Visa Lawyer Blog

Despite that fact that the law is written broadly enough that most foreigners from the developing world could be refused for a visitor’s visa as “intending immigrants,” non-immigrant visa issuance rates are still shockingly high. In 2007, 74 percent of the more than five million foreign nationals who applied for visitor’s visas were approved. This figure is particularly startling when one considers that citizens from the world’s most prosperous countries — including most of Western Europe, Japan, Australia, and New Zealand — do not need visitor’s visas to enter the United States. Two-thirds of Mexican applicants were issued visitor’s (B1/B2) visas (or border crossing cards), four-fifths of Chinese applicants were issued visas, 88 percent of Russians were granted visas, and more than half of Haitian and Dominican applicants were successful.

Still, More than a decade after the federal government strengthened travel requirements after the Sept. 11, 2001, terrorist attacks, foreign visitors say getting a temporary visa remains a daunting and sometimes insurmountable hurdle.

The tourism industry hopes to change that with a campaign to persuade Congress to overhaul the State Department's tourist visa application process.

Tourism leaders said the decline in foreign visitors over the past decade is costing American businesses and workers $859 billion in untapped revenue and at least half a million potential jobs at a time when the slowly recovering economy needs both.

While the State Department has beefed up tourist services in recent years, reducing wait times significantly for would-be visitors will likely be a challenge as officials try to balance terrorist threats and illegal immigration with tight budgets that limit hiring.

Nearly 7.6 million nonimmigrant visas were issued in 2001, compared with fewer than 6.5 million in 2010. The number of visa applicants also dropped sharply after 2001. Those combined forces pushed the U.S. share of global travelers down to 12 percent last year, from 17 percent before 2001.

The proposed immigration overhaul has largely been driven by the U.S. Travel Association, the tourism industry's lobbying giant, and has been endorsed by business titans such as the National Retail Federation, Four Seasons Hotels and Resorts, and Walt Disney Parks and Resorts. Republicans and Democrats in Congress are backing the proposed changes through six bills in the House and Senate.

Geoff Freeman, the travel association's chief operating officer, said the State Department should be required to keep visa interview wait times at a maximum of 10 days.

We agree that there should be a better system in place, that will streamline the process of issuing visitor visas from US Consulates worldwide. Consuls, should apply more reasonable standards when interviewing candidates. If we close our doors and make the process of getting the visa a nightmare, they will find another country to spend their money at, and will not be coming back.

Read more here...

A ruling from U.S. District Judge Richard M. Gergel, has temporarily enjoined three provisions of South Carolina Act 69 and found a fourth provision likely to be overturned in future proceedings. The ruling makes South Carolina the sixth state—after Arizona, Indiana, Georgia, Utah, and Alabama—to see major parts of a punitive immigration law blocked in federal court.

Following its enactment last June, South Carolina Act 69 was challenged in court by both the federal government and a coalition of civil rights groups. In a 42-page opinion, Judge Gergel entered temporary injunctions against the following provisions, finding each to be preempted by federal immigration law:

Section 4, which makes it a state crime to transport or harbor undocumented immigrants, or for undocumented immigrants to allow themselves to be transported or harbored.
Section 5, which makes it a state crime to fail to carry an immigration registration document issued by the federal government.
Section 6, which requires police to try to determine the immigration status of any person under investigation or arrest whom the officer has “reasonable suspicion” to believe is in the country illegally, and which makes it a state crime to possess or attempt to use a fraudulent identification to establish lawful presence in the United States.

As Judge Gergel explained, while local lawmakers have every right to disagree with the federal government’s efforts to set priorities in the enforcement of federal immigration law, their opinion “does not entitle the State of South Carolina to adopt its own immigration policy to supplant the policy of the national government.”

Judge Gergel also found a fourth provision—the one making it a state crime to sell fraudulent identification to undocumented immigrants—to be preempted by federal law, but declined to issue a temporary injunction after finding the federal government would not face irreparable harm if the provision went into effect while legal proceedings continued.

“Once again, a federal judge has confirmed what has long been settled: that states cannot enact their own immigration policies or interfere with the U.S. government’s efforts to enforce federal immigration law,” said Benjamin Johnson, Executive Director of the American Immigration Council. With the U.S. Supreme Court now considering the Arizona law on appeal, it will be interesting to see if it has the effect to uphold the decisions made by federal judges in what they see as unconstitutional actions done by the states.

A recent New York Times article highlights the fine line between medical care for individuals that need it and the difficulties that come because of immigration status. The story talks about an illegal immigrant from Mexico living in New York City whose kidneys are failing. His siblings are donors, but the cost of the surgery requires the need for surgery. The man was a waiter in his early 30s, a husband and father of two, so well liked at the Manhattan restaurant where he had worked for a decade that everyone from the customers to the dishwasher was donating money to help his family.

