Visa Lawyer Blog

As part of our commitment to our international clients, we also provide global Immigration services in many cases. In this article, we will cover the Australian Same Sex Immigration options. Unlike the united States, Australia offers many benefits to same sex couples.

Australia now has two different partner visa subclasses: the spouse visa and prospective marriage (fiancée) visa. The spouse visa subclass is available to couples who are married and to couples who are in a de facto relationship. Couples who are in a de facto relationship include same sex partners. This change occurred in 2009.

Because of this change, same sex partners in a de facto relationship can enter and remain permanently in Australia. Of great note, U.S. immigration law does not afford similar rights to same sex partners of U.S. citizens and permanent residents immigrating to the U.S.

Overview Of De Facto Partner Visa

A de facto partner visa applicant must be sponsored (nominated) by his or her de facto partner who must be either an Australian citizen, permanent resident or eligible New Zealand citizen. The Partner Migration Booklet (hereinafter “Booklet”), which can be found on the Australian government website, www.immi.gov.au, defines de facto partner as a partner “… of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.” The Booklet further widens the definition to cover people in a de facto relationship with another if:

• They are not in a married relationship;
• They are not related by family;
• They both must be 18 years or older at the time the application is made;
• They have a mutual commitment to a shared life to the exclusion of all others;
• The relationship between them is genuine and continuing;
• They live together or do not live separately and apart on a permanent basis; and
• The relationship has continued for the period of twelve months immediately preceding the date of application.

Applications can be lodged outside of Australia or within Australia. However, not all Australian consulates in the U.S. process the partner visa applications. There are some restrictions in place on an Australian citizen, permanent resident or eligible New Zealand citizen, i.e., how many times they can nominate a partner, and a time gap between the nominations.

There are certain restrictions as to the applicant’s health requirements. But the Minister of the Australian Department of Immigration and Citizenship has the power to waive the health requirements for the applicant so long as he or she determines that there will not be an undue financial burden on the Australian government and/or local community to provide the necessary healthcare for that particular applicant.

While it is unclear whether an applicant who is HIV-positive will face denial of his or her application for a partner visa, the Booklet states that, “A positive HIV or other test result will not necessarily lead to a visa being refused. However, your result(s) may be disclosed to the relevant Commonwealth and state or territory health agencies in Australia.” Id, p. 20. (Emphasis added by author.)

The sponsor must be willing to financially support the applicant for a period of two years, if the applicant will be unable to find employment in Australia during this period.

Upon the approval of the application for a partner visa, the applicant will receive the temporary (provisional) partner visa within 6 months after submitting his/her application. And after the lapse of two years, he or she will be granted a permanent partner visa.

If you are interested in applying for an Australian Partner visa or have further questions, you are welcome to send your inquiries to our office.

Can you own your company as an H1B Holder? Attorney Ekaterina Powell from our office has prepared the summary of the updates regarding establishing employer-employee relationship for H-1B purposes in cases where the beneficiary owns 100% of the petitioning company.

Since the issuance of Neufeld Memorandum “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Placements” in January 2010, USCIS has issued Requests for Evidence (RFEs) for many companies where the beneficiary is also a stockholder of the petitioning company. Often times, the RFEs are issued even if the beneficiary owns a minimal percentage of shares in the petitioning company.

In the situations where the beneficiary has an ownership interest in the petitioning company, it has to be established that the petitioner can be classified as the employer pursuant to 8 C.F.R. § 214.2(h) (4) (ii) (2). In other words, it has to be established that there will be an "employer-employee relationship”, as indicated by the fact that the petitioner may hire, pay, fire, supervise, or otherwise exercise the right to control over any such employee.

Establishing the Right to Control

The Neufeld memo provides an example of a situation where the right to control will not be found. The example includes a petitioner, a fashion merchandising company, that is owned by the beneficiary. The beneficiary is the sole operator, manager, and employee of the petitioning company. The beneficiary cannot be fired. There is no outside entity which can exercise control over the beneficiary. USCIS provides this scenario as an example where there is no right to control over the beneficiary.

However, this example in the memorandum does not preclude the finding of right to control in the situations where the beneficiary owns shares of the petitioning company or is the sole owner of the company and there is an outside control over the beneficiary.

USCIS acknowledges that a sole stockholder of a corporation can be employed by that corporation as the corporation is a separate legal entity from its owners and even its sole owner. However, an H-1B beneficiary who owns a majority of the sponsoring entity and who reports to no one but him or herself may not be able to establish that a valid employment relationship exists in that the beneficiary, who is also the petitioner, cannot establish the requisite “control”. USCIS stresses in the Memorandum that “[w]hile it is correct that a petitioner may employ and seek H-1B classification for a beneficiary who happens to have a significant ownership interest in a petitioner, this does not automatically mean that the beneficiary is a bona fide employee.”

Neither the Memo nor the regulations bar approval of the H-1B petitions where the beneficiary has the ownership interest. The Neufeld Memorandum merely stresses the fact that the petitioner has to show the right to control the beneficiary.

Even though the Memorandum clearly states that there can be situations where the corporation can establish the right to control its sole owner, adjudications of H-1B petitions where the beneficiary had an ownership interest in the sponsoring entity have been inconsistent. Often times, USCIS plainly concludes that since the beneficiary owns a part of the petitioning entity, it has not established the employer-employee relationship.

