Visa Lawyer Blog

The Department of State just released the new visa bulletin for April 2010 on March 12, 2010.

EB-1 category is current for the month of April 2010. For mainland Chinese nationals, the cut-off date progressed from July 8, 2005 to August 22, 2005 in the EB-2 category. For Indian nationals, the cut-off date in the EB-2 category remains unchanged from March (February 1, 2005). In the EB-3 category, dates progressed for mainland Chinese nationals from December 15, 2002 to February 1, 2003 and for Indian nationals from July 1, 2001 to September 8, 2001.

In the month of March, the EB-1 category remained current from February. In the EB-2 category, cutoff dates for Chinese and Indian nationals both moved forward. For mainland Chinese nationals, dates progressed 47 days from May 22, 2005 to July 8, 2005. For Indian nationals, dates progressed 10 days from January 22, 2005 to February 1, 2005. In the EB-3 category, dates progressed for mainland Chinese nationals from September 22, 2002 to December 15, 2002 and for Indian nationals from June 22, 2001 to July 1, 2001.

USCIS has not extended its temporary accommodation for delays in the labor condition application (LCA) process. Earlier, USCIS agreed to accept H-1B petitions without a certified LCA, in certain situations, for a limited time. This exception was available from November 5, 2009 to March 9, 2010. The USCIS has declined to extend this exception. Accordingly, all H-1B petitions must be filed with the certified LCA otherwise USCIS will deny the H-1B petition or extension.

Hence, it again is necessary to have an Approved LCA in place for the proper location at the time of the H-1B filing. The reason the exception was not extended is that the DOL assured USCIS that LCAs are being processed within the required seven-day processing time. The DOL, in fact, stated that LCAs are being processed within four to five days which is in fact true as well. It is our suggestion to plan accordingly.

We are very busy these days trying to beat the H1B rush. While we fell that visas will not run out on April 1, 2010, clients are anxious to get their cases out the door. We promise to deliver.

Here are some tips that may help our last minute filers. The issue today is a degree that has not yet been awarded. In the past, the USCIS has approved H-1B petitions for aliens seeking one of the 20,000 H-1B visas available to aliens who have earned master’s or higher degrees from U.S. institutions of higher education, where the alien has completed all requirements for the degree, and hence, has “earned” the degree, but the degree has not been conferred.

There is no reason to believe that USCIS will not continue that practice, so long as there is evidence that the alien has completed all requirements from an official at the educational institution qualified to provide that information. In the past, satisfactory evidence often was in the form of a letter from an official such as a Dean, Registrar, or department head, stating that all requirements have been satisfied and that the alien is simply waiting for the ceremonial conferral of the degree.

Be wary of letters prepared by unauthorized employees at the school stating that the student has completed all requirements toward a master’s degree, when in fact there are still examinations or papers to complete. USCIS is likely to question a letter that comes from a lower-level employee of the university. Be mindful also that use of such documentation when the student has not completed the program may be considered fraud. Also, use of such a document may result in the loss of the client’s chance at a slot in the U.S. master’s graduate quota since the petition likely would be denied on the basis of ineligibility at the time of filing.

More tips in later posts, good luck filing the H1's tomorrow.

Many clients call our office for immigration assistance and begin by telling us that they wants to do business in the United States. The most popular visa to reach this goal is the E2 Visa. An E-2 visa is a nonimmigrant visa available to an individual investor from a country that has a joint investment, or commerce and navigation treaty with the United States.

One of the first steps is to determine the best type of legal entity for immigrant investors’s conduct of business in the United States.

This post addresses the basic elements of the following five business entities: sole proprietorship, corporation (C corporation and S corporation), partnership (general and limited), limited liability partnership, and limited liability company. Each entity has its own advantages, disadvantages, and tax implications, and it will be important for you to understand the purposes and objectives of the proposed business prior to determining which type is most appropriate. Choosing the right legal entity can help to minimize the owner’s liability for obligations of the business.