When his younger brother volunteered to donate a kidney to restore him to normal life, they encountered a health care paradox: the government would pay for a lifetime of dialysis, costing $75,000 a year, but not for the $100,000 transplant that would make it unnecessary.

For nearly two years, the brothers and their supporters have been hunting for a way to make the transplant happen. Their journey has taken them through a maze of conflicting laws, private insurance conundrums and ethical quandaries, back to the national impasse between health care and immigration policies.

Doctors sought a transplant center that would take him. Hospitals in the city receive millions of taxpayer dollars to help offset care for illegal immigrants and other uninsured patients. But at one hospital, administrators apparently overruled surgeons willing to waive their fees. At another, he was told to come back when he had legal status or $200,000.

A last resort is a return to Mexico, where the operation costs about $40,000. But to pay off the necessary loans, the and his brother, a deli worker, would have to sneak back in through the desert. If they failed, they would be cut off from their children in Brooklyn, who are United States citizens.

Bellevue performs no transplants but, as a trauma center, often supplies organs harvested, with family consent, from illegal immigrants fatally injured at work.

“Here’s the paradox: he could donate, but he can’t receive,” Dr. Manheimer said, calling the imbalance troubling. Organ registries do not record illegal status, but a study estimated that over a 20-year period noncitizens donated 2.5 percent of organs and received fewer than 1 percent.

To those focusing on immigration enforcement, however, the inequity runs the other way. “They should not get any benefit from breaking the law, especially something as expensive as organ transplants or dialysis,” said Representative Dana T. Rohrabacher, Republican of California, who contends that care for illegal immigrants is bankrupting American health care and has sought to require that emergency rooms report stabilized patients for deportation unless they prove citizenship or legal residence.

“If they’re dead, I don’t have an objection to their organs being used,” Mr. Rohrabacher added. “If they’re alive, they shouldn’t be here no matter what.”

To Ruth Faden, the director of the Johns Hopkins Berman Institute of Bioethics, the brothers’ case, like the transplant statistics, illustrates how quickly firm principles on both sides unravel in practice. “We tie ourselves up in knots,” she said, “because we’ve accepted as a country and in international human rights law that if someone shows up in extremis in your emergency room, the nurses and doctors and technicians are morally obligated, and legally obligated, to provide that life-saving care.”

How to begin refusing care, she added, becomes a dilemma for “real people in real time.”

This dilemma shows just how personal and difficult it is where the line in providing health care for those in need gets mired by the legal situations a person is in. Balancing the humanitarian side of medicine with the rule of law has become a focal point in a discussion where those that want reform on the immigration enforcement side appear unfeeling towards the plight of illegal immigrants who's suffering have an impact on U.S. citizen children. The other side is that those who appear soft on immigration enforcement minimize the other concerns regarding the costs that come with trying to increase the enforcement and how it is a drain of taxpayer resources.

Continue reading "For Illegal Immigrant, Line Is Drawn at Transplant" »

In a recent Reuters article, a report showed that immigrants founded or cofounded almost half of 50 top venture-backed companies in the United States for 2011, a new study shows, underscoring some of the high stakes in potential immigration reform.

The venture capital community argues the study, completed by research group National Foundation for American Policy, proves the need to overhaul rules governing how entrepreneurs can immigrate to the United States to spur job development.

"It's a gamble whether an entrepreneur should stay or leave right now, and that's not how the immigration system should work," said Mark Heesen, president of the National Venture Capital Association, on a call with reporters. "What we need is legislation that helps these entrepreneurs from outside the United States."

Of the 50 top venture-backed companies, 23 had at least one immigrant founder, the study found. In addition, 37 of the 50 companies employed at least one immigrant in a key management position such as chief technology officer. With so many immigrants being employed in key positions, it is a strong indicator of how important it is that our immigration regulations make it easier to bring new business here to the U.S.

Companies with immigrant founders include some of Silicon Valley's hot start-ups, such as textbook-rental service Chegg, founded by Indian Aayush Phumbhra and Briton Osman Rashid; online craft marketplace Etsy, founded by Swiss Haim Schoppik; and Web publisher Glam Media, founded by Indians Samir Arora and Raj Narayan.

The countries that supplied the most founders included India, Israel, Canada, Iran and New Zealand, the study found, and the immigrant-founded companies created an average of 150 jobs. Such an influx of jobs would further lower the unemployment rate which many politicians keep bringing up.

The study looked at the top 50 venture-backed companies as measured by research firm VentureSource, based on factors such as company growth and the amount of capital raised. VentureSource considered only companies valued at less than $1 billion.

