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.

This is the second of a two-part article discussing authorized deductions for H-1B specialty occupation workers. Part 1 addressed the rules for "authorized deductions" on H-1B workers' wages relating to the prevailing wage determination. Part 2 is a case study of a July 2009 Administrative Appeals Office decision regarding H-1B authorized deductions.

Case Study: Administrative Appeals Office (AAO) Decision on H-1B Autorized Deductions:
In 2009, the AAO issued a decision of denial revoking a previously approved H-1B visa on the basis that the deductions by the employer were not authorized. The H-1B petitioner in that case was a Filipino newspaper/entertainment promoter that employed the H-1B beneficiary as a public relations specialist and journalist. The issue was whether the beneficiary was being paid the prevailing wage taking into account the deductions which the employer believed were authorized. Failure to pay the prevailing wage violates the H-1B terms and conditions of employment and will have the effect leaving the beneficiary without valid H-1B status. Thus, care must be taken to strictly abide by the authorized deductions procedures indicated in Part 1.

On appeal, counsel for the petitioner explained that the beneficiary received free housing for ten months in 2003 and 2004, valued at $9,500.00 for each year. Counsel explains that as part of the beneficiary's wages in 2003 and 2004, the petitioner paid rent on behalf of the beneficiary. The beneficiary occupied only the master bedroom of a two bedroom whch was viewed as compensation in the amount of $9,500.00 for each year. Counsel further explained that "starting in November 2004, beneficiary began paylng his own housing." Thus, counsel for the petitioner contended that the beneficiary's salary, plus the residential expenses, which is $9,500.00 per year, was above the prevailing wage, and thus the petitioner did not violate the H-1B requirements.

General Rule: Deductions MUST be for the benefit of the employee
The AAO determined that housing and food allowances may be permissible deductions if tthey meet the benefit of the employee standard. The H-1B employee's housing must be principally for the benefit of the employee. According to the regulations, the employee's housing may not principally benefit the employer, such as requiring the employee to be "on-call." As a journalist, the petitioner may require that the beneficiary be "on-call" at all times to report on any news-breaking stories. The petitioner did not provide sufficient documentation to establish that the housing provided to the beneficiary meets the benefit of the employee standard. Thus, the deduction was not a permissible deduction of the beneficiary's wages.

Housing and Food Allowances Generally:
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.

Impermissible Deductions on H-1B Worker's Wages
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.

Continue reading "Columbus H-1B Immigration Lawyer: Prevailing Wage for H-1B Specialty Occupation Workers Authorized Deductions (Part 2 - Case Study)" »

H-1B visa employers in Columbus Ohio and nationwide can rely on a continuous supply of cap subject H-1B visas this federal fiscal year ("FFY"). Data released by the USCIS suggests that the H-1B visa cap is not likely to reach until early 2011 and possibly not at all this federal fiscal year.

The law firm of Shihab & Associates, analyzed data posted on the USCIS website relative to the number of cap subject H-1B visa petitions received by the USCIS since the FFY 2011 opened on April 1, 2010 and plotted the graph below. The date shows a surprisingly linear and consistent number of cap subject H-1B visa petitions received by the USCIS on a weekly basis. The slope of the graph has not changed drastically since April 2010 which suggests a consistent demand for H-1B visa workers in the Ohio and United States. Although data is not available for the federal fiscal year 2009 on the USCIS website, however, the law firm of Shihab & Associates, Co., LPA believes that the demand for H-1B visa workers in calendar year 2010 may be less than the previous years.

The same date was projected forward in the future to predict as to when the USCIS cap will be met this year. Based on the projections, it does not appear that the cap will reach this year at all. The "Regular" H-1B visa cap will is shown to reach in April 2011. While the Master's Degree cap subject H-1B visas will more than likely meet in December 15, 2010. It is a mathematical fact that once the "Master's" degree cap will reach in December that it will cause the demand for "Regular" H-1B visas to increase. Based on the foregoing, it is more realistic to expect the "Regular" cap to reach in February 2011.

Below is a list of the 2011 FFY cap subject H-1B visa cases received by the USCIS since April 2010.

This two-part article discusses authorized deductions for H-1B specialty occupation workers. Part 1 addresses the rules for "authorized deductions" on H-1B workers' wages relating to the prevailing wage determination. Part 2 is a case study of a July 2009 Administrative Appeals Office decision regarding H-1B authorized deductions.

