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.

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" »

H-1B Question: Can an H-1B Employer legally recoup by way of payroll deductions or otherwise the costs (whether they were expended for attorney fees or filing fees) it will incur in sponsoring or extending the H-1B alien's nonimmigrant H-1B petition?

The Law: Department of Labor Regulations
The US Department of Labor ("USDOL") regulations allow the H-1B employer to deduct certain expenses related to insurance, etc. Under Federal Regulations, all other deductions must meet each of the following criteria to be considered "authorized" under the USDOL rules: (1) the deduction must be reported as such on the employer's payroll records; (2) the H-1B worker must have agreed to the deduction in writing and such agreement must have been entered into voluntarily (the mere acceptance of a job which carries a deduction as a condition of employment does not constitute a voluntary agreement); (3) the deduction must be for a matter that is principally for the benefit of the employee; (4) the deduction is not a recoupment of the employer's business expense; (5) the amount deducted does not exceed the fair market value or the actual cost (whichever is lower) of the matter covered; and (6) the amount deducted does not exceed 25% of the employee's disposable earning.

Housing and food allowances are examples of deductions that usually are principally for the benefit of the employee unless the employee is traveling on the employer's business. The rules also permit deduction of the cost of transportation from and to the alien's home country at the beginning and end of the assignment, unless the employer is liable for the cost of return transportation because it has terminated the H-1B worker. Translation and visa application fees associated with the case may also be lawfully deducted (such expenses are not considered the employer's business expense). The value of "in-kind" benefits, such as the value of a car, apartment, parking space, may also be lawfully deducted, provided each criteria is satisfied.

Matters that are considered impermissible deduction for the employer's "business expenses" include the following: (1) the cost of tools and equipment; (2) travel expenses to and from off-premises assignments; (3) living expenses when the employee is traveling on the employer's business; and (4) attorney fees and other costs associated with the preparation and filing of the LCA and H-1B petition (not including translation and visa application fees). Matters that do not meet each of the five criteria listed above are considered unauthorized deductions.

In one of the first enforcement actions involving this provision, the DOL found that a company owed three of its H-1B employees compensation for the judgment amounts assessed against them for the $5,000 "investment fee" that the company sought to recoup when the employees resigned after less than one year of employment. USDOL v. Novinvest, LLC, 2002-LCA-24 (Jan. 21, 2003). The DOL argued that the $5,000 fee, purported to be a business expense used to "hire, train and process" the employees, was in fact an early termination penalty, which is not authorized. Analyzing state law, the Administrative Law Judge stated the company would have to satisfy two tests in order for the $5,000 "investment fee" to be an allowable deduction from the employees' wages. First, the company would have to show that the employees agreed to the policy that included the fee, the fee was intended to benefit the employees, the fee was not used simply to recoup the company's business expenses, the fee did not exceed the cost of the expenses covered, and the fee did not exceed federal limits set on the garnishment of wages. Second, the company would have to show that the fee represented liquidated damages according to state law.

H-1B Visa Costs
Federal Regulations expressly prohibits an employer from deducting from an employee any of the costs associated with the preparation and filing of an H-1b visa for an employee. An alien may pay for some of the filing fees and all of the attorney fees prior to the commencement of the employee/employer relationship. This is because the employer is only prohibited from deducting such fees and expenses after the commencement of the employee/employer relationship. However, prior to the commencement of such employer/employee relationship, the employer could pay for all of the attorney fees, the I-129 filing fee and the fraud fee of $500. Even prior to the commencement of the employer/employee relationship, the employer must pay for the H-1b visa filing fee.

Continue reading "Columbus H-1B Immigration Lawyer: Payroll Deductions for H-1B Workers" »

COLUMBUS, Ohio - May 19, 2010, Gus M. Shihab with the law firm of Shihab & Associates, Co., LPA filed on behalf of Integrity Gymnastics & Cheerleading a declaratory judgment action against the United States Citizenship & Immigration Services due to its denial of Natalia Laschenova's immigrant visa petition.

Ms. Laschenova won an Olympic Gold Medal in gymnastics in the 1988 Olympics. Integrity Gymnastics petitioned the USCIS to qualify Ms. Laschenova as an "alien of extraordinary abilities" as a Olympic Gold Medalist and gymnastics coach in the U.S. Ms. Laschenova's case was denied and she is currently in the U.S. without status and is subject to deportation. All administrative remedies within the Department of Homeland Security have been exhausted hence Integrity Gymnastics is seeking a declaration by the Federal District Court for the Southern District of Ohio that she qualifies as an alien of extraordinary abilities.