Young companies and their backers say the rules are too cumbersome and encourage non-U.S. citizens to launch start-up businesses elsewhere, or bog down companies in red tape if they commit to basing in the United States. Among such factors include requirements the company must meet in generating business and employing U.S. citizens/residents within the operation. These requirements are sometimes difficult to meet, which then puts the company founder's status also at risk.

Another obstacle to the loosening of immigration rules for entrepreneurs is a tendency in Congress to consider legal and illegal immigration jointly, Heesen said. Because illegal-immigration issues are so divisive, he said, overall immigration reform has bogged down. Even where legal immigration issues are considered, the personal agenda of other politicians to put in their own reforms on other bills further bogs down the process to getting any meaningful reform.

The NFAP identified bills pending in the House of Representatives and the Senate that would help through measures such as lowering the amount of capital an entrepreneur has to raise before being eligible for an immigrant visa. Such measures would benefit the U.S. economy by creating more jobs and create more spending on other business needs which would help boost the overall economy. By making it easier for foreign investors to come here, the benefits from their ventures can only help the U.S. improve its economy.

Senator Chuck Grassley (R-Iowa), the powerful ranking member on the Senate Judiciary Committee and a longstanding advocate of reform of the H-1B temporary visa and other aspects of U.S. high-skill immigration policy, has placed a hold on the "Fairness for High-Skilled Immigrants" bill.

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 2015 and raises the family-sponsored per-country cap from 7% to 15%.

On 10/27/11, 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. Fairness for High-Skilled Immigrants Act of 2011 House Report 112-292

On 11/29/11 the House passed H.R. 3012, the Fairness for High-Skilled Immigrants Act by a vote of 389-15 with no additional amendments. The measure now moves on to the Senate for consideration.

Senate procedures allow any member of the Senate to place a "hold" on legislation or nominations in order to delay consideration of the measure or nominee. At this time it is unclear how long Senator Grassley intends to maintain his hold on H.R.3012. We will update as soon as more information becomes available.

On 12/15/11, in order to release his hold on hold on H.R. 3012, Senator Grassley offered an amendment that would make dramatic changes to the bill including elimination of the family per county limit increase and reducing the employment based per country limit to 15%. Furthermore, his amendment would eliminate the diversity visa program and adds in provisions that would increase enforcement and U.S. worker protections to the H-1B and L-1 visa programs.

Senator Grassley’s amendment was objected to, therefore his hold on the bill remains. While other senators may try to negotiate a compromise amendment with Senator Grassley, at this time it appears unlikely that such an agreement is likely.

Grassley's action makes it highly unlikely that the bill can advance toward a Senate vote, at least for now. He opposes it because it does not "better protect Americans who seek high-skill jobs during this time of record unemployment," he stated in the Senate, according to Computerworld. Grassley and his committee colleague Dick Durban (D-Illinois) have long fought to improve protections for high-skilled American workers. We will keep you posted of course.

On November 9, 2011, USCIS posted for comment the Draft Memorandum on EB-5 Adjudications Policy. The Memo provides clarifications on the current law and policies concerning adjudication of EB-5 petitions. American Immigration Lawyers Association (AILA) provided its comments and suggestions for the Final Memo. AILA pointed out the major issues with the Draft Memo. Attorney Ekaterina Powell from our law office has prepared this summary to address the most important AILA’s comments that hopefully will be considered by USCIS.

New Commercial Enterprise

First of all, of major concern is the definition of a “new commercial enterprise.” The Draft memorandum does not provide clear analysis on what is considered a “new commercial enterprise.” Accordingly, the Memo should be supplemented with the explanation on what business will qualify under the regulations.

The initial inquiry should be on whether the investment is in a commercial enterprise that was established after November 29, 1990. If the investment is in a commercial enterprise that was established after November 29, 1990, the requirement is met and no further inquiry is appropriate.

If the investment is made in a commercial enterprise established on or before November 29, 1990, the investor must meet one of two tests: 1) the investor must restructure or reorganize an existing business or 2) expand the business in such a way as to accomplish a 40 percent increase either in the net worth or the number of employees of the business.

Therefore, if the investor can establish that the business was created after November 29, 1990, it should end USCIS’ inquiries and the business should be deemed a “new commercial enterprise.”

Purchase of assets of another company

The second major concern is classification of the business as a “new commercial enterprise” if it purchases assets from another enterprise. The Memo as it is written now does not provide clarifications on this issue. The problems arise when the entity from which the new enterprise purchased assets was created before November 29, 1990.

The final version of USCIS Memo should include the analysis that a new commercial enterprise established after November 29, 1990 does not lose its status as a new commercial enterprise because it purchases assets from an independent company which it does not acquire and with respect to which it is not a successor in interest (assuming it does not acquire all of the rights and liabilities of the independent company whose assets have been purchased).