Prevailing Wage for H-1B Specialty Occupation Workers:
An employer must pay an H-1B specialty occupation worker the prevailing wage or the actual wage paid to other similarly situated employees. The Immigration and Nationality Act (INA) requires that the foreign worker will not adversely affect the wages and working conditions of U.S. workers employed in similar positions. Per the DOL regulations, H-1B employees must be paid the prevailing wage rate for the occupational classification in the area of employment or the actual wage paid to similarly employed workers.

H-1B Worker Paid Below the Prevailing Wage: Authorized Deductions?
According to Federal Regulations for the H-1B classification, wage rate means the remuneration (exclusive of fringe benefits) to be paid, stated in terms of per hour, day, months or year. In addition, the required wage rate must be paid to the H-1B employee, cash in hand, free and clear, when due, except that authorized deductions may reduce the cash wage below the level of the required wage.

Question: What are "Authorized Deductions" under H-1B?
According to the regulations, "Authorized deductions," for H-1B purposes means a deduction from wages in complete compliance with one of the enumerated criteria below. These deductions allow an employer to pay an H-1B worker below the prevailing wageso long as each deduction is primarily for the benefit of the employee.

These deductions are considered "authorized" for H-1B purposes:

1. Deduction which is required by law (e.g., income tax; FICA); or
2. Deduction which is authorized by a collective bargaining agreement, or is reasonable and customary in the occupation and or area of employment (e.g., union dues; contribution to premium for health insurance policy covering all employees; savings or retirement fund contribution for plan(s) in compliance with the Employee Retirement Income Security Act), except that the deduction may not recoup a business expense(s) of the employer (including attorney fees and other costs connected to the performance of H-1B program functions which are required to be performed by the employer, e.g., preparation and filing of LCA and H-1B petition); the deduction must have been revealed to the worker prior to the commencement of employment and, if the deduction was a condition of employment, had been clearly identified as such; and the deduction must be made against wages of U.S. workers as well as H-1B nonirnrnigrants (where there are U.S. workers);
3. Deduction must be made in accordance with voluntary, written authorization by the employee (an employee's mere acceptance of a job which carries a deduction as a condition of employment does not constitute voluntary authorization, even if such condition were stated in writing);
4. Deduction must be for a matter principally for the benefit of the employee (housing and food allowances would be considered to meet this "benefit of employee" standard, unless the employee is in travel status, or unless the circumstances indicate that the arrangements for the employee's housing or food are principally for the convenience or benefit of the employer (e.g., employee living at worksite in "on call" status);
5. Deduction must not be a recoupment of the employer's business expense (e.g., tools and equipment; transportation costs where such transportation is an incident of, and necessary to, the employment; living expenses when the employee is traveling on the employer's business; attorney fees and other costs connected to the performance of H-1B program functions which are required to be performed by the employer (e.g., preparation and filing of LCA and H-1B petition)).
6. Deduction must be an amount that does not exceed the limits set for garnishment of wages in the Consumer Credit Protection Act, and the regulations of the Secretary pursuant to that Act, under which garnishment(s) may not exceed 25 percent of an employee's disposable earnings for a workweek.

Any deduction that does not meet the above enumerated criterion will not be considered "authorized" and cannot be deducted from the H-1B beneficiary's wages to meet the prevailing wage requirement. The next article addresses a case study of these requirements in a real life example.

Continue reading "Columbus H-1B Immigration Lawyer: Prevailing Wage for H-1B Specialty Occupation Workers Authorized Deductions (Part 1)" »

The City of Columbus took a bold move and passed a non-binding Resolution to urge Congress to pass Comprehensive Immigration Reform. The following is a verbatim testimony of Attorney Gus M. Shihab before City Council on June 21, 2010 in favor of passing this resolution.

The following is attorney Gus Shihab statement:

President Pro Tempe Craig, Councilwoman Tavares, Honorable Members of the Columbus City Council and Distinguished Guests.

It has been documented that immigration reform will improve the US economy as the population of undocumented immigrants will invest into America by buying homes, cars, property and other goods. A study conducted by UCLA Comprehensive Immigration Reform will increase the Gross Domestic Product (GDP) over 10 years.
I thank you for your efforts in passing this resolution and I will be more than happy to answer any questions.