SOLE PROPRIETORSHIP

A sole proprietorship is a business entity that is not otherwise incorporated or organized as a separate legal entity and therefore has no separate existence from its owner. It essentially refers to an individual doing business in his or her own name (or possibly under a different "assumed" name). A sole proprietorship may be the preferred manner in which to conduct business in the United States if the business owner does not anticipate complex financing or co-owners and wants to keep things simple in terms of business filing and compliance.

The principal advantage of a sole proprietorship is the ease involved in forming such a business. No documents are required to be filed with any government agency, although the sole proprietorship must meet other legal requirements for doing business, if any, such as licensing, permits, and insurance. If the sole proprietorship does business under a name different from that of its owner, a certificate must generally be filed with the state(s) in which the business is being conducted, so that the authorities and the public can determine who is "behind" the business.

The main disadvantage of a sole proprietorship is that the owner is personally liable for all acts of the company, including all debts and liabilities. Such personal liability is unlimited and can put the owner at substantial financial risk. For example, if an employee of a sole proprietorship negligently injures an individual, the sole proprietor can be held liable for all liabilities associated with the injury, and all her personal assets will generally be available to satisfy the claim.

A second disadvantage is the lack of anonymity. Everyone knows, or can readily find out, who owns the business. If anonymity of ownership is important to your client, particular care needs to be taken in determining what type of entity to use and where to establish it.

A sole proprietorship and its owner are treated as one. For example, taxable income earned by the business is deemed to be income of the owner, and expenses of the business are taken as deductions against the owner’s income and must be reported as such on the owner’s federal (and state, if applicable) income tax return. Sole proprietorships are taxed on all net income, which means it is not possible for the business to retain earnings without the owner being taxed on them. If the owner wants to use the income of the business to grow the company (for example, to reinvest the profits back into the business), a different type of legal entity, such as a corporation, should be considered.

CORPORATION (C CORPORATION AND S CORPORATION)

A corporation is a separate legal entity, existing independent of its shareholders, officers, and directors. It is created under and exists pursuant to authority granted by state law. Corporations do not need to be incorporated, or established, in the state where the owners live, but must be incorporated or authorized to do business in the state or states in which the business is conducted. It is very common, for example, for a corporation to be incorporated in the state of Delaware (which has favorable corporate laws) and then separately authorized to do business in another state, such as New York, where the corporation expects to actually engage in business.

One of the main advantages to choosing a corporation for operating a business is that it offers limited liability for its shareholders (i.e., owners). Assuming that the requirements for forming and operating a corporation are satisfied, the corporation’s shareholders will generally not be held personally responsible for the acts or obligations of the corporation solely because of their investment in the corporation. This personal liability protection can be lost, however, if the corporation is deemed to be the "alter ago" of its shareholders or a "mere corporate shell," or if its set-up or operation are such that the principles regarding "piercing the corporate veil" can be applied. These legal concepts are beyond the scope of this article. However, you should make your clients aware that it is possible for the courts to determine that there is no real differentiation or separate existence between the corporation and the owner, resulting in the shareholder being responsible for all acts and obligations of the corporation if it is not operated properly. Clients should not assume that filing a certificate of incorporation and putting minimal capital into the entity will give them protection.

The terms "C corporation" and "S Corporation" are tax terms. A C corporation is one that is governed by subchapter C of the Internal Revenue Code.

Section 301 et seq. of the Internal Revenue Code of 1986, as amended.
A C corporation is taxed as a separate entity, apart from its owners. The corporation will have to file a corporate tax return and pay taxes on the income it receives. If any dividends are paid to the owners, the owners will have to report and pay taxes on the money received as dividends. Dividends are not deductible to the corporation. This is referred to as double taxation and could be deemed a disadvantage to the C corporation structure. Similarly, if the corporation has net losses, the shareholders do not get the benefit of deducting them on their personal returns.

An S corporation is governed by subchapter S of the Internal Revenue Code.

Section 1361 et seq. of the Internal Revenue Code of 1986, as amended.
It is one of several types of entities typically referred to as a "flow-through" entity. Such entities are not subject to double taxation at the federal level (there may be state tax exceptions, however). S corporations do not pay tax on income earned. Instead, the profits and losses of an S corporation "flow through" to, and are reported on, the shareholder’s income tax returns. This means, among other things, that the shareholder pays taxes on the entity’s taxable profits whether or not they are distributed. An S corporation is formed the same way a C corporation is formed, and it functions under the same structure; the S corporation election is a tax-driven mechanism and is elected by filing Form 2553 (Election by a Small Business Corporation) with the Internal Revenue Service.