Despite the fact that the Neufeld memorandum was issued almost two years ago, USCIS has released its clarifications of the memorandum in the Q&A session only in August 2011. See Questions & Answers: USCIS Issues Guidance Memorandum on Establishing the "Employee-Employer Relationship" in H-1B Petitions posted on 08/02/2011 on USCIS website.

The Q&A clarifies when a beneficiary, who is the sole owner of the petitioner, may be able to establish a valid employer-employee relationship. Specifically, if the facts show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established.

Q&A gives an example that a petitioner that provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary may be able to establish an employer-employee relationship with the beneficiary.
There is a widespread misconception about the scope of the clarifications given by USCIS. Many individuals think that now any beneficiary who is the sole owner of the petitioner will be able to establish employer-employee relationship.

However, this is a misinterpretation of the Q&A. In any H-1B case filed on behalf of the beneficiary who has an ownership interest in the sponsoring organization, the petitioner has to provide documentary evidence proving its right to control the H-1B worker.

Documentation Required

The Frequently Asked Questions issued by USCIS suggest that the petitioner may submit a combination of any documents that sufficiently establish that the required relationship between the petitioner and the beneficiary exists and may submit any other similar probative evidence.
Such documentary evidence may include the following:
• Corporate documents, including bylaws, showing the board of directors and its authorities to exercise outside control over the beneficiary;
• Copy of signed Employment Agreement between the petitioner and beneficiary detailing
the terms and conditions of employment;

• Copy of an employment offer letter that clearly describes the nature of the employer-employee
relationship and the services to be performed by the beneficiary, the ability of the employer to fire the employee, the explanation of how the employer will exercise its right to control the employee, and the explanation how the employee will be supervised throughout the H-1B employment;

• Copy of position description or any other documentation that describes the skills required to perform the job offered, the source of the instrumentalities and tools needed to perform the job, the product to be developed or the service to be provided, the duration of the relationship between the petitioner and beneficiary, whether the petitioner has the right to assign additional duties, the extent of petitioner's discretion over when and how long the beneficiary will work, the method of payment, the petitioner's role in paying and hiring assistants to be utilized by the beneficiary, whether the work to be performed is part of the regular business of the petitioner, the provision of employee benefits, and the tax treatment of the beneficiary in relation to the petitioner;

• A description of the performance review process along with progress and performance evaluations;

• Letters from the other directors explaining how the right to control the work of the beneficiary will be exercised on a day-to-day basis, who will supervise the beneficiary and evaluate the work-product of the beneficiary, and explaining the management structure of the company;

• Copy of petitioner's organizational chart, demonstrating beneficiary's supervisory chain;
• Other relevant documents.

It remains to be seen if USCIS will be consistent in its adjudication of H-1B petitions where the beneficiary is the sole owner of the sponsoring entity. Therefore, when filing the H-1B petition, do not assume that the petition should be approved for a sole owner of the sponsoring entity in light of the new guidance. It is recommended to include as much evidence as possible showing the outside control over the beneficiary to prove a valid employment relationship between the petitioning entity and the H-1B worker. Please contact us with any other questions.

Today, the House Judiciary Committee held a markup and H.R. 3012 was reported favorably out of committee by a voice vote. An amendment from Rep. Lofgren (D-CA) that would make adjustments to the three year phase-in period was accepted. H.R. 3012 must next be scheduled for House floor debate which may occur in the next few weeks. We will update as soon as more information becomes available.

H.R. 3012, the Fairness for High-Skilled Immigrants Act, introduced on September 22, 2011 by Rep. Chaffetz (R-UT), eliminates the employment-based per-country cap entirely by fiscal year 2013 and raises the family-sponsored per-country cap from 7% to 15%. We will keep you posted!!!

Several of our clients who attended recent Visa Stamping for H1B and L1A visas were pulled for Administrative Processing. Our recent case delays are coming from India (Delhi), Mexico (Tijuana), and Russia (Moscow).

The clients were told the same story in all cases:" Your case was selected for Administrative Processing, go home and we will contact you shortly". In a recent American Immigration Lawyers Association meeting with the State Department, the issue was raised and we have some information to update.

Question: When questioned on reasons for delays in visa issuance, 62.2% of our members responding to our survey answered that it was due to administrative processing. We understand that there is no timeline for these cases to be processed, but at our last meeting, it was discovered that some cases had been resolved, and the applicant or attorney was not notified. Have there been steps taken to ensure applicants and/or their attorneys are indeed notified when their cases have cleared? Some posts, including Chennai, have real time case status reports available on their website. Are there any plans to institute such case status reports at other posts or worldwide?

Department of State Answer:

A small percentage of visa applications require further administrative processing, which takes additional time after the visa applicant’s interview by a Consular Officer. Applicants are advised of this requirement when they apply. Most administrative processing is resolved within 30 days of the visa interview, and we are working diligently to reduce processing times. Visa applicants are encouraged to apply early for their visa, well in advance of the anticipated travel date.

Several posts have opted to include an online case status tracker; however these websites do require significant resources to update. They are optional for posts, and the Visa Office has no plans at this time to require that posts create and maintain such sites. Applicants or their representatives can contact the processing post for cases status updates when there is not an online option. Before making inquiries about the status of administrative processing, applicants or their representatives should wait at least 60 days from the date of interview or submission of supplemental documents, whichever is later.