This article is an H-1B case study of concurrent H-1B filings. Here's the situation: a hypothetical H-1B worker currently works for a cap-exempt H-1B employer (Company A) and wishes to transfer her visa to a cap-subject employer (Company B) while maintaining employment at Company A. Company B files and obtains an approval of an H-1B cap petition to begin work on October 1, 2010. The question arises: when can the H-1B worker begin work with company B? Can she start immediately or does she have to wait until Oct. 1? What happens if she begins working at Company B before her petition is approved? If she begins working at Company B, does she have to withdraw her H-1B petition for company A?

Issue: Whether an H-1B beneficiary may continue to work for a cap-subject employer, after the H-1B petition has been adjudicated and approved, prior to the stated work period that commences on a future date of October 1 in the H-1B petition.

The Portability Rules for H-1B Employment
The H-1B visa allows workers to be employed by several employers concurrently, e.g., an accountant employed by Company A who also performs consulting work for Company B. If the H-1B worker has H-1B status from Company A and will continue to work for Company A while commencing new employment for Company B, then Company B must file an H-1B petition requesting extension of H-1B status of the worker. Under the H-1B portability rules, the H-1B alien worker is allowed to begin working for Company B as soon as the petition has been filed. This is advantageous as there is no requirement that the H-1B worker needs to wait for the actual approval of the H-1B petition. The H-1B worker may engage in part-time employment Company B so long as the LCA states that the position is part-time, assuming that the position is still a specialty occupation requiring a relevant bachelor's degree or foreign equivalent.

Hypothetical Scenario: Concurrent H-1B Employment
An H-1B beneficiary with an approved H-1B visa with a cap-except Company A has a validity date from say May 15, 2010 until May 14, 2013. The worker was not subject to the annual H-1B cap. The annual H-1B cap is set at 65,000, with an additional 20,000 visas for advanced degree graduates of U.S. universities. The law exempts nonimmigrant workers from the annual cap if they are employed or has been offered employment at an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965 .

Company B has offered the H-1B employee a position with the company as an Accountant (a qualifying specialty occupation). Company B recently submitted an H-1B petition on behalf of the beneficiary with a start date of October 1, 2010 at the start of the 2011 fiscal year, since the beneficiary is now subject to the annual cap going from a cap-exempt organization (Company A) to Company B, a cap-subject employer. Company B's H-1B petition filed on behalf of the beneficiary is now approved by the USCIS.

The so-called portability provision under the law provides continued employment authorization to the beneficiary of an H-1B petition, who is working at the cap-exempt organization and whose employment period is covered by a valid LCA beyond October 1, provided that he/she meets all other requirements under the portability provision as set forth under the law. Meeting these conditions, the beneficiary may begin employment upon the filing of the petition with the cap-subject employer.

Such employment authorization continues until the new H-1B petition is adjudicated. Meeting all of the conditions under the applicable law, an H-1B visa holder may transfer employment once the new employer files on behalf of the H-1B candidate. This ability to port is a temporary benefit bestowed on the H-1B beneficiary under the law but does not confer H-1B status to the beneficiary. Hence, employment authorization shall continue for such alien until the new petition is adjudicated. If the new petition is denied, such authorization shall cease.

While it is clear that if the petition is denied, the employment authorization ceases. The question arises, however, what happens when the petition is approved? The portability provision does not specifically provide an answer to this question.

Can the H-1B Employee Work for Company B Upon Approval?
In fact, the question was specifically brought up in a string of correspondence between Ms. Naomi Schorr with Kramer Levin Naftalis & Frankel, LLP and Mr. Efren Hernandez III of the United States Citizenship and Immigration Services ("USCIS") during 2007. In her letter dated April 27, 2007, one of the issues on which Ms. Schorr sought clarification from the USCIS was whether the H-1B beneficiary who has ported from a cap-exempt institution to a cap-subject employer, whose H-1B petition with the new employer has been approved and who meets all the conditions the law, could continue to work prior to October 1. In his reply letter dated May 23, 2007, Mr. Hernandez answered in the following:

"As you note, section 214(n) provides employment authorization until the H-1B petition is either denied or adjudicated. Congress appears to have not contemplated a situation in which H-1B status would not be immediately conferred upon the portability worker upon approval of the H-1B petition. By addressing the result of a denial but not an approval Congress seems to have assumed that the alien would immediately be covered by the approval and would no longer require the employment authorization conferred by 214(n), and thus drafted 214(n) so that the employment authorization it provides ends upon "adjudication." I agree that a result in which an alien with a pending petition is in a better situation than one with an approved petition makes no sense. A reading of 214(n) such as the one you suggest that continues employment authorization until H-1B status is available is a logical one, and USCIS will explore this position in future rulemaking."