If there is no succession-in-interest, the new company simply cannot provide documentation for the company it purchased the assets from because it does not have an ownership relationship and, thus, does not have access to the documents of the seller.
Therefore, the Final Memo should clarify that the date that the company from which assets were purchased was established is completely irrelevant as to whether the purchasing company is a new commercial enterprise if there is no succession-in-interest.

Restructuring and Reorganization

The Final Memo shall clarify what constitutes sufficient restructuring or reorganization for the purposes of creating a new commercial enterprise as these terms have not been defined yet. At least, a change in the mission or focus of a business should also result in sufficient reorganization or restructuring.

Changed Circumstances

The Draft Memo supports the realms of the business world and suggests that at the time of removal of conditions on permanent residence, the petition may be approved if the circumstances have changed and the business has operated not in accordance with the business plan that was submitted with the original petition.

However, The Final Memo should be more specific on this point. Historically, USCIS has denied the removal of conditions petitions if there has been a material change in a project even if the investor’s money has already been used in projects and has created jobs.
In the Draft Memo, USCIS states that the removal of conditions may be successful if the investor provides documentary evidence demonstrating that, notwithstanding the business plan contained in the Form I-526, the requirements for the removal of conditions have been satisfied.
However, USCIS has not provided clear guidance on this issue and it seems like, in a situation with changed circumstances, eligibility will depend on a particular adjudicator and will be in his/her own discretion.

The proposed changes to USCIS policy will provide more clarity and will give less room to discrepancies in exercise of discretion in EB-5 petitions’ adjudication process. EB-5 adjudication policies are currently undergoing a lot of changes. Check back on our blog for the most recent updates.

U.S. citizens have been illegally detained throughout Los Angeles County as a result of the Secure Communities immigration enforcement program, a coalition of civil and immigrant rights groups said Wednesday.

The American Civil Liberties Union and others identified four U.S. citizens detained through the fingerprint-sharing program in the last few months, including three identified in November.

"Native-born American citizens are being illegally detained by the Secure Communities program right here in L.A. County," Rep. Judy Chu (D-Monterey Park) said in a statement. "This is unacceptable."

The four citizens were initially detained after arrests for such minor things as shoplifting but were kept in custody for additional days because of requests made by immigration authorities. Under the Secure Communities program, which began in 2008, fingerprints collected by state and local police are shared with immigration authorities to identify and deport tens of thousands of people each year. The program was initially touted as a way to target serious convicts for deportation but has come under fire because a large percentage of immigrants caught up in the program were never convicted of a crime or are low-level offenders. There is also growing evidence that the program ensnares U.S. citizens. This a cause of concern given the program's original intentions.

In an interview Wednesday, Immigration and Customs Enforcement Director John Morton said cases of detained citizens are highly unusual. "We have absolutely no intention of detaining U.S. citizens," he said. "We have no authority to do so and it is not our policy." The agency will soon issue a revised form for people on immigration holds before they are transferred to ICE custody, he said. The form will provide detainees with phone numbers to call to raise concerns about a hold and will make it clear that such holds are only valid for 48 hours, he said. However, aside from issuing a revised form, there was no mention of any compensation for those who were unlawfully detained.

Concerns about Secure Communities led Mayor Antonio Villaraigosa earlier this month to write to Gov. Jerry Brown asking him to suspend the state's participation. "Individuals who pose no discernible threat to public safety are held in our local jails at the taxpayers' expense, with minimal to no reimbursement from ICE," Villaraigosa wrote.

Although the exact number of U.S. citizens detained on immigration holds is not known, a study published earlier this year by researchers at UC Berkeley found that citizens made up 1.6% of Secure Communities cases analyzed. In a study published in September, a political science professor at Northwestern University identified more than 160 U.S. citizens detained or deported by immigration officials in recent years.

The ACLU and other groups called on local officials to revise policies for cooperating with immigration hold requests. Santa Clara County and Illinois' Cook County have implemented policies limiting local cooperation with immigration holds depending on a person's criminal history.

It comes as no surprise that the Secure Communities program would have this affect on U.S. citizens. Because of the nature of local law enforcement, the UC Berkeley study only confirms what many feared would be a problem when the program was first instituted. However, with no recourse or remedy for this harm done to U.S. citizens, changes must be addressed by our legislatures to bring about the changes necessary so that fewer to no illegal detentions will happen with the program.

