Visa Lawyer Blog

When faced with trying to have a U.S. citizen, legal permanent resident, or nonimmigrant visa holder perform services in Mexico, it is critical to analyze the following issues first:

· Does the company have any operating entities in Mexico?

If so, some Mexican consulates will indicate that FM-3 visa applications should be made through Instituto Nacional de Migracion (INM).

· What services/duties will the person perform in Mexico?

Certain managerial, executive, and technical duties will force the use of the application process through INM versus Secretaria de Relaciones Exteriores (SRE). INM documentation requirements are always more demanding.

· How often will the person need to be in Mexico and where in Mexico over what period of time?

Business visitors must typically consider 30-day or one-year visas allowing certain business activities.

· Is the person from a restricted nationality country under Mexican law?

If so, plan ahead for two- to six-week delays for review of the visa application by INM in Mexico City. This comment includes someone who is from a restricted nationality, but who possesses a valid U.S. nonimmigrant visa.

· How will the person be compensated for services/duties performed in Mexico?

If the applicant will be paid by a Mexican source, the application must be reviewed by INM first before approval by SRE.

· Will the person reside in Mexico or the U.S. side of the border as to border zone assignments?

If the applicant will reside in Mexico, INM must review the application before the issuance of any visa by SRE.

· Will the person have signatory authority to bind the U.S. or Mexican company?

In this situation, it is important to have the FM-3 visa annotated to reflect this authority, which is often called "poder" authority.

· If the person possesses technical expertise, do they have a degree (for that matter a copy of the degree and curriculum vitae)?

The INM documentation requirements normally include providing an apostilled letter from the employer as well as an apostilled copy of a degree or an apostilled letter from the company confirming expertise for those not possessing a degree. Some INM offices will accept just an apostilled letter confirming experience as well as any degree versus reviewing the original degree.

· Has the person ever had a Mexican visa before, if so, what type? Did the person cancel prior Mexican visas?

Most INM and SRE offices will require proof of timely cancellation of the prior visa and payment of any required penalties before issuance of a new visa. This can become costly for those who have forgotten to do so for months and then need to be re-admitted. Although the penalty is set by a formula, it is possible to request a reduction in the amount based on circumstances of merit (e.g., first FM-3, illness, or other emergency).

The Mexican immigration alternatives are constantly changing, as are those for the United States. It is important to consult with legal counsel before choosing any particular options. It is also important to make sure that support letters as to activities in the United States do not contradict representations made concerning a U.S. nonimmigrant visa holder’s status in the United States. In addition, pre-planning regarding the documentation necessary for INM versus SRE applications for FM-3 status is critical.

President Barack Obama on Thursday assured immigration advocates frustrated by the wait for a promised overhaul of U.S. immigration laws that he remains committed to fixing a system he has said is broken. What remains unclear is whether Congress will send him a bill this year.
Obama also met separately later in the day with Sens. Chuck Schumer, D-N.Y., and Lindsey Graham, R-S.C., who gave the president an outline of a bill they are drafting. Obama said afterward in a statement that he "looked forward to reviewing their promising framework."

Obama said he told the senators and the advocacy groups that "my commitment to comprehensive immigration reform is unwavering, and that I will continue to be their partner in this important effort."

The immigration issue is an important one for Obama, who has promised to work to solve the problem. Hispanics voted heavily for Obama in the 2008 presidential election, making the difference in key states like Florida, and their votes will be critical in the November midterm elections when Obama and his fellow Democrats will be fighting to maintain control of the House and Senate.

Read more....

U.S. Citizenship and Immigration Services (USCIS) announced today that it will begin accepting H-1B petitions subject to the fiscal year (FY) 2011 cap on April 1, 2010. Cases will be considered accepted on the date that USCIS takes possession of a properly filed petition with the correct fee; not the date that the petition is postmarked.

