Immigration Visa Lawyer Blog

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.

In a well reasoned order handed down by Judge Susan R. Bolton of the United States District Court for the District of Arizona, the most unreasonable, atrocious and unconstitutional aspects of Arizona's Senate Bill 1070 were blocked, or rather, enjoined from taking effect with the remainder of the legislation on July 29, 2010. In what almost certainly will set the stage for an appeals process culminating in review of state government's power to supplement federal law in the area of immigration, Arizona has appealed this ruling to the United States Circuit Court for the Ninth Circuit. If the Ninth Circuit rules on the matter before the end of the year, the case could be heard by the Supreme Court of the United States in its next session, and possibly decided within a year from now.

While the most egregious aspects of SB1070 have been strategically excised from the whole of the bill by the order of Judge Bolton, the bill ultimately stands and the remaining portions went into effect July 29, 2010. Because the process for enjoining and appealing this bill as well as its ramifications may not be entirely clear, I have briefly summarized the judge's legal opinion and the effects that this ruling has on SB1070 in board terms. As a reminder, this attorney and the Law Firm of Shihab & Associates has offered the following aspects of Arizona law for the purposes of public discussion and discourse only. This lawyer does not suggest nor insinuate that he is licensed practice civil or criminal law in the state of Arizona.

Summary

Senate Bill 1070 took effect in Arizona on July 29, 2010. Judge Susan Bolton only blocked certain parts of the bill from taking effect with the rest of the bill. Such a legal challenge and outcome was fully anticipated by the drafters of SB1070, who made certain aspects of the bill severable, or able to be separated, without destroying the entire bill. The US Department of Justice, the adversary to SB1070 in this instance, specifically chose certain aspects of the bill to challenge, leaving other aspects unopposed. Some of the most important aspects of SB1070 that remain in effect or fully enforceable by officers in Arizona are as follows:

• Provision allowing residents of the state to sue any state official or agency that restricts enforcement of federal immigration law to any extent less than the maximum allowed by federal law;
• Creating a crime for stopping a vehicle to pick up day laborers if the stopping creates an impediment to normal movement of traffic;
• Creating crimes for intentionally or knowingly employing unauthorized aliens; and
• Transporting or encouraging unlawfully present aliens to come to Arizona.

Interestingly, law enforcement officers and public employees are caught in a catch 22 situation regarding their role in Arizona's immigration scheme. Specifically, all agencies of the State of Arizona are required to carry out federal law in regard to federal immigration rules or risk being sued. However, it is reasonable to believe that most employees of the state of Arizona are not experts in Federal Immigration law, leaving such agencies and employees potentially open to suit for actions they do not know are unlawful.

The following are aspects of the bill that have been enjoined, or stopped from enforcement, by the federal court:

• Requirement that under reasonable suspicion of unlawful presence in the United States, that police officers make a reasonable efforts to ascertain the immigration status of the person, and ascertain the immigration status of a person upon release from arrest;
• Creation of a crime for failure to apply for or carry immigration papers;
• Create a crime for an unauthorized alien to solicit, apply for or perform work; and
• Authorize the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable (formerly called deportable) from the United States.

Despite the injunction of this law, there are aspects of the enjoined portions of SB1070 that seem to have overlapping effects with current law enforcement procedure in Arizona. Sheriff Arpaio of Maricopa County (the Phoenix metro area) of Arizona is still conducting his "sweeps" pulling over cars for minor violations and then taking the opportunity to lead the detained person down a path of questioning to eventual disclosure of his or her immigration status. While it is unclear where to draw the lines between enforceable state law and unenforceable enjoined provisions of SB1070, what is clear is that violating a federal injunction is grounds for a charge of contempt of court. In the spirit of SB1070, it is only just that such a person violating an order handed down by a federal judge should be prosecuted to the full extent of the federal law.