Some visa applications require further administrative processing, which takes
additional time after the visa applicant’s interview by a consular officer. Applicants are advised of this requirement when they apply – and are alerted to the possibility on our websites. Most administrative processing is resolved within 60 days of the visa interview. When administrative processing is required, the timing will vary based on individual circumstances of each case. There is no specific recourse available for cases pending more than 90 days.

There you have it, unless you wait 60 days, expect no answers from the Posts. I can report that some European posts do respond in a matter of a week or so. But otherwise it is 60 days or nothing.

Last week I attended the EB5 Investor Visa conference for Immigration Lawyers held in San Antonio Texas. Top lawyers from across the nation gathered to discuss the latest developments and updates in this exciting area of law. In the next few weeks, we will share some info obtained on this Blog in a series of articles.

EB5 Investors come from select few countries, mainly China, Iran, Korea, Brazil and Russia. In this article we will cover specific issues relating to Russian Investors. The following article is based on an AILA report by Mr. Kenneth White.

What is EB5 Investor Visa?

Congress created the fifth employment-based preference (EB-5) immigrant visa category in 1990 for immigrants seeking to enter to engage in a commercial enterprise that will benefit the U.S. economy and create at least 10 full-time jobs. The basic amount required to invest is $1 million, although that amount may be $500,000 if the investment is made in a “targeted employment area.”

Of the approximately 10,000 numbers available for this preference each year, 3,000 are reserved for entrepreneurs who invest in targeted employment areas. A separate allocation of 3,000 visas is set aside for entrepreneurs who immigrate through a regional center pilot program.

Compared to emigration from China, India, and Korea, Russian immigration to the United States is negligible. This is also reflected in the EB-5 program. For fiscal years (FYs) 2008 and 2009 combined, less than 100 Russians have obtained permanent resident status through EB-5.

Besides the greatly improved economic situation in Russia since the early 1990s and the overall political stability, specific reasons cited by potential EB-5 investors for a reluctance to participate include: (1) U.S. worldwide taxation on permanent residents; (2) the perceived riskiness of EB-5 investments and the two-year conditional status; (3) low return on investments (Russian entrepreneurs are accustomed to 15–30 percent annual return); and (4) an inability to collateralize existing assets to finance an investment due to high Russian interest rates (14–17 percent).

Other factors contributing to these spartan EB-5 statistics include a short-term mentality; little EB-5 marketing in Russia; widespread gray and corrupt sources of funds; and the existence of other residency and passport alternatives (e.g., UK, Canada, St. Kitts, and Bulgaria).

For the EB-5 program, this is unfortunate because Russians represent a truly large pool of potential participants. In the 1990s, Russians were able to privatize their apartments for a nominal fee, and employees and management of large factories received free privatization vouchers. Virtually overnight, millions of Russians became owners of apartments—mortgage free—and shareholders in factories.

Show me the Money

Source of funds is a key factor in EB5 cases and was discussed in detail at our conference. Russian law does not require the filing of tax declarations for most individuals. Usually, employers will issue W-2-like forms to employees and shareholders reflecting the payment of salaries and dividends. The employers withhold the relevant taxes and file the necessary reports with the Russian Tax Inspectorate. For those individuals who do file declarations, they must file for the previous calendar year by April 30th and pay the tax owed by July 15th. In the EB-5 context, this issue may be particularly acute for investors whose source of income for the investment was earned in the most recent tax year, and who have yet to file tax declarations or pay taxes on that income. In such instances, it would be appropriate to point out these tax deadlines to USCIS and have the client provide counsel with copies of the declaration and receipt of tax payment once these obligations have been met.

Conflict of interest questions sometimes arise. Resumes and business promotional materials are foreign concepts among many Russian entrepreneurs over the age of 45. Technical and logistical issues that frequently arise relate to the constantly fluctuating exchange rate (33 percent depreciation of the ruble over the past year); bank statements which often do not reflect daily balances or even the names of the owners of the account; delays in transferring of funds to the EB-5 entity or escrow account because some banks have little experience with international transactions or require the translation of all investment-related documentation; and a general lack of automation and public accessibility to personal and corporate records, hindering due diligence efforts.

Russian tax law is very liberal and has been relatively effective in ensuring greater tax compliance. This is not to say that all Russians diligently pay their taxes. High pension and social fund taxes have the effect of discouraging employers from reporting full salaries or any salaries at all. Offshore companies continue to be commonplace, acting as invoicing mechanisms for business transactions, “piggy banks” for accumulating funds, and investment structures.

Other pertinent Russian law provisions that arise in the EB-5 context include corporate governance laws, which cover certain conflict-of-interest situations. For example, it is not unusual for antiquated Soviet-era factories to have unused premises. An executive for the successor organization may also own an outside company, and acting in the name of the organization, lease out the unused premises to his own company, which in turn subleases the premises to another company.

As long as the Board of Directors of the successor organization approves the transaction, it is permissible under Russian law. In contrast, Russian anti-corruption legislation is unequivocal in prohibiting government officials from profiting from their positions. While not having the desired effect of curbing widespread corruption, these provisions, along with U.S. source-of-funds requirements, seem to have deterred EB-5 petitions by such individuals.