The B1 visa is still a hot and controversial option for business visitors. At the AILA Rome District Chapter conference held in London, representatives of the DOS in London indicated that Consular Officers may no longer be printing endorsements on B-1 visas indicating the basis for issuance of the visa (e.g., B in lieu of H or BILOH endorsements). Instead, Consular Officers will enter information relating to the basis for issuance of the B-1 visa in an online database accessible to CBP officers at POEs (in order to defer such adjudications to CBP):

The following questions were discussed and we are sharing with our readers:

a) Has CBP in Dublin engaged in discussions with DOS relating to this change in DOS
procedures? Pre-clearance regularly engage in discussions on visa procedures, but there
have been no specific instructions on this issue.

b) Has CBP in Dublin provided any training to CBP officers relating to review of consular
officer notes? General training occurs. DOS notes are seen as helpful as a form of
verification.

c) Has CBP in Dublin received any new guidance to the field in connection with this new
method of indicating the basis for issuance of a B-1 visa? No

d) If CBP in Dublin has received any new instructions to the field in connection with B-1 visa
endorsements, is CBP willing to provide a copy to AILA? N/A

e) Is it possible to provide any insight regarding what is seen by CBP? Would this only be accessible during secondary inspection? Should the applicant mention this BILOH electronic annotation to the CBP officer or will this already be obvious? DOS notes are viewed only during the secondary inspection process. Yes an applicant should always be well prepared for entry, particularly under this category. It will assist with the BILOH if mentioned at the outset. Six new officers have been added since last November. If an officer encounters a BILOH situation that they feel uncomfortable admitting from primary it is more likely that the individual will end up in secondary, but this is not necessary for more experienced officers.

f) Without the annotation on the visa itself, what about cases where individuals will be sharing their time between the U.S. and U.K. for an extended period (e.g., 6 months)? Will such individuals be required to go through secondary each and every time they seek to re-enter the U.S. to engage in local employment pursuant to his/her B-1 in lieu of H-1B sub-classification? An applicant would not necessarily need to go through secondary for a BILOH, it will depend on the answers they provide to CBP on the reasons for their travel. This adjudication would happen regardless of annotation. Lack of annotation will not change the way in which we deal with the visa category.

Apart from arming clients with a support letter from the employer, is there anything we can do to avoid alarm bells going off when a B-1/B-2 visa holder announces that she is entering the US to "work"? Would you suggest that the letter of support is also carried for simple B-1 entry or even Visa Waiver entry? Yes this is sensible. It may not be reviewed or needed. A well prepared applicant will go some way in facilitating entry.

To conclude, holders of this visa encounter problems when trying to enter the U.S. This is because this visa has not been formally recognized by U.S. Citizenship and Immigration Services (USCIS), even though it is issued by a U.S. Consulate or Embassy. We suggest clients to be well prepared and carry the necessary documents to support entry on the B1 Visa.

The Supreme Court on Monday agreed to decide whether Arizona may impose tough anti-immigration measures. Among them, in a law enacted last year, is a requirement that the police there question people they stop about their immigration status.

The Obama administration challenged parts of the law in court, saying that it could not be reconciled with federal immigration laws and policies under the Supremacy Clause. The United States Court of Appeals for the Ninth Circuit, in San Francisco, blocked enforcement of parts of the law in April.

The administration challenged four provisions. The most prominent was a requirement that state law enforcement officials determine the immigration status of anyone they stop or arrest if officials have reason to believe that the individual might be an illegal immigrant. The provision also requires that the immigration status of people who are arrested be determined before they are released.

The third challenged provision makes it a crime for illegal immigrants to work or try find work. Federal law subjects businesses that hire illegal workers to criminal punishment but imposes only civil penalties on the workers themselves.

The Arizona law also allows the police to arrest people without warrants if they have probable cause to believe that suspects have done things that would make them deportable under federal law.

The Ninth Circuit blocked all four provisions, basing its rationale on the fact that the Constitution gives Congress the power “to establish an uniform rule of naturalization.”

Mr. Verrilli told the justices that the Arizona law upsets a delicate balance that includes “law enforcement priorities, foreign-relations considerations and humanitarian concerns.”

In urging the court to hear the case, Arizona v. United States, No. 11-182, Paul D. Clement, representing Arizona, said the state law did not conflict with but, rather, complemented federal policies. The Ninth Circuit’s decision, Mr. Clement told the justices, had “completely foreclosed Arizona’s effort to address the disproportionate impact of unlawful immigration in a state with a 370-mile border with Mexico.” If this argument is persuasive to the Justices on the bench, it would force the Federal government to take a more proactive stance on immigration in making the reforms it envisions before other States follow with their own bills being upheld. A decision in Arizona's favor would take immigration out of the sole auspices of the Federal government. Such a consequence would have far reaching effects for aliens when deciding where to live and how to pursue their livelihood.

With the ongoing struggle between States and the Federal government in figuring out how to handle these immigration issues, the Supreme Court will now have a chance to decide whether immigration law remains the province of Federal government or whether State efforts to handle its own issues is constitutional.