Discussion of the Enjoined Sections of SB1070

The legal ruing handed down by the federal court in this case is what is known as a preliminary injunction. This order stops conduct from being carried out as requested by the moving party from occurring while the merits of the case have yet to be decided, i.e. the case has not yet gone to trial. This is essentially a temporary stop. The ruling on a temporary injunction may be appealed to the next highest court. This is the action that the State of Arizona has taken, asking the Ninth Circuit, the court above the US District Court for Arizona, to hear its argument.

Judge Bolton took the most appropriate action by only enjoining or blocking the aspects of the bill that were likely be won by the US Department of justice at trial, while letting other aspects of the law go into effect. The drafters of SB1070 intentionally wrote the bill to allow this type of severability, or the ability for sections of the law to be blocked without destroying the entire bill. As a consequence, Judge Bolton has essentially narrowed the issues that will be argues at the next level to the issues below.

Continue reading "The Most Appalling and Unconstitutional Aspects of Arizona's SB1070 Blocked by Federal Court" »

The Regional Center Pilot Program offers an exiting avenue to a fast track Green Card for foreign nationals who wish to invest $1,000,000 and in some circumstances only $500,000 into a business association that advances economic expansion, productivity, job formation and increased monetary investment into a definable geographic area of the United States. The main advantage of the Regional Center variety of EB-5 employment creation green card is that unlike in the traditional EB-5 category where it must be shown that at least 10 jobs will be directly created from the investment, regional center investors may take into account indirectly created jobs. This means that regional center business associations do not need to create a payroll position for all ten jobs that are created. Rather, under the regional center program, the jobs of supporting staff, service people and contractors may be counted toward the 10 new jobs requirement. As a result, the Regional Center model creates a very attractive vehicle for a business association to attract large amounts of investors and their capital to the United States.

Proving that a regional center meets EB-5 job creation criteria

The organizers of the regional center must first prove the viability of the investment both in regard to the probability of success of the business and immigration law aspects. This requires a highly professional economic impact study of the proposed investment as well as a comprehensive petition package, addressing all of the economic and legal aspects of the proposed regional center before the USCIS.

Below is a list of the major points that must be conclusively established in order to establish a regional center before the USCIS:

Managerial Framework of the Regional Center

The petition must clearly demonstrate the managerial and executive structure of the regional center. Additionally, the petition must demonstrate how the center will be advertised to entice investors, how management discovers and analyzes investment opportunities for the business organization, how management will structure the venture investment and how management will supervise investment actions.

Comprehensive forecast of local and countrywide impact of the center on household earnings

A detailed business plan and report on anticipated expenses must be included within the petition. The document must not only show the direct expenses such as construction costs, maintenance costs services, repairs and utilities, but the report must also show the economic impact of all of these activities on the income of the people of the region.

Professional report on how the regional center will generate both direct and indirect jobs

It is not sufficient to merely assume that a set amount of invested dollars will create the requisite 10 jobs per Green Card applicant. In order to secure certification as a regional pilot center, the organizers must have a professional economic study conducted by a reputable organization to ensure success of the application before the USCIS. In fact, such a report often makes or breaks the case for a regional center. The report must be supported by economically and statistically legitimate calculations such as viability evaluations, breakdowns of overseas and national markets for goods or services produced and graphical representations of the equations used to estimate jobs created per investor.

Plainly observable, physically adjacent area for the regional center

The regional center must have an intended area on which to impact financially. The definition of area varies by the type of investment and the population density of the surrounding land. For example a regional center based on investment in farming may have an identifiable region as large as several counties or sections of a state. A regional center based upon real-estate development however may only affect a relatively small landmass.

Continue reading "Columbus Immigration Attorney Discusses the EB-5 Regional Center Pilot Program Avenue to Permanent Residency Part 1: Establishing the Regional Center" »

The American Immigration Lawyers Association ("AILA") posted on its website processing times for the Administrative Appeals Office, the AAO. The AAO has authority to review certain applications denied by the US CItizenship & Immigration Service ("USCIS"). Decisions issued by the AAO have been controversial as the USCIS may or may not be bound by them as a "legal precedence" or "lawmaking authority" as the American legal system normally operates. Hence, practitioners in the field of immigration law have found the administrative appeals before the AAO as futile and time consuming process. Nonetheless, applicants and petitioners whose cases have been denied by the USCIS have the legal obligation to "exhaust their administrative remedy" before taking their cases to Federal Court to challenge the USCIS' denial. In other words, the Federal Court system may not accept a challenge to a USCIS decision prior to having them try to resolve the matter before the AAO. Hence, the AAO appeals step is viewed by many as a necessary step, though time consuming.