The Russian proclivity to operate in cash and not adhere to the letter of Russian legislation certainly poses challenges to lawyers in preparing EB-5 petitions. Nevertheless, the overall trend is towards the gradual “civilizing” of Russian business, including increased transparency and tax compliance. While this positive trend and the underlying wealth of asset-rich Russians would seem to augur well for Russian participation in the EB-5 program, the Russians, have remained an enigma. Now that they are free to emigrate and have the financial ability to do so, they have generally chosen—at least for now—not to pursue immigration opportunities for themselves or their children in the United States.

We feel that changes in the US economy, the surplus of cheap real estate and business opportunities will increase Russian interest in the US Investor Visa program. These changes mark a major leap forward in the usage of the EB-5 visa category but many more Russians than ever before.

If you are interested in this program and would like to discuss it, feel free to drop us a note.

With the recent announcement that Illegal immigrants can now apply for state-financed scholarships and aid at state universities after Gov. Jerry Brown announced that he had signed the second half of a legislative package focused on such students, we wanted to share some facts on such students.

This is a guest article by Carol Brown from onlinecollege.org

Families immigrate to the United States constantly, and many of them bring children along with them. Immigrant adults with dubious legal status have it bad enough, but their kids face even more difficulty, unable to achieve their dreams in a country they consider home. About 65,000 undocumented students graduate from U.S. high schools every year, and their presence is not insignificant. Although they are guaranteed a public school education through grade 12, their future in college is much less certain. From federal Financial Aid restrictions to reduced opportunities, students with undocumented status face a lower quality of education and future careers than their legal classmates. Read on, and we'll explore several important facts about their experiences in the United States.

1. Most undocumented students have no role in the decision to come to the US

Often, undocumented youth are brought into the US by their parents or relatives, and spend more years here than their country of origin. It's usually a family decision to move, and students may be small children when this happens. In 2000, approximately 2.5 million undocumented youth under 18 were living in the US. Typically, undocumented students enter the US without authorization, or they enter legally but remain without authorization.

2. Undocumented students may not even be aware of their status

As undocumented youth are often brought into the US at a very young age, they may have no recollection of actually immigrating, and typically, no understanding of any legal arrangements that may have been made. In fact, some students have no idea that they are not legal US citizens until their late teens, when they apply for federal Financial Aid or begin looking for a job. This surprise can be devastating, as they are not able to pursue the college and career choices they may have been working toward.

3. Federal law protects young undocumented students

Plyler v. Doe in 1982 included several points that help undocumented students in school. Through this law, schools must provide an equal education to all children, including the undocumented. In fact, they can't even ask for documentation of a child's immigration status, and schools can't use Social Security numbers as a prerequisite for enrollment. Students are further protected by the law that forbids school personnel from sharing information about a child's immigration status with any individual or institution, even government agencies. This means schools are a safe place for all students to receive a quality K-12 education.

4. Undocumented students are often high performers

UCLA's Center for Labor Research and Education's hearing and conference in 2007 revealed that although undocumented students may not have access to the same resources as legal US citizens, they often do very well in school. Many are honor students, student leaders, and athletes with high academic achievement. However, they may be held back upon graduation because they cannot access higher education or legal employment.

5. Undocumented students have fewer opportunities in school

Undocumented students aren't able to move freely due to fear of deportation, which means they may miss out on opportunities that legal US citizens are able to take advantage of. Study abroad, trips with friends, and even transferring to a new school can be incredibly difficult for undocumented students. Additionally, some programs or careers require that students are legal citizens, including teacher certification and nurse registration. The undocumented do not have the opportunity to pursue these careers due to their status.

6. Undocumented isn't always illegal

Although many are quick to assume that undocumented means illegal, undocumented students can be in a number of different situations. Some have applied for permanent residence or another type of status, but are still awaiting approval. Others have cases pending in either Immigration or Federal Courts, a process that can take several years to complete. In some extreme cases, even US citizens may be undocumented, due to issues with proof of their citizenship.

7. The DREAM Act may provide relief for undocumented students

Since 2007, legislation has been pending for the DREAM Act, which would allow undocumented students to qualify for immigration relief. Students who have been continuously present in the US for at least five years, were under 16 years of age at the time of entry into the US, and those who are able to demonstrate good moral character would qualify. Students would be given a pathway to citizenship through college or the armed forces, granting lawful permanent resident status after completing two years in a program for a bachelor's degree or higher, or at least two years of honorable military service. They would still not be eligible for federal education grants, but unlike current legislation, would be able to take advantage of federal work study and student loans. If passed, an estimated 2.1 million undocumented young adults might benefit from the DREAM Act.

8. Thousands of undocumented students fail to complete high school

Although undocumented immigrants can attend high school, not all of them do, lacking support and motivation. About 80,000 undocumented immigrants turn 18 every year, but of those, 16 to 20% of them will not graduate. Presumably, undocumented students do not see the value in a high school degree when they are not able to legally work, and may not be able to get grants or even attend college.

9. Only a fraction of undocumented students make it to college

With many undocumented students failing to complete high school, it's not surprising that so many of them don't make it to college, either. According to the UCLA Labor Center, only five to 10% make it to college due to a lack of available Financial Aid. Even among undocumented students who have attended college, problems abound; many see family members deported, some have to drop out of school because they can't afford it, others have to put their education on hold to find work, and some even experience workplace raids by Immigration and Customs Enforcement, all of which can severely complicate completing a college degree.

