Immigration Visa Lawyer Blog

U.S. Citizenship and Immigration Services (USCIS) has announced a plan to improve the filing and processing of naturalization and citizenship applications. It says that the changes will streamline both he processing of forms through the various local and regional offices and the collection of fees. The changes should also, it claims, bring more consistency to the agency's intake process. Overall, the agency hopes the system will run more efficiently as a result.

Effective Sunday, October 30, individuals seeking naturalization as a United States citizen will submit specific forms to a specific "Lockbox" instead of their local USCIS office. This will get the forms through the appropriate channels faster by skipping at least one level of bureaucracy. Until Friday, December 2, 2011, forms still sent to a local USCIS office will be forwarded to the appropriate Lockbox. After that date, local offices will return forms to the sender. People applying for naturalization and the immigration attorneys who help them should be aware of this in particular, since return mail could cause an applicant to lose substantial time in the application process.

These new procedures apply to four forms used in naturalization:

- Form N-300, Application to File Declaration of Intention. Legal permanent residents file this form to indicate their intent top become a U.S. citizen. It is not strictly required by USCIS for naturalization, but it may be necessary for some purposes under the law of some states, such as obtaining a business license. The fee for this form is $250, and it goes to the Lockbox location in Dallas, Texas.

- Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings. An applicant for naturalization who has received an unfavorable decision (e.g. a denial) may request a hearing before a new immigration officer. The fee for this form in most cases is $650, and it is filed at the Phoenix, Arizona Lockbox. If timely filed, a hearing should be scheduled within 180 days from the filing date.

- Form N-600, Application for Certificate of Citizenship. This form allows a person residing in the United States to obtain documentation of citizenship based on citizen parentage. It is available to people born outside of the United States to at least one U.S. citizen parent (or legally adopted by at least one). The fee for a N-600 is $600 in most cases, and it is filed at the Lockbox in Phoenix, Arizona.

- Form N-600K, Application for Citizenship and Issuance of Certificate Under Section 322. This allows a child residing outside of the United States who has at least one U.S. citizen parent to claim citizenship. It is similar to Form N-600 described above. This form also costs $600 in most cases and is filed in Phoenix, Arizona. Applications filed on behalf of children born overseas to members of the Armed Forces are filed in Lincoln, Nebraska.

Continue reading "USCIS Announces Plan to Streamline Filing of Citizenship Forms" »

Immigration law sets a limit on the number of foreign workers with highly specialized job skills that can come to the United States in a particular fiscal year. These limits can affect workers in certain countries more than others. Legislation introduced in the House of Representatives by Utah Republican Jason Chaffetz may change that. The bill, called the Fairness for High-Skilled Immigrants Act, would remove the limit on the number of immigrant visas authorized for workers from countries with a significantly higher number of immigrant petitions.

Congress sets a cap on the total number of visas for skilled workers, known as employment-based (EB) visas for permanent workers and H-1B visas for temporary workers, that may be issued in a given fiscal year (October 1 to September 30). About 140,000 EB visas are issued per fiscal year. EB visas are available in five preference categories, designated EB-1 to EB-5. EB-1 workers include professors, executives, and people of "extraordinary ability." The preference categories determine the order in which visas are granted, but they should not necessarily be construed as a judgment as to a worker's value. According to U.S. Citizenship and Immigration Services (USCIS), most workers seeking the H-1B visa are subject to an annual cap of 65,000 total visas.

In addition to the overall cap number for EB visas, decades ago Congress established allocations of visas available for specific countries. Immigration law states that no more than 7% of the total number of visa petitions filed in a fiscal year may go to workers from a single country. As workers from different countries seek to immigrate to the U.S. at different rates, this creates significant differences in waiting periods.

The U.S. Department of State issues a monthly Visa Bulletin, which collects data from consular posts around the world listing immigrant visa petitions received in categories with numerical limitations. The monthly bulletins offer an idea of how long petitioners from certain areas and in certain categories must wait. For EB-1 applicants, USCIS is often up-to-date on reviewing and approving or denying petitions. For lower-priority applicants, there is often a backlog. For lower-priority applicants from "oversubscribed" countries, the wait can be very long. "Oversubscribed" countries are ones where the number of petitions receive routinely exceed the 7% limit set by statute. Mexico, India, the Philippines, and mainland China are all considered oversubscribed. Applicants from these countries can wait years for a decision.

