Visa Lawyer Blog

Immigration law is important and that is all that we cover most of the time. But our immigrant readers, may be facing other legal challenges from time to time. So we rely on our lawyer friends from across the country, to provide guest articles and reports. This week we are proud to feature Attorney Habib Hasbini's Employment Law expertise.

Many of our clients and Blog readers are immigrants on work visas. Employment Law and Immigration often go side by side, so the info presented in this article should be very useful to our readers. We often hear the term overtime as it relates to employment practices, but what is Overtime?

An employer may dictate the employee's work schedule and hours and legally require the employee work overtime. The employer may discipline an employee, up to and including termination, if the employee refuses to work scheduled overtime.

The general overtime provisions in California are that a nonexempt employee 18 years of age or older, or any minor employee 16 or 17 years of age who is not required by law to attend school and is not otherwise prohibited by law from engaging in the subject work, shall not be employed more than eight hours in any workday or more than 40 hours in any workweek unless he or she receives one and one-half times his or her regular rate of pay for all hours worked over eight hours in any workday and over 40 hours in the workweek.

Eight hours of labor constitutes a day's work, and employment beyond eight hours in any workday or more than six days in any workweek is permissible provided the employee is compensated for the overtime at not less than:

One and one-half times the employee's regular rate of pay for all hours worked in excess of eight hours up to and including 12 hours in any workday, and for the first eight hours worked on the seventh consecutive day of work in a workweek; and
Double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek.

There are, however, a number of exemptions from the overtime law. An "exemption" means that the overtime law does not apply to a particular classification of employees. There are also a number of exceptions to the general overtime law stated above. An "exception" means that overtime is paid to a certain classification of employees on a basis that differs from that stated above.

Actions taken by Employee When Denied Overtime – DLSE Procedures

An employee can either file a wage claim with the Division of Labor Standards Enforcement (“DLSE”) or file a lawsuit in court against the employer to recover the lost wages. Additionally, if the employee no longer works for the employer, she can make a claim for the waiting time penalty pursuant to Labor Code Section 203.

If the employee files a wage claim with the DLSE, the claim will be assigned to a Deputy Labor Commissioner who will determine, based upon the circumstances of the claim and information presented, how best to proceed. Initial action taken regarding the claim can be (i) referral to a conference, (ii) referral to a hearing, or (iii) dismissal of the claim.

If the decision is to hold a conference, the parties will be notified by mail of the date, time and place of the conference. The purpose of the conference is to determine the validity of the claim, and to see if the claim can be resolved without a hearing. If the claim is not resolved at the conference, the next step usually is to refer the matter to a hearing or dismiss it for lack of evidence.

At the hearing the parties and witnesses testify under oath, and the proceeding is recorded. After the hearing, an Order, Decision, or Award (“ODA”) of the Labor Commissioner will be served on the parties.

Either party may appeal the ODA to a civil court of competent jurisdiction. The court will set the matter for trial, with each party having the opportunity to present evidence and witnesses. The evidence and testimony presented at the Labor Commissioner's hearing will not be the basis for the court's decision. In the case of an appeal by the employer, DLSE may represent an employee who is financially unable to afford counsel in the court proceeding.

When the ODA is in the employee’s favor and there is no appeal, and the employer does not pay the ODA, the DLSE will have the court to enter the ODA as a judgment against the employer. This judgment has the same force and effect as any other money judgment entered by the court. Consequently, the employee may either try to collect the judgment herself or assign it to DLSE.

If the employer discriminates or retaliates against an employee in any manner whatsoever, for example, he discharges the employee because she filed a wage claim or threaten to file a wage claim, the employee can file a discrimination/retaliation complaint with the Labor Commissioner’s Office. In the alternative, the employee can file a lawsuit in court against the employer.

For more information, feel free to email us to consult an employment attorney.

As Lawyers specializing in Investment visas we often get questions from clients about the amount of investment needed for an E2 visa and what money can be used to invest. The source of the funds is a key determination for any successful E2 case.

The E2 visa is a special non-immigrant visa available to nationals of treaty countries entering the US to do the following:

a.) Develop and direct the operations of an enterprise in which they have invested, or are actively in the process of investing a substantial amount of capital;
b.) Invest substantially in an already-established US enterprise;
c.) Develop and direct investments from the treaty country.

The USCIS requires that investors prove (1) that the source of the invested capital is “lawful,” and (2) that the investor has a “level of income” or has accumulated sufficient wealth that would enable the investor to invest.

An investor’s “self-serving” declarations are not enough to satisfy USCIS requirements for proof of either lawful source of funds or sufficient funds to invest. All claims to the source of funds must be properly and thoroughly supported with documentary of evidence of how the money was earned.

An investor should submit all of the following types of documentary evidence (copies are sufficient) for both the investor and the investor’s spouse, unless a particular category of documents is not relevant to the investor:

Financial Documents

• Complete tax returns (both individual and, if applicable, corporate or partnership tax returns) filed in any jurisdiction for each of the last five years. If earlier years tax returns show higher income, also submit tax returns reflecting the three years of highest income levels;

• Financial Statements – submit any financial statements that have been prepared for the investor personally or for the investor’s business. If available, audited financial statements are preferred.

Investments

• Copies of all investment or securities accounts for the last three years (if significant gains on investments or securities transactions occurred before the last three years, include documentation of such transactions);

• Stock certificates;
• Bank Statements – Include one bank statement for each of the last three years for any bank accounts in which you maintained a substantial balance.

Business Documents

• Business registration records for all businesses in the U.S. or outside the U.S.;
• Business promotional materials, including website addresses;
• Documentation proving your ownership, directorship or officership in each company, including stock records, corporate minutes or other official documents;
• Documentation relating to sale of any business (documents should indicate the amount of proceeds you received from the sale);
• Accountant’s evaluation or appraisal of business for all businesses in which you own a controlling or substantial interest.