10. Undocumented college students can't receive federal loans or grants

Although federal law does not prevent admission of undocumented students, they may still face obstacles when getting into college. Financial Aid is important to many enrollees, including loans and grants. However, undocumented students are prohibited from receiving federal assistance. In many cases, they are also ineligible for assistance at the state level as well.

11. Undocumented students may be able to pay in state tuition

In 13 states, undocumented graduates of state high schools are allowed to pay in-state tuition at colleges and universities. The states base eligibility on state school attendance and graduation. These states are as follows: Texas, Connecticut, California, Utah, Washington, New York, Oklahoma, Illinois, Kansas, Maryland, Rhode Island, Nebraska, and New Mexico. With this legislation, undocumented students can save thousands on their tuition, making it easier to attend college.

12. Somehow, undocumented graduates may still find work

Although legally, illegal aliens can't do anything with their high school or college degrees, as they can't work in the US, the reality may be different. Kimberly Mehlman-Orozco of the Latino Policy Institute at Roger Williams reports, "current enforcement practices" result in illegal aliens being hired. Mehlman-Orozco points out, if illegal aliens are somehow finding jobs, they might as well be college educated.

13. Undocumented students often don't apply to college or take advantage of state programs

Although 50,000 to 65,000 undocumented students graduate from US high schools each year, Education Week reports that many of them do not apply to college because it is "economically inaccessible." Still others do not take advantage of in-state tuition programs because they are not aware of them. And in other cases, even students who are aware of in-state tuition programs don't use them because their inability for financial aid means that college is still out of reach financially.

14. Financial Aid opportunities exist for undocumented students

Although undocumented students cannot receive federal Financial Aid, and in some cases, state aid as well, there are other options. Organizations including the Mexican American Legal Defense and Education Fund, the United Negro College Fund, and the Salvadoran American Leadership and Educational Fund provide financial assistance to undocumented students. Additionally, schools themselves may offer Financial Aid to undocumented students, as higher learning institutions are able to set their own relevant policies.

15. Some schools offer undocumented students full ride scholarships

For high achieving undocumented students, there is hope when it comes to being able to afford the cost of college, especially those who have their sights set on the Ivy League. Both Harvard and Stanford University offer full ride scholarships to undocumented students. Although it's a controversial choice, it does mean that undocumented students who do well enough to be admitted to some of the top schools in the nation might not have to worry about how they're going to pay for it all.

Certainly something to think about. If you are interested to write for our Blog, please email us your ideas.

We all have been reading about The Obama administration changing the federal immigration enforcement strategy, in ways that reduce the threat of deportation for millions of illegal immigrants.

The changes focus enforcement on immigrants who have committed serious crimes, an effort to unclog immigration courts and detention centers. A record backlog of deportation cases has forced immigrants to wait an average 459 days for their hearings. But recent statistics paint a slightly different picture.

U.S. Immigration and Customs Enforcement Director John Morton said today his agency deported nearly 400,000 individuals during the fiscal year that ended in September, the largest number of removals in the agency’s history.

Morton announced the Fiscal 2011 numbers in Washington, saying about 55 percent of those deported had felony or misdemeanor convictions. Officials said the number of those convicted of crimes was up 89 percent from 2008.

Authorities could not immediately say how many of those crimes related solely to previous immigration violations. Individuals can be convicted of a felony for returning to the U.S. or being found in the U.S. after being ordered by the government to leave.

The Government said it is focusing its resources on criminals, recent border crossers, those who repeatedly cross the border and those people the department considers fugitives.

If you have acquired one year of unlawful presence after April 1, 1997, leave the United States, and then attempt to enter the country illegally, you are subject to the permanent bar. The same is true if you are successful in reentering the Unites States illegally. The permanent bar means that you will never be able to reenter the United States legally. There is a waiver available, but only after you have stayed outside the United States for ten years. Therefore, if you have been living illegally in the United States for more than one year, you should not leave and attempt to return illegally.

As lawyers specializing in the H2B visa process, we wanted to share the following update. The Department of Labor (DOL) is now issuing two prevailing wage determinations (PWD) for H-2B cases. Since last week we have received new PWDs with the following message attached:

On January 19, 2011, the Department published a Final Rule that revised the methodology by which the Department calculates prevailing wages under the H-2B program. On August 1, 2011 the Department amended that rule to make wage rates established under this new methodology effective for wages paid to H–2B workers and U.S. workers recruited in connection with an H–2B labor certification for all work performed on or after September 30, 2011. However, on September 28, 2011, the Department announced in the Federal Register a 60-day postponement of the effective date of the Wage Final Rule to November 30, 2011. This delay will permit the various courts involved in litigation relating to the Wage Final Rule to determine the appropriate venue to resolve all claims and to allow the Department to avoid the possibility of administering the H-2B program under potentially conflicting court orders.

As a result of the pending court actions and the delay imposed by the Department, you are now receiving two Prevailing Wage Determinations; attached please find the second of two. The wage listed on this Form ETA 9141 is for work performed until November 29, 2011. The National Prevailing Wage Center has already issued to you an ETA Form 9141 that is based upon the Wage Final Rule, which will, by virtue of that delay in the effective date, apply to work that is to be performed on or after November 30, 2011, unless a new effective date is established in connection with the pending court actions.