Continue reading "New Bill in Congress Proposes Increasing Immigration of Highly-Skilled Workers" »

On May 26, 2011 the US Supreme Court ruled that Arizona's mandatory E-Verify law is constitutional and can go forward thereby requiring all businesses operating in the State of Arizona to use this federally created voluntary pilot system, on a mandatory basis. A month later, the Ohio Legislature introduced Senate Bill 286 which is an Arizona E-Verify copycat bill, purporting to also mandate Ohio businesses to use the E-Verify employment eligibility verification online system. This article will explain that the proposed Ohio E-Verify law is bad for Ohio's businesses and bad for Ohio's economy. The current E-Verify system is riddled with inaccuracies and a mandatory compliance law will cost Ohio employers and citizens millions of dollars in administrative overhead and down time.

The Arizona Case

The US Chamber of Commerce had sued the State claiming that federal immigration laws may not be enforced by any State and that such enforcement is exclusively reserved for the federal government. They cited the sweeping 1986 immigration reform which stripped the States from any ability to undertake any such enforcement actions. In reality, however, Congress did leave a clause in such laws allowing the states to legislate regarding "all licenses necessary to operate the business." It was from this narrow clause was that the State of Arizona able to successfully defeat the constitutional challenge to its E-Verify legislation.

In a 5-3 ruling, Chief Justice John Roberts wrote the majority opinion stating that Arizona had the authority to legislate enforcement provisions for its employment verification apparatus. "We hold that Arizona's licensing law falls well within the confines of the authority Congress chose to leave to the states and therefore is not expressly preempted," the Chief Justice ruled.

The Ohio Mandatory E-Verify Proposal

Ohio's E-Verify copycat legislation was introduced in the Ohio Senate on Wednesday June 29, 2011. Representatives Combs and Bubp introduced this bill, which would require all Ohio employers - both public and private - to use the E-Verify system in ensuring the employment eligibility of new hires. The bill also outlines provisions for filing complaints and sanctions for employers that hire illegal aliens, which include firing all such workers, revocations of business license as well as criminal liability for violators. As of the date of this article, this proposed law was not referred to committee.

Why Ohio's Mandatory E-Verify Program is Bad for Ohio's Employers

A Mandatory E-Verify law in Ohio would cost Ohio employers millions of dollars in administrative cost plugging in data in the federal E-Verify system. Many rural employers do not have the skills or the high-speed Internet connectivity to do so. Furthermore, in many small businesses that do not have an HR department, the compliance will fall on the shoulders of the owner of the business herself which is not practical.

Errors in the E-Verify system itself will cost 800,000 workers nationally to lose their jobs and $3.6 million to correct such errors according to government data. The loss of such workers in today's high unemployment reality is certainly bad news for Ohio's workers and their employers. Such government data suggest that the error rate in E-Verify are even higher for employers who have a higher percentage of immigrant worker population as is the situation in many sectors of the workforce including high tech. and agricultural, and construction jobs. Green card holders and recently naturalized foreign nationals are ten times more apt to be erroneously identified by the system as ineligible to accept employment. Hence, Ohio's proposed mandatory E-Verify system will have the unintended consequence of discriminating against such workforce.

The Congressional Budget Office estimates that a mandatory E-Verify system will decrease national tax proceeds by $17 billion over a decade. Ohio's share of such proceeds will proportionally decrease as a result. Immigration lawyers in Columbus and Ohio as a whole have voiced their objection to this proposed legislation and plan to testify in opposition. Please join us in opposing this ill advised proposal.

At a time when Ohio is trying to lift itself out of an economic rut, a mandatory E-Verify system seems to take us deeper and deeper in the hole.

An investment group based in Columbus, Ohio has started a fund offering immigration assistance to international investors who intend to create jobs in Ohio. The fund offers help in obtaining legal permanent resident status, commonly known as a "green card," to individuals who meet the criteria under U.S. immigration law for investment immigration. This process can be complex and cumbersome, and requires the assistance of an experienced immigration attorney with knowledge of the investor system.