The fiscal year cap (numerical limitation on H-1B petitions) for FY 2011 is 65,000. Additionally, the first 20,000 H-1B petitions filed on behalf of individuals who have earned a U.S. master’s degree or higher are exempt from the H-1B cap.

USCIS will monitor the number of petitions received and will notify the public of the date on which USCIS received the necessary number of petitions to meet the H-1B cap. If needed, USCIS will randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date. USCIS will reject cap-subject petitions that are not selected, as well as those received after the final receipt date.

We recommend employers to hurry up and get all the necessary documents in order to meet the April 1, 2010 deadline.

Read the Press Release here....

Great tip from AILA for our H1B filers trying to beat the rush. Because you cannot submit an LCA earlier than six months prior to the beginning date of the period of intended employment (20 CFR § 655.730(b)), if you want your LCA in hand before April 1, then set your employment start date on the LCA for a date in September, and set the expiration date for a date no more than three years hence. File the I-129 with a start date of October 1, but with an expiration date that coincides with the expiration date of the LCA. You will lose a couple of days on the back end of the petition by doing this, but you will get the LCA filed and back before April 1.

Example:

LCA start date: 9/1/10

LCA end date: 8/31/13

Form I-129 start date: 10/1/10

Form I-129 end date: 8/31/13

Due to delays in receiving approved LCAs, take the proper precautions and file your LCA early to avoid any undue delays.

Although under certain circumstances USCIS has agreed to accept H-1B petitions for processing that include LCAs that have not been certified, attorneys should understand that if the LCA submitted with the H-1B petition is eventually denied, the H-1B will be denied, even if a subsequent certified LCA is submitted. This is even true where the denial is due to DOL error in not being able to verify a petitioner's FEIN. However, USCIS has also indicated that if the sole reason for failing to apply for an Extension of Status or Change of Status is due to DOL delay in the certification process, USCIS may look at the totality of the circumstances in determining whether to accept the late filing.

Bottom line is that getting an approved LCA before April 1, 2010 is crucial. Pay attention to detail and get the files ready in advance is a must.

We are a few hours away from the biggest Awards ceremony in Hollywood and the world. So what part do Immigrants play in the biggest show on earth? Talent is the one universal passport, and Hollywood has always had a place for immigrants — from German maestro Fritz Lang, who headed west when Hitler's minister of propaganda pressured him to take over Germany's top studio, to Polish Roman Polanski, who directed Los Angeles' definitive film noir, "Chinatown," and Taiwan-born Ang Lee, who became the first nonwhite to win an Academy Award for directing for "Brokeback Mountain," his reinvention of the western.

As Hollywood tries to stave off commercial stasis, the industry has been undergoing another chapter in its love affair with foreign writers and directors, particularly those from the Far East and Latin America. The international box office now accounts for more than 60% of a film's box office gross.

Of course, in this age of globalization, it's unclear what it even means to be a Hollywood immigrant anymore. "It doesn't matter where you live," says Paramount Classics chief John Lesher. "We all talk on the phone. We see each other at film festivals. You can edit a movie in Brazil, and your editor can be in London, and you can put it together seamlessly in perfect time."

So for Oscars 2010 we will not able to determine again who is an immigrant and who is not, an honestly who cares. What we want to know is who will win tonight.

For as lacking in suspense as the acting races are, the contest for the biggest prize couldn't be any closer. It's David vs. Goliath here, with 'Hurt Locker' and 'Avatar' seemingly trading "favorite" status every other day.

Unless they somehow split the votes and the Weinstein-backed 'Basterds' revises more history with an upset, the Oscar will go to either the highest-grossing Best Picture winner ever, or the lowest (in half a century, anyway). Be warned: This one is flip-a-coin close. Enjoy the Oscars tonight!!!!

What a great initiative introduced recently. Senators John Kerry (D-Mass.) and Richard Lugar (R-Ind.), the Chairman and Ranking Member of the Senate Foreign Relations Committee, today introduced legislation to drive job creation and increase America’s global competiveness by helping immigrant entrepreneurs secure visas to the United States.