Real Estate

• Deeds and mortgage documents for all properties in which you own an interest; • Documentation of all real estate purchases and sales; • Appraisals for all real estate that you own; • Lease documents for all real estate from which you earn lease income;

Other Sources of Income

• Inheritance – all documents relating to inheritances you have received, including estate settlement of deceased;
• Divorce – all documents relating to income received from divorce, including alimony, property settlements, etc.;
• Lawsuits – all documents relating to dollars recovered in a civil lawsuit, including official judgment or decree of the court;
• Gifts – all documents relating to gifts, including registration of gift with tax authorities or other documents;

At first glance, the law relating to treaty investors appears to be well settled. In reality, numerous legal questions remain unanswered, like the source of funds issue. The uncertainty results from the discretionary nature of such adjudications. The best practice is to be prepared and work with an experienced Immigration Lawyer on your case.

We recently learned that USCIS is planning to publish proposed rule to establish a mandatory, Internet-based, electronic registration process for U.S. employers seeking to file H-1B petitions for workers that are subject to either the 65,000 or 20,000 annual numerical limitations.

This rule proposes an electronic registration program for petitions subject to numerical limitations contained in the Immigration and Nationality Act. Initially, the program would be for the H-1B nonimmigrant classification; however, other nonimmigrant classifications will be added as needed.

This action is necessary because the demand for H-1B specialty occupation workers by U.S. companies generally exceeds the numerical limitation. This rule is intended to allow USCIS to more efficiently manage the intake and lottery process for these H-1B petitions. We are concerned that large H1B filers may find a way to abuse the registration system, leaving smaller employers at a risk of loosing visas.

Read the proposed rule here

Expatriate workers who have received a six-month ban on leaving their jobs recently will be able to obtain new work permits from January 1, if they have completed two years with their former employers, a senior official from the Ministry of Labour said.

Humaid Bin Deemas, Acting Director-General at the Ministry, said these workers will be issued new work permits from January even if they have not served the full six-month ban.
Following the implementation of the new rules by the Ministry of Labour, expatriate workers who have completed two years with their employers can change jobs without serving the ban.
He said sponsors cannot force employees to continue to work for them if the workers do not wish to do so. If workers have quit before the completion of two years then they will not be issued labour cards until the two-year period is over.

The official said if a worker, who has cancelled his residence visa, returns to the UAE on a visit visa, he will not get a work permit before the expiry of the two-year period. Bin Deemas said the relationship between a sponsor and a worker will end with the expiry of the labour card, which is limited to two years. “Skilled and unskilled workers who end their contracts legally will get a labour permit,” he said.

In light of the increase in RFEs focused on the employer-employee relationship, right to control, and availability of "qualifying employment" at third-party worksites, here are some suggestions in order to maximize the likelihood of securing a three-year H-1B extension for petitions involving placement at third-party worksites:

1. Submit a certified labor condition application (LCA) that lists multiple work locations, including the Petitioner's home office address, as well as the third-party worksite location(s);

2. Document "qualifying employment" for the Beneficiary at the third-party worksite through End-Client letters confirming a project duration of longer than a year, preferably for the entire three years if the requested validity is three years;

3. End-Client letters should specify the job duties for the Beneficiary at the worksite, duration of the project, supervisor's name, and supervisor's telephone number. It is critical to establish that the Beneficiary is an employee of the Petitioner and that the Petitioner retains the ultimate "right to control" the Beneficiary;

4. Provide evidence of "qualifying employment," such as: contracts, statement of work, work order between Petitioner and End-Client (if there are intermediate vendors involved, offer the entire chain of contracts between the Petitioner and End-Client); and

5. Submit Employee Handbooks as evidence of "Employer-Employee relationship" and "right to control." Petitioner's Employee Handbook should include issues such as salary, benefits, payroll procedures, performance evaluations, project progress review procedures, supervision of beneficiary's work, right to hire/fire, etc. All of the previous stated items for the Petitioner's Employee Handbook are requirements identified in the January 8, 2010, Neufeld Memo.

For more information about the above referenced info and about the H1B visa feel free to email me.

Gov. David A. Paterson announced that he had issued pardons to 24 immigrants with prior criminal convictions, to prevent their deportation.

In a statement, Mr. Paterson said his administration had reviewed more than 1,100 pardon applications and found that federal immigration laws were often “excessively harsh and in need of modernization.” Tell me about it.

Mr. Paterson said the 24 people he pardoned had committed offenses in the past but had paid their debt to society and were now making positive contributions to their communities.

The governor made a similar statement after granting an earlier round of pardons to six immigrants on Dec. 6.

Read more...

The US National Weather Service has issued a blizzard warning for parts of New York, New Jersey and other states along the east coast of the United States as a major winter storm bears down on the area on Sunday.

A band of frigid weather was snaking up the East Coast on Sunday, promising blizzards and a foot of snow for New York City and New England, while several states made emergency declarations as the storm caused crashes on slick roads.Heavy snow and blizzards in parts of North Carolina were making driving conditions difficult, and there were dozens of traffic accidents.

North Carolina authorities reported a fatal traffic accident near Charlotte.The North Carolina Highway Patrol said late on Saturday that most of the roads in and around Asheville were either covered or partially covered with snow and ice.

The storm is the result of a low pressure system off the North Carolina coast that will strengthen into a major storm as it moves northeast, according to the National Weather Service.The snow brought a rare white Christmas to the South.Columbia, in South Carolina, had its first significant Christmas snow since weather records were first kept in 1887.

Airlines grounded hundreds of flights on Sunday along the Northeast corridor in anticipation of the storm, affecting major airports including New York's John F Kennedy Airport and Newark.New York City-area airports alone canceled close to 1,000 flights.

The National Weather Service is expecting heavy snow and strong winds with considerable blowing and drifting of snow with almost no visibility at times.The snow estimates are 11 to 16 inches (28 to 41 centimeters) with locally higher amounts possible.In Secaucus, New Jersey, road clearing crews were out early and pre-positioned to start treating roadway surfaces as the snow started to fall.

Residents of Secaucus in New Jersey have been buying shovels and sacks of sand in local supermarkets, preparing to fight severe weather conditions.The Northeast is expected to get the brunt of the storm.

