02 Sep 2019


Immigration and Customs Enforcement (ICE) was scheduled to begin processing some undocumented immigrants under new expedited removal rules that greatly expand who can be deported without a hearing before an Immigration Judge.

Per a memo dated July 24, 2019, ICE Director Matthre Albence said the agency’s officers could beging processing cases under the new guidelines on or around September 01, 2019.

This alert is provided for both, Individuals as well as employers who need to be aware of this change so you can take appropriate measures to protect yourself, your loved ones or your employees/team members.

Background: The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) allows ICE officers the authority to remove from the United States, without the nee for a hearing before an immigration judge, people who:

1.      are either applicants for admission to the United States or satisfy the following conditions: have entered the United States without admission or advance parole and have been continuously physically present in the United States for less than two years,

2.      are inadmissible under certain statutory grounds primarily due to failure to comply with visa or other entry document requirements, and/or fraud or misrepresentation,

3.      make no claim to lawful permanent resident status, and

4.      do not seek asylum or express a fear of persecution.

Immigration and Naturalization Service (INS), in 2002, then expanded the application of expedited removal to people who were either entering the U.S by sea, either by boat or other means; were not admitted or paroled into the U.S, and who have not been continuously present in the United States for at least two years.

Later in 2004, Department of Homeland Security (DHS) expanded this even further to expand the process to any individual apprehended within 100 miles of any land or sea border and who entered the US without inspection less than 14 days before the time they are encountered.

What is Changing? DHS now asserts their right to enforce “expedited removal” proceedings against any individual found within the united states, irrespective of whether they are apprehended within 100 miles of a land or sea border of the United States. The new change transfers the burden of proof from an ICE officer to an Individual to prove his/her presence in the US for a continuous period of at least two years in order to avoid immedate arrest and deportation without access to an Immigration Judge.

Immigrants facing expedited removal should keep a folder ready at home and let a loved one know its location so it can be easily retrieved. The folder should contain any and all documents that can prove continuous physical presence in the United States, such as:

  •  lease for home or business and copies of letter from IRS for ITIN Number
  • pay stubs; bank statements; income tax returns
  • Marriage and birth certificates to show presence in the US during key moments
  • Any records from church or community/social groups you are a regular member/attendee of
  • Copies of high school graduation; transcripts from high school or college evidencing enrollment and presence in the U.S.

How this Affects Employers: The memo clearly states that the new removal designation will likely be used by ICE during worksite raids and working within the Criminal Alien Program, which partners with local, state and federal law enforcement agencies to detain undocumented immigrants.

Questions? Please reach out to either myself or Kripa Upadhyay at Orbit Law, PLLC should you have questions or concerns. 

Share this
02 Sep 2019

STEM OPT Worksite Inspections: What Employers Need to Know

Department of Homeland Security (DHS) has begun conducting on-site inspections of F-1 STEM optional practical training (OPT) employment. Whilst Immigration and Customs Enforcement (ICE) has had the authority to make site visits since the regulations governing the program were revised in May 2016, https://www.federalregister.gov/documents/2016/03/11/2016-04828/improving-and-expanding-training-opportunities-for-f-1-nonimmigrant-students-with-stem-degrees-and

It is only from early August that employers have begun seeing and reporting site inspections against OPT STEM Students.

Pre Site Inspection: It is likely that ICE will contact the HR/Immigration manager to ask for the Form I-983 prior to the site inspection. The HR/Immigration Manager should provide any and all documents requested by ICE afterconsulting with your Immigration attorney. Additionally, the representative should attempt to set a date and time for the inspection and ask for ICE to allow the company’s attorney to be present either in person or telephonically during the inspection.

Preparing for the Site Inspection: Employers must ensure that they have a designated point of contact at each site where an OPT student is being trained or placed. Make sure you have a standard plan for which employee must be notified if ICE appears for a site visit and that officers should not be permitted to inspect files, tour the facilities or speak with employees without the designated company representative being present. his designated employee should also accompany officers during the entire site inspection and take detailed notes including the names of the officers; questions asked; documents inspected; places inspected etc. It is crucial that this designated employee also make copies of any and all documents provided to ICE officers.