The declaratory judgment suit is a civil action seeking a judicial declaration that USCIS has committed an abuse of discretion, acted clearly erroneously and in clear error of judgment and that the decision denying the beneficiary was arbitrary, capricious and unreasonable. Integrity Gymnastics filed the declaratory judgment action against USCIS, the Attorney General of the United States, Mr. Erik H. Holder, Jr. and the U.S. Attorney for the Southern District, Mr. Carter M. Stewart.

When will the 2011 H-1B Visa Cap Reach this year? This is a question I am asked about constantly from my clients. Many of my clients are in what I call a "Transitional Mode." As the economy slowly picks up, many of my companies are eager to hire talents to work on projects but are squeamish to do so because the slope of market's recovery is not as steep as they had hoped.

The financial news media has announced that the recession is technically over, however the effect of the recovery has not been felt yet. Reflecting on numbers released by the USCIS, it appears thus far at least, that the H-1B visa cap consumption is very similar to 2009. So, the question remains, when will the 2011 H-1B visa cap be reached?

As of the date of this entry, there has been 4 releases by the USCIS relative to the numbers of the H-1B visa cap reached thus far. I took the liberty to plot these numbers on a graph and I was very surprise to find out that the H-1B visa cap consumption experience has been very linear so far. In other words, the slope of the graph representing the usage of the H-1B visa cap cases is a straight line. Please see graph below. In other words, the market place has been very consistent in the demand for foreign talent . It is my opinion that the demand for the employment of foreign talent is very similar to the demand for domestic talent. Said differently, employers do not favor foreign over US specialty workers as has been demonstrated by the H-1B visa cap experience 2009 and 2010. Please see my previous blog article on this subject. Hence, the slope of the graph representing the usage of the H-1B visa is also a true representative of the employment of US workers in specialty occupations.

Since the H-1B visa usage this year is remarkably linear, It is simple to use this data to project forward the current usage into the future. Obviously this assumes that the demand for highly skilled labor will continue on the same trend as currently experienced. Judging from analysis of financial trends employment of highly skilled labors will lag behind consumer confidence and spending in the market place. Using the slope of the H-1B visa usage so far and projecting forward shows that the H-1B visa cap should be consumed by January 2011.

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" »

USCIS and Administrative Appeals Office ("AAO") both deny EB-1 Petition Filed by 1988 Olympic Gold Medalist and World Champion Natalia Laschenova Stating that She is Not An Alien with Extraordianry Abilities

I was contacted by Columbus, Ohio Chanel 10 reporter a couple of ago about a story he was investigating on an Olympian Gold Medalist called Natalia Laschenova from Russia whose immigration status was denied by the USCIS. I called Natalia and I could not but believe that this is the same 14 year old who shocked the world winning a Gold Medal in Seoul Korea in 1988 at the age of 14 (watch Video). After talking to Natalia, I was also shocked to learn about her plight with the USCIS which had been ongoing for 10 years now. I agreed to meet the reporter and he ran the following news piece (watch here).

Shortly after that, I met with Natalia and accepted her case. I requested her file from her prior counsel and reviewed about 400 pages of newspaper article after article all attest to Natalia's impressive performance worldwide and technique. I also read many letters from other Olympian Gold Medalists who were coached by Natalia and they all attest to her extraordinary abilities. But the USCIS did not believe that and the AAO actually further affirmed the USCIS's denial of her case.

After winning the Gold Medal in Seoul and other impressive international competitions, Natalia became the National Belarusian gymnastics coach. Natalia had entered the US on H-1B visa in 1999 as a gymnastics coach. She submitted an application for labor certification in the 2000 but due to ridiculous processing times, Natalia decided not to wait for the approval to come and changed her employer to afford her family a better opportunity. Then in 2002, Natalia submitted a petition arguing that she is an alien of extraordinary abilities. That petition was denied. Then again in 2007, Natalia submitted another petition with additional evidence desiring to be designated as an alien of extraordinary abilities, and again she was denied by the USCIS. Natalia then appealed her case to the Administrative appeals Office who affirmed the denial on January 12, 2010.

After the Channel 10 story and my interview, I was contacted by a Group called Reform Immigration for America who adopted Natalia and called on a press conference on March 15, 2010 to bring to light Natalia's plight and to urge Congress to repair America's broken immigration system. Below, please find my statement to the press on that day:

My name is Gus Shihab and I am immigration counsel for Natalia Laschenova.