There are thousands of employment opportunities all over the United States. But the simple fact is that finding a good job with an employer willing to go through the visa petitioning process can be quite difficult, time-consuming and expensive. Most employers are simply not interested in sponsoring immigrants for visas.

One of the most frequent and difficult questions that international workers ask is "When and how should I tell a prospective employer that I am a foreign worker?" There is certainly no easy or correct answer to this question. Watch our video and hope that you can get some answers here!

Today, U.S. Citizenship and Immigration Services (USCIS) posted a job announcement and began accepting applications from business experts to serve on the USCIS Entrepreneurs in Residence tactical team. The purpose of the tactical team is to bring business experts in-house to work alongside USCIS staff to ensure that current immigration laws’ potential to attract foreign entrepreneurial talent is fully realized. The tactical team will help develop policy guidance and training tools that support their decision-makers. The Entrepreneurs in Residence initiative provides USCIS a unique opportunity to gain knowledge on how specific industries operate and to use that knowledge to inform USCIS’s policies and practices. Together this will ensure that immigration pathways for foreign entrepreneurs are clear, consistent, and better reflect today’s industry realities.

The Entrepreneurs in Residence initiative is the perfect complement to the changes made to the National Interest Waiver. The new regulations regarding the National Interest Waiver allows an entrepreneur to petition himself because the entrepreneurship is in the national interest and will have such an impact. With business experts working alongside USCIS to provide better guidance in the decision-making process, there is a better chance that a good National Interest Waiver for an entrepreneur will be approved. This is a step in the right direction for bringing more entrepreneurs and foreign investors to the U.S. who want to bring business here that will have a meaningful impact on the economy. Once the initiative commences, we will provide an update on how much it impacts entrepreneurs and their opportunities to bring business to the U.S.

Now the J1 Visa is on the spot, and for a reason. Secretary of State Hillary Rodham Clinton has ordered an "extensive and thorough review" of a foreign exchange program that has been used by U.S. businesses as a source of cheap labor and exploited by criminals to import women to work in the sex industry.

The J1 Work & Travel Program offers overseas university exchange students a challenging opportunity to intimately experience life and culture in the U.S. during their summer holiday period.

Work & Travel J1 provides international university students the chance to work at entry-level, seasonal jobs in the United States for up to 4 months on a J-1 Visa. Participants are entitled to work, earn money and travel at the end of the work assignment.

The U.S. House Judiciary Committee's immigration subcommittee also has been gathering information on the J-1 visa, which was created in 1963 to allow college students from other countries to spend their summer breaks living, working and traveling in the U.S.

As the program has grown to bring more than 100,000 young people here annually, it has become as much about money as cultural understanding.

The State Department has made several changes since an Associated Press investigation last year uncovered widespread abuses, including living and working conditions that some participants compared to indentured servitude. In one of the worst cases, a woman told the AP she was beaten, raped and forced to work as a stripper in Detroit after being promised a job as a waitress in Virginia.

The reforms being considered by the State Department would limit and refine the types of jobs students can have, expand the list of prohibited employment categories, and strengthen the "the cultural aspects of the program to ensure that the objective of the program - positive exposure to the United States - is accomplished."

The agency already prohibits participants from taking jobs "that might bring the Department of State into notoriety or disrepute" but the AP found that strip clubs and adult entertainment companies openly solicited J-1 workers.

Critics say the students have gotten little help from companies designated as sponsors by the State Department. We hope that the third party sponsor will take a more active role in making sure j1 students are safe in the hands of employers during the J1 work period.

How much do you know about the 10 plus Million illegal immigrants currently living in the United States? How long have they lived among us, who are their parents and more? The Pew Hispanic Research Center released some interesting stats and we are sharing below.

Nearly two-thirds of the 10.2 million unauthorized adult immigrants in the United States have lived in this country for at least 10 years and nearly half are parents of minor children, according to new estimates by the Pew Hispanic Center, a project of the Pew Research Center.

The characteristics of this population have become a source of renewed interest in the wake of former House Speaker Newt Gingrich’s recent endorsement of a proposal to create a path for unauthorized immigrants to gain legal status if they have lived in the country for a long period of time, have children in the U.S., pay taxes and belong to a church. Several of Gingrich’s opponents for the Republican presidential nomination have criticized the proposal as a form of amnesty that would encourage more immigrants to come to the U.S. illegally.

The Pew Hispanic analysis finds that 35% of unauthorized adult immigrants have resided in the U.S. for 15 years or more; 28% for 10 to 14 years; 22% for 5 to 9 years; and 15% for less than five years.