Forecasters issued a blizzard warning for New York City for Sunday and Monday, with a forecast of 11 to 16 inches (28 to 41 centimeters) of snow and strong winds that will reduce visibility to near zero at times.

A blizzard warning was also in effect for Rhode Island and most of eastern Massachusetts including Boston, with forecasters predicting 15 to 20 inches (38 to 51 centimeters) of snow.A blizzard warning is issued when snow is accompanied by sustained winds or gusts over 35 miles-per-hour (56 kilometers-per-hour). As much as 18 inches (46 centimeters) could fall on the New Jersey shore with wind gusts over 40 miles-per-hour (64 kilometers-per-hour).Philadelphia Mayor Michael Nutter declared a snow emergency as of 2 p.m. (1900 GMT) on Sunday, and he urged residents to stay off the roads.

In Washington DC, transportation officials treated roads with salt and readied 200 salt trucks and ploughs in preparation for the six inches (15 centimeters) of snow to fall in the Mid-Atlantic region.In Boston, Mayor Thomas Menino declared a snow emergency that bans parking on all major streets. By early Sunday, Maryland, Virginia and North Carolina had also declared states of emergency.Amtrak canceled several of its trains in Virginia

Greek Culture and Tourism Deputy Minister George Nikitiades, who visited Russia recently, stated that the General Consulate of Russia to Greece announced a 52% increase of Russian tourists in Greece. Nikitiades also discussed with touristic agents, who seem to be optimistic and believe that the touristic action of Russians to Greece will increase next year too.

The Minister Mr. Nikitiades felicitated Greece’s ambassador to Moscow, Mr. Spinellis and the General Consul, Mr. Plotas. He also approved the incentive of the Russian President, Dimitri Medvedef, for visa abolition. He underlined that Greece and the Minister of Foreign Affairs Droutsas, supports this action.

U.S. Citizenship and Immigration Services (USCIS) released a revised Form N-648, Medical Certification for Disability Exceptions, for individuals with disabilities who are seeking exceptions from the English and civics requirements for naturalization. USCIS will shortly be offering public information sessions on the revised form for medical professionals and other stakeholders.

The law requires naturalization applicants to demonstrate proficiency of U.S. civics and the English language. Individuals with certain disabilities or impairments may request exceptions from either or both of these statutory requirements. Form N-648 was revised following extensive dialogue among USCIS subject-matter experts, customers, medical professionals, community-based organizations and legal practitioners. The revisions are intended to clarify the requirements and instructions and to standardize the process. The form enables medical professionals to provide information that is necessary for USCIS to understand the medical professional’s diagnosis and its relationship to the naturalization requirements. The Form N-648 and the accompanying guidance will assist USCIS adjudicators as they review each form.

In January, USCIS will begin hosting public information sessions to help medical professionals and other stakeholders understand the changes to Form N-648. Online videos will be available to explain how best to use the form. The interim guidance on the revised Form N-648 for USCIS personnel is currently available for public comment at http://www.uscis.gov/outreach.

USCIS will accept the previous version of the Form N-648 for 90 days, from Dec. 22, 2010, until March 21, 2011. Beginning March 22, 2011, USCIS will only accept the current version of Form N-648, dated 9/24/2010.

In the spirit of the holidays, wanted to share this great post by Eleanor Pelta from AILA

A client of mine is in a real quandary. The client has a major project with an urgent deliverable that requires a key employee to travel to the U.S. urgently. Because the company has a crack operations staff, they were on this issue early on, and we filed an L-1B petition months before the travel was necessary. However, current processing times being what they are, we had to upgrade the case to Premium Processing recently in order to have any chance of obtaining an approval before the start date. Notwithstanding our extensive documentation, we recently received a massive Request for Evidence and I must confess, our office has been struggling with a response. In the interest of getting something in on a timely basis, the client has authorized me to share details about the petition with the AILA membership for the purpose of tapping into the collective brilliance of the immigration bar to put together a winning response. Here are select portions of the RFE. Any comments or suggestions are most welcome.

Petitioner: Clausiseverywhere.com

Beneficiary: Nicholas LNU

“It has not been demonstrated that the beneficiary has knowledge of your company or the industry as a whole which can be considered “specialized.” Most individuals working in the marketplace are specialists and have been administered a certain amount of training from which they have gleaned special knowledge. It cannot be concluded, however, that all workers who hold specialized knowledge or perform highly technical duties qualify as “specialized knowledge” nonimmigrants.

The petitioner states that the beneficiary will enter the U.S. on an intermittent basis to perform similar duties in the U.S. as those performed abroad and describes them as follows:

* Continuously maintain and update “Naughtynice.net,” a proprietary system to manage database containing behavioral information for the world’s population, with an integrated input process for storing personal interests, hobbies, sleep/awake patterns and other information and inputs received, as well as a sophisticated order fulfillment program.
* Business analysis and operational planning for wide-scale international yearly order-fulfillment and distribution project
* Manage sophisticated geographical information program using satellite images of earth to determine locations where orders must be distributed. The petitioner claims that this program is akin to Google Earth, with certain added proprietary features, such as the ability to locate homes with extra-wide chimneys, homes with very small chimneys, homes with no chimney, and even homes where cookies and milk are regularly left on the fireplace mantle
* Ensure that business requirements are translated into accurate orders that can be produced and fulfilled by staff at company’s factories
* Utilize highly specialized tools to drive and care for a fleet of unique delivery vehicles with obsolete technology.

It appears that the use of the company’s proprietary tools may be incidental to the duties of the U.S. position, as it appears that the beneficiary may be coming to the United States merely to provide support for the company’s services. Moreover, there is no indication of how much time is spent performing the duties that require processes specific to benefiting your company, besides its economic viability. Please provide detailed list of each specific duty requiring specialized knowledge and a breakdown of time spent on each duty.

Specialized knowledge generally comes as a by-product of the projects and activities employees are assigned, not commonly held by significant portions of employees of a company. Identify the percentage of others within the company who hold the level of knowledge you claim that the beneficiary possesses. Identify how long it takes to train an employee to use the specific tools, procedures and/or methods utilized. Explain exactly how the beneficiary’s training differs from the core training provided to your other employees. Submit a record from your human resources department detailing the manner in which the beneficiary has gained his/her specialized knowledge.

