Immigration Visa Lawyer Blog

The EB5 immigrant visa category is a way for foreign national investors to obtain lawful permanent residency in the US, otherwise known as the green card. This visa category is for immigrant investors who will be engaged in a commercial enterprise that produces 10 US jobs and will benefit the US economy.

In order for a foreign national to qualify, the person must make an investment of $1 million. The investment requirement lowers to $500,000 if it can be established that the investment will be for what is known as a targeted employment area, which means a rural area or an area having at least 150% of the national unemployment average.

The foreign national must make the investment in a commercial business. Investment must consist of capital, which means cash or tangible assets. Regulations provide that capital must have been acquired legally. Capital that was acquired in an unlawful manner or was acquired while the person was in unlawful immigration status may not be used.

The investment must create a new business, or restructure or expand an existing business. In order to qualify, the immigrant investor must be engaged in the management of the enterprise, rather than possess a mere passive role.

Once the EB5 visa is granted, the foreign national obtains lawful permanent resident status, which is for a conditional two-year period. A petition to remove the condition must be filed within 90 days before the end of the two-year period with evidence that the investor still meets the requisite criteria. Failure to meet the deadline terminates the permanent resident status.

The EB5 visa category is one of the most complicated areas of immigration law. Although 10,000 visas are available each year, only 1,000 are granted. It is highly advisable retain a professional and experienced attorney with the ability to competently handle EB5 cases. Such practice not only involves an extensive knowledge of immigration law, it also requires knowledge in corporate, investment, and tax law as well. It may be advantageous to also examine the possibility of alternatives including EB1, E2, and L1 since you may qualify for these as well.

The Department of Homeland Security (DHS) announced a new policy towards certain undocumented immigrants, giving them an opportunity to obtain employment authorization and relief from deportation. The policy addresses many of the benefits that would have been available to young immigrants under the DREAM Act,. Critics say the policy oversteps the executive branch's authority, while supporters say it is a vital step in creating a sensible immigration system and improving the economy. The policy only exists at the executive level, enacted through "prosecutorial discretion." A future administration, or even this one, could change the policy again with little public input. It is a step in the right direction for thousands of immigrants, but it may not be a long-lasting solution.

The new policy, announced on June 15, 2012, creates a process of "deferred action" for qualifying immigrants. This means that, for so long as individual immigrants meet the policy's criteria, the government will not seek to deport them. Deferrals are available for two-year periods, with possible renewal. People receiving deferrals may also obtain employment authorization during the deferral period. The policy could affect up to 800,000 immigrants.

Continue reading "White House Announces New Policy Towards Young Undocumented Immigrants" »

The Department of Homeland Security (DHS) announced on May 1, 2012 that it will extend Somalia's eligibility for temporary protected status (TPS) for eighteen months from its current expiration date. The government cited the ongoing "disruption of living conditions" in the east African nation due to severe drought conditions, armed conflict, and political instability. Somalia has had TPS status since September 16, 1991, and was redesignated in 2001. The extension allows individuals currently registered as TPS to re-apply, and it allows individuals who are from Somalia but present in the United States to obtain TPS for the first time.

Somalia is a country in east Africa with a population of approximately 10 million, according to the U.S. State Department, with land area making it slightly smaller than the state of Texas. Of its total population, about 2 million people live in the region of Somaliland in the north, which seeks international recognition as a separate, independent country. The country has endured decades of civil war, but its current troubles began over twenty years ago, when the national government collapsed in 1991. Various factions, supported by a variety of foreign governments and organizations, have fought for control of the country ever since. A severe drought began in the spring of 2011, leading to widespread famine and a worsening refugee situation in neighboring countries. The United States has contributed millions of dollars in humanitarian aid. Armed conflict continues as well, according to the State Department, with neighboring Kenya and Ethiopia sending troops into the country in the past year.

Continue reading "DHS Grants 18-Month Extension of Temporary Protected Status to Somalis in the United States" »

Secretary of Homeland Security Janet Napolitano and the U.S. Citizenship and Immigration Services have made temporary protected status (TPS) available to Syrian nationals effective March 29, 2012. This means that Syrians, who were in the United States as of March 29, 2012, are eligible to stay in the United States for eighteen months and can receive a work authorization document allowing them to work in the US through September 30, 2013. Attorneys from the Law Firm of Shihab & Associates will make themselves available to all persons who have questions regarding this form of humanitarian relief.

