Visa Lawyer Blog

President Obama spoke at a prime time news conference commemorating his 100th day in office today. President Obama seems to be one step closer to being able to secure Comprehensive Immigration Reform. He said the following at the meeting:" I see the process (immigration reform) moving this first year. And I'm going to be moving it as quickly as I can. I've been accused of doing too much. We are moving full steam ahead on all fronts. Ultimately, I don't have control of the legislative calendar, and so we're going to work with legislative leaders to see what we can do.

At the news conference, reporter Lori Montenegro, asked the following: " Going forward, my question is, what is your strategy to try to have immigration reform? And are you still on the same timetable to have it accomplished in the first year of your presidency?

And, also, I'd like to know if you're going to reach out to Senator John McCain, who is Republican and in the past has favored immigration reform?"

Obama: Well, we reach out to -- to Senator McCain on a whole host of issues. He has been a leader on immigration reform. I think he has had the right position on immigration reform. And I would love to partner with him and others on what is going to be a critical issue.

We've also worked with Senator McCain on what I think is a terrific piece of legislation that he and Carl Levin have put together around procurement reform. We want that moved, and we're going to be working hard with them to get that accomplished.

What I told the Congressional Hispanic Caucus is exactly what I said the very next day in a town hall meeting and what I will continue to say publicly, and that is we want to move this process.

We can't continue with a broken immigration system. It's not good for anybody. It's not good for American workers. It's dangerous for Mexican would-be workers who are trying to cross a dangerous border.

It is -- it is putting a strain on border communities, who oftentimes have to deal with a host of undocumented workers. And it keeps those undocumented workers in the shadows, which means they can be exploited at the same time as they're depressing U.S. wages.

So, what I hope to happen is that we're able to convene a working group, working with key legislators like Luis Gutierrez and Nydia Velazquez and others to start looking at a framework of how this legislation might be shaped.

In the meantime, what we're trying to do is take some core -- some key administrative steps to move the process along to lay the groundwork for legislation. Because the American people need some confidence that if we actually put a package together, we can execute.

So Janet Napolitano, who has great knowledge of this because of having been a border governor, she's already in the process of reviewing and figuring out how can we strengthen our border security in a much more significant way than we're doing.

If the American people don't feel like you can secure the borders, then it's hard to strike a deal that would get people out of the shadows and on a pathway to citizenship who are already here, because the attitude of the average American is going to be, well, you're just going to have hundreds of thousands of more coming in each year.

On the other hand, showing that there is a more thoughtful approach than just raids of a handful of workers as opposed to, for example, taking seriously the violation of companies that sometimes are actively recruiting these workers to come in. That's again something we can start doing administratively.

So what we want to do is to show that we are competent and getting results around immigration, even on the structures that we already have in place, the laws that we already have in place, so that we're building confidence among the American people that we can actually follow through on whatever legislative approach emerges.

Hotel News Now, a leading Global Hospitality publication, ran a two-part series about staffing challenges facing the U.S. hotel industry. I was honored to be interviewed by the publication and share my insights on the problems facing hospitality employer in these challenging times.

With the level of unemployment about 8.5 percent, why do hotels still need foreign workers? There are various reasons, from location to the attitudes of American workers. And changes in schedules and lifestyle have affected one of the former staples of summer work—students.

The situation is bad for staffing professionals in the industry, said Jacob Sapochnick, a San Diego, California-based lawyer whose practice is devoted to immigration law.

“Even though they can hire local people, they can never rely on them for the full term,” he said. “If you have a large hotel, need 50 housekeepers and hire locally, the turnover is very high. They find a better job or one that pays more. When you have H-2B workers, they know they have them for 10 months. Their visa depends on them working at that hotel.”

The more turnover, the less likely the hotel will function properly, Sapochnick said.

The second article in the series titled, Changes make H-2B visa program more challenging for hotels, click to read here

The U.S. Embassy in Mexico City has suspended processing of the approximately 5100 non-immigrant visa appointments scheduled Monday, April 27 through Wednesday, April 29. In the US, All USCIS offices remain open for business. Applicants should plan to attend all previously scheduled appointments, interviews and ceremonies unless they are feeling ill. It seems that re scheduling due to illness is a perfectly acceptable reason.

