Immigration Visa Lawyer Blog

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

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

Summary

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

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

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

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

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

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

Discussion of the Enjoined Sections of SB1070

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

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

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

Good news for International Students currently studying in Columbus, Ohio and nationwide: USCIS Regulations provide for relief to F-1 visa students present in the US on Optional Practical Training whose OPT cards expire prior to October 1, 2011 and who are also the beneficiaries of H-1B visa petitions filed by their employers.

It used to be that F-1 students presently working in the US on OPT cards that expired prior to the begging of cap subject H-1B visa (October 1), that they had to depart the US and avail themselves to a US embassy in their country, obtain an H-1B visa and return to the US to rejoin their employers. This was known as the "Cap Gap." Some years, the USCIS issued a rule allowing such students to remain in the US between the expiration of their OPT period and October 1. All that changed on April 2008 when the USCIS issued regulations that affirmatively to dealt with the problems caused by the cap gap.

Under these rules, the lawful status of an F-1 student who is the beneficiary of an H-1B petition and a request for change of status will be automatically extended, along with any grant of optional practical training (OPT) work authorization, until October 1 of the fiscal year for which H-1B status is being requested . This extension will allow F-1s whose OPT will expire before the start date of a petition filed under the H-1B cap to remain in the United States and work through the beginning of their H-1B employment on October 1. The rule requires the H-1B petition to be "timely filed"; it does not require the H-1B petition to be approved before the automatic extensions can take effect. An application is generally considered "filed" once it is accepted for processing by USCIS. Please note that a timely filed H-1B visa petition included any petition filed prior to the expiration of "Grace Period" which terminates 60 days after the expiration of the OPT card. In other words, an F-1 visa student whose OPT card expires on May 1, 2010 may take advantage of the cap gap rule during the grace period by having an employer file a bona fide H-1B visa petition prior to July 30, 2010.

If the H-1B petition is rejected, denied or revoked, the automatic extension of status and work authorization will immediately terminate. Initially, it was unclear how the rule applies to an F-1 student who is the beneficiary of an H-1B petition that requested consular processing rather than a change of status. USCIS addressed this technical issue in subsequent written guidance issued on April 18, 2008. The agency will allow an H-1B petition filed on behalf of an F-1 student to be upgraded to request a change of status to H-1B so that the student can take advantage of the agency's new "cap gap" rule.

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

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

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

Who Qualifies for the National Interest Waiver?

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

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

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

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

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

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

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

A popular alternative to the H-1B and L-1 visas for Canadian or Mexican nationals is the TN Visa. This visa allows temporary immigration to the United States for persons from Canada or Mexico who hold a baccalaureate degree or appropriate level of credential status, qualifying them as a professional. This visa has several advantages over other available options for citizens of the NAFTA treaty countries over and above the benefits of H-1B or L-1 visas. Due to the specialized documentation needed in order to properly apply for a TN visa, the representation of an experienced immigration attorney is recommended when applying for TN visas.

Qualifications

The TN visa is based upon the NAFTA treaty signed by Canada, Mexico and the United State. The purpose of this visa is to allow for the mobility of professionals between the three countries in recognition that the common borders of the NAFTA signatories lend themselves to multinational business across their shared boundaries. Therefore, professionals holding a baccalaureate degree or equivalent credentials may be eligible to apply, including those citizens of Canada who graduated from a three year degree program.

There are various statutory requirements that need to be proven in the TN visa petition. Generally, it needs to be shown that the applicant is indeed a citizen of Canada or Mexico and that he person is indeed a professional. Proof of a professional and lawful work engagement requires the careful drafting of a letter, explaining the purpose and length of stay.

Advantages of the TN Visa

There are several advantages of the TN visa over other the L-1 or H-1b visa:

1. There is no statutory limit on the length of stay in the United States;
2. A four year baccalaureate degree is not a hard line requirement, equivalency to a baccalaureate degree may be shown;
3. A three year baccalaureate degree may be used to meet the educational requirement in certain situations;
4. Part time employment is permitted;
5. Change of job location with the same employer does not necessarily require the filing of a new petition;
6. TN Visas may be processed at the port of entry instead of the central USCIS processing facilities;
7. The petition does not require the filing of an LCA.

There are two main drawbacks for the TN visa that need to be taken into consideration before applying:

1. There can be no dual intent for TN visa holders. This means that a TN visa holder will run into trouble in obtaining a Green Card while on TN visa status. There are also side effects of the "no immigrant intent" rule for TN visa holders, such as the inability to obtain in-state tuition in the US;
2. No Self Employment: TN visa holders cannot work for a company in which they hold an interest.