Time Frames and Deadlines for TPS

Persons who wish to obtain TPS must apply between March 29, 2012 and September 25, 2012. If an application for TPS is not received by the September 25 deadline, the application will be rejected by the USCIS.

Entry Date and Physical Presence Requirements for TPS

Only those Syrians who entered the United States on or before March 29, 2012 are eligible for TPS. Additionally, the applicant must demonstrate continuous physical presence in the United States after entry to remain eligible for TPS. The USCIS has stated that short and incidental exits from the United States will not break the physical presence requirement. This is in recognition that the violence and turmoil in Syria may necessitate short periods of travel in and out of the US to attend to matters pertaining to the protection of persons and property. It is highly recommended that applicants for TPS obtain an advance parole document before traveling outside of the US in order to notify the USCIS of the applicant's intent and need for travel.

Visa Status Requirements for TPS

TPS is available for all Syrians regardless of visa status. TPS is supplementary to whatever visa status a person holds at the time of filing for TPS and Syrians are encouraged to maintain their alternate visa status while at the same time applying for TPS. Even people who have overstayed previous visas or who have entered without inspection are eligible for TPS. Immigration status violations are not a bar to receiving TPS. It is recommended that applicants consult with an attorney regarding the effects of TPS on a currently held visa status or lack of visa status prior to applying.
TPS is a temporary visa status and at the end of the TPS designation period, TPS holders will revert back to whatever visa status they possessed prior to TPS. Therefore it is highly recommended that TPS applicants maintain their underlying visa status if at all possible while on TPS.

Nationality Requirements for TPS for Syrians

The designation for Syrian TPS is intended as a humanitarian relief for Syrian nationals. However, persons who do not possess a nationality, and who last habitually resided in Syria may apply.

Continue reading "Syrians Now Eligible for Temporary Protected Status (TPS)" »

The Violence Against Women Act of 1994 (VAWA) is a federal law that provides for additional resources for the investigation and prosecution of violent crimes committed against women, including immigration provisions protecting people who may lack legal status but also need protection from an abusive spouse, parent, or child. After two renewals of the law in 2000 and 2005, it is up for reauthorization again in 2012.

Several Democratic Senators brought VAWA up for renewal again on Thursday, March 15, in the midst of an already-charged political climate. With debates over issues like insurance coverage of contraception dominating the news in recent weeks, this is either a very opportune time to bring up this issue, or a very bad time. It is important to note, however, that VAWA offers important protections to immigrants who may have a valid claim to a green card or visa, but who cannot obtain one because of a bad domestic situation.

VAWA authorized the expenditure of $1.6 billion towards law enforcement efforts to improve the investigation and prosecution of violent crimes against women. It also requires defendants who are convicted of a violent domestic crime to immediately pay restitution to their victim, and it allows civil claims against alleged abusers. The law provides funding for community programs, victim assistance services, and legal aid programs. It offers protection to victims who face eviction from their homes because of domestic violence issues.

In the immigration system, VAWA establishes a procedure for spouses, children, or parents of United States citizens or legal permanent residents to obtain an immigrant visa without the other person's involvement. Normally, a U.S. citizen or permanent resident must petition on behalf of their relative in order to obtain an immigrant visa, and they must sign off on an application to obtain a green card. The VAWA procedures are designed to protect the immigrant from the abusive relative.

A petition made under VAWA by an abused spouse may include the spouse's children under the age of 21, whether or not the children are themselves victims of abuse. A parent of a child who has been abused by another parent who is a U.S. citizen or legal permanent resident may petition for their child. A parent who has been the victim of abuse by a U.S. citizen son or daughter may also petition for benefits under VAWA.

Continue reading "Democrats in Congress Bring the Violence Against Women Act, Which Can Impact Immigration Cases, for Reauthorization" »

Many spouses and children of U.S. citizens qualify for legal immigration status, but are required to file the application overseas at their country of origin because they are unlawfully present in the U.S., also called "entering without inspection." If they were unlawfully present in the U.S. for more than 180 days, and then they go overseas, there is a law that bars them from reentering the U.S. for 3 years. This bar increases to 10 years if the illegal stay is longer than one year. This creates a catch-22 because if they leave the U.S. to apply for legal immigration status, they will be unable to reenter for 3 to 10 years. So, rather than go overseas to apply for legal status, many simply remain unlawfully in the U.S. to avoid being separated from their family for several years.