The share that has been in the country at least 15 years has more than doubled since 2000, when about one-in-six (16%) unauthorized adult immigrants had lived here for that duration. By the same token, the share of unauthorized adult immigrants who have lived in the country for less than five years has fallen by half during this period—from 32% in 2000 to 15% in 2010.

The rising share of unauthorized immigrants who have been in the U.S. for a long duration reflects the fact that the sharpest growth in this population occurred during the late 1990s and early 2000s—and that the inflow has slowed down significantly in recent years, as the U.S. economy has sputtered and border enforcement has tightened. It also reflects the fact that relatively few long-duration unauthorized immigrants have returned to their countries of origin. America is no longer the promised land!!!

Read the report here

Today we bring an article posted on NPR from their series titled "In Limbo". The series of articles focuses on those who are between being legal and being illegal. This article is about Dr. Alfredo Quiñones-Hinojosa. Dr. Quiñones-Hinojosagrew up in the small village of Palaco, Mexico. As a bright young man, he wanted to become a teacher. But he had to overcome many obstacles first, including hunger. "I am not talking about hungry for success; I was literally hungry for food. My stomach was empty," he says.

Dr. Quiñones- Hinojosa was determined to put food on the table for his family, so he did the only thing he could possibly think of: he literally jumped over a fence between his native Mexico and the United States and became a farm worker in southern California. He started by picking tomatoes, corn and broccoli. Later, he operated dangerous machinery in the fields. But things changed for him after a conversation with his cousin. "The critical portion that got me out of the fields was my own cousin telling me that I was going to spend the rest of my life working as a migrant farm worker," Dr. Quiñones- Hinojosa says.

He could not imagine that life. He left the fields and headed north. To pay for community college, he shoveled sulfur and scraped fish lard from tankers — an excruciating job that almost cost him his life. His journey then took him to University of California, Berkeley, and later Harvard Medical School. After 10 years, since first jumping over that fence into America, he became a U.S. citizen. Now, Dr. Alfredo Quiñones- Hinojosa is a respected brain surgeon who directs the Brain Tumor Program at Johns Hopkins Bayview Hospital. He says more needs to be done to help those who can follow in his footsteps. "Among people who come to the United States today — whether they come from privileged backgrounds or humble backgrounds — is our next Einstein, is our next Nobel laureate, but we just have failed to identify," he says.

The American dream has always been the chance at an opportunity for a better life. Regardless of the hardships he faced, Dr. Quiñones- Hinojosa worked hard at making his situation work so that he could achieve his dream. While the topic of immigration reform remains fresh in the mind of Americans with election season coming up, the story of those who have been stuck in between should also remind us that there is more to benefit by making changes to our system that bring people like Dr. Quiñones- Hinojosa here. For the rest of the week, NPR will continue to publish stories similar to this one to help put a new face on the immigration reform issue we still face.

Next week, the Department of Homeland Security will roll out a pilot program intended to speed up the deportation of immigrants with criminal records by weeding out low-priority cases. It's a sensible plan, and one that could restore some sanity to a deportation system that wastes time with harmless immigrants and thereby allows dangerous ones to escape its attention.

Under the pilot program, teams of prosecutors in Baltimore and Denver will review all pending immigration cases in those cities and then decide whether to issue temporary reprieves to the elderly, students, children, victims of domestic crimes and those with a close relative who is a U.S. citizen. Reprieves would be limited to those without criminal convictions. If all goes well, the program would be expanded nationwide in January.

Until recently, government attorneys were required, with rare exceptions, to treat immigrants convicted of serious crimes with the same urgency as those who are merely here illegally. The new guidelines will allow them to place the high-priority cases — those involving criminals — on a fast track for a hearing before a judge. At the same time, this could help free up overburdened immigration courts by reducing dockets.

This isn't the first time the Obama administration has promised to implement reviews and prioritize. Last summer, Homeland Security officials pledged to evaluate about 300,000 deportation cases already filed in immigration court. So far, the results have been less than stellar. The American Immigration Lawyers Association released a report that found the new rules were applied unevenly. In San Francisco, for example, a 14-year-old boy facing deportation to Mexico because he brought a pellet gun to school received a last-minute reprieve, yet an undocumented immigrant with no criminal history was deported even though he too qualified for a stay because he had spent 22 years here and had a U.S.-born child.

Federal officials have shrugged off the results, saying the new rules are a work in progress. However, only Congress can provide a more concrete solution, by enacting legislation that both secures borders and offers a path to legalization for those already here. But the policy, if evenly and thoughtfully implemented, could introduce reason and proportion into a system too often lacking in both.

Another victory for our office appealing a tough H1B denial, consistency pays eventually. This article was prepared by attorney Ekaterina Powell from our office.