During the Site Inspection: Employers should be aware that in addition to asking to see the student’s work space and tour of the premises, officers may also want to do the following:

  1. The purpose of the inspection seems to be to ensure that the employers are complying with STEM OPT requirements and meeting the obligations of Form I-983 training plans. In general, ICE will want to see evidence that the employer is carrying out a structure and guided work – based learning experience consistent with the regulations and with the specific training plan completed and signed by the organization. Employers MUST be well-versed with the contents of the training plans used for STEM OPT students.
  2. The inspection may include individual interviews with the company personnel, a review and discussion of the student’s training plan and the way it has been implemented. The officers may also want to inspect the student’s degree and review his/her skills in relation to the STEM degree and the training. Employers should ensure that the student(s) are aware that a Site Inspection may occur and they should be prepared to answer questions as to their education, training and its relevance to the training/work they are performing.
  3. ICE may also review wether the duties, hours and compensation of STEM OPT trainees are consistent with wage and labor laws of the city in which the student is placed. In order to make sure that students are not being paid less than similarly situated US Citizen employees, the employer may be asked to provide documentary evidence to show how they decide on wages and compensation for different level of employees.
  4. Employers must be aware that is a STEM OPT student is placed at an off site location, ICE has the authority to visit and conduct inspection of the client site.
  5. Additionally, although the purpose is NOT to find other violations, if during the course of the site inspection, ICE becomes aware of other violations of wage and labor or Immigration laws, they have the authority to address or refer inspection or follow up to the proper entity or agency.

I-9 Compliance: Employers need to be aware that every employee, including OPT STEM students must have a correctly completed form I-9 on file; therefore, please ensure that the I-9 forms are in order for all employees whether on STEM OPT or not.

Questions: Please do not hesitate to contact us should you need help with I-9 compliance or preparing for a site inspection.

Share this
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.

Share this
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.

Share this
20 Sep 2016

Seattle PERM Lawyer

Until 2005, the labor certification system in the United States was fairly slow and inefficient. For those seeking a way to immigrate the US for work, this long wait only added more stress to a process that was already extensive and stressful. Fortunately, PERM was introduced as a way to streamline the labor certification process so that both working immigrants and employers seeking to hire foreign workers could go through the visa process faster.

If you need guidance or legal counsel in attaining your labor certification in the US, there’s a law firm that specializes in just that. Located in Seattle, WA, the attorneys at Orbit Law, PLLC specialize in immigration and Nationality law. Because it is our core focus, we are dedicated to continuing our education and understanding of immigration law in the US. We frequently attend and speak at immigration-related seminars to keep our finger on the pulse of these ever changing laws. Now, keep reading to learn about PERM, and how it works within the labor certification process.

What is Labor Certification

Labor certification is an employment-based opportunity for obtaining citizenship. This process is done by US employers looking to hire an immigrant worker. There are numerous conditions attached to this type of green card, but the chief underlying condition is that the employer can’t find qualified US workers to fill the needed position. Once the application is approved by the United States Department of Labor, the employer can then work towards attaining permanent residency for said foreign worker. The labor certification process is complicated and can take a lot of time. Luckily, in the last decade, PERM was launched as a way to streamline the labor certification process for employers.

How Does PERM Work?

Program Electronic Review Management (PERM) is an electronic labor certification system designed to expedite the Labor Certification application process. With PERM, it only takes around 60 days to process the applications. This is a vast improvement from the old system, which took months of extensive interviewing and persuading before an employer was allowed to hire a foreign worker. While PERM has helped to expedite the labor certification process, the system as a whole is still very complicated, and would be best done with a knowledgeable attorney by your side.

PERM Timeline

From the start of the case to filing the PERM LC application, form ETA 9089, the PERM process usually takes four to six months. As explained in greater detail below, employers must complete certain detailed steps pertaining to efforts to recruit U.S. workers as part of the PERM process. These highly detailed requirements must completely be met before the case can be filed with the DOL.

Minimum Requirements and Duties for Offered Position

The starting point in the PERM LC process is establishing the duties and requirements for the position that forms the basis of the PERM case. There are specific regulations governing the content of the job description, as well as the job requirements or qualifications. These regulations must be carefully adhered to, as cases can be denied for issues that, to the average employer, may seem to be minor technicalities.

The sponsoring employer must set forth clearly defined job duties and educational and/or experience requirements needed to qualify for the position. The requirements set by the employer for the position must meet the DOL’s “actual minimum requirements” rule. This means that the requested education and/or experience must reflect the employer’s absolute minimum qualifications for the job to be performed in a competent (not superior) way.

An employer may never have considered these matters in the detail or in the same manner as the DOL prior to commencing a PERM case. In such a situation, it could take a number of days or even longer to finalize this initial part of a case. There is a high level of employer participation at this stage. Thus, the length of time required to complete this portion of a case depends in part upon the employer’s availability.