The StartUp Visa Act of 2010 will allow an immigrant entrepreneur to receive a two year visa if he or she can show that a qualified U.S. investor is willing to dedicate a significant sum – a minimum of $250,000 – to the immigrant’s startup venture.

The StartUp Visa Act of 2010 would amend immigration law to create a new EB-6 category for immigrant entrepreneurs, drawing from existing visas under the EB-5 category, which permits foreign nationals who invest at least $1 million into the U.S., and thereby create ten jobs, to obtain a green card. After proving that he or she has secured initial investment capital and if, after two years, the immigrant entrepreneur can show that he or she has generated at least five full-time jobs in the United States, attracted $1 million in additional investment capital or achieved $1 million in revenue, then he or she would receive permanent legal resident status.

More than 160 venture capitalists from across the country have endorsed the senators’ proposal. Great idea, let us hope it will become a reality.

USCIC announced the availability of two new grants that are designed to help lawful permanent residents prepare for citizenship and integration in the U.S. This year, nearly $7 million will be made available for education initiatives throughout the country. According to USCIS, these two competitive grant programs will help expand citizenship preparation programs for lawful permanent residents that wish to achieve U.S. citizenship.

Citizenship and Integration Direct Services Grant Program - The first funding opportunity will focus on providing funding for local programs that are currently working to promote the rights and responsibilities of citizenship through direct citizenship preparation programs for lawful permanent residents. Examples of such programs include those with initiatives to prepare lawful permanent residents for the civics and the English reading, writing and speaking portions of the naturalization test.
Organizations interested in applying for this grant opportunity should send a required letter of intent by March 26, 2010 to the following email address: citizenshipgrantprogram@dhs.gov.

Citizenship and Integration National Capacity Building Grant Program- The second funding opportunity will focus on increasing the capacity building initiatives of national, regional and statewide organizations that provide citizenship services in underserved communities. Funding through this grant will assist these organizations in promoting the integration of immigrants in the U.S. through direct citizenship services for lawful permanent residents.

Organizations interested in applying for this grant opportunity should send a required letter of intent by March 26, 2010 to the following email address: citizenshipgrantprogram@dhs.gov.

To apply for either of these programs, visit www.grants.gov.

The U.S. Department of Homeland Security (DHS) issued an interim final rule on April 8, 2008, extending Optional Practical Training (OPT) for F-1 students with science, technology, engineering, or math (STEM) degrees by an additional 17 months; from 12 months to 29 months. F-1 students with STEM degrees are able to obtain this OPT extension without having H1B petitions filed on their behalf. The memorandum also gives clarification on the “cap-gap” for students who have pending H-1B applications. Here are the key changes:
* OPT extension for STEM students
* H-1B cap-gap extension of D/S and work authorization until October 1
* I-765 filing window
* Duration of employment authorization
* Reporting Requirements while on OPT
* Limited Periods of Unemployment to Maintain Status

The student’s employer must be enrolled in the E-Verify system. Furthermore, in order to qualify, a student must apply at least 90 days before his/her post-OPT ends. This must be done within time. To apply for an extension, students must file Form I-765, Form I-20 endorsed by the student’s designated school official, the application fee, and a copy of the student’s degree. Upon being granted a STEM extension, students must notify his/her DSO via email within 10 days of changes in: employment end date, employment start date, supervisor name and contact information, job title, employer address and name, email address, mailing address, address of residence, and legal name. In addition to reporting to a DSO within 10 days, a student must also report to the DSO every six months via email, regardless if there is a change or not.

H-1B Cap-gap extensions:

A cap-gap happens when a student’s F-1 status and work authorization expire before he/she can start H-1B employment at the beginning of the upcoming fiscal year (October 1st of every year). Essentially, this forces a student to leave the United States and then come back when his/her H-1B visa becomes valid. Often times, cap-gap happens when an H-1B employer files a petition for a beneficiary after his/her post-OPT expires. The earliest an employer can submit an H-1B petition for work starting October 1st of a fiscal year is on April 1st of the previous fiscal year (6 months prior).