In addition to making such an election in a timely manner, there are several requirements for qualifying under S corporation status. They include a limit on the number of shareholders (100 shareholders for tax years beginning after January 1, 2005, and 75 shareholders for tax years beginning prior to January 1, 2005); shareholders may only be U.S. citizens, legal permanent residents, and certain trusts and estates; and only one class of stock is permitted.

These requirements generally make the S corporation unavailable as an alternative for non-U.S. owners.

Of the entities discussed in this article, corporations are generally subject to the most detailed documentation requirements. For example, it is necessary to file a certificate of incorporation in the state of incorporation, to file documents to qualify the entity in other states where it has fixed operations or otherwise transacts business, to have a board and officers, and to comply with annual or other periodic filing requirements. The documentation requirements are routine. It is, however, important that they be complied with on establishment and going forward.

PARTNERSHIPS

There are two types of partnerships, general and limited.

A general partnership exists when two or more business owners engage in business, even if they do not formalize the partnership relationship in any other manner, such as through a partnership agreement. While it is best to have a formal agreement governing the partnership relationship, it is not required under the law. The law regulating general partnerships in most states is the Uniform Partnership Act, which is a model law that individual states have adopted, often with some modification, resulting in some variation among the different states. The Uniform Partnership Act includes rules on a variety of subjects relevant to partnership and their owners. In many cases, these are default rules that the partners can modify by agreement.

A general partnership exists and functions as a legal entity separate from its partners. It can own or convey legal title to real property in, and can sue or be sued under, the name of the general partnership. The manner in which the general partnership’s profits and losses are allocated (e.g., equally or disproportionately) can and should be addressed in the partnership agreement. Absent such an agreement, the profits and losses are shared equally among all partners. Further, absent an agreement that states otherwise, as co-owners, each partner has an equal right to participate in the management of the business, regardless of actual ownership percentage.

A general partnership is relatively easy to establish. There may be a "name"-type filing in some states, but documentation and filing requirements are fewer than for a corporation. While a written partnership agreement is not mandatory, it is strongly recommended.

The main disadvantage to establishing a general partnership is that each partner has personal liability for all of the partnership debts. Each general partner is jointly and severally liable to third parties for the business obligations of the partnership, regardless of how the partnership agreement allocates losses. Each partner may likewise be held liable for commitments entered into, or, for example, tortious acts committed, by another partner in the course of the partnership’s operations.

With respect to taxation, partnerships are also "flow-through" entities. They are not subject to federal income tax on the income earned by the business, but the individual partners are considered to have earned the income attributable to the partnership. Individual partners therefore pay income tax on the profits attributable to them from the partnership as if such money was personal income (again, whether or not the income was distributed). If the partnership experiences a loss, the individual partners can claim such loss as a deduction on their federal income tax return equal to their respective ownership percentages.

A limited partnership is a specific type of partnership authorized by state laws. It is largely similar to a general partnership, but it also has one or more limited partners in addition to general partners. Generally, the day-to-day business of a limited partnership is managed by the general partners, who remain subject to personal liability for the debts of the partnership. The limited partners most often contribute capital to the business in exchange for a share of the profit, but are not subject to such personal liability. As long as a limited partner is acting in such capacity (note that the protection against personal liability afforded to a limited partner can be lost if the limited partner engages in management of the partnership), the limited partner’s liability is limited to the amount of money it invests (or agrees to invest) in the partnership.

Taxation of limited partnerships is the same as that for general partnerships, such that income earned by the partnership is attributed to the partners according to their individual ownership interests, and profits can be divided among the individual partners as the parties desire. The allocation provisions, which are often very complex, should be set forth in detail in the partnership agreement.