If you have not yet advertised for this position, the advertising conducted between now and November 30, 2011 should include the following language:

[Employer] will offer a wage of [at least the wage from this Form 9141]. [Employer] may be required to offer a wage of [the wage from the earlier PWD] for work performed on or after November 30, 2011.

For employers receiving these two PWDs, it must list in the Application for Temporary Employment Certification the two wages in Item G.1, as the range of wages to be offered, and insert in G.3 that [Employer] will offer a wage of [the wage from the first PWD] for work performed on or after November 30, 2011, unless the Department further postpones the effective date of, or is legally barred from implementing, the Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program Final Rule, 76 FR 3452 (Jan. 19, 2011).

You may be required to offer a wage of [wage on the first PWD] for work performed on or after November 30, 2011.

We expect more confusion and delays in this already short duration visa. I am getting ready for many calls from frustrated and confused employers.

The 11th Circuit Court of Appeals in Atlanta ruled that Alabama cannot prosecute illegal immigrants for not carrying registration documents with them at all times or require schools to check the immigration status of all students.

But the court said Alabama, among other things, can require police officers to verify the immigration status of anyone they lawfully stop if they suspect they are in the country illegally. Illegal immigrants will also be prohibited from obtaining a license to drive, get a vehicle or open a business.

Alabama's law, passed by the legislature this summer, would allow state and local officials to check the immigration status of public school students and to detain suspected undocumented immigrants without bond. It would make it a crime for immigrants who lack proper documents to conduct business with the state for things such as driver's licenses.

Among the provisions temporarily blocked from being enforced are:

-- One requiring state officials to check the immigration status of students in public schools;

-- One making "willful failure to complete or carry an alien registration card" a misdemeanor for immigrants;

But the state will be allowed to enforce these contested sections:

-- One requiring that police during "lawful" stops or arrests "attempt to determine the immigration status of a person who they suspect is an unauthorized alien of this country.

The order issued shortly before noon by the Atlanta-based appeals court followed requests by the U.S. Justice Department and group of 36 plaintiffs to stay the law pending an appeal of an earlier federal court ruling that left much of it in place.

On Sunday, October 9th, 2011 Governor Jerry Brown signed into law AB 1236, the Employment Acceleration Act authored by Assemblymember Paul Fong (D-Cupertino). The bill ensures that it prohibits the state, cities or counties from requiring employers to use E-Verify, an electronic employment verification system that uses employees’ social security numbers to determine work eligibility. Exceptions are made, however, for city or county workers, or if E-verify is a requirement for particular employers under federal or as a condition for employers receiving federal funds.

While supporters of mandatory E-Verify claim the system will magically open up millions of jobs to American workers, reports find that the program would actually cost California’s small businesses (which make up 99% of employers in the state) more than $312 million per year and potentially put 90,000 U.S. citizen and legal state workers out of a job. Nationally, mandatory E-Verify would cost small businesses $2.6 billion a year, according to Bloomberg News Service, and cost federal contractors $10 billion to implement. According to Assemblyman Paul Fong, AB 1236’s sponsor:

“This bill protects our California workers and businesses. The mandated use of E-Verify would impose a major financial burden on businesses, especially small businesses. In addition, businesses will suffer from delayed hiring and the cost of mistaken identities. In this tough economy, we need to help businesses and grow and provide jobs, not set up barriers that cost jobs.”

Those pushing E-Verify say it identifies workers who do not have authorization to work in the US. But because the social security files are error-ridden, E-verify instead kills jobs, slaps burdens on small businesses, and hurts taxpayers.

According to government data, E-Verify correctly detects unauthorized workers only about half the time. Meanwhile, false positives abound. Consider the testimony of a U.S. citizen and former U.S. Navy captain (with 34 years of service) at a town hall meeting in Ashtabula, OH, a few years back. E-Verify flagged him as not eligible for employment -- and even though his wife is an attorney, it took them two months to clear things up.

Indeed, final error rates in a report commissioned by the US Government suggest that up to 90,000 US citizens and authorized immigrants in California could eventually lose their jobs -- more than the entire population of Santa Barbara, California. Nationally, the figures add up to 770,000 US workers out of work, hardly the right recipe for our economic problems.

AB 1236 ensures that for at least the State of California, our small businesses and agricultural industry do not carry the burden of the expenses that come with the E-Verify program.

An asylum seeker is a person who has fled their own country and applies to the government of another country for protection as a refugee.

According to the United Nations Convention and Protocol relating to the Status of Refugees (the Refugee Convention), a refugee is a person who is outside their own country and is unable or unwilling to return due to a well-founded fear of being persecuted because of their:

* race
* religion
* nationality
* membership of a particular social group
* political opinion.

A 9/30/11 Presidential Memorandum on determinations of up to 76,000 refugee admissions numbers and authorizations of in-country refugee status for eligible persons of Cuba, Eurasia and the Baltics, Iraq, and in exceptional circumstances, persons in any location, for FY2012.

The admission of up to 76,000 refugees to the United States during Fiscal Year (FY) 2012 is justified by humanitarian concerns or is otherwise in the national interest; provided that this number shall be understood as including persons admitted to the United States during FY 2012 with Federal refugee resettlement assistance under the Amerasian immigrant admissions program, as provided below.

The 76,000 admissions numbers shall be allocated among refugees of special humanitarian concern to the United States in accordance with the following regional allocations (provided that the number of admissions allocated to the East Asia region shall include persons admitted to the United States during FY 2012 with Federal refugee resettlement assistance under section 584 of the Foreign Operations, Export Financing, and Related Programs.