The petitioner claims that without the services of the beneficiary, the petitioner’s business would suffer economic decline. Moreover, the petitioner claims that thousands of its customers internationally may suffer grave disappointment and even loss of faith. The value of the beneficiary’s skills to the petitioner is not in question. The petition must be examined to determine if the beneficiary’s duties involve knowledge that is significantly beyond the average in a given field or occupation. Merely limiting an employee’s knowledge to specific tools, procedures, methodologies, and or programs, proprietary or otherwise, does not necessarily create specialized knowledge.

It appears from other information provided in the petition that the beneficiary has some management duties. Specifically, the petitioner claims that the beneficiary manages all factory staff engaged in the manufacture of products for order fulfillment, mainly playthings. In addition, the petitioner states that the beneficiary oversees the care and feeding of flock of roughly 8 rare miniature “Rangifer Tarandus,” plus one with a unique nasal condition. However, without more information this would not in and of itself establish eligibility for the L-1A category as an alternative. From the promotional material submitted, it would appear that the factory staff are individuals of extremely small stature who wear uniforms including pointy hats and colorful leggings. They appear to be lesser skilled workers. Thus the duties with respect to these workers would be those of a first-line supervisor. Moreover, management of livestock does not create eligibility for L-1A purposes.

Your response must be received in this office by December 24, 2010.”

P.S. The writer does not opine on whether or not Santa is make-believe. The excerpts above showing the evolving, and ever-narrowing definition of specialized knowledge, alas, are not.

The EB5 immigrant investor visa has quickly become one of the most positive and popular visa programs and path to a Green Card Visa the United States has ever conceived. Since its creation as part of the Immigration Act of 1990, the visa has risen from obscurity to become a darling of pro-immigration discourse.

This is an update about Indirect Job Creation. These are the jobs held by persons who work outside the newly established commercial enterprise. For example, indirect jobs include employees of the producers of materials, equipment, and services that are used by the commercial enterprise.

According to the update presented below, USCIS interprets the law to require that a regional center focus its EB-5 capital investment activities on a single, contiguous area within the geographic jurisdiction requested by the regional center. USCIS agree that the law does not further mandate that all indirect job creation attributable to a regional center take place within that jurisdiction. USCIS will ensure that its policy reflects this understanding of the law.

H-1B Cap Count for FY 2011 as on Dec. 17, 2010

Cap Type - H-1B Regular Cap
Cap Amount - 65,000
Cap Eligible Petitions - 53,900
Date of Last Count - 12/17/2010

Cap Type - H-1B Master's Exemption
Cap Amount - 20,000
Cap Eligible Petitions - 19,700
Date of Last Count - 12/17/2010

As many readers may know for I-129 that is used for H, L and O Petition has been revised. On December 20, 2010, USCIS informed stakeholders that it will accept previous editions of Form I-129 that are postmarked on or before December 22, 2010. Petitions postmarked on or after December 23, 2010, must include the new Form-129 with a November 23, 2010, revision date or else they will be rejected. This contradicts earlier guidance stating that the last day USCIS could accept previous editions of the form was December 22, 2010.

We hope that this update clarifies some of the confusion regarding the last date the old form can still be used.

On Saturday morning, the Senate failed to advance the DREAM Act (H.R. 5281) on a vote of 55-41. Sixty votes were needed to move the bill forward procedurally and stop any filibuster. With that loss, the fight for the DREAM Act is over, at least for this Congress. Below is a summary of Greg Chen's report of this vote.

The vote tally in support of DREAM included three Republicans who crossed the aisle to join 50 Democrats and 2 Independents. Those three Rs were: Richard Lugar (IN) and Robert Bennett (UT) who had come out in support long ago and Lisa Murkowski (AK) who started signaling this week that she would vote “yes”. With their yes votes, DREAM maintained its status as a bi-partisan bill dating back nine years to when it was first introduced with seven Republican co-sponsors. Today, long-time DREAM champion Orrin Hatch (R-UT) failed even to show for the bill he originally sponsored in August 2001.

Unfortunately the gain of three Republicans today was not enough to make up the difference. Combined there are 58 Democrats and Independents in the Senate, and there are 42 Republicans. If all the Ds and Is voted in favor, only two Rs would have been needed to reach 60. But today 5 Democrats voted against DREAM: Baucus (MT); Hagan (NC); Nelson (NE); Pryor (AR); and Tester (MT). And one Democrat, newly elected Joe Manchin (WV) failed to show. To win on “cloture” 60 votes were needed no matter how many actually voted. Thus, a no-show counted as a “no” vote.

As the 111th Congress comes to its sputtering halt, at least on immigration, the question many are asking is whether there will be a real opportunity to bring up DREAM in the 112th. Looking forward, we face at least two enormous legislative challenges: First, the House will shift to Republican control with 242 Rs and 193 Ds. Last week the House passed DREAM on a 218-198 vote—you can bet your house we won’t muster a strong showing like that, let alone a majority, when the new session starts. Second, in the Senate, the Democrats will still have the majority but their margin of control will be 53-47 so getting the “yes” votes will also be harder in that chamber.

For many of us the source of continued inspiration has been to see all the DREAM activists walking the halls of the capitol and showing tremendous courage when they are the ones who have everything at risk. Let's keep a positive spirit for the future as the fight is not over yet.

Update from AILA: Yesterday, Senate Majority Leader Reid filed cloture on the DREAM Act (H.R. 5281) setting the bill up for the critical cloture vote in the Senate expected for Saturday, December 18. The Senate will need 60 votes for the DREAM Act to move forward.

This is the vote we've all been waiting for. With only days left in the lame duck session of Congress, there won't be another chance. You must continue making calls and sending emails to all Senators to urge them to vote "yes" on DREAM when the Senate brings it up for a vote.

All congressional offices should be contacted, but if you live in these states, we REALLY need your support because one of your Senators is a SWING VOTE on DREAM!