LIMITED LIABILITY PARTNERSHIP

A limited liability partnership has elements of both a partnership and a corporation. In a limited liability partnership, the Uniform Partnership Act (or comparable laws) provides limited liability for partners similar to that of shareholders in a corporation. Additionally, all of the partners of a limited liability partnership are able to participate in the daily management of the business. Limited liability partnerships are generally limited to professionals, such as lawyers, accountants, and architects. In some states, including New York and California, they can only be used for such professional practices.

The advantage to doing business as a limited liability partnership is that the structure provides limited liability protection to its partners (each partner is liable for his or her own conduct and afforded limited liability for the conduct of other partners) and there is no double taxation as with a corporation. The disadvantage is that few businesses may actually qualify for such a structure, particularly if more states restrict limited liability partnerships to professional businesses.

Taxation of limited liability partnerships is essentially the same as that for general and limited partnerships, such that income earned by the partnership is attributed to the partners according to their individual ownership interests, and profits can be allocated among the partners as they agree. A written agreement is again strongly recommended.
LIMITED LIABILITY COMPANY

A limited liability company is a legal entity offering the benefits of both a partnership and a corporation, such that pass-through tax treatment (like a partnership) and general limited liability protection (like a corporation) apply, unless otherwise determined by the owners. A limited liability company can be established by one or more owners, each of whom is called a "member." Members may choose to manage the limited liability company individually or elect a manager or managers (more or less the equivalent of corporate officers) to operate the business on a daily basis.

A limited liability company is governed by an operating agreement or limited liability company agreement, which is an agreement among the members covering subjects such as the members rights and restrictions regarding the management and control of the company; limits on the transfer of membership interests; whose approval is required for various activities relating to the management of the company (such as veto rights, special voting requirements) and other governance matters; and how profits will be divided among the members. As with partnerships, it is preferable that a written operating agreement or limited liability company agreement be prepared and signed by all members, although state laws provide default provisions that apply in the absence of an agreement. Among other things, the process of preparing a written agreement will encourage the members to address various issues that they may not otherwise consider or want to consider, such as restrictions on transferability, possible sale of the business, and division of profits.

The main advantages associated with a limited liability company are that members and managers are not subject to personal liability for the company’s debts, obligations, or liabilities by virtue of being members or serving as managers, and limited liability companies are very flexible in structure. For example, an operating agreement can easily provide for sharing of profits that differs from the proportionate ownership interests (for example, 75/25 percent sharing of profits but 50/50 percent ownership). It is also possible to have multiple classes of members, with different preferences and shares.

As is the case with a corporation, care must be taken to ensure that the limited liability desired by the owners is obtained and maintained. While there is less legal authority in the area of limited liability companies, you and your client need to consider capital adequacy, operation of the company as a separate legal entity, and similar concepts.

With respect to taxation, limited liability companies enjoy the same flow-through tax treatment that partnerships and S corporations do, which means that even though a limited liability company must file a tax return, it does not pay taxes on its income. Instead, the members of the company report income and pay taxes owed on such income on their individual federal income tax returns. This taxation treatment avoids the double taxation associated with a corporation, but similar to a partnership and an S corporation, the limited liability company may not retain earnings without the members having to pay income taxes on such earnings.

CONCLUSION

The above information is general, and it is provided to give a basic understanding of the various legal entity choices for individuals or entities wanting to do business in the United States. Each alternative presents different factors in terms of convenience, risk, and other considerations. There are considerable resources available on the legal and practical considerations relevant to the selection of a legal entity. It is also important to involve a tax advisor in any planning.

For more info about the E2 visa and Business options in the US, feel free to email me at any time.

Once you have an understanding of the type of business in which the client expects to engage, the short-term and long-term goals of the business, and the relevant legal issues and applicable requirements, you will be in a better position to suggest a legal entity that will suit the needs of your client and protect the client’s ultimate objectives.

Immigration reform legislation is "dead" in the Senate this year, Sen. Lindsey Graham (R-S.C.) said. Graham, who's sought to work with some Democrats on the controversial issues, said that healthcare efforts had "poisoned the well" for bipartisan cooperation going forward.

Graham had partnered with Sen. Chuck Schumer (D-N.Y.) to work on immigration legislation, and the pair had met with President Barack Obama earlier this month on the issue.

