15 Mar 2019

What is the Interview Process for Employment-Based Green Cards?

If you have applied for an employment-based green card, as of October 2, 2017, you must appear for an in-person interview with U.S. Citizenship and Immigration Services (USCIS). If you filed an I-485, Adjustment of Status to Permanent Resident for an EB-1, EB-2, or EB-3 visa after March 6, 2017, the interview is mandatory.

Appearing before immigration officials can be a stressful event, particularly when you are being questioned in an interview. In this article, we will discuss some common questions about the process of obtaining permanent residency with an employment-based immigrant visa and what to expect in the interview process.

When will I be called for an interview?

If you have an approved I-140, Petition for Alien Worker and are eligible to apply for Adjustment of Status to get your green card, you will need to file an I-485 application for Adjustment of Status to Permanent Resident. After you file an I-485, your application is forwarded to the National Benefits Center for adjudication. Once your application is ready for adjudication, USCIS will send you an Interview Notice stating the date, time, and location of your mandatory interview.

What should I expect?

On the day of your interview, it is wise to arrive early, if possible, at the location stated on your notice. This location will be a local USCIS field office. You have the right to bring a lawyer with you to your interview, but a lawyer will not be provided for you. You can also have an interpreter present.

You will typically be questioned by one UCSIS officer, but there may be other immigration officials in the room. The immigration officer’s job is to make sure that all of the information you have presented on your forms and the documentation you submitted is accurate and truthful. They will be determining whether you are statutorily eligible for Adjustment of Status to Permanent Resident.

What questions will I be asked?

During your interview, a USCIS officer may ask you information about yourself, family, employment, and past including:

  • Biographical information like your name, date of birth, place of birth, country of citizenship, etc.
  • Any questions listed on your I-485 application or I-140, Petition for Alien Worker
  • Information about your job, job duties, job skills, job history, and educational background
  • Questions about your criminal background and any previous arrests
  • Questions about your immigration history, previous entries into the United States, and past visas.

Naturally, if you are applying for an employment-based green card, you should be prepared to answer specific questions about your current and past employment history. The USCIS officer is likely to heavily focus on employment-related questions.

To be prepared for your interview, it is wise to collect all details about your current and past employment ahead of time. Tell your immigration lawyer if there have been any changes to your employment like job title change, demotion, promotion, termination, or change in job location.

If you change employers during the application process, expect that the details of both jobs and your job change will be closely scrutinized by the interviewing officer.

Will my family be interviewed?

If your spouse or child is a derivative beneficiary of your employment-based immigrant visa, then they will be called for a separate, individual interview before their own green card is approved.

During your spouse or child’s interview, they may be asked similar questions to those that you are asked during your interview, in addition to information that establishes their relationship to you. It is important that your spouse or child brings documentation to their interview to support their legal relationship to you such as a marriage certificate, birth certificate, or certificate of adoption.

Do I need to bring a lawyer with me to the interview?

If you are eligible to apply for Adjustment of Status based on approved I-140 Petition for Alien Worker, it is wise to have an experienced immigration lawyer present with you. Having a lawyer with you at your interview helps you to make sure your rights are being protected and the process is being administered fairly.

Call Orbit Law Today

Getting a green card can also be a complicated process. With numerous steps, various form numbers, and complex regulations, your immigration lawyer can help you to navigate the process in an informed way and advocate for your rights.

Call Orbit Law today and one of our experienced immigration lawyers will be happy to speak with you about your employment-based green card application and the interview process. Call Orbit Law at 206-623-3352 today!

The information available on this website are for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain a more detailed advice with respect to any particular issue or problem. Use of and access to this website or any of the e-mail links contained within the site do not create an attorney-client relationship between Orbit Law PLLC and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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01 Mar 2019

Is your Spouse or Parent a Permanent Resident or US Citizen? See how you may Qualify for a Green Card!

If you entered the United States without inspection or you have been unlawfully present in the U.S., you may experience additional hurdles in obtaining a visa in the future. In this article, we will explore what a stateside waiver is, why you might need one, and how to apply for a waiver.

What is a stateside waiver?

Typically, if you are unlawfully present in the U.S. without having been “admitted” or “inspected” by a U.S. immigration officer, you may not obtain a green card. Even if you are a beneficiary of an immigrant visa petition, you cannot gain permanent residency if you have not been lawfully admitted.