The problem with the cap gap is that it forced F-1 students who already had approved H-1B petitions but whose post-OPT ended before October 1 to leave the United States and apply at a consulate office in order to seek readmission into the United States under an H-1B. Under old cap gap extension rules, a student was allowed to stay in the United States until October 1st, but could not work until the start of his/her H-1B visa. Furthermore, this extension previously had to be reported in the Federal Register, as it was not automatic. If a notice was not published in the Federal Register, the student was required to leave the United States and apply for readmission under H-1B status.

The interim final rule for the cap-gap situation has modified these regulations. First, an F-1 student’s status is valid until his/her OPT ends; they can stay in the United States for up to 60 days thereafter. Second, the cap-gap extension is automatically granted when the H-1B cap is reached and an employer has filed an H-1B application for a beneficiary during the period H-1B applications are accepted. If a student’s H-1B is not selected, then the automatic extension ends when USCIS finishes its random selection. If a student’s H-1B is selected, then he/she can remain in the United States and continue to work until the start of his/her H-1B visa in October. Students who violate their status will not be eligible to take advantage of this extension.

Also under this new rule, F-1 students can apply for post-OPT 90 days before they finish and up to 60 days after they have finished their degree. Similarly, the new interim rule also allows H-1B employers to file petitions during an F-1 student’s 60 day grace period.

We hope that above information must have clarified several facets of OPT and related aspects.

Since the recent Memo from USCIS re Employer Employee relationship, our office has been receiving anxious calls from employers and clients alike. U.S. Citizenship and Immigration Services (USCIS) issued in Janauary updated guidance to adjudication officers to clarify what constitutes a valid employer-employee relationship to qualify for the H-1B ‘specialty occupation’ classification. The memorandum clarifies such relationships, particularly as it pertains to independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites. The memorandum is titled: “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements.

The memo make it more difficult for staffing companies who hire professionals to work at third-party work locations to obtain H-1B visas on their behalf. The memo states that staffing companies must demonstrate that they "control" their employee's daily tasks.

Moreover, the memo prevents corporations owned by a future H-1B beneficiary from submitting an H-1B petition on behalf of the beneficiary. The grounds for denial would be that the beneficiary rather than the petitioning company will be controlling the beneficiary's work.

Given the economic climate, many companies rely on contract workers to supplement their work force. The new guidance limits the ability of some outside vendors to sponsor new foreign workers or extend the immigration status of their existing employees. The result will be delayed projects and some of those companies may have difficulty fulfilling their contractual obligations. Companies, including those that do not sponsor H-1B workers — should therefore consult with their outside vendors to deter­mine whether the new guidance will have business ramifications. Many companies, knowing that the new guidance may inhibit their ability to augment their work force on short notice, plan to sponsor additional H-1B workers in fiscal year 2011.

Though USCIS issued the guidance, companies should expect their H-1B workers to face additional scrutiny when they apply for a new visa with the U.S. Department of State or seek admission at a port-of-entry. In a recent advisory, U.S. Customs and Border Protection (CBP) warned attorneys that foreign workers should expect to be questioned about their employment in the United States and should carry documentation to establish their eligibility to work in the United States.

Employers must adapt and revise how they prepare and submit H-1B petitions. Any company that places H-1B workers at third-party work sites should consult with outside counsel regarding the new guidance. We will monitor the developments as the new H1B seasons progresses, and will update our readers on the impact of this Memo on new cases filed after April 1, 2010.

U.S. Citizenship and Immigration Services (USCIS) today announced that it has posted a revised Application to Register Permanent Residence or Adjust Status, Form I-485. In addition to a revised form, there are new filing locations. The changes are part of an overall effort to transition the intake of USCIS benefit forms from Service Centers to Lockbox facilities. Centralizing form and fee intake allows USCIS to provide the public more efficient and effective initial processing of applications and fees.