Continue reading "Columbus Immigration Visa Attorney Discusses the TN Visa for Canadian and Mexican Nationals Engaged in work Activities at a Professional Level" »

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" »

U.S. Senators from the Democratic Party have recently released the first serious outline for eventual Comprehensive Immigration Reform legislation. This plan not only re-writes the rules regarding the attainment of citizenship with regard to those aliens who have entered without inspection, but it also alters the legal landscape for gaining an employment based green card through the PERM process as well as H-1B and L-1 temporary visas. While some of the changes that have been outlined largely appear to bring long needed adjustments to the employment based visa system, there is cause for concern regarding certain aspects of the plan relative to employment based immigration. The American public, petitioning employers as well as highly skilled persons from around the world are left to wonder, does this comprehensive immigration reform plan really do more to attract the world's best and brightest, or does this plan discourage highly skilled people from working in the United States. Is this plan for Comprehensive Immigration reform a wolf in sheep's clothing?

The Effect on Educated Foreign Workers

The central theme of the proposed immigration plan, relative to employment based immigration, is to encourage highly skilled laborers to immigrate permanently, while at the same time discouraging temporary visas for highly skilled persons. This goal is accomplished by simply systematically removing restrictions for obtaining a Green Card for certain highly skilled foreign nationals, while a bevy of crushing restrictions will be imposed on employers hiring temporary workers under the H-1B and L-1 categories. (See page 18. Section A.) Whether it is the unintended or simply unspoken net effect of the proposed policy changes, the number of highly skilled persons approved for employment based immigration will be reduced under this proposed plan in the form that it is written.

First the Good News

This proposed plan for immigration recognizes that the current system of assigning Green Cards for highly skilled workers on a country by country basis has few if any positive policy aspects. Under the new plan, per-country employment based immigration caps will be abolished. In contrast, the current system nonsensically imposes a five year waiting period for obtaining a Green Card on people from India or China who possess a master's degree. Additionally, Employment Based Green Cards for persons from Mexico holding a bachelors degree are currently unavailable at all, while persons with bachelor's degree from any other country in the world could theoretically obtain a Green Card, eventually. Removing the per-country preference for employment based immigration for highly skilled individuals is a welcome and needed change to the current immigration scheme.

Additionally, the proposed plan simplifies the employment process for aliens who hold advanced degrees from American universities and enter the United States with a valid offer of employment from an American employer. This change is intended to remedy the incongruence between America's open pursuit of foreign nationals to study in American Universities, but refusal to allow the same talented people to remain to work and live.
This plan also removes the "non-immigrant intent" requirement to many of the visas that are given to foreign national students. Under the current plan, most student visas require that the student have no immigrant intent when studying in the United States. This requirement is fulfilled by not allowing such students to immediately apply for immigrant visas in most situations. Some visas even require students to return to their country of origin for a period of time before returning to the United States after they have graduated.

Part of the legislative goal of the old policy was to promote American ideas by forcing students to return home and use the knowledge, skills and American experience in their native countries, thereby expanding the American cultural influence to the world. At this point in time, most countries have been exposed to American ideas and ideals and have accepted or rejected the same. Therefore, it is high time that America not snub the very people that America educates here by requiring them to move back home or wait for some ridiculous period before receiving a Green Card. The proposed plan would do much to remedy this outdated policy objective.

... and then the Bad News

The H-1B and L-1 system of temporary visas for skilled workers has come under increased scrutiny for years. Many administrative policy changes have been levied upon these visas categories in order to prevent perceived fraud, abuse and injury to Americans seeking jobs. The proposed plan would now set in stone tougher requirements for obtaining and maintaining such visas through legislation as well as imposing increased penalties on those businesses and employees attempting to obtain an H-1B or L-1 visa without adhering to the law.

Continue reading "A Wolf in Sheep's Clothing? : Columbus Immigration Attorney Discusses Comprehensive Immigration Reform's Effects on the PERM process, Green Cards as well as H-1B and L-1 Visas" »

Colleges and Universities have a unique option when applying for the Green Card/Legal Permanent Resident Status of Professors and Teachers through Labor Certification under the PERM process. Many of the additional recruitment steps required by the PERM process for Alien Labor Certification can be avoided by use of what is called "Special Handling." Obtaining a Green Card through the Special handling option is often a desirable alternative to the traditional PERM process used for the majority of professional positions. This option benefits both the College/Universities and the hired Professor as it allows the employer to pick the Professor that they want, while saving the Professor the time that it would have taken to conduct the normal recruitment steps under PERM.