To obtain a green card if you entered without inspection, you must leave the U.S. and reenter through consular processing. In this process, you will be inspected and admitted, fulfilling that legal requirement for lawful presence. The only problem is, if you entered the U.S. without inspection, you are barred from reentering the U.S. for a period of three years. This is called an unlawful presence bar.

However, U.S. immigration law provides a work-around for this predicament. Qualifying individuals can apply for a “provisional unlawful presence waiver” that allows them to depart the U.S. for consular processing with a pre-approved waiver for the unlawful presence bar, so that they will not be banned from re-entering the U.S. when they try to re-enter.

The goal of the process is to minimize the amount of time that U.S. citizens and lawful permanent residents are separated from their family members. Provisional unlawful presence waivers used to only be available to beneficiaries of immigrant visas through an immediate U.S. citizen relative. However, in August 2016, the Obama Administration expanded the availability of provisional unlawful presence waivers to all individuals who are eligible for an immigrant visa.

It is important to note that if you are eligible for an immigrant visa and entered the U.S. without inspection, you must still leave the U.S. and have your immigrant visa processed abroad at a U.S. consulate or U.S. Embassy.

The provisional unlawful presence waiver simply allows you to overcome the statutory unlawful presence bar and reenter the U.S. if you receive an immigrant visa and have a pre-approved provisional unlawful presence waiver.

Why might I need a stateside waiver?

If you are the beneficiary of an immigrant visa like an employment-based immigrant visa or family-sponsored visa petition, or you were selected to participate in the Diversity Visa Program, but you were unlawfully present in the U.S. for more than 180 days, you will need to depart the U.S. to process your immigrant visa through consular processing abroad.

Unless you obtain a provisional unlawful presence waiver, once you depart, your previous period of unlawful presence in the U.S. will trigger the unlawful presence bar and you will be banned from re-entering the U.S. for three years.

To avoid this ban, you must apply for and receive a provisional unlawful presence waiver before departing the U.S.

What are the eligibility restrictions?

Even though eligibility for provisional unlawful presence waivers was significantly expanded in 2016, there are a few limitations to eligibility. You may not obtain a provisional waiver if:

  • You are in open removal proceedings. If your removal proceedings have been administratively closed by an immigration judge, you may still be eligible for a provisional waiver.
  • You are statutorily ineligible because you do not meet the criteria described in the above section.
  • You do not meet one or more of the requirements listed on the I-601A application form.
  • You have a final order of removal, exclusion, deportation, or in absentia order of removal.

How do I apply for a stateside waiver?

To apply for a waiver, you must complete a Form I-601A, Application for Provisional Unlawful Presence Waiver and submit it to the USCIS Chicago Lockbox.

For U.S. Postal Service deliveries:

USCIS
P.O. Bos 4599
Chicago, IL 60680

For UPS, FedEx, and DHL:

USCIS
Attn: I-601A
131 S. Dearborn, 3rd Floor
Chicago, IL 60603-5517

After submitting an application, you will receive an appointment notice to provide biometrics (fingerprints) at an Application Support Center (ASC).

Contact Orbit Law Today

While you are not required to have a lawyer to apply for a provisional unlawful presence waiver, hiring an experienced immigration lawyer can help you to be successful in your application and save you significant time and stress.

Immigration law can be extremely complex to navigate. At Orbit Law, our immigration lawyers have helped countless clients to successfully obtain a provisional unlawful presence waiver. If you believe you are eligible for an immigrant visa but have been unlawfully present in the U.S., call our law office today for a confidential consultation of your case. Call Orbit Law at 206-623-3352 today!

The information available on this website are for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain a more detailed advice with respect to any particular issue or problem. Use of and access to this website or any of the e-mail links contained within the site do not create an attorney-client relationship between Orbit Law PLLC and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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15 Feb 2019

If You Receive a Green Card through a Business, does it Include Your Family?

Receiving news that you have been approved for a Green Card as an employment-based applicant is an exciting moment and undoubtedly brings a feeling of relief.

However, as you consider the new possibilities that will open by having a Green Card, you might be wondering what this means for your family.

Does it include your spouse and children? What about your parents or siblings? In this article, we will explore what impact an employment-based Green Card may have on your family members.

How do you receive a Green Card through a business?