Based on this string of correspondence, according to Mr. Hernandez it would be absurd to reach the decision that once the petition becomes approved, the H-1B beneficiary would have to stop working until October 1, when new H-1B numbers become available. Such a conclusion would seem to defy logic.

Meeting all of the conditions under the law, the H-1B beneficiary may work for Company B prior to October 1, provided that a new LCA is submitted that would cover this period from now until the start of the next LCA period in the H-1B application, i.e., October 1st.

Continue reading "Columbus Immigration Lawyer: H-1B Portability and Concurrent H-1B Visas" »

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" »

The treaty investor visa, or "E-2" visa, is a nonimmigrant visa category in which adjudication can seem subjective depending on the governmental office where the application is made. While there are hard and fast rules, the E-2 treaty investor visa engenders inconsistant governmental action by consulate offices abroad and by the USCIS. This article addresses the common problem areas and offers "real world" practical advice on securing an approval of an E-2 treaty investor visa.

There MUST Be a Treaty
The E-2 treaty investor visa is based on a qualifying trade treaty between the United States and various other countries of the world. The treaty must exist between the alien's country of nationality and the United States. If the requisite treaty does not exist, the alien will not be eligible for the treaty investor visa, irrespective of where the individual resides. A comprehensive list of treaty countries may be found on the U.S. Department of State website. For example, while the United States has made diplomatic and political strides in securing a friendly relationship with Russia, there is currently no treaty between the U.S. and Russia with respect to the E-2 treaty investor visa. Therefore, a foreign national with Russian citizenship will not be eligible for the E-2 treaty investor visa regardless of where the alien currently resides. The first step in identifying your eligibility under the E-2 visa category is to ensure the treaty exists between the foreign country and the U.S.

The next step is to know the law for qualifications under the E-2 treaty investor visa. Once you have established the requisite treaty and that you meet the legal criteria, a thorough analysis of the consulate precedent and procedures must be conducted as every consulate adjudicates E-2 treaty investors differently.

Each Consulate Has Its Own Procedure: You MUST Comply!
Knowing the foreign national's Treaty Visa Office's Consulate procedure and precedent is necessary to obtaining the visa. For many Treaty Visa Offices, there are extremely detailed and specific procedures for both registering an enterprise and filing for visa issuance once an enterprise has been registered. Each embassy or consulate website contains specific instructions that must be followed for each E-2 treaty investor visa applicant.

For example, the U.S. Embassy in Toronto, Canada has one of the most detailed procedures for obtaining the E-2 visa. The embassy requires that E-2 visa petitions be bound and organized into sections. The sections must contain dividers with numbered tabs that stick out from the edges. If the dividers are submitted without tabs, the submission will be rejected. These procedures can be found on the embassy website. Failing to abide by the specific requirements can result in dire consequences. Not following the procedural requirements can result in rejection or issuance of an evidentiary request, which can move the application to the back of the line and cause significant delay. Careful attention to consulate procedures ensures that consulate officers will adjudicate the case based on the merits.

In regards to precedent, the most common distinction made at the consulates is what is considered a "substantial investment." The law states that there is no minimum investment amount required. The investment must simply "be sufficient to ensure the success of the desired investment, and more than what is necessary to simply provide a living for the applicant." However standardized this requirement appears, standards differ from consulate to consulate on how it views what a "substantial investment" actually may be. An alien should rely on the experience of a lawyer to know these differing standards. For example, experience shows that a Canadian applicant was successful in obtaining an E-2 visa for a $36,000 investment for a 65% stake in a Wendy's franchise, while an Argentine national's 100% purchase of a 32 room hotel in Miami, Florida for around $700,000 was deemed as not meeting the substantial investment threshold. These are only examples and serve as a precaution for E-2 treaty investor visa applicants to understand that while the law is uniform, each consulate's adjudication under the law is not.

Trace the Investment: Show Me the Money!
One of the most important aspects of the E-2 visa involves analyzing where the applicant's investment came from, how it is invested, and whether the investment is irrevocable or at risk. Many E-2 visa applications have failed due to not properly proving these investment elements to the consulate officer.

