15 Aug 2018

How Does The U-Visa Process Work?

A U-Visa is a United States non-immigrant visa that is available for victims of certain crimes, as well as their family members. If the individual qualifies for the U-Visa, it can be a way for that person to obtain legal permanent residency status, otherwise known as a green card, and eventually U.S. citizenship.

However, it is important to understand what the qualifications are for a U-Visa and what certain issues may present themselves along the way.

What Are the Qualifications to Receive a U-Visa?

To qualify for a U-Visa, the following requirements must be met:

  1. The individual must have been a victim of a crime that falls within one of the designated crimes under the U-Visa program;
  2. The individual must have suffered “substantial physical or mental harm” as a direct result of the crime;
  3. The victim has information about the crime committed;
  4. The individual was helpful and assisted in the investigation of the crime;
  5. The crime occurred in the United States or violated U.S. laws.

What Are the Qualifying Crimes?

To obtain a U-Visa, the applicant must have been the victim of a crime that falls under the list of designated crimes under the law. Not all crimes are applicable, and the person must have been the victim of one of the following listed crimes to be considered for a U-Visa:

  • Kidnapping, abduction or trafficking;
  • Domestic Violence;
  • Abusive sexual contact, sexual assault, rape, incest or sexual exploitation;
  • Slave trade or involuntary servitude;
  • Prostitution;
  • Female genital mutilation;
  • Extortion;
  • False imprisonment or unlawful criminal restraint;
  • Blackmail;
  • Extortion;
  • Fraud in a foreign labor contracting issue;
  • Hostage situation;
  • Felonious assault;
  • Manslaughter or murder;
  • Perjury or obstruction of justice;
  • Peonage;
  • Stalking;
  • Torture;
  • Witness tampering;
  • Other related crimes not listed.

While this list of crimes covered is fairly extensive, not all criminal offenses are included and thus do not qualify for a U-Visa.

If any questions exist as to whether a certain crime applies, contact an attorney experienced in immigration law, specifically with respect to U-Visas to get an opinion.

How Does the Application Process Work?

If an individual qualifies to seek a U-Visa, the first step is to seek a Law Enforcement Certification. This step coincides with the requirement that the victim of the crime must have been helpful to the law enforcement during their investigation of the crime.

The actual law enforcement agency will need to issue an official certificate showing that the victim did, in fact, cooperate with the investigation. The applicant can seek this himself or herself, or the attorney can help and get this for the victim.

Once the certification has been received, the applicant will then need to prepare a Form I-918 Petition for U-Nonimmigrant Status. In this application, the crime must be described, person must describe the harm caused by the crime and must submit any medical records that can help prove this harm.

If there was any psychological harm caused, a psychological evaluation will need to also be included.

The U-Visa applicant may also require a waiver from time to time. If the applicant came into the country illegally, this waiver may be needed for him or her to stay and avoid deportation. An attorney can assist in applying for this important piece of paperwork required.

How Long Does the Process Take?

How long the application process takes can vary greatly. On average, the government takes six to nine months to approve or deny the application. However, this depends on how many applications are received. Currently, there is a long waiting list for U-Visas, and the length of time to process an application can be up to five years.

The process can be even longer if the government requests additional information along the way. If the applicant is in the middle of an immigration cases, he or she can ask for the matter to be postponed or put on hold until the application is processed.

Once granted, the U-Visa can allow the individual to stay in the United States for a period of four years, to work and to even have family members stay through the U-Visa program. After the applicant has lived in the U.S. legally for three years, he or she can apply for a green card to stay permanently. Eventually, after getting the green card, the applicant can apply for citizenship.

Contact Orbit Law Today!

We are happy to schedule a consultation or conference call to discuss your immigration needs. Please call our office at 206.623.3352 to schedule your consultation today.

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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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01 Aug 2018

How Can I Get a Green Card?

Many different mechanisms can be used to obtain legal permanent residency in the U.S., and one of the more commonly-used methods is the green card.

EB-1 Priority Workers

An individual may apply for an EB-1 Priority Worker visa if he or she is deemed to have an extraordinary ability, is an outstanding professor or researcher or is a multi-national executive or manager.

In the extraordinary ability category, these individuals must be able to demonstrate that they have extraordinary abilities in arts, science, business, education or athletics through “sustained national or international acclaim” with achievements recognized in that person’s specific field with extensive documentation.

To qualify in the outstanding professor or researcher field (EB-1B), the applicant must be able to show that he or she has international recognition for outstanding achievements in a particular academic field.