A “green card” is the common term used to describe permanent residency in the United States. Foreign nationals can receive permanent residency in the United States for business purposes as an employee (“alien worker”) or an entrepreneur (investor) through employment-based immigrant visas.

To receive a Green Card as an employee of a business in the U.S., you must be sponsored by your employer. Your employer must file a Form I-140, Immigrant Petition for Alien Worker.

It is important to note that not all alien worker visas give you permanent residency. There are many non-immigrant alien worker visas, which will not give you a Green Card.

To qualify for an employment-based Green Card, you must fall into one of three priority categories. These categories include:

First Priority

  • Professionals with extraordinary ability in science, art, business, athletics, or education
  • Managers and executives who meet certain criteria
  • Outstanding professors and researchers

Second Priority

  • Professionals who hold an advanced degree with exceptional abilities that will substantially benefit the economy, cultural/educational interests, or welfare of the United States
  • Professionals for jobs that serve a national interest (National Interest Waiver)

Third Priority

  • Skilled workers in jobs for which qualified U.S. workers are not available
  • Unskilled workers in jobs for which qualified U.S. workers are not available
  • Professionals with a baccalaureate degree

Many of these categories have additional specific requirements that you must meet in order to qualify for a Green Card, including submitting additional evidence. After your application is submitted, you may be required to attend an interview or provide biometrics like fingerprints.

You may also qualify for an employment-based Green Card as an investor in a for-profit U.S. business. EB-5 visas are available to foreign nationals who invest either $500,000 or $1,000,000, depending on the project, in an “at risk” U.S. business.

Will your spouse and children be included?

While your spouse and children are not automatically included in your approved petition, they are eligible to apply for a Green Card as a derivative beneficiary with the same employment-based immigrant visa category and priority date as you.

To qualify as a derivative spouse, you and your spouse must be legally married. Same-sex marriages are treated the same as opposite-sex marriage.

Dependent children must be unmarried and under the age of 21. Each individual must complete a separate application. Your I-140, Immigrant Petition for Alien Worker, should include information about your spouse and dependent children.

How do my spouse and children file for a green card?

The process of applying for a Green Card for your spouse and unmarried children under the age of 21 as derivative beneficiaries of an employment-based Green Card differs depending on whether your spouse and dependent children are currently abroad or in the United States.

If your family members are currently abroad, they will need to apply as a derivative beneficiary of your employment-based visa through consular processing in a U.S. embassy or consulate abroad.

If your spouse or dependent child is already in the United States on a non-immigrant visa, they will file an I-485 Adjustment of Status application, once the priority date becomes current. As a derivative beneficiary, you are eligible to file concurrently if an immigrant visa is immediately available.

Does it include your parents or siblings?

Parents, siblings, and other relatives are not eligible for permanent residency based on your employment-based Green Card. Only U.S. citizens can petition for their parents, brothers, and sisters.

Once you naturalize and become a U.S. citizen, you may then file an I-130, Petition for Alien Relative, for your parent or sibling.

Contact Orbit Law

If you have recently received or expect to receive an employment-based Green Card and have questions about petitioning for other family members, contact the experienced immigration lawyers at Orbit Law. We will help you to navigate the requirements and process to obtain permanent residency for your family members. Call us today at (206) 623-3352.

The information available on this website are for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain a more detailed advice with respect to any particular issue or problem. Use of and access to this website or any of the e-mail links contained within the site do not create an attorney-client relationship between Orbit Law PLLC and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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01 Feb 2019

How to Petition for Citizenship for Your Relatives

Petitioning for Relatives

The majority of immigrants in the United States arrive on the basis of their relationship to a family member, whether a legal permanent resident or a citizen. To accomplish this, the family member files an I-130 form.

IR – Immediate Relative Immigrant

U.S. citizens can, without delay beyond processing times and backlogs, bring the following categories of people into the United States without waiting for a number in the queue to become available:

  • their spouse, if they have been married for over two years (IR1);
  • their unmarried child under age 21 (IR2)
  • an orphan adopted by them while abroad (IR3);
  • an orphan which they intend to adopt in the United States (IR4);
  • either or both of their parents, if the citizen is over the age of 21 (IR5).

If a spouse has been married to the citizen for less than two years, the visa is ‘conditional’, so the couple’s relationship must be ‘re-proved’ two years later. This is called a CR-1 visa.