Many people who would be subject to the 3 or 10 year bar may be eligible for certain hardship waivers to allow them to return to the US after they apply for legal status overseas despite the 3 and 10 year bar. But critics say this process is lengthy and flawed. They are required to remain overseas until the waiver is granted before they can reenter the U.S., which is a process that can take from months to years, and there is no guarantee that the waiver will be granted. Therefore, many do not risk going overseas to apply for the waiver.

Even if a person has a legitimate relationship with a U.S. citizen, and is eligible to apply for legal immigration status, the current immigration law discourages that person from doing so. Instead, the current law actually encourages that person to remain in the United States illegally, or risk long term separation from the family.

Under the proposed rule change, announced today, foreign nationals in this situation could apply for the waiver while still in the United States. Then once the waiver is granted, they could depart and file for legal immigration status overseas at their country of origin, and then reenter the U.S. using the waiver.

This would eliminate the often prolonged wait faced by foreign nationals who are forced to wait overseas, and would encourage applicants to get legal status rather than remain unlawfully. "The goal is to substantially reduce the time that the U.S. citizen is separated from the spouse or child when that separation would yield an extreme hardship," USCIS Director Alejandro Mayorkas said. This streamlined process would eliminate much of the economic and other hardships that result from long separation from the family.

A class action lawsuit was filed last week against US immigration agencies on behalf of many asylum applicants who were wrongly denied work authorization, A.B.T., K.M.-W., G.K., L.K.G., D.W. v. USCIS; EOIR (Case No. 2:11-cv-02108 A.B.T). The nationwide lawsuit was filed by the American Immigration Council's Legal Action Center (LAC) against the U.S. Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR) in the United States District Court in Seattle. The suit alleges that the USCIS and EOIR delays violate the Constitution, federal statutes, and governing regulations.

Asylum seekers are not eligible for work authorization during the 180-day period after the application is filed. But according to federal law, asylum applicants are to be granted work authorization after the application has been pending for 180 days. Due to unlawful and unfair practices and policies, U.S. immigration agencies have prevented asylum seekers from obtaining work authorization after the 180-day waiting period has elapsed. For example, one named plaintiff in the lawsuit is a man from China who filed his asylum application in 2003, and he has been pursuing work authorization for years without success.

In calculating the 180-day period, the USCIS relies on immigration judge determinations who work for the EOIR, which results in arbitrary policies on when the 180-day "clock" should start and stop. This, along with the increasing backlog in U.S. immigration courts, has unlawfully prevented asylum seekers from working. According to the lawsuit, these unlawful policies and practices prevented asylum applicants from obtaining work authorization and forced them to rely on the goodwill of others to support themselves and their families while they await decisions on their asylum applications, and this process can take many months and sometimes years.

The 180-day period (or "asylum EAD clock") may be suspended, but only for applicant-requested or caused delay of the adjudication of their asylum application, according to the lawsuit. USCIS and EOIR policies result in EAD clocks being arbitrarily started and stopped, and even permanently stopped in some cases. Many asylum seekers have not received adequate notice that their EAD asylum clocks have stopped, and they are consequently deprived of a meaningful opportunity to remedy these determinations.

Continue reading "Class Action Lawsuit Alleges Asylum EAD Clock Is Unfair" »

A campaign led by U.S. Citizenship and Immigration Services (USCIS) intends to educate immigrants, both documented and undocumented, regarding common scams purporting to be legitimate immigration services. The Unauthorized Practice of Immigration Law Initiative began in seven U.S. cities including Detroit, and includes advertisements and printed materials in both English and Spanish. Its website has educational materials available in at least fourteen languages. The USCIS has partnered with the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), the Federal Trade Commission (FTC), the Department of Justice (DOJ), and the Board of Immigration Appeals (BIA) for this campaign. They are also engaging state and local agencies to improve communication and facilitate enforcement of laws prohibiting immigration scams.

USCIS offers a list of common scams targeting immigrants. People using the title "Notario Publico" sometimes rely on a difference in the meaning of that title between the U.S. and Latin American countries in order to lure immigrants from those areas. A "notary public" in the U.S. has basic authority to witness signatures and administer some oaths. In some parts of Latin America, the title refers to someone with lawyer-like credentials and authority, leading some immigrants to incorrectly think they have the authority to render legal services.