But Graham said that winning the support for any legislation was all but impossible in the wake of a divisive healthcare debate that's wrapped up last week in Congress.

The Senator told the President:

If you want to deliver on your unwavering commitment to immigration reform, write a bill," he said. "You write the bill, send it to the House. See what happens, because I don't think you have much of a chance of getting it through the Senate."

More from the Hill....

Consular processing has undergone rapid and systemic changes during the past five years, and the rate and scope of change does not appear to be slowing. Enhanced security checks and inter-agency data sharing—among a massive wave of other changes—makes consular processing a daunting task that ensnare many unsuspecting visa applicants in problems and delays.

While many of the security measures were expected after 9/11, the effects were devastating to many U.S. visa applicants, who routinely encountered completely unpredictable surprises that caused unexpected and lengthy delays in visa issuance. These initial difficulties, delays and the resulting uncertainty for visa applicants and employers adversely impacted critical U.S. economic sectors including trade, tourism, scientific research, academia, and entertainment and business generally.

Newsweek recently published a story about an applicant's experience with coming to America and the frustrations with this process.

When the American embassy called in August 2004, I was just nine days away from starting a job at Notre Dame's Kroc Institute for International Peace Studies. I had already shipped my possessions from Geneva, Switzerland, where I was living, to Indiana, and enrolled my kids in a school near our new home. Suddenly, however, an embassy official was telling me my visa had been revoked. I was "welcome to reapply," the official said, but no reason was offered for my rejection. Sitting in a barren apartment, I decided the process had become too unpredictable; I didn't want to keep my family in limbo, so I resigned my professorship before it began. I launched a legal battle instead.

It was hardly a fight I had expected. Less than a year earlier, the State Department had invited me to speak in Washington, D.C., and introduced me as a "moderate" Muslim intellectual who denounced terrorism and attacks against civilians. Now it was banning me from U.S. soil under a provision of the Patriot Act that allows for "ideological exclusions." My offense, it seemed, had been to forcefully criticize America's support for Israel and the wars in Iraq and Afghanistan. The U.S. accused me of endorsing terrorism through my words and funding it through donations to a Swiss charity with alleged ties to Gaza. Civil-liberties groups challenged my case in court for almost six years until, in late January, Secretary of State Hillary Clinton dropped the allegations against me, effectively ending my ban.

In early April I will make my first public appearance in the U.S., at New York City's Cooper Union, participating in a panel discussion about Muslims. While it's a victory of sorts, the fight is not over. Numerous foreign scholars remain banned from U.S. soil. Until the section of the Patriot Act that kept me out of the country is lifted, more people will suffer the same fate. Although the exclusions are carried out in the name of security and stability, they actually threaten both by closing off the open, critical, and constructive dialogue that once defined this country.

Read more here

Security concerns are pivotal as the United States grapples with the dilemma of balancing legitimate international travel needs with the ever-present security risks facing the nation. Globalization has increased the frequency and necessity of travel to the United States by foreign nationals. While DOS has softened its approach from a “zero-tolerance” policy to a more open, “Secure Borders, Open Doors” policy, the government’s attempt to balance national security concerns with legitimate travel needs still leaves many visa applicants facing unpredictable delays and a myriad of potential pitfalls.

The U.S. Citizenship and Immigration Services (USCIS) issued a memo dated January 8, 2010 that has great importance for the IT consulting industry and H1B filers in general. This memo specifies how USCIS personnel should determine the existence of the required employer-employee relationship when adjudicating H1B petitions. The memo, issued by Associate Director of Service Center Operations, Donald Neufeld, provides guidance regarding the type of evidence that sufficiently confirms the existence of an employer-employee relationship between an H1B-petitioning employer and the beneficiary. We have posted an article on this issue in the past, click here for more details.

In this post we will focus on H-1B Entrepreneurs/Job Creators. The Neufeld Memo contains additional language that completely undermines a business owner’s ability to be an H-1B beneficiary. This thrust against owner-beneficiaries can foreclose opportunities, not only for the potential new businesses that could be created by H-1B entrepreneurs, but also for the numbers of U.S. workers who would otherwise be employed by those businesses.