Central Ohio's government and business leaders have sought to bring international companies to the area as a way of stimulating the local economy, bringing in capital, and creating new jobs. A delegation of officials from local governments and the business community traveled to India last year on a trade mission to promote the region to foreign businesses.

Federal law allows a certain number of entrepreneurs and investors to immigrate to the United States, provided they meet certain criteria for eligibility. U.S. Citizenship and Immigration Services, the federal agency that handles immigration petitions and applications, may issue up to 10,000 visas, known as EB-5 visas, for investment-based immigrants per fiscal year. To qualify, a prospective investor must make an investment of $1 million, or at least $500,000 if the investment goes to a "targeted employment area," areas designated by the government in rural communities or in communities with high unemployment. Columbus, Ohio is currently designated as a "targeted employment area."

The investment must go to a "new commercial enterprise," currently defined as one created after November 29, 1990 or significantly restructured or reorganized by the investment. The investor must also be able to demonstrate both the intent and the ability to create at least ten permanent, full-time jobs for employees authorized to work in the United States. The investor must show admissibility as an immigrant, meaning that the investor is not subject to exclusion for any reason under the immigration statutes, which might include criminal history or health issues.

Continue reading "Ohio Business Investors Offer Help to Immigrants who Create Jobs" »

A unanimous City Commission voted on October 5, 2011 to make Dayton, Ohio an "immigrant-friendly city." The "Welcome Dayton" plan aims to make the city open and welcoming to all people, regardless of citizenship. Mayor Gary Leitzell states that the plan "focuses on making our community one that treats all people kindly, fairly and humanely." The plan will involve immigrants in an effort to reverse the city's economic downturn by supporting business development by immigrants, involving immigrants in government and the community, and working to reduce language barriers.

Supporters of the proposal cited a study by University of Dayton sociology professor Jamie Longazel on the effect of a crackdown on immigration in Hazelton, Pennsylvania. Both cities suffer from a decaying urban center and a shortage of jobs, but Hazelton's effort drove away many people who were helping grow the local economy. Professor Longazel said that Dayton has a chance to do something different which should help the city's economy grow.

The measure's supporters also make clear that the word "immigrant" is not synonymous with "illegal immigrant." Critics expressed concern that the plan could open the door, so to speak, to settlement of undocumented immigrants in the city in greater numbers. Responding to concerns about possibly harboring immigrants without legal status, the mayor said: "If you are an illegal immigrant, you will be subjected to the same federal laws as anyone else." Police Chief Richard Biehl noted studies showing that crime and recidivism rates among illegal immigrants are no higher than the general population.

Dayton's approach of leaving enforcement of immigration laws to federal officials is in marked contrast to policies adopted elsewhere in the country, particularly in states like Arizona and Alabama. Laws passed in those states often require state and local law enforcement to make determinations as to a person's immigration status. The U.S. Constitution gives authority over immigration to the federal government, which enforces its laws through agencies like Immigration and Customs Enforcement (ICE) and, formerly, the Immigration and Naturalization Service (INS). Local law enforcement often lacks training in the complex system of statuses and rights in the immigration system. Even a person who does not have documentation on their person may still have a legal right to be present in the U.S., and local law enforcement does not have the authority to make any sort of final determination.

Continue reading "Dayton, Ohio Proclaims Itself Immigrant-Friendly" »

Sometimes extreme situations can lead to immigration benefits that might not have otherwise been available. Last Friday, October 21, saw just such a situation, as reported in the Columbus Dispatch. A Cleveland immigration judge granted legal permanent residence, often known as a "green card," to parents of a chronically ill teenager on humanitarian grounds. The teenager, born with a severely disabling set of birth defects, will turn eighteen soon and needs a guardian. Rather than risk deportation and the loss of their daughter, who is a United States citizen, the parents turned themselves in and petitioned the court to allow them to stay to care for her.

Jimmy Siglos and Rowena Gonzales came to the United States in 1992 on visitor's visas from the Phillipines. They settled in he Columbus, Ohio area and never left, even after their visas expired in 1993. Their daughter, Jacky, was born in Ohio in 1994, making her a natural-born U.S. citizen. They feared that she would die if they returned to their country of origin. They have an 8 year-old daughter as well.