There are no reports of problems to enter the US from Mexico, no refusals due to Swine Flu issues as of now. But this may well change as the issue develops.

Follow the WHO updates here

Missouri House of Representatives has cleared a law that would bar illegal aliens from attending public colleges in the state. The House voted 125-30 to approve the bill which has now been sent to the Senate, according to the Associated Press.

The vote is part of an ongoing debate across the country regarding immigration reform, and in particular the extent of publicly funded benefits that illegal immigrants should be entitled to. Earlier last week we reported about the College Board, an association of 5,000 schools, released a report that calls for federal legislation that would grant in-state college tuition, financial aid and legal status to many illegal immigrants in the U.S.

Read more

Recently, the Department of State released revisions to Section 40.11 N14.3 of the Foreign Affairs Manual regarding procedures for Nonimmigrant Visa (NIV) HIV Waiver Authorization. DOS released a checklist for individuals applying for a Non Immigrant HIV Waiver. The checklist is used in DOS' new streamlined NIV waiver process, which allows individuals to certify to the list of conditions for obtaining the waiver as opposed to having to bring independent evidence to the consulate. Click here for checklist Download file

We welcome the changes and hope that this will improve America's Image in the world, encouraging more visitors to come.

Since my last Blog article on E2 visas, I have been getting numerous emails about this hot topic from across the globe. Investors are anxious to come, but need the most up to date information about the E2 visa as a way to relocate and start a business in America.

In this article I will discuss alternative financial transactions as investments. In addition to cash, payments in the form of leases or rents for property or equipment may be calculated toward the investment in an amount limited to the funds devoted to that item in any one month, since the remaining payments will presumably be paid out of earnings from the treaty business. However, more than one month of payments may be counted if they are made in advance. For example, if the treaty investor prepays his or her equipment lease for one year, the entire year’s worth of payments may be counted as part of the qualifying investment.

The amount spent for the purchase of equipment and for inventory already in the possession of the treaty investor may be counted as part of the qualifying investment. The value of goods or equipment transferred to the United States may be considered part of the qualifying investment, if it can be demonstrated that the goods or machinery will be put to use in an ongoing commercial enterprise. The treaty investor must establish that the purchased goods or equipment are for business, not personal purposes. While a company car may not meet this burden because it may also be used for personal purposes, inventory or industrial equipment certainly will.

Established Business Purchase

Where applicant is seeking E-2 status based on an established business that he or she has operated for an extended period of time (perhaps under a different nonimmigrant status), it is sometimes difficult to document the investment. In the author’s opinion, it is not enough to simply show the current market value of the business as evidence that an investment has been made. Practitioners should first document the initial capital contribution made to the treaty business and then document that the proportionality of the investment is still sufficient at the time of the application.

Where the applicant has operated an established business for a period of time, much of the investment will be in the form of retained earnings. In such cases, the investment may not be considered substantial unless retained earnings are also counted. DOS has expressed a willingness to consider retained earnings as part of the qualifying investment. Further, in my experience retained earnings will be considered part of the qualifying investment.

In the EB-5 immigrant investor context, USCIS often takes the position that retained earnings are not part of the investment because the capital is not personal to the investor (even if the corporate entity is 100 percent owned and controlled by the investor). It instead requires that investor to personally receive the retained earnings (i.e., as a dividend), pay income tax on the income, and then reinvest the funds into the corporation. However, the negative tax implications often make this very undesirable. Fortunately, DOS appears to take a more relaxed position in E-2 context.

More on this topic in future posts.

Certainly more good news in the Immigration arena. According to the LA TimesThe College Board is supporting legislation that would offer some undocumented youths a path to citizenship through college or the military.

The association best known for the SAT and AP tests it administers is stepping into the contentious issue for the first time, just as President Obama is signaling that he may encourage lawmakers to overhaul immigration laws this year. The board's trustees have voted unanimously to support the legislation, known as the Dream Act.

The Development, Relief and Education for Alien Minors Act (The "DREAM Act") is a piece of proposed federal legislation that was introduced in the US Senate, and the US House of Representatives in March 26, 2009. This bill would provide certain immigrant students who graduate from US high schools, are of good moral character, arrived in the US as children, and have been in the country continuously for at least five years prior to the bill's enactment, the opportunity to earn conditional permanent residency. The students will obtain temporary residency for a lapse of six years. Within the six year period, a qualified student must attend college, and earn a two year degree, or serve in the military for two years in order to earn citizenship after the six years period. If student does not comply with either his/her college requirement or military service requirement, temporary residency will be taken away and student will be subjected to deportation.