He or she must have at least three years of experience in teaching or in research in that academic area and must be coming to the U.S. to either pursue a tenure or tenured track teaching position or a comparable research position at a university or other institution of higher education.

Lastly, to qualify for an EB-1 Priority Worker visa as a multi-national executive or manager (EB-1C), the applicant must have been employed outside of the U.S. in the three years immediately preceding the application for at least one year by a corporation or firm. The applicant also must be looking to come to the U.S. to continue working for that firm or organization.

The applicant’s employment outside of the U.S. must have been in a managerial or executive capacity and must be with the same company or an affiliate or subsidiary of that employer in the U.S.

EB-2 Second Preference

The EB-2 classification allows the great majority of foreign workers in the U.S. workforce the ability to apply for an immigrant visa.

Just like the EB-1 category, the EB-2 one is broken up into different classes of workers, but these applications do require PERM applications or labor certifications before the visa will be issued, unless the labor certification requirement has been waived.

One category of EB-2 worker involves workers who possess an advanced degree or an equivalent, which means usually a baccalaureate degree and at least five years of work in his or her field, and an employment offer for a position that requires an advanced degree.

Another EB-2 category is for individuals who have demonstrated that they have an exceptional ability in the arts, business field or science. Applicants in this category must provide documentation that they have at least three of the listed criteria, including ten years of experience in the field, professional certification or licensure, high remuneration, a membership in professional associations, and recognition for achievements.

An additional EB-2 category is for individuals who have an advanced degree and currently are working in an industry that has a substantial national interest to the country. These individuals can request a waiver of the PERM application under a national interest waiver.

EB-3 Third Preference

Another category of green card is an EB-3 Third Preference green card, which is for professionals, including skilled and unskilled workers in an industry.

Similar to an EB-2 classification, a labor certification or PERM application must first be submitted and certified before an immigrant visa will be issued.

Those who are considered skilled workers must have at least two years of job experience or training in their specific field of expertise, along with a U.S. job offer.

Professionals who have a bachelor’s degree and are performing in a professional occupation may also apply for an EB-3 green card, so long as the occupation requires a bachelor’s degree and the foreign applicant has a U.S. job offer.

EB-4 Fourth Preference

The EB-4 visa/green card category is available for immigrants who are in a special category for religious workers, returning residents, and court dependents. Individuals in this category are referred to as “special immigrants.”

These individuals do not necessarily have a connection to employment or work per se but are more in categories for ministers or religious workers who have received job offers from U.S. religious organizations.

EB-4 green cards also cover foreign medical graduates, former U.S. government workers, children who are a part of the U.S. juvenile court system and international broadcasters.

EB-5 Fifth Preference

Lastly, individuals who are included in the EB-5 classification are immigrant investors or persons who invest money in the U.S. and create or maintain employment for at least 10 U.S. workers.

The Eb-5 visa has two separate components. The “regular program” which requires a minimum investment of $1,000,000 or the Regional Center Program which requires an investment of $500,000.

The EB-5 is a particularly complicated visa process and requires extreme documentation of the source of funds and the path of funds i.e. how you earned the income, and how the investment amount was transferred to the US in order to be used in your investment.

The current EB-5 Regional Center Program has been extended through September 30, 2018 with no changes to the minimum investment amount that is required of $500,000.

It should be noted that the government is seeking to increase the minimum investment required or eliminate the program altogether.

These are particularly complex visas that require expertise on the part of the attorneys. Please contact us if you have questions or are interested in learning more about the EB-5 visa option.

Contact Orbit Law Today!

We are happy to schedule a consultation or conference call to discuss your immigration needs. Please call our office at 206.623.3352 to schedule your consultation today.

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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”



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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06 Sep 2017

Phase out of DACA and What this means for DREAMers and Employers

The Trump Administration announced on September 5, 2017, that it is terminating DACA. The program named Deferred Action for Childhood Arrivals (DACA), administered by the Department of Homeland Security (DHS), has permitted people who were brought to the United States as children to remain here and receive employment authorization once they prove that they meet the minimum requirements for the program.

Requirements to be eligible for DACA include:

  • Entered the United States  to the United States before reaching their 16th birthday;
  • Were under the age of 31 as of June 15, 2012;
  • Have continuously resided in the United States since June 15, 2007, up to the present time and did not depart the United States on or after August 15, 2012 without DHS authorization;
  • Are currently in school, have graduated, or obtained a certificate of completion from high school, have obtained a General Educational Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  • Have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and do not pose a threat to national security or public safety.