ALASKA: Murkowski
FLORIDA: LeMieux
INDIANA: Lugar
KANSAS: Brownback
LOUISIANA: Landrieu
MAINE: Collins & Snowe
MASSACHUSETTS: Brown
MICHIGAN: Stabenow
MISSOURI: McCaskill
NORTH CAROLINA: Hagan
NEW HAMPSHIRE: Gregg
OHIO: Voinovich
SOUTH CAROLINA: Graham
TEXAS: Hutchison
UTAH: Bennett & Hatch
VIRGINIA: Warner & Webb
WEST VIRGINIA: Manchin

Call them Now!!!

Kuwait's Labour Ministry has submitted three proposals to the government to help put an end to the controversial sponsorship system.

The proposals are based on studies and recommendations prepared by the ministry, the Arab Labour Organisation and the International Labour Organisation, a source from the ministry has said.

"The ministry took into consideration the specifics of the Kuwaiti labour market as well as the recommendations of international organisations on labour and human rights," the unnamed source told Kuwaiti daily Al Anbaa on Thursday.

The first proposal recommends setting up a government company tasked with hiring employees and labourers. The company will be the sponsor of all foreigners working in Kuwait, both in public and private sectors.

The second suggestion calls for easing the movement of expatriates within the labour market. Under the plan, an employee or labourer will have the right to switch jobs after three years or at the end of his or her public service contract.

The third plan puts an independent manpower authority in charge of all the expatriates in public and private sectors. Under the proposal, an expatriate is given a work permit that allows him or her to work anywhere in Kuwait.

However, the authority will keep the passport of the expatriate as a guarantee for the employer that he or she will not run away or switch jobs, and will hand him or her a special employment card. The expatriate can retrieve the passport every time he presents evidence from his company that he is allowed to travel outside the country.

However, the ministry warned that the third proposal will wade into controversy, especially that international human rights covenants consider that passports are a personal property and keeping them, regardless of the motive, would amount to a violation of personal rights.

Kuwait has pledged to put an end to the harsh sponsorship system in 2011 despite strong opposition from the business community. Bahrain in August 2009 scrapped the system and allowed foreigners to switch jobs more easily.

Majeed Al Alawi, Bahrain's labour minister, has likened the system to modern-day slavery and spearheaded a drive within the Gulf to do away with the sponsorship system despite the formidable opposition from those who benefited from it. Gulf and international rights groups have repeatedly called for the elimination of the system.

Great news to report today about private Bills. A private bill is one providing benefits to specified individuals (including corporate bodies). Individuals sometimes request relief through private law when administrative or legal remedies are exhausted, but Congress seems more often to view private legislation as appropriate in cases for which no other remedy is available, and when its enactment would, in a broad sense, afford equity.

From 1817 through 1971, most Congresses enacted hundreds of private laws, but since then the number has declined sharply, as Congress has expanded agency discretion to deal with many of the situations that tended to give rise to private bills. Private provisions also are occasionally included in public legislation.

The private immigration bills passed by the House on today — they had already been passed by the Senate — are the first to be approved in more than five years. The measures now go to President Barack Obama for his signature.

One bill would clear the way for the granting of legal status to the widow of a Tennessee Marine who gave birth to their son after he was killed in Iraq in 2008. Another would provide relief to a Japanese man living in California whose mother was killed in a car crash when he was a teenager and who was never legally adopted.

Congress can vote to let individual immigrants in exceptional cases live in the country legally but hasn't done so since the 108th Congress, in 2003-04. Immigrant advocates see such bills as a last resort when other efforts to obtain a green card have failed.

Immigration and Customs Enforcement holds off on deporting immigrants who have private bills pending in the Senate, or those whose cases have been vetted by the House immigration subcommittee and for whom an investigative report has been requested from ICE.

Shigeru Yamada came to the United States on a visa with his mother from Japan when he was 10 years old. She was killed in a car crash three years later, in 1995, and he went to live with his aunt in Chula Vista, Calif., but was never formally adopted.

He finished high school and attended community college. But Yamada, known to his friends as "Shiggy," was arrested by U.S. immigration agents in 2004 while riding a bus to downtown San Diego.

Democratic Sen. Dianne Feinstein and Rep. Bob Filner introduced bills on behalf of Yamada, which prevented his deportation. On Wednesday, he planned to celebrate with friends after getting off work as a coordinator at a Lasik center, but noted that the president still must sign the bill into law.

Read more here...

Client just called and asked for a change of status from B2 visitor to F1 student. I said, great we can help, but when does your status expire. He said, no worries I am good for 10 years!!! Been here for 4 only.

I said: No you are not, the I-94 (little white card in the passport) is what controls your status, this only good for 6 months max. I heard a loud sound of falling and silence. For those who are in the U.S. temporarily as nonimmigrants, the most important date to track is perhaps the expiration date of their I-94 arrival / departure cards. The I-94 is a small card that is usually stapled into one's passport. It is obtained in one of two ways. It can be issued by a Customs and Border Protection (CBP) officer at the port of entry upon arrival in the United States. It can also be issued by the U.S. Citizenship and Immigration Services (USCIS) when one is granted an extension or change of nonimmigrant status from within the United States.

The I-94 card reflects how long one is permitted to stay in the United States, provided s/he complies with the terms of her/his status. Occasionally, the CBP or USCIS will issue an I-94 card with an erroneous date (either issuing an approval for a longer period than is permitted by law or granting an individual less time than appropriate.) In either case, one should immediately obtain competent legal advice on the proper steps to correct the error.

One should never rely upon an erroneous grant of more time in a nonimmigrant category than was requested or than one is eligible to receive. So if you are pending change of status for 2 years, it does not mean that you are legal for 2 years.

It is important to remember that the expiration date on a visa stamp in the passport and the expiration date on the I-94 card are often not the same. The visa is an entry document, only. The time that one is actually allowed to remain in the United States after an entry could be much shorter or longer than the duration of the visa.

The appropriate amount of time is determined by the CBP at the port of entry. This is based on applicable law as well as the CBP's discretion.

New York Mayor Bloomberg said on Friday that the economy is suffering because of Washington’s failure to change restrictive policies, he said, and talented entrepreneurs were taking their ideas to other countries that are only too happy to host them. He was right on the ball with his statements.

