, according to the US, you are still in the country because your departure was not recorded properly. This article offers assistance to correct this problem.

Ooops, I did not return my I-94 upon Departure
If you leave the country and the CBP (Customs and Border Patrol) officer forgets to collect your I-94, you will be ok if you left by airplane or a cruise ship. Your departure will be automatically verified. So, you do not need to contact the U.S. officials regarding your exit. To be safe, hold on to your outbound boarding pass. This will help CBP officials next time you enter the U.S. andit will expedite the re-entry process so you do not have to explain the error.

However, if you left the U.S. by crossing the boarder on foot or a private plane, you need to take the following actions so that the U.S. government can properly track your exit. The reason for this is that if you don't validate your exit from the U.S., or if you cannot reasonably prove you departed within the time frame given to you when you entered, the next time you apply for admission to the United States, the CBP officer presumes you stayed in the country past your authorized period of stay indicated on the I-94 arrival record. This can cause CBP to summarily dismiss you from the country. Or if you applied for a visa at a U.S. consulate abroad, it may cause CBP to cancel the visa at the border causing you to have to return home and do the process all over again! If you leave on foot or by private plane and did not turn in your I-94, then the following guidelines will govern what steps you need to take.

Entered under the Visa Waiver Program (VWP)
You must register your exit if you entered pursuant to the VWP. This is because if your I-94 was not taken by a CBP officer when you left, and you entered under the VWP you cannot re-enter the U.S. unless you obtain a visa at a consulate abroad. This is because under the Visa Waiver Program, foreign nationals who remain beyond their authorized stay in the U.S. cannot reenter the U.S. in the future without obtaining a visa from a U.S. Consulate. This is applicable to those foreign nationals who leave the U.S. by land through Canada or Mexico to catch an onward flight home. If you do not register your exit within a reasonable time and you try to re-enter the U.S., the CBP officer will very likely order your immediate return home. Do not worry if you are a VWP visitor and you left the U.S. by a commercial aircraft or cruise ship.

Registering your Exit
To register your exit, first send your I-94 departure record together with any evidence that proves you left the United States to:

DHS - CBP SBU 1084 South Laurel Road London, KY 40744

You do not want to mail your I-94 to any U.S. consulate abroad or to the CBP. Simply mail it to the above address and your information will be updated. Mail the I-94 with as much of the information of your exit as possible. CBP will consider any of the following:

• If you flew home from Canada or Mexico, send the boarding passes from those countries
• Send copies of all the pages of your passport including the departure stamp indicating your entry to another country
• Pay stubs from your employer to show you worked in another country after you left.
• Bank statements showing transactions in another country after you left the United States.
• Any school records showing you attended school in another country after you left the United States, and
• Other such evidence showing that you were living abroad after you left the United States.

Continue reading "Columbus Immigration Lawyer: What happens if I left the U.S. and did not return my I-94 (Departure Record) to CBP?" »

The USCIS's interpretation of the January 2010 Neufeld Memo continues to cause trouble for IT consulting companies. USCIS has recently been issuing RFE's as a matter of course where an IT consulting company is attempting to move an H-1B Visa consultant off an assignment and place them in-house to implement a project at the employer's headquarters. In the latest round of RFE's, USCIS simply does not believe that IT consulting companies have an in-house project and are seeking detailed documentation proving one exists.

The H-1B "In-House" Request for Evidence ("RFE")

When the H-1B beneficiary will be placed on an in-house project at the employer's location, USCIS will ask that the employer prove the petitioner has sufficient "specialty occupation" work for the beneficiary on the project. Translation: USCIS doesn't believe the in-house project exists. Why? They think that this is a round about way for the employer to bench the employee while it seeks another assignment. USCIS understands what IT consulting companies do and is trying at great lengths to shut down the entire industry. Hence, the Neufeld memo, the $2,000 "Obama fee," the endless RFE's, and the arbitrary denials. But there is hope! Following these guidelines will increase the chances of success ten fold.

To prove the in-house project exists, USCIS is seeking the following evidence:

• Copy of signed Employment Agreement between you and beneficiary detailing the terms and conditions of employment;
• Copy of an employment offer letter that clearly describes the nature of the employer-employee relationship and the services to be performed by the beneficiary;
• Copy of relevant portions of valid contracts, statements of work, work orders, service agreements, and letters between you and the authorized officials of the ultimate end-client companies to whom the end product or services worked on by the beneficiary will be delivered;
• Copy of a position description or any other documentation that describes the skills required to perform the job offered, the tools needed to perform the job, the product to be developed or the service to be provided, the method of payment, whether the work to be performed is part of your regular business, the provision of employee benefits, and the tax treatment of the beneficiary by you;
• Evidence of sufficient production space and equipment to support the beneficiary's specialty occupation work.
• Copies of critical reviews of your software in trade journals that describes the purpose of the software, its cost, and its ranking among similarly produced software manufacturers;
• Proof of your software inventory;
• Proof of sufficient warehouse space to store your software inventory;
• Copy of the marketing analysis for your final software product;
• Copy of the cost analysis for your software product;
• Evidence of sufficient production space and equipment to support the production of your software.