Jacky suffers from CHARGE syndrome, a rare series of birth defects caused by a genetic disorder. It affects the heart, eyes, ears, nose, and other organs and can lead to permanent disability. It frequently results in children born deaf and blind, and it can cause life-threatening complications in children.

Jacky will turn eighteen in February 2012. She will require a court-appointed guardian to manage her affairs. Once disabled persons who are unable to care for themselves becomes adults, their parents legally lose their right to manage their financial and medical affairs. The disabled person has all the legal rights of any adult, but the system of guardianship allows for a competent adult to take over certain issues for the person. This requires court approval and ongoing monitoring by the court to ensure that the guardian acts in the person's best interest. Jacky's parents were not eligible for appointment as her guardians because of their undocumented immigration status. Rather than risk Jacky becoming a ward of the state, they turned themselves in to immigration authorities in January 2011.

Continue reading "Parents of Sick Teenager Get Green Cards" »

Farmers in Ohio are expressing concern over a plan to use the "E-Verify" system to screen employment applicants' immigration status. The system cross-references an employee's name and social security number with other information to verify citizenship and/or employment eligibility. Farmers state that they worry the system may scare away workers who, despite being legally allowed to work in the U.S. either through citizenship or work authorization, are wary of perceived anti-immigrant climates in many states. The workers most likely to be impacted by this system are the ones farmers most rely on during busy crop seasons.

E-Verify is a free digital service offered online by U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration. Almost 300,000 employers use the service, and the government says that 1,400 business register for the service daily. This only accounts for about five percent of all employers in the U.S. The system maintains a digital database of information, which it compares to information supplied on an employee's Employment Eligibility Verification Form I-9. An employee is free to work if the information matches. In the event of a mismatch, the system notifies the employer. The employee may work while the mismatch is resolved, but the employer and employee must take steps to resolve the matter within eight work days. Only a few states require employers to use the system for their employees. Ohio does not have any specific requirement.

Employers are required by the Immigration Reform and Control Act of 1986 (IRCA) to verify that new employees present at least "facially valid" documentation establishing their identity and their authorization to work. Employees must complete an I-9 form when they begin employment, providing some personal information and certain forms of identification. The employer must keep this information on file until three years after the hire date or three years after employment ends, whichever is later.

IRCA imposes penalties against employers who do not comply with I-9 requirements. An employer who hires an unauthorized worker could face fines from $250 to $5,500 per worker, as well as a bar from receiving federal contracts for up to one year. A person who makes false statements or uses false documents with an I-9 faces fines or imprisonment. Fines start at $375 for one offense, and at $3,200 for subsequent offenses.

Continue reading "Fear of Crackdown on Undocumented Immigrant Hits Ohio Farms" »

The H-1B visa cap experience in calendar year 2011 has been a remarkable copycat performance of last year and the year before that. Unlike prior years where all cap-subject 85,000 H-1B visas were consumed in one day (April 1 or shortly thereafter), the last three years have shown a screeching slow down for H-1B visa usage with visas available well into Christmas and New Year's. This experience is shared by Columbus immigration lawyers alike. For instance, as of October 14, 2011, there remains more than 20,000 new H-1B visas available this federal fiscal year.

I have been closely monitoring the H-1B visa usage during the last three years and have noticed a remarkable similarity in the rate of its consumption. This is indicative of a stagnant economy and one where reliance on highly skilled foreign labor has decreased when compared to 2008 and prior years. An examination of the H-1B visa usage since July 2011, however, shows a stronger absorption rate than was experienced in the prior two years indicating a possible growth in certain industries which rely on highly skilled labor.

In July of this year, I had performed a statistical comparison between this federal fiscal year's consumption of H-1B visas to the prior year and concluded that a slower consumption of H-1B visas was reported earlier in the year but later weekly usage showed a slightly stronger consumption than the year prior. Now three months later, the rate of consumption for new H-1B visas is somewhat stronger than last year on a weekly basis. I predicted that H-1B visas will be consumed this federal fiscal year between Thanksgiving and New Year's. This projection continues to be true based on analysis of H-1B visa consumption this year.