Some sophisticated scammers set up websites offering guidance on immigration paperwork with URL's closely resembling official sites. The sites often directly copy design elements of government websites. The telltale sign of a scam website is a fee to download official immigration forms. All official forms are available for free on USCIS's website.

A particularly damaging type of scam involves the Department of State's diversity lottery, which makes 50,000 visas available each year to certain people from countries with low immigration rates. Scam services may claim to be able to help improve someone's chances of being selected in the lottery. Ohio's chapter of the League of United Latin American Citizens (LULAC) issued a warning regarding Ohio-based scams targeting applicants for the diversity lottery.

Another scam that may seem obvious to immigration attorneys can ensnare people who do not know about the many changes to federal immigration agencies over the past decade. Scammers claiming to work with the Immigration and Naturalization Service (INS) may prey on immigrants. The INS has not existed since 2003, when it became part of DHS and its functions were divided between USCIS, ICE, and other agencies.

Continue reading "Officials Launch Campaign to Raise Awareness of Immigration Scams" »

As the Democrats and Republicans of congress continue to negotiate a compromise to the federal budget that is set to expire Friday, April 6th, 2011 at midnight, immigration attorneys in Columbus, Ohio have turned their attention to how a government shutdown will affect the normal adjudication of visas. Visa applications, including employment based I-140 and H-1B petitions as well as family based petitions including I-130 and I-485 applications, filed in the United States are usually adjudicated at one of the USCIS service centers throughout the country. These service centers are staffed by immigration officers who adjudicate visa applications. These immigration officers are employees of the federal government and could be furloughed if the federal government shuts down for lack of congressional funding.

Historically, government shutdowns have resulted in delays for visa adjudication. The reason for the potential delay is based upon the wording of the federal Antideficiency Act. This law states that in the event of a governmental shutdown the only governmental employees that will be permitted to continue to carry out their work will be employees who prevent or respond to "emergencies involving the safety of human life or the protection of property." The law goes on to state that "ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property" are not to continue their operations during a shutdown. Officers who adjudicate visas at the service centers will most likely not be deemed essential to the protection of safety or property and will be furloughed. With no-one to adjudicate visas, visa applications will be backlogged to some extent. However, other aspects of United States immigration policy will continue to be enforced. Customs and border patrol officials, for example, should remain active.

While the chance of a government shutdown is small, it remains a definite possibility. Also, delays in US postal service operations could occur. Therefore, foreign nationals and attorneys should be cognizant of the potential for delays in the adjudication and delivery of visa petitions and applications to the USCIS service centers.

Continue reading "Government Shutdown Could Effect Visa Adjudications" »

This article is the second installment following up and providing a conclusion to the first segment which provides the final techniques utilized by the Columbus Immigration Lawyers at The Law Firm of Shihab & Associates regarding the preparation of a Motion to Reopen/Reconsider or Request for Evidence (RFE) responses. Again this article focuses on the RFE response, but its techniques are applicable to any written brief or statement made in response to USCIS.

Critique the Request for Evidence Itself
A major component of drafting the response to an RFE is the need to critique the request itself. The immigration officer may not have developed the facts in a complete and accurate manner. It is your job to comprehensively develop those facts (often by use of affidavits). By showing inconsistencies and other problems with the facts, as developed by the immigration officer, you begin to establish credibility to your case. The Immigration Lawyers at The Law Firm of Shihab & Associates are very experienced at analyzing the facts and respectfully presenting them correctly to the USCIS in an RFE response.

Secondly, you must scrutinize the quality and quantity of the legal research conducted by the immigration officer. Determine if the officer identified all the relevant legal authority. Often times, RFE's will present "biolerplate" legal authority. Did the immigration officer properly interpret the law? Did the officer correctly apply the law to the issue and the facts in the case at hand? Did the officer include legal authorities in the RFE, but not use them in the analysis or argument? Don't leave these questions unanswered. If there are flaws in the legal research conducted by the immigration officer, or flaws in the ways by which the officer cited legal authorities, point it out.

Finally, test the immigration officer's arguments. Has the officer adequately connected the issues with the facts and law? Have convincing analogies been developed by the officer? Has the officer adequately answered the questions asked? If there are flaws in the officer's arguments, point them out.