NATALIA HAS PLAYED BY THE RULES FOR OVER A DECADE BUT OUR BROKEN SYSTEM PREVENTS HER FROM BECOMING AN AMERICAN CITIZEN. After 10 years since her arrival in the United States; after ten years of abiding by all applicable immigration laws and regulations; after 10 years of maintaining legal status in the US; after 10 years of submitting various applications and petitions of immigration of various kinds to the US Citizenship and Immigration Service, Natalia Laschenova, an extraordinary athlete, Gold Medalist, and world champion, today is out of status along with her husband and their children and could face deportation.

Continue reading "Attorney Gus Shihab's Statement Re Olympic Gold Medalist Natalia Laschenova Immigrant Visa Denial at Press Conference" »

The Ohio Senate has introduced two proposed statutes that would require local enforcement agencies to enforce civil and criminal immigration laws when requested to do so by the United States Immigration & Customs Enforcement ("ICE"). These laws are being proposed pursuant to section 287(g) of the Immigration & Nationality Act which allows the federal government to enter into a memorandum of understanding with local enforcement agencies to enforce immigration laws. A prerequisite to entering into such agreement is that local enforcement agencies must be properly trained in order to serve in this function.

It is worthy to note that in March of 2009, Richard M. Stana, Director of Homeland Security testified before Congress wherein he complained that ICE lacks internal controls to implement INA section 287(g) and lacks the ability to supervise local enforcement agencies when enforcing such immigration laws. Below is a summary of Ohio proposed Senate Bills 35 and 150:

Senate Bill 35: Seeks to enact section 109.45 of the Revised Code to direct the Attorney General to pursue a memorandum of agreement that permits the enforcement of federal immigration laws in this state by law enforcement officers. (Emphasis added).

Senate Bill 150: Seeks to amend sections 9.63, 311.07, and 341.21 of the Revised Code to provide that a board of county commissioners may direct a sheriff to take custody of persons who are being detained for deportation or who are charged with civil violations of immigration law and to expressly authorize state and local employees and county sheriffs to render assistance to federal immigration officials in the investigation and enforcement of federal immigration law. (Emphasis added).

Mr. Chairman, Honorable Members of the Ohio Senate and Distinguished Public.

These bills will place our law enforcement officers in a position to act in a complex and unique area of law. There is a civil aspect and a criminal aspect to immigration laws. For instance, an alien's violating his or her immigration status is not a matter that would cause the alien, in most instances, to be detained. On the other hand, an alien who may have been convicted of a crime and whose incarceration was suspended by a judge may be subject to mandatory detention under immigration laws. To put our law enforcement officers who deal with a variety of law enforcement issues on a daily basis, in this highly complex area to determine who is a criminal alien, who violated status, or who is subject to mandatory detention is unwise.

Continue reading "Attorney Gus Shihab Testifies Before the Ohio Senate Against the Passage of Two Anti-immigration Laws" »

The Law Firm of Shihab & Associates is kicking off 2010 with a bang. We're making changes, thinking creatively, and are launching some exciting new initiatives that will make your immigration attorneys more accessible and your case progress more interactive. Our goal for this upcoming year is to increase collaborative efforts with our clients, create more transparency in our operation, make our attorneys more accessible to our clients, and disseminate accurate and timely information to our clients. The future of legal services will require innovative solutions, more timely connection with counsel and higher sensitivities to clients needs. In a nutshell, the legal profession will have to experience a "face lift" to increase the level of service. Here are some of the things that we are going to implement in 2010 to assure that all these objectives are implemented at the start of this decade:

• Intuitive electronic client data, document collection and storage methodology
• Virtual file creation
• Employee management and reporting tools for maximum regulatory compliance
• Automatic reminders for critical deadlines
• Robust communication tools

• Open call times and weekend meetings to increase our availability
• Talk to an attorney while he's on the treadmill or meet him personally for a cup of coffee on Saturdays
• Daily phone appointments and weekly in-person meetings assure that an attorney is available when it is convenient for you, our client.

We're committed to keeping you updated about the latest developments in immigration law, as well as providing top-notch professional commentary on the cutting-edge developments that affect your case.

Customer service is a top priority! With the addition of Matthew M. Nierman, Capital University Class of 2009, our attorneys bring you over 20 years of combined experience in business and family immigration. More staff additions are planned for 2010 to make sure that you get the industry's best service and response.