Beginning February 25, 2010, most applicants must submit Form I-485 to a USCIS Lockbox facility, depending on the eligibility category under which they are filing, as provided in the form instructions. USCIS Service Centers will forward all Form I-485 applications to the appropriate Lockbox facility until March 29, 2010. USCIS will accept previous versions of Form I-485 until March 29, 2010. After March 29, 2010, USCIS will only accept the Form I-485 dated “12/03/09.”Any previous versions of the the form that are submitted will be rejected. After the transitional period, the Service Centers will return any incorrectly filed Form I-485 with instructions to send the application to the correct location.

At this time, applicants should not concurrently file Form I-485 with an Immigrant Petition for Alien Worker (Form I-140) at a USCIS Lockbox facility. Refer to the Form I-140 filing Instructions for information on how to file forms concurrently.

When filing Form I-485 at a Lockbox facility, you may elect to receive an email and/or text message notifying you that USCIS has accepted your application. To receive notification, you must complete an E-Notification of Application/Petition Acceptance (Form G-1145), and attach it to the first page of your application.

For more information on USCIS programs, visit or call the National Customer Service Center at 1-800-375-5283.

On March 1, U.S. Citizenship and Immigration Services welcomed 50 new citizens at a special citizenship ceremony at the Robert F. Kennedy Department of Justice’s Great Hall. U.S. Assistant Attorney General for Civil Rights Tom Perez delivered keynote remarks, and USCIS Director Alejandro Mayorkas will administer the Oath of Allegiance.
Each year, hundreds of thousands of immigrants choose to become American citizens by taking the Oath of Allegiance at naturalization ceremonies across the United States and overseas.
Here are the Citizenship Statistics:
2001-2010: During this decade, the United States welcomed more than 5.6 million new citizens, including more than 744,000 people during fiscal year 2009 and more than 138,000 in the current fiscal year. Since September 2001, USCIS has assisted more than 55,000 members of the military to become naturalized U.S. citizens.

1991-2000: Approximately 5.6 million individuals became U.S. citizens during this period,
doubling the number from the previous decade. The late 1990s also marked another shift in
naturalization demographics, with those of Mexican decent yielding the most naturalized citizens, followed by Vietnamese and Filipinos.

1981-1990: Nearly 2.3 million people were naturalized during the 1980s, nearly half of whom
came from Asia. Together, Canada and Mexico accounted for more than one quarter of the
remaining new citizens.

1971-1980: The United States welcomed approximately 1.5 million new citizens during the 1970s. The Philippines, Cuba, and China were the leading countries of origin. This trend represented a shift from the 1960s, when the largest number of new citizens came from Europe. An estimated 66,000 members of the U.S. military were naturalized during this decade.

1908: The United States naturalized approximately 25,975 individuals.

1907: The United States naturalized approximately 7,941 individuals.

There is still a lot of confusions when it comes to Orphans from Haiti and the legal procedures concerning adoptions from that country. Under normal circumstances, a child immigrating to the United States from Haiti as the adopted orphan child of a U.S. citizen is adopted before leaving Haiti, and is then admitted to the United States with an immigrant visa for Lawful Permanent Residence (LPR) status. The adopted child then acquires citizenship upon entry as specified in section 320 of the Immigration and Nationality Act (INA).

In light of the devastating earthquakes in Haiti, the Secretary of the Department of Homeland Security authorized Haitian children, who were adopted or were in the process of being adopted by American families prior to the earthquake, to be paroled into the United States. “Category 1” parolees are Haitian orphans who were already legally adopted in Haiti. “Category 2” parolees are certain Haitian orphans whose cases had not yet resulted in final adoptions.

o determine what steps to take next, it is most important to understand where you were in the adoption process in Haiti, click here for a complete guide from USCIS