Below, please find the most recent AAO Processing Times. As can be seen, it may take more than a year to review an H-1B visa case denial. An EB-2 or EB-3 I-140 denial may take 2 years to appeal before the AAO. In comparison, an alien entrepreneur petition form I-526 denial will take 6 months to appeal before the AAO.

Continue reading "Columbus Ohio Immigration Lawyer on Administrative Appeals Office - AAO Processing Times As of May 1, 2010" »

Almost all foreign nationals who seek permanent residence, commonly known as a Green Card, through the employment based avenues of permanent immigration must test the local job market via the PERM process. However, for foreign nationals holding a master's degree or a bachelor's plus five years of experience, there is a little utilized waiver of the requirement that the job market be tested by the expensive and time consuming PERM process. For certain highly educated foreign nationals whose area of expertise holds substantial intrinsic merit and the effect of their work would be national in scope, a National Interest Waiver of the PERM process may be available.

Requirements of a National Interest Waiver (NIW) of the PERM Process

The National Interest Waiver has the effect of bypassing the PERM process and placing the potential applicant directly into the I-140 stage of the Green Card process under the EB-2 preference category. While skipping the PERM process is beneficial for all foreign nationals applying for employment based permanent residence, foreign nationals from countries other than China or India will find themselves with a Green Card immediately available upon approval of an I-140 under EB-2. Additionally, foreign nationals from China and India can enjoy the faster processing time of the EB-2 preference category and the peace of mind that the job market does not need to be tested in this economy before they can apply for an employment based Green Card.

Who Qualifies for the National Interest Waiver?

Because of the obvious benefits of the National Interest waiver, the requirements that need to be met are rather stringent. First, the applying foreign national must possess at least a master's degree or its equivalent (Bachelor's plus five (5) years of experience). This educational requirement is the same for all second preference employment based petitions.

Secondly, the foreign national must meets the standards established by the Government that show the foreign national should be allowed to skip the PERM process in the national interest. The controlling case on this issue is the Matter of New York State Department of Transportation 22 I&N Dec. 215. In this case, the court defined three threshold criteria to be met in order to qualify for a National Interest Waiver. A successful argument of all three NIW threshold requirements will establish that the alien is not merely "exceptional" as all EB-2 applicants are, but rather that the aliens skills and achievements "greatly exceed" those of other aliens and similarly educated American workers.

Area of Endeavor Must have Intrinsic Merit: This means that the job that the alien will do must be in a field that has high importance for the national economy or security.

The Proposed Benefit will be National In Scope: This means that the benefits of the foreign national's labor must not be limited to a single geographic area. The effects of the alien's labor must be felt nationally.

The National Interest would be Adversely Affected if the Alien were not Hired: This requirement means that the national interest of allowing the Alien to skip the PERM process and be hired immediately would outweigh the national interest of protecting the jobs of American workers.

As simple as the above requirements seem, it takes a great amount of effort to mount a successful argument that a foreign national deserves to skip the PERM process. Support of the employer is a great importance as well. Common situations that may lead to a successful result include research positions, governmental security positions, complex engineering positions, high ranking business positions and even positions in coaching or music. Every applicant for a NIW must be a step above others with exceptional ability. While there are certain guidelines that can be followed to geach case must be evaluated on its own merits.