The Theory of Special Handling: Colleges and Universities are in the best position to know which applicant is "more qualified" than the next

The PERM process for applying for a Green Card is based on the theory that employers need to show that there are no ready, willing and available workers to fill a specific job before an employer is allowed to apply for the Green Card of an alien. Wisely, the Federal Government has recognized that Universities and Colleges are different than the normal employer. Specifically, Universities and Colleges have a need to recruit the best and brightest minds in the world to fill teaching positions. Therefore, all that is needed to show on a Labor Certification application filed under the Special Handling option for PERM, is that the selected alien is "more qualified" than the other applicants.

The main points of recruitment under the Special Handling Option

The hiring University of College must show that the selection of the professor was made only after a competitive, nationwide search for qualified applicants. The position must have been advertised in a national professional journal. The College or University must document the recruitment process in detail, keeping meticulous records of the applicants and interview process. It is usually beneficial for the University or College to conduct additional avenues of recruitment including newspaper advertisements and advertisements in journals that are targeted toward a particular category or type of professor. Taking additional recruitment measures will re-enforce to the Federal Government that the recruitment campaign was indeed competitive, resulting in the best person for the job being hired.

Timing Issues and Other Mandatory Steps Under Special Handling

The hiring University of College has 18 months to file the Labor Certification Application (ETA 9089) after the selection of a professor has been made. The employer must also apply for and obtain a prevailing wage determination for the position. Finally, posting notice or notification to the collective bargaining representative needs to be made, stating that the University or College plans to file a Green Card petition on behalf of a professor.

Continue reading "Go to the head of the class: Obtain your Green Card through Special Handling option under the PERM Process" »

Legal Permanent Residency/ Green Card: Tax Issues

Foreign nationals seeking legal permanent residency (LPR Status or a Green Card) through the PERM process, other employment based petitions or through the various family based avenues will inevitably face various tax issues. All foreign nationals applying for such status must abide by certain federal regulations and burdens of proof addressing the tax issue. As the deadline for filing personal income tax returns bears down upon all persons who derive income from the United States, now is an opportune time to discuss some of the common issues that Green Card applicants and Legal Permanent Residents face.

Required Taxation Evidence Submitted with the I-485 application

All Green Card applications require proof of whether or not the alien was taxable in the previous three years. The federal regulations state that the alien must provide proof of whether or not he or she was required to file an income tax return for the past three tax years. Certain visa holders are free from from this requirement when filing an application for adjustment of status. Visa holders that may not need to pay US income tax include J, H-4, H-3 and F visa holders as long as they have received no gross income from within the United States.

Who is to be taxed?

Everyone who derives income from sources within the United States will be taxed. Foreign nationals are either taxed as an alien resident or non-resident alien basis. Resident aliens are taxed on all income that is derived from any source around the world, just like any US citizen would be. Non-resident aliens are only taxed on income that they have gained from sources within the United States.

How do I tell if I will be taxed as a resident or nonresident alien?

The IRS has formulated a test to determine whether or not an alien is a resident alien for tax purposes. This test is called the Green Card Test or the Substantial Presence Test. In most instances, a foreign national who is present in the United States for 183 days out of the year will meet the Green Card test and will be taxed as a United States Citizen would be. A foreign national may also meet the Green Card test and be considered taxable as a United States Citizen if he or she is present in the US for 31 days of the tax year, and has been present in the US for one-third of the days in the previous tax year and one-sixth of the days of the second most recent tax year.

Some days of presence in the United States are not counted toward the Green Card test. Some visa holders are exempt from paying US taxes such as F, J, M and Q visa holders, so usually days spent in the United States on these types of visas are no counted toward the Green Card test. Some visa holders that can be present in the United States for an indefinite period of time are also not liable such as A and G visa holders. Persons who are physically incapable of leaving the US or persons go back and forth to work in the US from Canada and Mexico are usually not taxable in the same manner as nonresidents. Also foreign nationals who are only in the US temporary, using the US as a stopping point while they travel between two locations outside of the US, will not have these days counted in the Green Card test.