We really need this to pass.

USCIS today announced an updated number of filings for H-1B petitions for the fiscal year 2010 program. USCIS has received approximately 44,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. It looks like less than 2000 cases were filed in the past two weeks, so it is very likely that the cap will not be met at least until the end of June.

Anti Immigration and H1B groups, blamed the economic crisis and job losses, on foreign workers coming to steal jobs from US workers. H-1B workers don't "steal" jobs from U.S. workers. H-1B visas are issued to temporary, "nonimmigrant" workers in "specialty occupations." As described by the Congressional Research Service, a "specialty occupation" is one "requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor's degree or its equivalent as a minimum." H1B workers are a boost to any employer and not a threat. The current crisis is affecting H1B workers as well.

We will keep following the developments in the H1B saga.

According to computerWorld, President Barack Obama has signaled interest in taking up comprehensive immigration reform. And any push for immigration reform is almost certain to include an increase in the H-1B cap. Patrick the reporter outlined 5 reasons why the cap will be increased; Read the excellent article here

The main lesson to be learned from the H1B saga this year, is that the market worked and won. Given the large number of jobs lost in the U.S. economy, employers submitted far less petitions than they did last year. Contrary to what critics of the program maintain, the cost of employing an H-1B worker exceeds that of hiring a U.S. worker given attorneys’ fees and government filing fees.

Congress should stop trying to control the program, and return to a simple market-based system. The plain truth is that the overwhelming majority of U.S. employers comply with the law. Those that abuse the law should be stripped of their ability to petition for H-1B workers. So bottom line is that, if you are in need of good quality workers, you can still hire them on the H1B visa. But you need to hurry.

In the past week or so we have been receiving many requests for evidence on all H1b cases filed on April 1, 2009. The RFEs received by us and practitioners across the country so far appear to only request that the single page of the I-129 Data Collection sheet be sent with the TARP question answered.

Due to the passage of EAWA, USCIS is required to collect TARP (and Section 13 funding) information on each H-1B petitioner. However, by the time the new form became available, we had already completed our packages for the H-1B cap filing period for April 1, 2009. Therefore, USCIS confirmed that the new I-129 form was not mandatory and that only the one page (of the I-129 Data collection sheet requesting the TARP information) was urged to be included.

At the AILA Spring Conference in Washington, D.C., Barbara Velarde, Chief, USCIS Service Center Operations, mentioned that if the TARP information was not included in the filing, the petitions would not be rejected. However, USCIS would need to send an RFE for the TARP information. Unfortunately, this was not clearly explained in the USCIS fact sheet on TARP issued on March 20, 2009. Nevertheless, USCIS is required under the EAWA statute to obtain this information and the easiest way for USCIS to comply is to send an RFE. This is a very annoying and time consuming process for all us dealing with H1B filings, and even more confusing for the clients. We hope that USCIS explain better such crucial changes in future matters.

I can not remember a time in my practice when I got so many inquiries and emails about investing and relocating to the United States. You would think that in these tough economic times, people will stir away from this country. The opposite is true. In these challenging times, many foreign investors are looking at the US as a potential gold mine. Trying to position themselves for the moment the economy takes a different course.

According to Jack Welch, in these recessionary times, a new business doesn't stand much of a chance unless it provides a demonstrably superior value proposition than the market's current offerings. Sure, not that long ago, you could still take a competitor's service or product, tweak it or slap on a new feature or two, and persuade customers to buy it at a premium. But with everyone in hunker-down mode, the days of marginal up-selling are gone, and could be for some time to come.

That said, if you're an entrepreneur or a foreign investor who has actually come up with a product or service that will significantly improve people's lives—for significantly less than the going rate—here's why right now might be the right time to forge ahead.

One reason, if there is one thing a startup needs to get out of the gate fast and compete effectively against established players, it's smart, driven-to-win people. And those people happen to be more available right now than at any time in our memory.