Noticeable Rush for H-1B Visas After July 2011

In examining the rate of consumption this year, two patters emerge: one from April to July and another from July 2011 onward. The rate of consumption from April to July 2011 was more linear with approximately 700 to 900 new petitions received by the USCIS on a weekly basis. From July onward, however, the rate of consumption appears to have jumped to an exponential curve with an increasing rate of consumption weekly to 2300 H-1B visas between October 7 and October 14, 2011. Hence, there appears to be a rush to acquiring new H-1B visas as the year nearing to end. If you compare this rush to acquire highly technical labor against the overall US job growth, one certainly gets confused; the US has reported a disappointing zero job gain in the second quarter of 2011. But in examining employment data released by the US Bureau of Labor Statistics on October 7, 2011 covering the period ending September 30, 2011, one finds that there has been measurable growth in education, construction, healthcare, telecommunication, manufacturing and consulting services. Those industries grew by about 500,000 workers between August and September of 2011.

Continue reading "H-1B Visa Cap Predication and Update" »

A federal court of appeals blocked some parts of Alabama's controversial new immigration law last week, but much of the law remains in effect. While this law only applies in the state of Alabama, it has influenced lawmakers and immigration reformers all over the country. Alabama's law pits the federal government, which has authority over immigration matters under the U.S. Constitution, against a state government seeking its own reform. The outcome of this dispute, and the enactment and enforcement of the Alabama law, will have nationwide impact on immigration matters.

The law affects many aspects of government operations, including law enforcement, education, and the civil court system. It also saddles Alabama law enforcement with a duty to check people's immigration statuses, and at times to determine whether a person is present in the United States legally. As any immigration attorney knows, this is a difficult determination to make, and law enforcement without specialized training in immigration laws may not be in the best position to do so. The Obama administration took Alabama to court to challenge its legal ability to legislate immigration matters, arguing that the Constitution grants that power exclusively to the federal government. A ruling from the Eleventh Circuit Court of Appeals in Atlanta last week gave partial victories to each side of the dispute.

The court's ruling blocks some of the law's more controversial provisions, but leaves many more in place. The court will review the constitutional questions presented in the case and make a more thorough ruling later. The court blocked the section requiring state officials to check the immigration status of public school students. It also blocked a provision creating a misdemeanor offense for immigrants who willfully fail "to complete or carry an alien registration card," something critics described as allowing law enforcement to demand papers from people they suspect of being undocumented, with few guidelines on how to make that determination.

Provisions of the law remaining in force include one that requires law enforcement, during lawful stops or arrests, to try to determine a person's immigration status if they suspect the person is undocumented. Another provision still in force bars state courts from enforcing contracts that involve undocumented immigrants, and another makes it a felony for undocumented immigrants to enter into "business transactions" in the state. This last provision may make it illegal for someone to apply for a driver's license or even to hook up utility services.

Continue reading "Appeals Court Blocks Portions of Controversial Alabama Immigration Law" »

The US Citizenship & Immigration Services (USCIS) recently announced that it will be altering decades' worth of a well established procedure which has Columbus Ohio immigration lawyers and their clients confused and angry.

For as far back as I can remember in the 18 plus years I have been practicing immigration law, the USCIS's established procedure called for mailing approval notices relative to employment based non-immigrant visas (such as H-1B visas) directly to the attorney who had filed a signed Notice of Entry as an Attorney of Record along with the petition. That procedure allowed the attorney to carefully monitor the progress of the case during the USCIS adjudication process as well as post the approval of the case itself. Simply put, the prior procedure worked well.

Now, the USCIS wants to fix a procedure which was never broke. The new procedure now calls for mailing the approval notice for such non-immigrant visa petitions (also known as the I-797 Notice of Action) directly to the sponsoring employers, instead to the attorney of record. US immigration lawyers believe that this is yet another way the USCIS seeks to drive a wedge between them and their clients, the petitioning employers.

The American Immigration Lawyers Association has sharply criticized the new policy thereby requesting the USCIS to restore the prior procedure. The USCIS held a teleconference on October 12, 2011 to review this new procedure. Interestingly, in its announcement for the teleconference, the USCIS offered an unusual way to have immigration attorneys continue to receive the I-797 approval notices by including on the petition for non-immigrant worker (Form I-129) the attorney's address in the filed where the company's address must be entered. This, as the USCIS explained, will cause the USCIS to mail the approval notice to the attorney instead of to the company. The USCIS warned, however, that it utilizes the Validation Instrument for Business Enterprises (VIBE) process, which relies on the business address of the employer to validate whether the petition is filed fraudulently. Using the attorney's address on Form I-129 may disrupt the VIBE process, the USCIS explains and advised attorneys to enclose a separate sheet along with the petition indicating the true address of the employer in order to avoid such discrepancy (without any guarantees).