Continue reading "Columbus Immigration & Visa Lawyer Discusses a Waiver of PERM Process for purposes of the National Interest" »

The H-1b visa program was designed with the intent of attracting some of the world's brightest minds to the United States to work for a temporary period. Many of the world's smartest and most skilled workers are able to utilize this employment based visa and the United States is strengthened by attracting these educated and highly skilled workers. The H-1b visa often times leads to procurement of a Green Card through the PERM processes. If it is true that part of the policy for establishing the H-1B program is to attract the world's smartest and most skilled workers to our country, why then would the Government allow for loopholes in the law that could create a financial penalty for workers who possess a master's degree as opposed to a bachelor's degree?

H-1B Dependency

In an effort to prevent companies from misusing the H-1B program, the Department of Labor and the USCIS has set up a system for discouraging employers from employing an extremely high percentage of H-1b visa holders in relation to the American workers that a company employs. A company that employs a high percentage of H-1b employees may fall into the category of "H-1b dependant."

H-1b dependant employers must make additional attestations on documents filed with the Department of Labor. Specifically, an H-1B dependant employer must swear that the H-1b worker did not displace any American worker for 90 days before and after the H-1b visa is filed. Additionally, an H-1b dependant employer must attest that it has made good faith efforts to recruit American workers to fill positions in its company. Penalties for violating the attestation requirements can be quite severe.

If a company has a high percentage of H-1b workers, and is would be considered H-1b dependant, the company can avoid the attestation requirements listed above by doing one of two things: 1) paying the H-1b employee $60,000 per year or 2) hiring an alien with at least a master's degree.

However, the problem that this rule produces is that an H-1b employer could potentially pay the holder of a master's degree less money than a holder of a bachelor's degree: thereby creating a master's degree penalty. Penalizing persons with higher levels of education makes no logical sense insofar as immigration policy is concerned. However, it is potentially true that companies could attract holders of master's degree for the purpose of paying them less than the employer would have to pay the holder of a bachelor's degree.

Continue reading "Columbus Immigration Lawyer Discusses H-1b Visas, H-1b Dependency Issues & Possible Penalty for Aliens Possessing a Master's Degree." »

Arizona has recently passed one of the harshest anti-immigration bills in America's modern history. While the bill is obviously aimed at those persons who have entered the United States from Mexico without inspection, the effects of this bill will be felt in all immigrant communities. The law gives state and local officers the authority to arrest and detain any person in violation of federal immigration law as well as proscribing punishments for those who aid immigration law violators. Those persons who are present in the United States on valid employment based visas, such as H-1B, L-1 and H-2A, as well as those persons who are eligible or have applied for a Green Card or Legal Permanent Residency through the PERM process or family based petition, now must be extra careful to remain in valid immigration status at all times and above all else always carry their "papers" on them. Just as the tide raises all boats, Arizona's law will affect all immigrants and their employers within that state

On the heels of Arizona's new law, certain Ohio senators have begun the process of drafting copycat legislation. The consequences of such legislation for Ohio business if such legislation were to be passed could be very grave. A bill that damages the confidence of Ohio's vital, skilled and hard working immigrant population in the state's openness and welcome for immigrants in general would do unnecessary harm to Ohio's already recession weakened economy. Before Ohioans jump on the anti-immigration bandwagon, perhaps they should instigate the wording of Arizona's legislation and its potential to harm Ohio's economy.

Ohio should not burden businesses with the requirement to investigate all contractors and subcontractors for services

Arizona's law makes it a crime to knowingly or intentionally employ an unauthorized immigrant. Furthermore, Arizona's law makes it illegal to contract with a person who intentionally or knowingly employs an unauthorized immigrant to perform work for the contacting person. If read literally, Arizona's law would make it a crime to contract with any person or business that has hired an unauthorized worker. As a precaution, businesses would be required to investigate the immigration status of all of their business contact's employees. For the large and medium sized corporations that call Ohio home, such a law would create an unreasonable financial burden and untenable risk of criminal prosecution. There are plenty of other states that would be happy to siphon off the business of Ohio's corporations with the lure of a decreased risk in liability.