F – Family Preference Immigrant

U.S. citizens and legal permanent residents can bring certain other categories of citizens into the United States, but there is a waiting time while the queue progresses because only a limited amount of immigrants are allowed into the country on this basis each year.

U.S. citizens can bring the following categories of people into the United States, with the following wait times (excluding certain ‘listed countries’, as set out below):

  • their unmarried sons and daughters above the age of 21 (F1, ~7 years)
  • their married sons and daughters (F3, ~12 years)
  • their brothers and sisters, if the citizen is over the age of 21 (F4, ~14 years)

Permanent residents can bring the following:

  • their children under the age of 21 and spouses (F2A, ~2 years)
  • their unmarried sons and daughters above the age of 21 (F2B, ~7 years)

Waiting times vary for people born in a ‘listed area’. The estimated waiting times given above are for natives of all countries other than Mexico and the Philippines; Mainland China and India are technically ‘listed areas’, but are currently up to date. The waiting times are as follows for people in the listed countries.

For Mexico:

  • F1, ~21 years;
  • F2A, ~2 years;
  • F2B, ~21 years;
  • F3, ~23 years;
  • F4; ~20 years.

For the Philippines:

  • F1, ~12 years;
  • F2A, ~2 years;
  • F2B, ~11 years;
  • F3, ~23 years;
  • F4, ~23 years.

Waiting times may change at any time, because they are based on a specific numerical quantity of visas that may be issued each year and not a set amount of years.

Financial Requirements

The sponsoring citizen or legal permanent resident must have enough income and/or assets to sustain the proposed immigrant at 125% of the Federal Poverty Level.

They must sign a document which allows the sponsored immigrant to sue them for the amount owed if they do not sustain them at that level, as well as any welfare agencies which provide for the sponsored immigrant.

The sponsoring citizen or legal permanent resident must be above 18 to sign this form.

Inadmissibility

There are dozens of grounds of inadmissibility which will preclude the intending immigrant from going to the United States. Some of these may be waived; many may not.

You may consult with us on the availability of any waiver in a specific case. Some of the more common grounds are having committed certain crimes, lying to immigration officers to get an immigration benefit or having been deported from the United States before.

Process

The petitioner must fill out I-130, petition for alien relative. If the relative is a spouse, form I-130A, Supplemental Information for Spouse Beneficiary, must also be filled out. Form G-1145 may be filled out if you would like to get an electronic notification when the petition is received. Where the petition is filed depends on where you live.

Immigrants who are inside of the United States at the time of filing must file for ‘adjustment of status’ in addition to their I-130 and associated forms.

The petitioner and beneficiary should be able to show that they have a bona fide relationship through means such as financially tying themselves together by buying property together, signing up for bank accounts together, getting credit cards together, taking out loans together, as well as having photographs of themselves together, text-messaging or e-mailing each other, and various other methods. The government will take into account the totality of your evidence in order to decide if your relationship is genuine.

Call Orbit Law Today

The process of applying for permanent residence may often be difficult or complicated, and certain mistakes could seriously delay or even cause the denial of your case. For an evaluation of your case, call Orbit Law at 206.623.3352 today.

The information available on this website are for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain a more detailed advice with respect to any particular issue or problem. Use of and access to this website or any of the e-mail links contained within the site do not create an attorney-client relationship between Orbit Law PLLC and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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06 Aug 2018

Employers Beware! ICE Has Overseen a Massive Surge in I-9 Audits

Immigration and Customs Enforcement (ICE) on July 24, 2018, announced that they have served Notice of Inspections (NOI) to more than 5,200 businesses around the country since January demanding form I-9 records from businesses.

A NOI informs business owners that ICE is going to audit their hiring records to determine whether they are complying with existing law. The NOI generally demands the original I-9 forms of all current employees and usually former employees for a period going back one to three years. Additionally, the NOI will include a list of all current and former employees including hire and termination dates; payroll records; quarterly wage and hour reports; business information, such as names of owners, Articles of Incorporation, and business licenses; and a list of related companies and subcontractors. An employer should contact their immigration compliance counsel immediately upon being served with a NOI.An employer has three days to comply with the NOI; therefore, compliance prior to receiving NOI is absolutely crucial.

The current scale of I-9 Audits and site visits to employers is at unprecedented levels, and is in keeping with the stated goal of a two-stage agency program aimed at creating a “culture of compliance” among employers.