No matter how many others are employed by an entrepreneur’s enterprise, the owner of such a business will not be eligible for an H-1B visa even if (1) a viable corporation is established; (2) there is no third-party placement; (3) the corporate petitioner pays the beneficiary; (4) the corporate petitioner claims the beneficiary for tax purposes, and (5) the beneficiary produces goods or services tied directly to the petitioner's business.

It is no answer to say that such entrepreneurs can rely on E-2 visas, as these are not available for all countries, or on EB-5 visas, which require very large investments. When the government should be committed to policies that help job creation, USCIS adopts a policy that does the very opposite. Nothing in existing law or regulation compels such a result.

President Obama said "We pushed back on the undue influence of special interests." "We didn't give in to mistrust or to cynicism or to fear. Instead, we proved that we are still a people capable of doing big things."

The President was talking about the historic health-care overhaul that passed the House 219-212 last night and is now headed to his desk for signature. Let's hope his statement foreshadows what he will say about immigration reform in the months to come. The health-care battle demonstrated the fight for immigration reform will be tough. But we knew that. Now, at least, we know that an immigration overhaul is possible.

It was symbolic that Sunday's immigration reform rally in Washington, which according to reports was tens of thousands strong, was overshadowed by the drama that played out in the Congress over the health-care bill. Since the Administration took office in 2009, immigration reform has played second fiddle to the overhaul of the health-care system. But now that health-care reform has become a reality, it is time for the Administration and Congress to get to the hard work of overhauling our badly broken immigration system.

The dysfunctional immigration system is a cancer that whittles away at the very fabric of our cherished democratic values every day it continues to fester. Each time an outstanding scientist, innovative business investor, or creative professional is turned away from our country because of inadequate visa numbers or restrictionist agency enforcement America's competitive edge is further weakened. Our nation's ability to compete in a global economy demands transnational employment. Each immigrant that is locked up due to draconian mandatory detention laws, without so much as the right to see a judge, demonstrates that the rights of all Americans are threatened by bad immigration laws. Each undocumented child who is denied a higher education or a chance to serve our country is evidence that the broken immigration system has transformed the American Dream into a nightmare for some of America's most promising children.

Senators Graham and Schumer began to put pen to paper last week by laying out a four pillared framework for immigration reform: ending illegal employment through biometric Social Security cards, enhancing border and interior enforcement, managing the flow of future immigration to correspond to economic realities, and creating a tough but fair path toward legalization for the 11 million people currently in the U.S. without authorization.

Let's firm to stand on the right side for the social cause of Immigration.

The House voted Sunday night on the Senate bill for health care reform, passing it 219 to 212. President Obama won a historic victory in the struggle for health care reform Sunday as the House of Representatives passed a sweeping bill overhauling the American medical system. What does this mean for Immigration? Big hope for the future, but a lot of work remains to be done.

Tens of thousands of people turned out on Washington's National Mall on Sunday to support the Obama administration in its next big battle, a renewed effort to overhaul U.S. immigration laws.

Speaking by video to the crowd, President Obama said he would do "everything in my power" to get a bipartisan deal within the year.

"You know as well as I do that this won't be easy, and it won't happen overnight," Obama said. "But if we work together across ethnic, state and party lines, we can build a future worthy of our history as a nation of immigrants and a nation of laws."

Though overshadowed by the historic debate on health care taking place in the nearby halls of Congress, Sunday's rally set the stage for a revival of efforts to reshape U.S. immigration law. The issue has been largely sidelined since a similar push by the Bush administration failed in 2007. We do hope that something will change very soon.

Read the CNN article...

Senators Charles E. Schumer and Lindsey O. Graham may have the answer. In a great article published by the Washington Post, they outline their idea and hope to work closely with President Obama to get it done.

The answer is simple: Americans overwhelmingly oppose illegal immigration and support legal immigration. Throughout our history, immigrants have contributed to making this country more vibrant and economically dynamic. Once it is clear that in 20 years our nation will not again confront the specter of another 11 million people coming here illegally, Americans will embrace more welcoming immigration policies.