Ohio's immigrants make Ohio stronger

Ohio is home to one of the most diverse and most representative cross sections of business, industry, agriculture, research and government as can be found in the United States as a whole. Ohio's many colleges hire the best and brightest people in the world to teach and carry out research. Ohio's businesses rely on skilled workers in engineering and technology to fill positions where not enough American citizens can be found to fill demand. Finally, Ohio's agriculture relies on the labor of H-2A non-immigrants to carry out some of the toughest jobs on the farms and in the fields. Ohio needs to attract immigrants in order to fill vital jobs that make Ohio's economy strong. Why would we want to injure or insult our immigrant population by requiring them to carry "papers" like in some dictatorial third world country? Again, there are plenty of other states and countries that would love to attract skilled and hard working immigrants to carry out the jobs that are vital to the economy.

Continue reading "Columbus Immigration and Visa Attorney Examines the Effects of Potential Immigration Bill on Ohio Business" »

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" »

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" »

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" »

Immigration Reform Must Be Fair To All Immigrants
In advance yet another rally for immigration reform set to descend upon Washington D.C., we are all again reminded of the need to amend the fractured structure of agencies and laws that makes up modern immigration system in America. Many of the most vocal and courageous advocates for change in the immigration system are the representatives of foreign nationals from Central and South America. It is indeed true that undocumented aliens from the countries south of the United States boarder do make up the largest contingent of aliens who will be effected by comprehensive immigration reform. However, we need to remember that in order for immigration reform to be truly comprehensive, its effects must be fair and just too all foreign nationals of all visa statuses from all continents.
Fairness for those who have followed the law
Permanent and temporary work visas are distributed according to a myriad of complicated laws and regulations. Many employers and employees who seek to utilize these avenues of immigration have spent years of their lives and thousands of dollars obtaining and maintaining their valid immigration status. While it is in the best interest of the United States to find a path to citizenship for the hundreds of thousands of undocumented workers who do the toughest jobs in this country, it is my hope that their gain does not come from a loss for those aliens who have attempted to immigrate by adhering to the rigorous immigration laws on the books today. A truly comprehensive immigration reform must strive to keep smart workers, hard workers and families together.
What Should Immigration Reform Look Like?
As much as the term Comprehensive Immigration Reform (CIR) is used in the media and around dining room tables, the nuts and bolts of such reform are still a mystery. The central tenants of such reform seem to be registration with the government, a path to citizenship for undocumented workers with caveats for the payment of taxes, tight boarder enforcement. But undocumented workers are only a part of the immigration landscape. Adjustments need to be made to the traditional three avenues of permanent immigration: 1) asylum/refugee status, 2) employment based; and 3) family based immigration.
In general, reform should establish clear guidelines for permanent immigration though these avenues. Asylum/ refugee law as well as family based immigration have a deep and rich history of case law that must be drawn upon in order to fashion legislation that ends in a fair result for foreign nationals as well as maintaining order and security within the United States. A balance must be struck between efficient adjudication of asylum claims with the need to hear the merits of each case. Furthermore, a system that eases the path to citizenship for undocumented workers would decrease the instances of foreign nationals seeking less than traditional marriage partners in order to obtain a green card.
As for employment based temporary and permanent immigration, clear guidelines are long overdue. There has been troubling recent pattern of erosion of the openings for employment based permanent and temporary employment. For example, the Department of Labor has recently taken over the determination of the prevailing wage for permanent immigration petitions from the states. This process has had the practical effect of adding 15 days to one additional month of time before a green card may be petitioned for. Similarly, the USCIS and department of labor have recently tag teemed to increase the wait time and burden of proof for a valid H-1B petition. What is needed is needed from a reformed employment based system is clarity of the parameters and decisive enforcement rather than inconsistent obligat5ions and enforcement of the immigration laws.
Stand up and be heard
In order for Comprehensive immigration reform to truly be comprehensive, representatives from all immigrant communities, representatives from immigration reliant businesses as well as immigration professionals need to make their voices heard. I urge all persons with as stake in the battle to stand up and be heard in Washington D.C. as well as the local level. Only if every party has a seat at the table of reform can fair legislation for all foreign nationals and for United States citizens be won.