Finally, even if the alien meets the Green Card Test, he or she will not be taxed as a US resident if it is shown that the foreign national was not within the US for 183 days in the most recent tax year and that the alien keeps a home in a foreign country, to which country the alien maintains a nearer relationship than he or she has to the United States.

What if I am a dual citizen?

The United States maintains certain tax treaties with other nations. A dual citizen may be able to show non-residency by providing the treaty and citing to the section of the treaty regarding residency. Two specific countries do not address this issue in their treaties with the US; Greece and Pakistan.

Estate Tax Issues for Foreign Nationals who Pass Away in the United States

The rate of estate taxation also depends on whether the alien is considered a resident or nonresident alien. The residency test for estate tax purposes is different that the test for income tax purposes. Specifically, a deceased person is considered a nonresident if that person was neither a citizen nor a resident of the United States. Residency for estate tax purposes is determined based on the persons' domicile (where the person lives daily).

The property owned by a non-resident within the United States is subject to a transfer tax, the same as US citizens. Foreign nationals who are residents are subject to the same estate tax rules that US citizens must meet. For both nonresidents and residents, an unrestricted spouse deduction is available for property that passes to a US citizen spouse. However, if the spouse is not a US citizen, there is no marital deduction unless the property passes to a special type of trust. A marital deduction may be available to non-residents if they are citizens of a country that has a tax treaty with the United States.

Continue reading "Legal Permanent Residency/ Green Card Holder and Non-Immigrant: Tax Issues" »

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

This is somewhat of an interesting question. As an immigration attorney I cannot but think about the experience that the nation will face this year. Will the nation actually consume all H-1b visas this federal fiscal year on April 1, 2010?

We know that the H-1B visa cap for Fiscal Year 2010 was consumed on December 21, 2009. Unlike prior years where the H-1b visa cap was consumed in its entirety by April 1, last year's experience raised eyebrows. It does not take a brain surgeon to realize that the H-1b visa cap experience of 2009 is directly related to the sharp decline of the US economy and the increase in unemployment figures reaching double digits in the same year.

A recent article appeared in the Chronicle of Higher Education entitled: "Number of Foreign Students in U.S. Hit a New High Last Year," stated that the population of foreign students in the US may have risen by an additional 671,000 students in the 2008-2009 academic year. Some of these students naturally attended Master 's Degree programs and will be poised to graduate in the 2010-2011 academic year. Since the law only requires H-1B visa positions to require a bachelor's degree for entrance into the particular position, and for the alien to possess the same, it is quite conceivable that some of these Master's Degree seekers maybe may have a competitive advantage as they seek employment in early 2010. If we pick a conservative number, say 10% of the additional student population of foreign born students and if we determine that this 10% or roughly 67,100 will be graduating in June 2010, it follows that the same number are excellent H-1B visa candidates seeking employment early in the year.

This is a purely logical and mathematical argument and does not take into account the economic realities of the employment market place in the United States. It is not a secret that foreign workers contribute positively in every segment of the US industry as reported by the US Census Bureau and fill a much needed demand in the technical market where H-1b visa workers normally work. If the number prediction quiz that we just went through holds true in 2010, then conservatively, we could have sufficient foreign workers on whose behalf H-1b visa petitions are filed, and whose petitions may exceed the available 65,000 cap H-1b visa on April 1, 2010.

One factor that we did not take into account is whether the US economy will be able to absorb 67,100 additional skilled workers within the next 60 days. One firm reports that the question should not be asked whether there will be additional technical jobs in 2010, but whether employers will be focusing more on finding workers to fill certain skill sets in 2010 than creating new positions. That is to say, with the abundance of available highly technical human resources, it is logical to suggest that employers are likely to look for better and brighter workers than "new workers." Foote Research, LLC, a research foundation that continuously predicts and monitors workforce trends, IT and business executive behavior at 1,980 North American employers, stated that "Investments focused more on skills than jobs in 2010." Foote Research argues that this may constitute a shift in the employment behavioral patterns of IT employers in 2010 leading to an "exchange" in the workforce not necessarily in the creation of "new jobs." If this holds true, better qualified and trained foreign labor force will be more apt to fill these positions in the next few months.

If this deductive argument holds true, it is likely that the increase in the enrollment of foreign students felt in 2008 and the evolving employment behavior and practices of employers expected to take place in 2010, that the USCIS may be faced with an avalanche of new H-1b visa petitions on April 1, 2010. Who knows, the cap may very well be met on the same day.