Our plan has four pillars: requiring biometric Social Security cards to ensure that illegal workers cannot get jobs; fulfilling and strengthening our commitments on border security and interior enforcement; creating a process for admitting temporary workers; and implementing a tough but fair path to legalization for those already here.

Besides border security, ending illegal immigration will also require an effective employment verification system that holds employers accountable for hiring illegal workers. A tamper-proof ID system would dramatically decrease illegal immigration, experts have said, and would reduce the government revenue lost when employers and workers here illegally fail to pay taxes.

We would require all U.S. citizens and legal immigrants who want jobs to obtain a high-tech, fraud-proof Social Security card. Each card's unique biometric identifier would be stored only on the card; no government database would house everyone's information. The cards would not contain any private information, medical information or tracking devices. The card would be a high-tech version of the Social Security card that citizens already have.

Prospective employers would be responsible for swiping the cards through a machine to confirm a person's identity and immigration status. Employers who refused to swipe the card or who otherwise knowingly hired unauthorized workers would face stiff fines and, for repeat offenses, prison sentences.

We propose a zero-tolerance policy for gang members, smugglers, terrorists and those who commit other felonies after coming here illegally. We would bolster recent efforts to secure our borders by increasing the Border Patrol's staffing and funding for infrastructure and technology. More personnel would be deployed to the border immediately to fill gaps in apprehension capabilities.

Other steps include expanding domestic enforcement to better apprehend and deport those who commit crimes and completing an entry-exit system that tracks people who enter the United States on legal visas and reports those who overstay their visas to law enforcement databases.

Read the entire article here

As you may know, USCIS requires photographs and fingerprints for certain applications, this process is called Biometrics. Until the Biometrics step is complete, an applicant can not proceed with the rest of the application, get his work permit or be scheduled for his Naturalization interview if it a Citizenship Application.

In many cases, applicants can not make it to the assigned fingerprints/biometrics date assigned by USCIS. Failure to show up can be detrimental to the case in hand, and can result in case termination.

A recent update from the San Diego AILA chapter may be useful to readers of this Blog and is applicable in all 50 states.

The first questions AILA asked the USCIS is:

If an applicant's fingerprints expired, Would it be possible for client to go directly to the fingerprint facility, show that their prints are expired and have them re-taken there and then?

USCIS Answer:

No, the ASC [Application Support Center) staff does not re-take fingerprints for anyone
without an appointment notice (except military members. If an appointment is not
available in the scheduling system, a G-56 from the District will be accepted on any
expedite or special cases. [Previously, appointment notices were provided at the Infopass
Appointment when requesting re-scheduling. This is no longer possible as appointments
are not immediately re-schednled. If a client misses an appointment, he or she should go
to the ASC after 2 p.m. to see if they can be accommodated or the ASC will arrange for rescheduling.

The same is true if a client is unavailable on the date of the actual appointment and goes earlier. A case is not denied for at least 30 days after a missed appointment so there is time to arrange for re-fingerprinting without fear the case will be immediately denied.)

So bottom line, try to make your biometrics appointments. But if you still miss it, the case will not be closed immediately and the applicant will have 30 days to try to take the prints.

We are all still shocked from the recent events in Ciudad Juarez. The story of the Couple slain by drug gang while heading home from birthday party is a scary precedent. For unknown reasons, a drug gang followed the family car through the streets and riddled it with bullets, authorities said. When it was over, 35-year-old Enriquez and Redelfs, who was 34, were dead. Enriquez was an employee at the busy US Consulate in Ciudad Juarez.

In light of the recent shootings of US Consulate officials in Ciudad Juarez Mexico, the Consulate in Ciudad Juarez will be closed for the next few days. The U.S. State Department has also updated its warning on travel to Mexico to say it had authorized the departure of dependents of U.S. government personnel from consulates in Ciudad Juarez and five other northern border cities.

The USCIS office at Ciudad Juarez has informed that the Teletech call center has been advised to reschedule all of today's waiver appointments to March 26th, 2010, which was previously scheduled as an administrative day. The applicants will be notified by email or phone, or they may contact the call center at 1-800-919-1754 in the United States and 01-477-788-7070 in Mexico.

We will keep our readers posted.

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.