A separate aspect of the analysis of the job definition is the determination of whether the sponsored employee will be able to document that s/he meets the employer’s education and/or experience requirements. This can cause delays while efforts are made to obtain sufficiently detailed experience letters from prior employers, educational documents, and evaluations of foreign educational credentials.
Benefits of Obtaining Prevailing Wage Before Recruitment

In order to file the PERM application, it is necessary to obtain a prevailing wage determination (PWD) from the DOL. This establishes the appropriate minimum wage level required for the position. Wage determinations take approximately six weeks, as of this writing. While the PWD can be processed during the recruiting period, it is often advisable to obtain the determination prior to starting recruitment.

There are a number of reasons it is often beneficial for an employer to obtain the PWD before the recruitment process for the position begins. One reason is that there is a level of unpredictability in the DOL PWD process. If a wage is used that the employer believes will be the PWD, but the actual PWD issued weeks or months later turns out to be higher, the employer may be forced to restart the entire recruitment process from the beginning.

Timing issues are another reason many immigration practitioners favor obtaining the PWD before the employer starts recruitment. Recruitment efforts are only valid for a limited time, and if recruitment starts before the PWD is obtained, the PERM LC must be filed during the assigned validity period of the PWD. Thus, if recruitment cannot be completed before the PWD expires, it is often necessary to start the entire case over again.

The case can sometimes be salvaged if there is enough time to obtain a new PWD before the recruitment efforts expire. However, even when a new PWD is issued in time, the wage may be updated to a higher rate. This, too, may necessitate starting the recruitment anew. On the other hand, if the PWD is issued prior to any recruitment steps are taken; the validity of the wage determination is prolonged. Therefore, obtaining the prevailing wage before recruitment begins can avoid these potential complications.

Recruitment Format and Requirements

The DOL has exacting regulations as to the form and content of the recruiting efforts required of the sponsoring employer. The employer is required to use newspaper ads, a posting in the state labor department’s job bank, and, for professional positions, three additional allowed forms of recruitment. The regulations address not only the types of recruitment, but also the content of the advertisements.

Various companies and agencies generally must be utilized during the advertising process, which sometimes leads to errors. Therefore, this process must be closely monitored. For example, the state labor job posting is required to run for 30 full days. Sometimes, however, the state agency will cut short the posting without authorization. If this occurs and is not corrected, the DOL may deny the case. Other forms of advertising may not have to run for such a long period of time, but they are subject to issues such as human or machine error, which could also render the recruitment campaign unacceptable to the DOL.

During recruitment, the employer must promptly and appropriately respond to any resumes or applications submitted by interested candidates for the proffered position. Otherwise, the DOL will not consider the recruiting efforts to be valid and acceptable. This almost always leads the employer to have numerous questions for the attorney as to the appropriate response and screening of potentially qualified applicants. If an employer improperly handles job applications or interviews, it can doom the process.
30-Day “Quiet” or “Hold” Period

Some people like to call the period between finishing most of the recruitment and filing the application a quiet or hold period. In reality, it is part of the required recruitment period. After the 30-day job order and most of the other recruiting is complete, the PERM LC filing still must wait for an additional 30 days. This is so that the employer can continue to receive and consider job applications in response to the prior recruiting efforts. In general, if a PERM LC is filed before the 30-day mark, it will be denied.
Employer / Employee Sign Form Under Penalty of Perjury

The attorney may be able to prepare the extensive ETA 9089 form during the recruitment period. However, the form cannot be finalized until after the recruitment process is completed. Once the form is finalized, it must be approved by both the employer and employee, who will be signing their respective portions of the form under penalty of perjury.

Review PERM Carefully Before Signing and Filing

Employers and employees should take the time to carefully review the entire form and address any issues or discrepancies prior to filing. A pending form cannot be corrected.

The only option for fixing such errors is withdrawing and re-filing, and this is only possible if the recruiting and wage determination are still valid.
Qualified Candidate/s Applying Terminates PERM

Of course, if the recruitment locates qualified, willing, able, and available U.S. worker applicants to fill the offered position/s, the PERM application must end at that point, in most cases. If the employer wishes to do so, it may be possible to try again later, which would require starting the entire PERM process anew.

Orbit Law, Your Seattle Immigration Attorneys

Immigration law is too complicated to pursue on your own, so you can rest assured knowing that with our knowledge and experience, we can help you navigate the many legal issues that come with immigration and labor certification. You can contact our Seattle legal office here, or give us a call at 206-623-3352.

Share this

© 2016 Orbit Law PLLC. All rights reserved.