“If we keep the best and the brightest out of this country, all the next big things will happen outside this country,” the mayor said during a speech at the New York Stock Exchange.

Mr. Bloomberg has been making the economic argument for immigration reform for months, and his pitch clearly resonated Friday at the annual meeting of the Partnership for New York City, a leading business group. He has created a national task force of mayors and chief executives — many of whom were in the room — to call for a path to legalization for the millions of illegal immigrants who are already in the United States, and for a loosening of green card and visa restrictions to allow for more educated and highly skilled immigrants to move here.

Read more here....

UPDATE:

Facing GOP objections, Democrats are putting aside the Dream Act. They're short of the 60 votes needed to advance the measure.

Democratic officials say they'll to move the House-passed version after the Senate acts on funding the government and extending tax cuts. Republicans have said they won't agree to consider anything else until those issues are addressed.

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Last night's House passage of DREAM (216-198) brings us closer than we have ever been to victory! This morning we urge our readers to make final calls to all Senators to urge them to vote for cloture on DREAM.

The Senate is scheduled to vote at 11am and will need 60 votes to win.

The House victory has changed the tone on DREAM and gives our Senators a greater sense of urgency that their individual votes will be the deciding ones for a historic victory on immigration. EVERY VOTE counts so make your final calls now.

Last night DREAM triumphed over partisanship and won the votes of 8 House Republicans and many conservative Democrats. To make DREAM possible, the Senate leadership made the unprecedented move of delaying their voting until today.

The momentum is building on DREAM. Make your calls now so we can get this passed.

Continue reading "Senate is scheduled to vote on DREAM Act today - will need 60 votes to win. " »

The House voted and passed H.R. 6497, while the Senate moves to a vote on whether to proceed to its own version of the DREAM Act, S. 3992. The senate will be a much more difficult task. The 216-198 vote, mostly on partisan lines, sends the DREAM Act to the Senate, where it was uncertain if supporters had the votes to overcome a certain Republican filibuster against it.

Both bills are strong pieces of legislation which would allow the 65,000 young undocumented students who graduate high school each year to start a pathway to citizenship after completing two years of college or military service. Organizations and individuals from across the country-from California to Kentucky, Oklahoma to New York-have joined together to support the DREAM Act. Thousands of undocumented students and their supportive classmates and teachers have met with their members of Congress, sent letters, held rallies, and staged hunger strikes and other activities in pursuit of making the DREAM Act a reality.

While both bills are similar to the original versions of the DREAM Act introduced in each chamber, they differ in key ways. Under the Senate version of the DREAM Act, applicants are treated as conditional nonimmigrants for ten years before being allowed to apply for permanent residence.

The House version breaks this status up into two five-year periods, and requires students to apply for an extension of their conditional nonimmigrant status after the first five-year period has elapsed. The applicants would have to pay a $525 surcharge on the initial application and a $2,000 surcharge at the beginning of the second five year period. S. 3992 establishes one ten-year period of conditional nonimmigrant status without either fee.

We will update our readers once the Senate returns its vote.

Here is a quick update from the field. Processing waiver applications is the main work of the USCIS office at the consulate. Naturally, the consulate makes an initial determination of inadmissibility. If the applicant is eligible to submit a waiver, he or she is instructed to phone the Teletech Call Center beginning the following day to schedule a time and date for dropping off the waiver application.

As of early November, applicants who phone the Call Center are receiving appointments in early January, indicating a two-month wait (until recently the consulate was averaging 4-6 week delay). Due to a transition to a new contract, the Call Center is currently unable to provide “on the spot” confirmation of the appointment, but the agents will take down the caller’s information and respond via email or phone when an appointment is available.

On that date, the applicant will be briefly questioned by a consular employee, pay the waiver application fee, and drop off the packet. The waiver application and supporting documents will be passed directly to the USCIS officer, except for medical waivers, which need CDC notice and sign-off by qualifying relative.

In August, the USCIS began using a new computer system that is not as responsive as the former one, and it was taking two weeks from the “drop-off” date to receive a decision on the waiver. That period of time has recently been reduced to approximately three-five business days. Applications are either approved (only those that are “clearly approvable”) or referred to the backlog.

If the application is going to be referred, the applicant has only 84 days – not up until the time of adjudication – to submit additional documentation. The USCIS office in Cd Juarez receives 80 percent of all waivers filed worldwide, and the adjudicators each read between 30-35 applications/day. If a case appears complicated and voluminous, it may be referred, given the short time (an average of 15 minutes) that officers have to review each application. The strong points in the waiver case need to be put forth up front and not buried in the application or supporting documentation.

Waivers where the applicant has an “A” file will typically be referred, since that file will have to be reviewed before making a decision and it takes two to three weeks to receive the file. The USCIS office in Cd. Juarez will hold onto those cases until the A file is obtained where there is evidence of strong hardships.

There are fewer than 4,000 waiver applications in Ciudad Juarez. This number reflects the applications received and referred during a three-month period. There are still unadjudicated applications pending in the offices where they were referred.

Applicants are encouraged to include an index or table of contents listing or briefly explaining the relevance of the supporting documents. This index should reference numbered documents that are separated and designated by corresponding tabs at the bottom or side of the packet.

The first document should be the declaration from the qualifying relative. Feel free to reference supporting documents within the declaration. Legal briefs and memos are usually not read by the USCIS officers in Cd. Juarez, given the interest of time; they are more likely to be read by officers adjudicating referred applications.

Officers working on referred cases are conducting a “de novo” or brand new review. Cases are currently being sent to USCIS offices in Anaheim, CA; El Paso, TX; Miami, FL; Mexico City; and the Vermont Service Center. They are typically sent to these offices between 60-90 days after the supplemental documentation is received or the 84-day deadline has passed. The processing time for referred cases has been holding steady at around 9 to 10 months. While there were approximately 11,000 waiver applications in the backlog at the beginning of the last fiscal year, that backlog has now been reduced to 4,000 applications.