Tips for Obtaining an Approval for "In-House" Employment

Immigration lawyers have learned that these "in-house" RFE's are basically looking for the money. In other words, if a company has an in-house project that requires an IT professional's services for three years, then the company must have made substantial capital expeditures for the project. USCIS realizes this and wants to see entire project summary from the invoices to the project plans to the cubical that the consultant will be working at! The employer must submit detailed responsive documents that are probative and veracious (meaning it is both useful and truthful) and that are professional. An employer simply cannot submit documents created hastily in an effort to make a response. The petition will be denied if this is the case.

Third Party Placement Scenario and In House Employment: Trouble Lurking!

It gets more interesting (and more burdensome on the petitioner and lawyer) when the employee is on assignment then is expected to return to the corporate office for an in house project. In this scenario, the Neufeld Memo must be addressed along with the above documentation. This changes the typical H-1B visa from relatively straight forward to very difficult. It's like going from making a backyard rocket launcher kit to building the NASA Space Shuttle! Ok ok, perhaps I'm speaking in superlatives but the point has been made. It's much more difficult.

Continue reading "Columbus H-1B Immigration Lawyer: Requests for Evidence of "In-House" Employment for IT Consulting Companies" »

Registration for the 2010 Diversity Visa Program opened again on October 5, 2010 and will remain open until November 3, 2010. This means that right now there is a great opportunity for forging nationals of qualifying countries to file and plan ahead for the prospect of receiving a Green Card from this fantastic program. This fiscal year, 50,000 diversity visas have been made available for persons who come from underrepresented regions of the world and from countries that send less than 50,000 immigrants to the United States per year. However, to qualify for this program, the applicant must follow some simple yet strict eligibility requirements. Below, we have provided some general guidance for interested immigrants to study as they consider this fantastic opportunity.

Foreign National Must Be From a Country of Eligibility

Only foreign nationals of certain countries that are underrepresented in immigration to the United States may qualify for the diversity visa lottery. Foreign nationals from countries that have sent over 50,000 immigrants to the United States in the past year are not eligible. A list of the countries that are not eligible this year for the DV lottery is as follows:

BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PERU, PHILIPPINES, POLAND, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM.

Persons from countries not listed above are eligible to apply to the DV Visa lottery. Additionally, a person may use the nationality of his or her spouse to register for the lottery if the couple was married before registration for the DV lottery. Must have a High School Diploma or Work Experience Equivalent

The diversity lottery is only available to those persons who have a high school education or two years of experience in certain occupations. The Department of State has given clarification to what it means by "high school education" and "work experience."

High School diploma means that the foreign national must be able to provide academic records that would enable him or her to enroll at a United States university. Basically, this means that the high school diploma must have been gained from a twelve year program of primary and secondary school education. Diplomas from correspondence programs and General Education Diplomas are not accepted for the diversity visa lottery.

The work experience that qualifies an applicant for the DV lottery is two (2) years of work experience within the last five (5) most recent years in an occupation that requires at least two (2) years of training or experience. The Department of State decides which occupations require at least two years of experience to perform by looking to the O*NET occupational rating systems that has been set up by the Department of Labor. O*NET rates how much preparation is needed for certain jobs by assigning them a "job zone" rating of one through five. Level one jobs need the least preparation and level five jobs need the most preparation to perform. For purposes of the DV lottery, only jobs with a ranking of four or five will qualify for the necessary experience needed for persons to apply without a high school diploma. Please utilize the drop down menu at this link to find the job zone number of the job you possess.

Requirement of obtaining the visa within the fiscal year of application

Visas for winners of the diversity lottery must have their visa issued between October 1, 2011 and September 30, 2012. Foreign nationals who are currently present in the United States may adjust their status with the USCIS, provided they are eligible for an adjustment of status. A common problem occurs when a foreign national is present in the United States on J-1 status. In such cases, a waiver of the requirement that the foreign national return home must be had. There is only a short amount of time to receive the visa, so waiver cases must be anticipated and completed quickly.

Continue reading "Columbus, Ohio Immigration Lawyer Discusses Diversity Immigrants: The DV Lottery" »