Read Obama's release here.

Illegal immigrants can now apply for state-financed scholarships and aid at state universities after Gov. Jerry Brown announced last Saturday that he had signed the second half of a legislative package focused on such students.

The bill is the second half of the California Dream Act. Mr. Brown signed the first half of the package back in July, which approved private scholarships and loans for students who are illegal immigrants.

Under current law, illegal immigrant students who have graduated from a California high school and can prove they are on the path to legalize their immigration status can pay resident tuition rates. The bill would allow these students to also apply for state aid.

The contentious second half of the package requires that immigrant students meet the same requirements as all other students applying for financial aid at state universities but specifies that they qualify for financial aid only after all the other legal residents have applied.

Critics say it undermines immigration laws and encourages illegal immigration.

The bill is different from the federal Dream Act, which includes a path to citizenship for the children of illegal immigrants. Despite this difference, it is a step in the right direction to help students continue their education so they can become beneficial members of society.

Since he arrived in this country two decades ago, Chef Jose Andres has been a tireless advocate for Spanish cuisine. His D.C.-based restaurants helped popularize tapas, the small plates that typify Spanish food. He is also a model and inspiration to many aspiring Chef immigrants looking to move to the US and start their restaurants.

Although many Hospitality workers wait months or even years for permission to live and work in the US legally, a small but growing number have found a legal path that is relatively simple and fast: come with money to buy a businesses here. As the Hospitality business is booming in the US, more and more Hospitality professionals in Europe are coming to the US and starting their own businesses via the E2 visa investment.

This is also known as the nonimmigrant investor visa. It is a temporary category that is granted in two-year to five year increments with no limits on the number of extensions.

A recent Newsweek article features Chef Jose Andres and he explains his favorite mistake in business, that mistake was the beginning of his American adventure and his success.

"...So there I am in the middle of Spain, it’s raining, and I’m out of a job at a place I thought I would spend my entire career. The soundtrack of my life started playing. It was like those movies where there’s a shooting and someone’s little brother is shot in slow motion. I was just standing there in the rain, cars driving by. Within a week, I moved to New York to try something different. I had never thought about trying to be a chef in America, but I thought now was the right time, and I didn’t have any other choices. That was 20 years ago, and moving to the United States really was destined for me. America gave me the opportunity to open successful restaurants, start a TV show, and write books. I can even fill an auditorium when I give a speech, which in America is rare for a chef.

Maybe the mistake was leaving to find a pay phone. Or maybe it was his mistake for not believing me. It’s still my favorite."

The E-2 visa is beneficial to many who wish to work and conduct business in the U.S. It is not limited to just the owners of companies, but may be used by their managers and specialized knowledge workers. The process for obtaining an E-2 is complex and should not be attempted without a qualified immigration lawyer. Feel free to contact us with any questions.

In the past several months we have received numerous lengthy Requests for Evidence regarding L1B visa cases. We are not alone, many lawyers across the country report similar requests in L1B cases.

The L1B visa is designed for individuals from foreign countries who plan to come to the United States to work. These individuals possess specialized knowledge, skills and experience regarding the procedures, systems, services or products of a firm, corporation, company or other entity. The area of specialized knowledge for the individual includes highly developed technical expertise or professional knowledge. It also relates to a person’s private, exclusive understanding relating to a company’s products, services, methods of production, organizational make up, marketing strategies or other information that’s connected to the successful functioning of the entity in the United States.

Immigration attorneys continue to be concerned about USCIS's L-1B adjudications and the failure to apply current binding USCIS guidance to these adjudications. Instead, adjudicators are relying on pre IMMACT 90 case law, as well as adjudicatory standards enunciated in a line of non-precedent AAO decisions.

Under INA §214(c)(2)(B), "an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company." USCIS issued two guidance memoranda that define the terms "special knowledge" and "advanced level." The memoranda are Interpretation of Special Knowledge by James Puleo on March 9,1994, and Interpretation of Specialized Knowledge by Fujie O. Ohata on December 20, 2002.

Current L-1B RFE and denial templates do not give proper or meaningful weight to the Puleo and Ohata guidance, but instead follow the language and reasoning from pre-IMMACT 90 and post-GST cases. Moreover, L-lB petitions ate denied on grounds that knowledge or skills are not "unique," that the company is too small to require specialized knowledge, and that the position should be more appropriate for an H-18. These considerations either directly contradict the actual language of the Puleo and Ohata memos or contradict the essence ofthe Puleo and Ohata guidance.

The American Immigration Lawyers Association in a recent minutes meeting with USCIS agrees that each petition must be decided on its facts, Puleo and Ohata set forth broadly applicable and flexible standards that allow for case-by-case adjudication, yet still provide petitioners with some measure. Particularly in view of our economy's desperate need for job creation - which the administration acknowledged comes through small and emerging business - as well as the increasing specialization in technical fields, AILA calls on USCIS to remind and train adjudicators that the Puleo and Ohata memoranda, and not GST, are the standard for L1B cases.