  • There were 3,510 site inspections between October 01, 2017 – May 04, 2018. More than all site inspections conducted in FY 2017. Officials expect that number to reach about 5,500 by the end of the current fiscal year
  • ICE had initiated 2,282 employer audits between October 01, 2017 and May 04, 2018 (up from 1,360 in all of FY 2017)
  • ICE has also made 1,2014 arrests during the first part of FY 2018 (up from 311 during all of FY 2017)

Cost of Non-Compliance: Employers who violate I-9 rules are subject to civil and criminal penalties. Civil fines for I-9 paperwork violations range from $224 to $2,236 per violation, depending on whether the employer has committed repeated violations. Penalties for knowingly hiring or continuing to employ an unauthorized worker range from $559 to $22,363 per worker. ICE can further increase penalty amounts if there are aggravating circumstances. Criminal penalties are possible if an employer has engaged in a pattern or practice of knowingly employing unauthorized workers or has committed other serious violations.

In the current environment, it is crucial that employers have a comprehensive and effective immigration compliance program. Proper knowledge of completion and maintenance of I-9 forms along with a policy for Internal review of an organization’s compliance program can help to remediate errors, identify areas for improvement, and minimize the risk of future violations and penalties.

Please do not hesitate to contact us should your organization need assistance in this regard.

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28 Jun 2018

Supreme Court upholds travel ban

The Supreme Court upheld President Donald Trump’s travel ban Tuesday, ruling 5-4 that a proclamation Trump issued last September to impose new travel restrictions was constitutional and within the president’s statutory authority.

“The Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices,” Chief Justice John Roberts wrote.

The ban, the 3rd version put forth by the White House after earlier versions were struck down by lower courts, has been enforced since December, following the Court’s decision to allow the administration to implement it while challenges played out in the courts. It applies to nationals of Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen, with restrictions specific to each country. Chad was initially included, but was removed in April.

This version of the ban was issued in September after two earlier versions of the ban were deemed unconstitutional by lower courts. The current version was crafted more carefully than earlier versions. Roberts quoted some of the anti-Muslim statements made by the president in his opinion, but upheld the ban saying the proclamation was facially neutral in regard to religion, and was supported by a national security claim that he stated reflects “the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies.”

Justice Sotomayor wrote the dissenting opinion, which states, in part, “Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus,” She went on to state  “That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim.”

The Court’s ruling means that the existing travel restrictions will remain in effect unless the administration changes or lifts the ban. The Court remanded the case to a federal court in Hawaii for further proceedings consistent with the opinion issued today, which will likely result in the dismissal of the case. Citizens of the names countries have already faced many months of difficulties while being separated from their family members in the U.S.

We will continue to monitor this and provide updates as soon as they are available. Please do not hesitate to contact us should you need any assistance in this regard.

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14 May 2018

USCIS Changing Policy on Accruing Unlawful Presence for Students and Other Visa Categories

U.S. Citizenship and Immigration Services (USCIS) has recently posted a policy memorandum indicating that they want to change how the agency will calculate unlawful presence for students and exchange visitors in F, J, and M non-immigrant status, including F-2, J-2, or M-2 dependents, who fail to maintain their status in the United States.

This is another policy position that was unveiled citing the Government’s attempt to meet the President’s Executive Order to enforce Immigration laws is intended to go into effect on August 09, 2018.

The proposed rule, if it passes, will dramatically change the laws for people on F, J or M Visas. For instance, a student present on F-1 visa may be in violation of their status, but not accrue unlawful presence if they fail to maintain a full course load; work illegally, or even if employed on OPT are employed in an area outside of their chosen field of study.

By contrast, the new rule essentially makes violation of status force a student to automatically accrue unlawful presence! If passed, the policy would make individuals in F, J, and M status who failed to maintain their status before Aug. 9, 2018, start accruing unlawful presence on that date based on that failure, unless they had already started accruing unlawful presence, on the earliest of any of the following:

  • The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her non-immigrant status while adjudicating a request for another immigration benefit;
  • The day after their I-94 expired; or
  • The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).

Individuals in F, J, or M status who fail to maintain their status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest of any of the following:

  • The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
  • The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
  • The day after the I-94 expires; or
  • The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States.