Right now might be the right time to start a business because doing so will position you especially well to enjoy the upside of the eventual recovery. Just think about it. If you start your business now, it will be staffed with smart, energized employees who have learned how to work together to keep costs as low as possible and innovation sky-high. Your company overall will carry no legacy costs. Nor will it bear the monetary and emotional scars of layoffs. You will, in other words, be poised to catch the earliest wave of the turnaround and ride it to the next level. How exciting.

How can a foreign investor take advantage of such exciting times. Easy. Apply for the E2 investor visa or EB5 Immigrant investor visa.

There has never been a better time to start a business or invest in the US, foreign business owners or investors, we are waiting for you. Welcome!!

The new LCA Form (ETA-9035) will be available for use starting TODAY, April 15. However, the current version of the form will still be accepted through May 14. Starting on May 15, LCAs may be filed only through the iCERT system. DOL will disable the existing online system, but employers/attorneys will continue to have online access for case status checks and LCA withdrawals.

The most notable thing about the new LCA system is that DOL advises users to expect processing times for LCAs to increase up to 7 business days as there will be an official review and DOL certification of each LCA submitted. Employers and attorneys will need to plan accordingly.

The DOL will start accepting the new PERM Form ETA-9089 for processing on July 1. Again, the current version of the ETA-9089 will be accepted through July 31. Starting on August 1, PERM applications may be filed only through the iCERT system. DOL will disable filing functionality in the existing online system, but will continue to provide online access for case status checks and PERM application withdrawals.

The iCert portal will enable employers and attorneys or agents to set up sub-accounts for multiple users, called "associate accounts," and assign different levels of privileges (filing, withdrawal, etc.). Each associate account user can have an individual username and password. This is a big change from the existing system where only the employer can set up a new sub-account. DOL designed the new system as an "open" system where any individual can set up an account or multiple accounts as either the "employer" or "attorney or agent".

The U.S. Department of State (DOS) has issued the Visa Bulletin for May 2009, which announced EB3 unavailability for all countries of chargeability. The EB2 cutoff dates for China and India had been February 15, 2005 and February 15, 2004, respectively, and have not changed for May 2009. The EB3 visa unavailability is due to high demand for immigrant visa numbers and, particularly, a large number of cases with older priority dates.

The EB2 category continues to be current for all countries, except India and China. The cutoff dates for India and China did not change from the prior month. The cutoff date for India remains as February 15, 2004. China's cutoff date is still February 15, 2005.

Lets see what the summer will hold for all visa categories.

Living in a border city like San Diego we hear stories like this one from time to time. The AP report about Pedro Guzman has been an American citizen all his life. Yet in 2007, the 31-year-old Los Angeles native — in jail for a misdemeanor, mentally ill and never able to read or write — signed a waiver agreeing to leave the country without a hearing and was deported to Mexico as an illegal immigrant.

For almost three months, Guzman slept in the streets, bathed in filthy rivers and ate out of trash cans while his mother scoured the city of Tijuana, its hospitals and morgues, clutching his photo in her hand. He was finally found trying to cross the border at Calexico, 100 miles away.

In a drive to crack down on illegal immigrants, the United States has locked up or thrown out dozens, probably many more, of its own citizens over the past eight years. A monthslong AP investigation has documented 55 such cases, on the basis of interviews, lawsuits and documents obtained under the Freedom of Information Act. These citizens are detained for anything from a day to five years. Immigration lawyers across the nation say there are actually hundreds of such cases.

Read more...

President Obama says he wants to tackle immigration reform; and do it this year. In fact, he says he plans to begin as soon as next month.

According to CNN, the president says he will rely on a bipartisan and diverse group of experts to frame the legislation. But officials say that immigration won’t be “on the same track” as other key initiatives like health care and energy, and “nobody’s promising legislation or a vote this year.”

Nonetheless, it looks like the president will try to make good on yet another campaign promise by working to fix the nation’s broken immigration system during his first year in office. There are an estimated 12 million illegal aliens in this country.

I hope it will be sooner than later. Happy Easter

Read the article from CNN

I made a bet with a few fellow Immigration experts about the timing of the cap being reached. I now admit that I lost. I predicted the cap to be met by the 7th with 85,000 regular H1B's filed.
Today we got the H1B news, and in line with the current economy.

USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap. Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees;however, they continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.

For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition.

More surprises to come....