What a disaster!!! In other words, the USCIS is encouraging attorneys to intentionally misrepresent the address of the employer on Form I-129 and to risk having the employer's identity validated in order to do her job of correctly monitor the progress of the case and advise the client efficiently.

I join my immigration attorney colleagues in stating that this is an ill-advised policy for many reasons. but, before delving into the problems that I see with this new procedure, I would like to share with you the steps that we normally undertake once we receive an employment based non-immigrant visa approval notice on behalf of our client's employees. For the last 10 years in my practice, I have utilized an intricate on-line document storage, data gathering and reminder system integrated into a proprietary web-based processing portal. Upon receipt of an approval notice, we scan and upload it to our immigration processing portal. An instant reminder is created in our system which will alert us to contact the client six (6) months prior to the expiration of the employee's status. Then an email is generated to the client and the employee informing them that their case has been approved. Finally, the approval notice is mailed to the employee providing them with tips about maintaining their status and advising them what to do in the event they need to travel. (Our law firm was named finalist in innovation by TechColumbus in 2008. We now utilize a vendor-based system which we call ShihabEDGE.)

With the approval notices now going to employers, these valuable practices will be compromised. Unless the employer has in-house counsel versed in immigration-related matters (which is very rare), the employer does not possess the skills or resources to monitor the expiration status of their employees' status and/or to advise them regarding the procedures in obtaining visa stamping.

We must remember that the non-immigrant visa approval notice in most scenarios has THE ONLY PROOF of the foreign nationals legal status in the United States. It must be surrendered to the foreign national promptly. with some large employers, the approval notice may arrive on the wrong desk and the recipient may not know what to do with the approval notice or who in the large organization should dispose of it. The attorney on the other hand has direct access to the foreign national and can ascertain that she receives it timely.

The recent policy by USCIS is ill advised; it wastes time and increases the employer's costs. I urge all employers to contact their congressmen to put pressure on the USCIS to reveres this unnecessary procedure. Tell the USCIS that the prior system worked just fine and there is no reason to drive a wedge between the attorney and the employers they represent. If it ain't broke, don't fix it!

A new film, "Like Crazy," is making the rounds of film festivals, winning a top award at Sundance this year. It tells the story of two college students in Los Angeles who meet and fall in love. Jacob is an American, and Anna is a British exchange student. Anna overstays her student visa and then returns home to London. When she tries to fly back to Los Angeles, she finds herself barred by officials at the airport. This sets up the main action of the film, in which the two must find a way to continue their relationship despite the trans-North America, trans-Atlantic distance between them.

While the film primarily acts as a love story, it offers a glimpse of the issues faced by spouses, fiancees, and lovers who find themselves separated by immigration laws. An immigration lawyer certainly knows that these situations present complicated and emotional issues. Anna certainly made a mistake by overstaying her student visa. If she came to the United State on a J-1 student visa, for example, she may have been subject to a requirement that she return to her home country for at least two years, even if she did not overstay her visa period. J-1 visas typically allow a visitor to stay in the U.S. up to 30 days after their educational program ends, but they must then depart. Overstaying a student visa could lead to ineligibility to return to the U.S. for years.

Is there anything the young lovers in the film could do? Overstaying the visa made it difficult, if not impossible. If the two were to get engaged, and she did not overstay her student visa, they might be able to get a fiancee visa, known as a K-1. An American usually petitions for a K-1 while the fiancee is still abroad. Both fiancees must show they are legally eligible to get married in the petitioner's state of residence. They must show evidence that they will not become public charges, and that the engagement is legitimate. One specific requirement is proof that the fiancees have met in person at least once in the previous two years, which is intended to deter sham marriages. They must get married within 90 days of the immigrant's arrival in the U.S.

Continue reading "New Film Addresses the Issue of Student Visas, Immigration, and Young Love" »