Being approved for DACA did not grant any legal status upon the applicant or his/her family. It merely “Deferred” the Government’s right to initiate Deportation/Removal proceedings against anyone covered by the program.

Phase Out of DACA

Pursuant to the decision announced by Attorney General Jeff Sessions, the Government has officially ended DACA, but enforcement has been delayed for six months.

  • As of September 05, 2017, the Government will not accept any new DACA applications;
  • DREAMers with current Employment Authorization Document (EAD) that expires between today and March 08, 2017 MUST file to renew their DACA status before the end September 2017 (official deadline is Thursday, October 05, 2017, but we advice that you not leave this to the last minute)
  • DREAMers with currently valid EAD that expires after March 08, 2017 are not eligible to renew their status any longer

What This Means for DREAMers

  • If you have an EAD that expired between today and March 08, 2017, please make sure to renew your DACA before the end of September 2017.
  • Do not leave the United States under any circumstances as there is no guarantee that you will be able to return, even if you have received advance parole.
  • Do not loose hope! There are several bills pending in Congress and it is possible that a law legalizing/codifying DACA regulations will come into effect before March 2018

What This Means for Employers

Basically, employers may not terminate a DACA employee from employment solely on the expectation of future ineligibility to work. DREAMers with currently valid Employment Authorization are legally able to continue with their employment.

  • Current DACA recipients, as well as those eligible to apply by October 5, 2017, will be permitted to retain both the period of deferred action and, for DACA extensions, their EAD cards until they expire, unless terminated or revoked.
  • DACA beneficiaries must possess both a valid EAD as well as a Government issued Social Security Card
  • USCIS will process new DACA EAD applications received before September 5, 2017, but any employees who intend to file for DACA for the 1st time are no longer eligible to apply.
  • DACA and EAD renewal applications that were properly filed prior to September 5, 2017 will continue to be processed. Current processing time for final adjudication is an average of 4 months.
  • USCIS will process two-year DACA EAD renewal applications received by October 5, 2017 for individuals whose current DACA EAD expires between September 5, 2017 and March 5, 2018.

As always, employers and DREAMers are encouraged to call us or contact us should you have any questions about this phase out.


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06 Jun 2017

Employers: Be Prepared for Increased Audits from Department of Labor

Department of Labor has today announced their intention to conduct sweeping audits against employers who hire foreign national employees on H-1B and other visa types, see here: https://www.dol.gov/newsroom/releases/opa/opa20170606

Please make sure that all of you have:

1. Public Access Folders for ALL current H-1B employees

2. Properly completed and maintained form I-9 for each employee irrespective of whether or not they are US Citizens/“Green card” holders.

3. Are in compliance with your State’s Wage and Labor laws

I-9 penalties were raised significantly in 2016; consequently, the current cost of having errors on Form I-9 or not being complaint are as follows:

Form I-9 Paperwork Violations:
Previous fine per Form I-9 violation: $110 to $1,100
Fine effective August 1, 2016 per Form I-9 Violation: $216 to $2,126
Unlawful Employment of Unauthorized Workers:
First Offense
Previous fine, per worker: $375 to $3,200
Fine effective August 1,2016 per worker: $539 to $4,313
Second Offense
Previous fine per worker: $3,200 to $6,500
Fine effective August 1, 2016, per worker:$4,313 to $10,781
Subsequent Offenses
Previous fine, per worker: $4,300 to $16,000
Fine effective August 1, 2016, per worker: $6,469 to $21,563
Unfair Immigration-Related Practices
First Order
Previous fine, per worker: $375 to $3,200
Fine effective August 1, 2016, per worker: $445 to $3,563 (however repeat offenders could face a new maximum penalty of $21,563 per worker.)
These fines also increase per subsequent order and frequent offenders may face a maximum fine of $17,816 per worker.

Unfair Immigration-Related Practices – Document Abuse
Previous fine, per individual:$100 to $1,100
Fine effective August 1, 2016, per individual: $110 to $1,100

I strongly recommend that in this heightened audit environment that all employers conduct internal I-9 audits. I realize that this may be more money than some of you are able to/ want to spend, but the costs of not being in compliance are excessive. I strongly urge you to please consider this as a safety mechanism to ensure you are compliant. Please call us if you have questions regarding timelines and costs of an internal audit. We would be happy to work with you.

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