The H1B visa filing status seems to be the main issue for clients and site visitors in the past week. USCIS announced today that the H-1B cap has not been reached and it continues to accept H-1B petitions for both the 65,000 regular cap and the 20,000 higher-degree cap. Should USCIS receive the necessary number of petitions to meet the respective caps, it will issue another update to advise the public that, as of a certain date (the "final receipt date"), the respective FY 2010 H-1B caps have been met. So for now, we can keep filing.

Here is the original notice from USCIS Download file

We are not even one week after H1B filing day and problems are here. AILA Liaison has been advised by USCIS that a small number of petitions submitted for the FY2010 H-1B quota were receipted in error . This means the Immigration already issued receipts, even before any lottery. If this happened to your case, this is a mistake as final count of cases is still going.

Please check your petition to make sure you indicate that it was new employment, a cap submission, and why it is a cap case. See our H1B posting on how to mark a case. This is important to help identify petitions that should be included in the H-1B lottery.

We will keep you posted of any new developments.

From to time to time, we update our readers on the recent changes and updates coming from the local Immigration office. San Diego has 2 main locations, one in Chula Vista, and the other in Downtown San Diego. Once a month, the American Immigration Lawyers Association local chapter meet, with the government reps and receive updates on recent policy changes. Here are some of the questions discussed:

1. How long is a file held at the District Office after an adjustment or naturalization appointment? There have been reports of files sent to the National Records Center when a naturalization appointment was rescheduled by USCIS or when an applicanUattorney timely rescheduled an appointment If this occurs will the rescheduled appointment be delayed?

Approvals are promptly shipped to the National Records Center or Federal
Records Center. Denials are kept for about 30 days for opportunities to verify AR11
address databases and filing of MTRs and Waivers. If an interview applicant is a no show, the file is administratively closed and shipped out to the National Records Center within 1 week. A reschedule will not occur until the local office has the file.

2. Applicants are no longer receiving I-551 (Green Card) stamps at the successful conclusion of their adjustment of status interview. When did this policy change? Are these applicants allowed to keep their Employment Authorization Documents and Advance Parole Documents pending receipt of their Resident Alien Cards?

This Procedure changed recently. Applicants can retain all documents evidencing their current immigration status, Once the green card received documents such as Paroles and Work Authorization documents should be returned to USCIS. All approvals are subject to supervisory review. If approved, notification is sent out within 30 days. Applicants who receive a “green card” should make an effort to return their advance parole and/or EAD cards by mail to 880 Front Street, Room B268, San Diego, CA 92101 with a notation of the A number and that the applicant is now a permanent resident

3. Clients/Applicants report that they are receiving biometrics appointments from the National Benefits Center when they already have appointment notices. Is there a "glitch" in the system?

Local Immigration office is working with the National Benefits Office to address this glitch.

We will keep our readers updated with more information.

Sad day for the US Immigrant community. A gunman opened fire on The American Civic Association a center where immigrants were taking a citizenship exam Friday in downtown Binghamton, killing 13 people before apparently committing suicide.

The American Civic Association helps immigrants in the Binghamton area with naturalization applications, according to U.S. Citizenship and Immigration Services. The association describes itself as helping immigrants and refugees with counseling, resettlement, citizenship, family reunification and translators.

Our prayers with the victims' families

It looks like there will be a delay in the launch of the new iCert PERM portal for processing labor certifications (LCs). As planned, the new LCA system will launch on April 15, 2009, when employers and attorneys can set up their iCert accounts and begin submitting the new LCA forms through the iCert portal. A month after its launch of the LCA portal, as of May 15, 2009, LCAs will only be accepted through the iCert system. The existing LCA online system will continue to accept LCA filings through May 14, 2009, at which time it will only be online for case status checks and LCA withdrawals.

Employers and applicants should be aware of the upcoming changes to both the LCA and PERM/LC processes. We will continue to track changes to the DOL's iCert portal system and will update our readers.

More than a million people immigrate to the U.S. every year. Their children — born in the U.S., connected to two cultures — are the focus of a new series at NPR News. It's called "Immigrants' Children," and it's an occasional look at how they make their mark and the issues that confront them.

While minority representation on TV is nothing short of abysmal, actors of South Asian descent now appear regularly on Lost, ER, Top Chef, The Office, Chuck, House, Numb3rs, Heroes, 30 Rock, Weeds and Parks and Recreation.

Read more...