I-212 Waivers

Form I-212 can be submitted with the I-601 waiver application. Since I-212s do not require a showing of extreme hardship to a qualifying relative, and thus carry a lower standard, they are typically approved if the accompanying I-601 is approved. No stand-alone I-212 applications should be filed with the USCIS office in Cd. Juarez, except in fiancé (K-1) cases.

In other cases where the applicant does not have any other ground of inadmissibility except for a prior order of removal, the I-212 should be filed in the United States with the DHS district office that issued the order. For applicants subject to the “permanent bar” under 212(a)(9)(C)(i)(II) due to illegal or attempted illegal reentry after a final order of removal, the applicant can submit an I-212 after remaining abroad for ten years. These should be filed at the USCIS district office that has jurisdiction over the place where the applicant intends to live in the United States.

Those applicants who were denied a visa based on the three- or ten-year bar under 212(a)(9)(B) and were denied a waiver can phone the Call Center to reschedule their interview once they have remained outside the country for three or ten years. These applicants do not need to file any additional forms or waivers.

If the office adjudicating a referred case is approving the waiver, it will send a notice to the applicant as well as a notice to the consulate. Allow up to 90 days for the consulate to schedule the re-interview, although the average processing time now is about two weeks. Beginning on January 10, 2011, the consulate will be able simply to issue the immigrant visa. In some cases the consulate will require updated information, documents, or biometrics.

If the office adjudicating the referred case is denying the waiver, it informs the applicant of the appeal procedures. The applicant has 30 days to submit an appeal, which is filed at the office that adjudicated the waiver. Every appeal is also treated as motion to reconsider by that office. The Administrative Appeals Office is currently taking approximately two years to issue a decision. If no appeal is filed, the case is closed within 60-90 days after the decision is made and the file is shipped to the National Records Center.

In lieu of filing an appeal, the applicant can request to be re-interviewed, re-refused, and submit a new waiver packet. To exercise this option, contact Call Center, which will send a report to the consulate, which will schedule a new appointment within 30-60 days.

The USCIS in Cd. Juarez is currently approving approximately 50 percent of the waiver applications and referring the other half. Of those applications that are referred, those USCIS offices are approving an additional 50 percent, bringing the total approval rate to 75 percent.

Applicants with compelling health-related hardships can ask that their waiver application be expedited. This is also true of active duty military personnel. This hardship can be indicated to the consular officer at the time of the interview, in which case this is passed along to the USCIS. Or the applicant can inform the USCIS office in Cd. Juarez or at one of the referral offices. Be sure to document any medical-based requests for expedited processing.

A couple of years ago BusinessWeek published an article about Visas and the Challenges of graduates facing the job market. This post is a quick summary for our readers.

For foreign MBAs, PHD's and other students in the US, most commonly heard immigration term on school campuses these days is H-1B, as in H1-B visa, for graduates who want to continue to work in the U.S. after finishing school. It refers to the visa that applies to a non-U.S. citizen who will be temporarily employed in a specialty occupation, according to the U.S. Citizenship & Immigration Services (USCIS). There used to be shortage of these visas, which is why international MBA students often start asking about these visas midway through their programs. Now, as a result of the recession, the problem is finding work and not always the shortage of the visas.

But the H-1B is only the beginning of the alphabet soup of forms and work visas that a business-school student can encounter. Indeed, a non-U.S. student needs to acquire a whole new vocabulary that most Americans do not speak. Here is a starter glossary:

Adjustment of Status (AoS): The last step to becoming a permanent resident, this is when a person changes from nonimmigrant status to immigrant status. It allows eligible applicants to become lawful permanent residents of the U.S. without having to go abroad and apply for an immigrant visa. The alternative to this step is consular processing, which allows you to apply and process a visa through a U.S. consulate abroad.

Advance Parole (AP): Commonly given to people in the last step of the permanent residence process, this classification gives foreigners permission to reenter the U.S. after leaving temporarily.

B-1 Visa: When foreigners come to the U.S. for conferences or meetings, they are entering with this visa. People with this status can also do some work, but the kind of work is very limited.

B-2 Visa: You might call this a tourist's pass. It allows people to visit the U.S. for pleasure or medical treatments.

E-1 or E-2: The U.S. has reciprocal treaties with various countries—such as Australia and Britain—that permit people in either place to invest and trade in the other's territory. The E-1 is for those who partake in substantial trade in a U.S. business. An E-2 allows you actually to participate in and/or create a business in the U.S.

Employment Authorization Document (EAD): A plastic card given by USCIS, this is usually valid for one year and is based on eligibility in one of many categories. It grants proof that the nonimmigrant is able to work in the U.S., according to USCIS.

F-1 Visa: Given to academic or language students on entering the U.S., this classification is encountered by all international students.

Form I-20: This document must be filled out by those who want F-1 status (or M-1, which is for vocational students) in order to attend school in the U.S. The form certifies that you have met the requirements of admittance to a particular university or school, will pursue a full course of study, and have shown that you can afford to live and study in the U.S. It has a period of validity. When time runs out, you can no longer stay in the country.

Form I-539: All persons who want to change immigration status or extend their stay in the U.S. must complete this form.

Green Card: Also known as Lawful Permanent Residence (LPR), this gives you official immigrant status in the U.S.

H-4: Referring to the classification of dependents of someone with an H-1B visa, this term describes wives and children under age 21 of international MBA graduates working with H-1Bs.

J-1 Visa: Anyone coming to the U.S. under the auspices of an educational or cultural exchange is eligible for this visa, including researchers, exchange students, dancers, and performers.

L-1 Visa: With this nonimmigrant visa, a U.S. entity can request the transfer of a person from a non-U.S. entity. For example, IBM could transfer a vice-president from one of its European offices to New York.

Labor Certification (LC): This is the first step in the permanent resident process. It involves your employer proving it cannot find a U.S. worker to do the job you're doing.

Nonimmigrant Status: When people are coming to the U.S. for a temporary stay, they are given this status on entry. It is also given to those extending their stay or changing their status. If persons with nonimmigrant status fail to comply with the rules and regulations of this status, they could lose the right to U.S. benefits and become deportable.