The 3 and 10 year bars were created as a part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996.Incorporated into section 212(a)(9)(B) of the Immigration and Nationality Act (INA), the statute imposes re-entry bars on immigrants who accrue “unlawful presence” in the United States, leave the country, and want to re-enter lawfully.

Individuals who accrue more than 180 days, but less than one year, of unlawful presence are barred from being re-admitted or re-entering the United States for 3 years; those who accrue more than one year of unlawful presence are barred for 10 years.

Those subject to the three-year, 10-year, or permanent unlawful presence bars to admission are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence unless they are eligible for a waiver of inadmissibility or another form of relief.

Urgent Call to Action: USCIS is accepting comments on the policy memorandum. The 30-day public comment period has begun and closes on June 11, 2018. For complete information on the comment process, visit the Policy Memoranda for Comment page. Please send in your comments before June 11, 2018.

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16 Apr 2018

Alternatives to H-1B Visa

USCIS has released the numbers for Master’s as well as Regular cap subject petitions that they received for Fiscal Year 2019.

USCIS conducted the lottery system on April 06, 2018. The random computer generated number is the system that has been used every year for the past few years to determine the fates of those lucky few talented, educated individuals who will be able to pursue careers in the U.S.

For FY 2019 H-1B cap filing season, the service had 65,000 visas available under the standard cap (i.e individuals with a Bachelor’s degree) and 25,000 advanced cap (i.e. individuals with a Master’s degree earned from an accredited American institution of higher learning) The service received a total of 190,098 petitions!

Whilst this is a decline from the total number of applications received last year, it is nevertheless a disheartening outcome for applicants and employers alike. Individuals with Bachelor’s degrees or higher who want to work in the US and to contribute to their chosen fields ought to be given permission to do so.

Although there have been bills and a call to increase the cap to allow for more visas, there are no indications that these changes will be forthcoming anytime soon.

Employers and employees alike can look to the following options as alternatives to the H-1B.

EB-5: Increasingly an option for Foreign students as well as those already in the US but stuck in seemingly endless Green Card (I-140) backlogs, the EB-5 program allows an applicant and her family (spouse and child/ren under 21) to obtain Lawful Permanent Residence (“Green Card”) based on an investment of either $500,000 or $1Million.

O-1 or P-1 Extraordinary Ability Visas

O-1 and P-1 visas are generally reserved for individuals who have extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics.  By definition, not many individuals qualify for one or both of these visa types, but where possible, an application for O-1 and/or P-1 should be prepared in lieu of H-1B.   In addition to being able to obtain work authorization pursuant to these visa types, an O-1 and/or P-1 approval may establish the basis for the subsequent application for an EB-1 category permanent residency.

TN for Canadian and Mexican Professional Workers

An option available to certain Canadian and Mexican nationals in certain occupations is the TN visa classification.   It is available to citizens of Canada and Mexico who would be employed in the U.S. in one of the designated occupations. The TN visa is not subject to a cap and can be obtained either by applying at the border (for Canadians) or by filing a petition with USCIS.

L-1 Intracompany Transferee

The L-1 visa type allows multinational companies who have presence abroad to transfer their employees from their overseas offices to their U.S. office (or to establish a new U.S. office).  This visa type is a good option for foreign employers seeking to establish or boost their U.S. presence and for foreign nationals currently employed abroad.   Foreign nationals who are currently in the U.S. generally will not qualify for L-1 visa.  An added benefit to the L-1 visa is that family members are entitled to a work authorization pursuant to L-2 status.

We have assisted many US employers who were not successful in the H-1B cap lottery but were able to send their employee(s) abroad on an assignment for one year and then bring them back to the US on L-1 visa.   For US employers who have international presence and for whom it is possible to send a candidate on an assignment, abroad, the L-1 visa option is a good alternative.

E-1/E-2: The E-1/E-2 visa is available for executives, supervisors, and essential employees of E-1/E- 2 employers. This visa is available to foreign nationals entering the U.S. solely to carry on substantial trade or develop and direct the operations of an enterprise in which he or she has invested (or the foreign parent company has invested in) or is actively in the process of investing a substantial amount. Once the E-1/E-2 company has been established, key employees from the treaty country can also enter under these visas. Those key executives, supervisors, and essential employees must have the same nationality as the treaty employer.