Revise, Revise, Revise....then Revise One More Time!
As Justice Louis Brandeis stated: "There is no such thing as good writing. There is only good rewriting." Justice Brandeis often revised his writing 15 or more times before he was satisfied. While this is obviously extreme, it is suggested that you revise your writing at least three times, more if time and money permit. Excessive use of passive voice, timid phrasing, vague words and other examples of poor writing are often found in first drafts. The lawyers at The Law Firm of Shihab & Associates spend the time to make sure your case is prepared with great diligence to grammer, form, substance and style.

As this article demonstrates, regardless of the inherent strengths or weaknesses of a given case, there is much that can be achieved by mastering the art of preparing a successful RFE response, Motion to Reopen/Reconsider brief or appeal. Our lawyers know this more than anyone!

Continue reading "Drafting a Motion to Reopen/Reconsider or Request for Evidence Response to USCIS: Proven Techniques for Success (Part 2)" »

USCIS provides minimal guidance regarding the preparation of a Motion to Reopen/Reconsider or Request for Evidence (RFE) response. Unlike other USCIS procedures, CIS does not require the completion of a form when filing an RFE response. This little guidance provides a wide range of possibile methods to responding to the RFE. This article presents techniques that the Columbus Immigration Lawyers at The Law Firm of Shihab & Associates have implemented for preparing a successful responses to USCIS and focuses on the brief in support of an RFE response.

Prepare a Roadmap: Presentation Matters
While this might sound obvious, the most important element of the RFE response is drafting the response itself. Don't spend all your time meeting with the client, gathering facts and conducting legal research. Too often, not enough time is spent on planning and presentation. Remember, an RFE has a strict deadline that often poses a tight timetable to prepare the supporting documentation and legal arguments. As the saying goes, "plan the work; work the plan." This is an axiom the lawyers at The Law Firm of Shihab & Associates live by. You must leave sufficient time to prepare a polished product. Preparing a polished written RFE response does not simply happen. It requires good planning, organization and writing.

Focus on the Facts: Don't Drive from Boston to Chicago via Nashville!
Regardless of what factual informaiton you decide to present, you must determine the order in which to present the facts. Consider the following illustration: If you decide to drive from Boston to Chicago, it is unlikely you would drive first to Baltimore, then to Nashville and finally to Chicago, unless of course time and money were of no concern. Likewise, the immigration officer will expect to see some logical order to the presentation of the facts in your RFE response letter. Don't confuse the Immigration officer by driving from Boston to Chicago via Nashville!

There are various approaches for ordering the presentation of the facts: chronological, biographical (e.g., describing key individuals along with facts associated with them), or transactional. Employ whatever approach you use consistantly throughout the RFE response. Your facts should be presented persuasively without being argumentative. Facts, not opinions, will convince the USCIS officer to look favorably upon your client's case.

Continue reading "Drafting a Motion to Reopen/Reconsider or Request for Evidence Response to USCIS: Proven Techniques for Success (Part 1)" »

Earlier this week the US Consulate at Mumbai reported that persons filing for Employment Based Permanent Residency in the Second Preference, or the EB-2 preference category, were current. This erroneous report gave false hope many persons from India who hold master's degrees, have endured the PERM process and are currently waiting for a visa to be made available to them. It is unfortunate that a US Consulate would report such a drastic progression of the priority date only to later disappoint the many thousands of people who have waited so long to adjust to Green Card Status.

Just to clarify, the Mumbai consulate's report of current visa availability for persons in the EB-2 preference category was in error. Foreign nationals from India who are waiting for a visa to be made current under the EB-2 preference category must have a priority date of May 8, 2006 in order to file for adjustment of status to Lawful Permanent Resident or Green Card status pursuant to the February 2011 Visa Bulletin.

The Department of Justice announced that it has awarded $720,321 in grants to 13 organizations throughout the country to conduct public education programs for workers and employers about federal protections against immigration-related job discrimination. The grants range from $43,664 to $88,000, and are awarded by the Office of Special Counsel for Immigration-Related Unfair Employment Practices. Recipients will assist discrimination victims; conduct seminars for workers, employers and immigration service providers; and place advertisements in local communities through mainstream and ethnic media to educate workers and employers about their rights.

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

E-2 Visa Solutions for Small Business Investors

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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