Petition: What an employer does on behalf of foreign employees to help them become permanent residents.

So with H1B visas numbers running out fast as the year comes to end, dear foreign graduates, start sending those resumes fast!!!

This great summary is provided by AILA with the guidance of Tammy Fox-Isicoff. The EB5 program is of great interest to many applicants, especially those with the means to participate. he EB-5, Green Card through investment, was created to promote investments in businesses and to create and preserve jobs in the U.S. You can become a lawful permanent resident by establishing a new commercial enterprise and provide full-time employment to at least ten U.S. citizens, legal permanent residents, or other immigrants with employment authorization.

Under section 203(b)(5) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(b)(5), 10,000 immigrant visas per year are available to qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise.

Of these 10,000 visas, 5,000 are set aside for those who apply under a pilot program involving a CIS-designated "Regional Center."

What is a Regional Center (RC)?

A RC is a proposed business venture often located in a targeted unemployment area supported by an econometric model based on a business plan forecasting indirect and/or direct job creation. Normally, RCs are located in areas of high unemployment or rural areas and require a $500,000 investment. However, some RCs are not located in targeted employment areas and therefore require investments of $1,000,000. An investor in an RC is not required to be actively involved in the management of the investment as long as the investor is a limited partner under the Uniform Limited Partnership Act. An RC normally structures one or more new commercial enterprises (NCE) that receive capital from investors to engage in direct or indirect job creation project or projects.

What does RC designation by USCIS mean?

It means that USCIS has reviewed the proposed business plan, any accompanying econometric model, location, and proposed job creation and has determined that the proposed business plan meets the requirements of The Immigrant Investor Pilot Program, created by Section 610 of Public Law 102-395 on October 6, 1992.

Are all RCs that have received designation from USCIS operational?

No, actually only a small percent of designated RCs are operational and have been the basis for approved I-526 Immigrant Petitions by Alien Entrepreneur. Even a smaller percentage have approved I-829 Petitions to Remove Conditions on Residence.

Is USCIS required to conduct background checks on RC managers or directors?

No.

Does USCIS monitor the performance of RCs?

No. USCIS has sent out questionnaires to RCs, but it is not clear at this time what USCIS is doing with the information obtained from the questionnaires.

Does USCIS publish a list of operational RCs and those with approved I-526 and I- 829 petitions?

While USCIS does publish a list of designated RCs, it does not publish which RCs are operational or which RCs have approved or denied I-526 and/or I-829 petitions.

If an RC is designated by USCIS, are all NCEs formed in the RC automatically
approved?

No, each NCE within the RC must meet the requirements of the requisite investment amount and job creation. If the NCE will be investing in another business, that business must meet the requisite employment creation.

Is there a process whereby USCIS provides pre-approval of an NCE within an RC?

Yes. USCIS has recently created a pre-approval process. However, this process is not taken advantage of by many RCs as the time to obtain pre-approval of an NCE can be extensive, inordinately delaying the NCE from receiving funds from investors. The preapproval process is so new that it has not been adequately time tested.

If USCIS has approved a number of I-526 petitions for an NCE or pre-approved an NCE is it a guarantee that future petitions for the same NCE will also be approved?

No. USCIS will always examine the source and path of funds of the individual investor and failure to carefully document this can result in the denial of the I-526 petition. More baffling is that on frequent occasions, USCIS has raised questions pertaining to NCEs that have a long track record of approvals, and USCIS can also raise questions pertaining to NCEs that have been pre-approved. USCIS has also raised questions concerning an NCE’s qualifications after approving an I-526, at the I-829 stage. Thus, prior approvals for the same NCE, pre-approval of an exemplar petition for an NCE and even the approval of an investor’s I-526 for a particular NCE, does not mean that the NCE will not be further scrutinized by USCIS.

What happens to an investor who invests in an NCE that never gets off the ground?

The initial I-526 petition may be approved based on the business plan and supporting documents, but the I-829 petition to remove conditions on residence will be denied.

If either the I- 526 or I- 829 is denied, will the invested funds be returned to the
investor?

This depends to some extent on the agreement between the investor and the RC. Some RCs hold funds in escrow pending approval of the I-526. Others do not. At the I-829 stage, it is doubtful that funds will be returned if the I-829 is denied as the funds must have been placed at risk in order for the I-526 to be approved in the first place. See Matter of Izumii, 22 I&N Dec. 169 (Assoc. Comm. 1998). The RC cannot provide any guarantee of the return of the invested funds if the I-829 is denied.

What happens to an investor if the I-829 is denied by USCIS?

The investor can renew the I-829 in removal proceedings before an immigration judge. If the I-829 is denied by the judge, the investor can appeal to the Board of Immigration Appeals and to federal court. If the investor does not prevail, the investor can be deported.

Continue reading "EB5 Visa Attorney San Diego - Everything You Always Wanted to Know about Regional Centers" »

A coalition of labor and immigrant advocacy groups announced Tuesday they're launching a radio and print advertising campaign to pressure Republican senators to support the measure. Targets include Florida Sen. George LeMieux, Maine Sens. Susan Collins and Olympia Snowe, Massachusetts Sen. Scott Brown, Nevada Sen. John Ensign and Texas Sen. Kay Bailey Hutchison.

On November 30, 2010, Senate Majority Leader Harry Reid (D-NV) filed a new version of the DREAM Act (S.3992) with the aim of attracting broader support for DREAM to get the requisite 60 votes to pass the Senate during the current "lame duck" session of Congress.

The earliest Reid could file a cloture motion on the new bill would be this coming Thursday, December 2nd. After waiting out the requisite 30 hours post-cloture, it could "ripen" over the weekend, and effectively come up for a vote on Monday, December 6th at the earliest.

Senator Durbin (D-IL) has also recently introduced two paired down versions of the DREAM Act (S.3962) and (S.3963) in the hopes of getting the bill passed during the lame duck session.
However, in order for the DREAM Act to pass we must keep the pressure on Members of Congress. It's more important than ever that you take action TODAY by writing and calling your member of Congress and urging them to support this common-sense and urgently needed immigration measure.