J-1 or H-3 Trainee Visas: Employers may also consider participating in J-1 trainee programs. A J-1 trainee is eligible to work for a U.S. employer and be compensated for training purposes as long as the terms of the training program are approved through a J-1 program sponsor. Most J-1 trainee programs can be granted up to 18 months. The trainee must be sponsored by a USIA-approved Exchange Visitor Program.

Another training visa that employers have increasingly relied on in recent years is the H-3 trainee visa. The H-3 nonimmigrant trainee visa is available for individuals who are coming temporarily to the U.S. for the purpose of receiving training in any field of endeavor. The H-3 trainee visa is only available if the following requirements are met: the proposed training is not available in the foreign national’s home country; the trainee will not be placed in a position which is in the normal operation of the business and in which citizens and resident workers are regularly employed; the trainee cannot engage in productive employment unless such employment is incidental and necessary to the training; and the training will benefit the trainee in pursuing a career outside the United States. The H-3 visa is limited to two years. If the H-3 trainee has been in the US for two years, they are not permitted to then change status to an H or L visa category, until they have left the United States for 6 months.

Please do not hesitate to contact us should you have any questions, or need assistance in determining whether any of these options would be best suited to your needs.

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20 Feb 2018

Common Challenges Faced by EB-5 Investors Currently Residing in the Middle East & North Africa (MENA) Region

Whilst the popularity of the EB-5 Visa, propelled by desire for better education, business prospects, or a desire for long term US residency has led to a sharp spike in applications from the MENA region, there are recurrent issues that some investors from the region face. These are issues commonly seen by those attorneys with experience in working with investors from the region, but may easily be missed or go unsolved by others not as familiar.

Foreign Exchange Management Act (FEMA) and the Reserve Bank of India: FEMA is act of the Indian Parliament that controls all financial transactions flowing into and from India. The Reserve Bank of India (RBI) which controls all banking and financial transactions within India, have implemented the Liberalized Remittance Scheme (LRS) which dictates remittances leaving India by both Indian Residents as well as Indian nationals that are Non Resident Indian (NRI)/Person of Indian Origin (PIO)

Per an announcement of June 01, 2015, Resident individuals are allowed to remit up to $250,000 per financial year (1 April – 31 March) for any permitted current or capital account transactions or a combination of both. A Non-Resident Indian or a Person of Indian Origin, is allowed to remit an amount of $1 Million in any given financial year.

While a NRI/PIO may not have issues transferring the required capital ($500,000 for Regional Center Investment or $1Million for Direct Investment) an Investor who is considered to be a Resident of India must be very careful about how the money is transferred out of India. RBI does allow for an amount greater than $250,000 to be transferred, but this requires special permission and documentation of the need for a larger amount to be transferred.

Whilst United States Citizenship & Immigration Services (USCIS) had previously turned a blind eye to Chinese investors using several family and friends to transfer sums to reach the capital requirement, increasingly, they seem to be taking a harder look at such practices. It is imperative that Investors work with counsel that are qualified and familiar with structuring such transfers so as not to run afoul of the FEMA regulations, and also not raise any red flags for USCIS officers.

While India, like much of the Middle East also has a system of unregulated brokers who will transfer funds via the hawala system, these transactions are best avoided for India as hawala is not permitted. USCIS has repeatedly stated their official position, that any act deemed unlawful in the country where it occurred, will be deemed to be an unlawful act by USCIS; therefore, any Indian investor wanting to remit funds via hawala risks having their application denied.

Office of Foreign Asset Control (OFAC) Licenses for Iranian and Syrian Clients

Iranian Investors: While the U.S. does have sanctions against the Government of Iran, Iranian investors are the largest number of EB-5 investors from the Middle East. Prior to October 2012, Iranian Investors were required to secure a specific license from the Office of Foreign Asset Control (OFAC) allowing them to invest their money through the EB-5 program that is no longer a requirement.

An Executive Order issued in October 2012 authorized OFAC to issue general licenses to Iranians wishing to invest their money in the United States through the EB-5 program. Whilst the general license allows investors to save time, one must still be cognizant of the requirements one must fulfill in order to be approved for the license.