Where did the investment come from? The dollars invested must be controlled by the applicant, and they must be real dollars available chosen for investment. The enterprise cannot be a gift to the applicant, while the money invested can be. To prove control, consulates often want to see a track record of the funds being used by the applicant (i.e., bank statement dating back several months) or documentation about the transaction that brought about the funds, such as the sale of property or savings accounts. Irrevocable inheritances of money from loved ones often serve as investment capital. As long as the inheritance is properly traced, the gift will be considered "controlled" by the applicant.

How is the money invested? Consulate officers want to see money spent on tangible items that will be used in the business to grow the business. These dollars can be spent on equipment, inventory, property (sale or lease) or even salaries or contracts for services. Placing the funds in an account for future use will be insufficient. A major aspect of the E-2 treaty investor visa is the notion that investment capital must be irrevocably committed to ensure the success of the enterprise.

The investment must be subject to risk of loss. Part of investing is the reality that the business may not turn a profit and may eventually fail. The money invested must be subject to this risk or else there is not a true investment for E-2 purposes. The money must be placed at risk and vested irrevocably in the business. Using personal funds or funds secured by the investor's personal assets will satisfy the requirement.

Continue reading "Columbus Immigration Lawyer: Obtaining the Treaty Investor Visa (E-2) with the Treaty Visa Office or USCIS Poses Traps for the Unweary" »

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" »

If you are residing abroad and have recently had your immigrant or nonimmigrant visa application denied by a consulate officer, you may request an advisory opinion from the Department of State's Visa Office Advisory Opinions Division (AOD) and "open the door" to a denied case. With the powerful advisory opinion, a foreign national has the opportunity to obtain the original visa classification sought instead of filing an entirely new case from the start.

When a foreign national files for an immigrant or nonimmigrant visa from a consulate abroad, the consulate officer may erroneously deny the petition taking an incorrect legal position. The foreign national may not feel that s/he has any options for appeal. However, an attorney may request an advisory opinion from the Department of State's Visa Office Advisory Opinions Division (AOD). If the AOD agrees with the attorney and issues the advisory opinion, the consular officer's determination will be overturned allowing the foreign national to obtain the visa s/he is seeking. This is a very powerful tool that not many foreign nationals know exists. This article discusses the various advisory opinion procedures and discusses the benefits of requesting the advisory opinion especially when the foreign national's petition has been incorrectly denied.

The Advisory Opinion
A request for an advisory opinion is a appropriate when your immigrant or nonimmigrant visa petition has been denied at a consulate abroad due to an incorrect application of law. The advisory opinion addresses legal questions involving proper visa classification, specific grounds of visa eligibility, and other legal issues concerning visa applicantions. The most common questions pertain to misrepresentation of material facts, nonimmigrant visa classifications (particularly E, H-1B and R), inadmissibility due to commission of crimes involving moral turpitude, diplomatic visas, visa revocation requests, and unlawful presence.

An attorney should seek an advisory opinion if it appears that there was a legal error, i.e., when a visa application is denied without an applicable legal basis. The advisory opinion may result in a favorable decision for the application. The consular officer will generally inform the alien of the suspected substantive reason for denying the visa. This will form the basis for the attorney's request for advisory opinion as often times the consulate officer may err as a matter of law.

Legal Effect of the Advisory Opinion
The Department of State's regulations provide that advisory opinions concerning interpretations of law "shall be binding upon consular officers." AOD lawyers state that consular officers never refuse to follow a purely legal opinion. This means that if the consular officer "gets it wrong" as a matter of law, the advisory opinion will cure the defect. More problematic is the situation of applying the law to the facts of a particular case. When the case involves factual interpretations as well as legal matters, the consular officer's determination on the factual issues is binding. Hence, only incorrect applications of the law may be scrutinized by a request for advisory opinion.

If you are a foreign national whose case has been denied due to an incorrect application of law, you should seek an advisory opinion. You must request an advisory opinion within one year of the date the visa petition was denied. Do not delay since after one year you cannot obtain relief. You may begin by calling the consulate officer who denied the application and request that the decision be overturned due to the error, but this approach is a far stretch given the tendancy of these officers not to overrule themselves. Thus it becomes necessary to ask the AOD to overrule the consulate officer through the issuance of an advisory opinion.

Continue reading "Columbus Immigration Lawyer: When a Consulate Shuts the Door on a Visa Petition, The Key to Victory is to Request an Advisory Opinion" »

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" »