In response USCIS had the following to say:

SCOPS, in collaboration with OP&S and OCC, will soon be conducting training on the adjudications standards for officers who adjudicate L-1B nonimmigrant petitions. This training will address AILA and stakeholder concerns mentioned above and during the May 12, 2011 teleconference. In addition, the RFE templates for the L nonimmigrant classification are currently under review as part of the RFE Project. The templates are being reviewed to not only ensure that they are adaptable to the facts and needs of individual L petitions, consistent, clear and concise, but also that they identify any gaps in policy guidance relating to the adjudication of L nonimmigrant petitions. Once the draft L RFE templates are complete, AILA and other stakeholders will be provided the opportunity to review and provide comments. standard for adjudication of L-1B cases.

So the good news is that USCIS recognize the need to review the current template requests for evidence, and we are hoping the current RFE trend will change soon. This is unreasonable and only hurts employers seeking important talent to improve operations and increase innovation in the US market.

I-9 Audits is always a hot topic. Chief of U.S. Immigration & Customs Enforcement (ICE), John Morton, recently announced that the agency is going to increase the number of companies it will audit for I-9 violations and regularly impose fines on violators.

I-9 violations can be devastating. Fines for I-9 violations range from $110 to $1,100 for one single, minor, or technical violation. Incorrect I-9 forms can be used as evidence of knowingly hiring an illegal alien that can result in a fine of up to $3,200 per violation. A third offense can lead to a fine of up to $16,000 per offense.

In this guest article, former ICE Agent Mark Kochanski shares his experience and unique perspective with our readers about I-9 Audits.

As a former ICE agent who was assigned to a Worksite Enforcement Unit, I have first-hand knowledge of what may keep employers from being administratively fined for paperwork violations or prosecuted for illegal hiring. The first thing all employers should be aware of is that Employment Eligibility Verification (Form I-9) audits have been used for many years to ensure employer compliance with the law. Priorities may change from administration to administration, but the I-9 audit will remain an important tool for the government to ensure compliance. Don’t be the unfortunate business featured on a news story with pictures of federal agents leading you or your employees away from your place of business in handcuffs.

This can happen as a result of poor administrative practices. That is not the way to gain publicity for your company. Have a plan in place, so when you are served with a subpoena for your I-9s you can be confident in the result. Here are a few easy ways to avoid unnecessary hassle:

If the business maintains the paper I-9, store the forms in a clean, secure place that is easily accessible. I can remember one employer who had the I-9s stored in cardboard boxes on the floor in a storage locker and when there was a bathroom plumbing problem the I-9s were damaged. A real mess.
The Form I-9 comes in versions of English and Spanish. The ONLY place employers may use the Spanish version is in Puerto Rico. If you’re not in Puerto Rico, don’t be tempted to use the Spanish version because it’s easier for the employee to complete without a translator.

Remember that the Form I-9 is not the property of the employer. That form belongs to the government. The government created it. So when an agent asks for them don’t argue about it. Don’t complain about it by asking the agent, “why me?”. Many of the audits conducted are mandated by DHS headquarters with certain business sectors being chosen depending on priorities. It’s a numbers game. The agents are just doing what they are told.

The employer has 3 business days to turn over the I-9s. During that time, you can make corrections to the forms, if needed. This may make the difference in an administrative fine or a slap on the wrist. But please have the corrections made accurately and completely by someone who knows what to do. Don’t make matters worse by re-doing I-9s and then destroying the old ones. This actually happened in another case. Know the guidelines. There is no need to panic because many errors are technical and can be corrected if detected in a timely manner.

I would recommend that employers make copies of the I-9s to retain in the personnel files, just in case something happens to the original or there is a question about information provided on the original. The agent will usually provide a receipt (Form 6051) for the I-9s when delivered.

Agents may want to question business personnel regarding hiring practices and procedures. Don’t make any statement that would reveal any improper business practice. Ensure policies are in place so that anyone who is questioned provides a correct, consistent answer regarding hiring procedures, especially if questioned about who actually hires, who examines employment documents, who completes the I-9s and how the I-9s are maintained. If there are discrepancies, don’t blame previous human resources personnel for errors. It’s your business and your responsibility. Be proactive. Save your hard earned profits for the business not for the government.

This last point is something I came across that I think is important but often overlooked. All employees are required to complete the I-9, that’s the law. That includes the company president. If you are the president or CEO, you can’t examine your own documents and then attest to their authenticity. That reflects badly on the company and will send up a red flag to the agent conducting the audit and may cause the agent to focus on the company with extra vigor. Enough said.

Employers need to take compliance seriously because there are multiple errors that an auditor could uncover that would result in a fine. You need to learn how to prepare for an I-9 audit before your organization is next on ICE’s hit list. Employers should take the necessary steps to ensure that they are not susceptible to the steep civil and criminal penalties associated with poor management of I-9's. For more information about our I-9 unique internal audits and Immigration compliance service, click here to connect with us.

When you are traveling to the United States for the first time you are likely to have questions and concerns about what happens when you arrive at the Port-of-Entry?

A foreign national traveling to the United States will arrive initially at a U.S. “Port-of-Entry" (POE). The POE can be an airport, a land border crossing, or a seaport. Passing through a Port-of-Entry generally means that you are seeking permission from an Immigration Inspector, an official of the U.S. Customs and Border Protection (CBP), to enter the U.S. for a specific reason, purpose and duration, which are generally always predefined.

We have posted below a recent CBP Muster on the Basic Elements of a Thorough Primary Inspection for the benefit of our readers.