Syrian Investors: Syrian investors must first secure a Specific license from OFAC before they can invest via the EB-5 program

Transfer of Funds via Hawala: Unlike hawala dealers in India, many jurisdictions in the MENA region have a hawala system that is licensed and the use of an alternative remittance system is regulated. For purposes of EB-5 Investment, USCIS requires that the Investor be able to fully documents the source of funds as well as the path of those funds from the origin country to the U.S.

Alternate money transfer facilities such as Hawala that are common in the Middle East, are acceptable, but must be handled with extreme caution. USCIS will need to see an unbroken chain of control over the funds from the time it was sent to the time received; therefore, the regular “Honour System” of no receipts and no records will not work for USCIS. An Investor who elects to remit money via hawala, must have receipts and proof of transfer from the sending entity and receiving entity for each segment of the transaction chain.

 

Documenting Income in Trade Free Zones: USCIS requires that the investor be able to show that the funds used for the investment were earned through lawful means. One way of achieving this is via tax returns; however, USCIS is also aware of Trade Free Zones and will accept alternate financial documents in lieu of tax returns.

This may be an added burden for investors in Free Trade Zones, but in order to document the lawful source of funds, investors must be willing to provide alternative financial documents such as independently audited financial statements for 5 years will suffice

 

“Extreme Vetting” in the Trump Era: Immigration, and Immigrants in general, have been the focus of much of the wrath and vitriol emanating from the White House. The policies of the administration have been put into effect at both, the Department of State (DOS) that exercises control over the Consulates and Embassies as well as the USCIS.

The U.S. Department of State (“DOS”) on May 06, 2017, issued notice in the Federal Register that it proposes to carry out President Trump’s goal of “extreme vetting” by requesting information from a subset of visa applicants (both immigrant and non-immigrant) worldwide “in order to more rigorously evaluate applicants for terrorism or other national security-related visa ineligibilities.”  The additional personal information desired to be collected includes:

 

  • Travel history during the last fifteen years, including source of funding for travel;
  • Address history during the last fifteen years;
  • Employment history during the last fifteen years;
  • All passport numbers and country of issuance held by the applicant;
  • Names and dates of birth for all siblings;
  • Name and dates of birth for all children;
  • Names and dates of birth for all current and former spouses, or civil or domestic partners;
  • Social media platforms and identifiers, also known as handles, used during the last five years; and
  • Phone numbers and email addresses used during the last five years.

 

This additional information is to be collected via a new form DS-5535 to be completed by “certain, selected applicants”

 

Questions?

Please contact Kripa Upadhyay at kripa@orbitlawpllc.com

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24 Oct 2017

New Roadblocks for Extension of Non Immigrant Visas

USCIS released a new policy yesterday, October 23, 2017 that rescinds prior USCIS policy of giving deference to an earlier examiner’s findings in adjudications of Non-Immigrant Visa applications. You can read the release here: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-10-23Rescission-of-Deference-PM6020151.pdf

Per the new policy, USCIS officers are no longer required to give deference to earlier decisions made by their colleagues i.e. ANY and ALL applications for “simple” renewals of visa classes such as extension of H-1B, L-1A, L-1B or O-1 are now subject to the whims and fancy of the officer that happens to be adjudicating the present application for renewal.

Per this new policy, an Individual with an approved I-140 and seeking an 8th extension of an H-1B visa without change to job location or employer, which would otherwise constitute a “simple extension” is no longer guaranteed that extension. The adjudicating officer may, if she/he chooses, treat the extension request as a “new” request and issue onerous Request for Evidence, or even deny the extension.

This has far reaching consequences for those stuck in ever expanding I-140 lines, especially Citizens of India and China. The I-140 is of little use if the applicant is unable to renew the H-1B that would allow him/her to remain in the US and work whilst waiting for a “Green Card” to become available.

The new policy also affects employers. Immigration officers historically have given deference to the decisions made by other officers. They choose to rescind prior removals if there is a finding of fraud or material change int he application, but this new policy open the door for an officer to rescind a previously approved H if the officer, subjectively, believes that the applicant does not qualify for any number of reasons.

If you or your employees are in the process of needing to apply for extensions, please consult with and work closely with your Immigration Counsel. We strongly advice, under the present circumstances, that employers/applicants and their counsel, treat and prepare every application as a new application.

This is but one new policy in what seems like a never ending slew of bad policy decisions that, in the long run, will only serve to diminish US interests and lead to a brain drain away from the United States.

As always, please free to reach out to me should you have any questions or concerns.

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