H-1B is a “specialty occupation” work visa. Traditionally, occupations in law, medicine, sciences and engineering are considered specialty occupations. However, the statute and the regulations contain provisions that allow other professions to be considered specialty occupations if certain conditions are met. For example, if a baccalaureate in a specific specialty (or its equivalent) is normally the minimum requirement for entry into the particular position, then the position should be viewed as a specialty occupation.

USCIS uses the Occupational Outlook Handbook (OOH), a publication of the Department of Labor in its analysis on whether a particular position can be classified as a specialty occupation. Unfortunately, USCIS continues to use its overly restrictive interpretations of the H-1B regulations when it comes to the occupations in marketing, public relations, or management and business related professions.

EXAMPLE OF AN H-1B CASE FOR A PUBLIC RELATIONS SPECIALIST

Below is an example of a successful complex H-1B case handled by our office. A tourism company consisting of 5 employees filed an H-1B petition for Suzette, a French citizen with a Master’s degree in Marketing and Communications to work for the company in the position of Public Relations Specialist.

USCIS issued a Request for Evidence in the case asking for additional evidence establishing that the position of a Public Relations Specialist is a specialty occupation. The response to the request of evidence along with the supporting evidence was timely received by USCIS.
After several months (!), the employer received a decision denying the H-1B petition because, in the opinion of the officer, the position did not qualify as a specialty occupation. The denial not only quoted boilerplate language unrelated to the case, but also included reasoning that was taken from a completely different case. The adjudicator obviously did not pay attention to the specific facts of the case and issued a capricious decision not warranted by the proper analysis of the law.

Our office filed a Motion to Reconsider the Denial Decision. The case was accepted for review and five days thereafter the case was approved!

MOTION TO RECONSIDER

In our Motion to Reconsider, we were able to show that the law was inappropriately applied by USCIS in reaching the unfavorable decision.
The regulations provide that in order to qualify as a specialty occupation, the petition must meet one of the 4 criteria:

1) a bachelor’s degree or the equivalent is the minimum requirement for entry into the occupation;
2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
3) The employer normally requires a degree or its equivalent for the position; or
4) The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

In reality, USCIS is so restrictive in its analysis of the 4 criteria that, if you consider their interpretations, it is impossible for any position to qualify as a specialty occupation.
A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position of Public Relations Specialist. The first prong to analyze is whether a bachelor’s degree in a specific specialty is normally the minimum requirement for entry into the occupation. The problem with USCIS’ interpretation of this criterion is the fact that the Service gives too much deference to the OOH and interprets the language of that publication too narrowly.

For example, in the specific case of a Public Relations Specialist, USCIS stated that, as shown in the OOH, “although a baccalaureate level of training is offered, the position of Public Relations Specialist is an occupation that does not require a baccalaureate level of education in a specific specialty as a normal, minimum for entry into the occupation. As a result, the proffered position cannot be considered to have met this criterion.”

Even though the Service agreed to the fact that a bachelor’s degree is normally required by the industry, the Service refused to classify the position as a specialty occupation because the OOH does not provide for one degree specialty that is appropriate for all PR Specialists.
It is important to note that the specific specialty requirement is not in the INA or the regulations; however, the Service has consistently required the degree requirement to be in a specific field in order to qualify for the “specialty occupation”. This Service’s interpretation has been upheld by the courts.

In our Motion, we disputed the Service’s findings regarding the meaning of the OOH. The OOH provides a limited range of specific specialties that Public Relations Specialists can be trained in. Moreover, the OOH limits these specialties to communications-related field. Therefore, a Public Relations Specialist has to have a bachelor’s degree in one of the following fields: public relations, journalism, marketing, or communications.

The Service suggests that any occupation that allows for more than one degree specialty will not satisfy the requirements of a specialty occupation. However, it is impossible to allocate a single degree major that all Public Relations should have. This is because the requirements of a particular job vary depending on the nature of the duties, and its specific emphasis.
The specific specialty should not be viewed narrowly by allowing only one degree concentration, but can be found if OOH provides a limited range of acceptable fields of education.

For example, Software Engineer has continuously been recognized by USCIS as a specialty occupation even though the position may be filled by professionals holding various degrees in related fields, such as computer science, software engineering, physics, computer information systems, or mathematics.

Similarly to Software Engineers, Public Relations Specialist position may also be filled by professionals holding a degree in communication-related field, such as public relations, journalism, marketing, or communications. Therefore, based on the foregoing analysis of this criterion alone, Public Relations Specialist is a specialty occupation as the OOH provides a limited range of degrees that are acceptable for Public Relations Specialist position.
The degree requirement is common to the industry in parallel positions to that of Public Relations Specialist among similar companies

The second criterion to classify the position as a specialty occupation is establishing that the degree requirement is common to the industry in parallel positions among similar companies.
In order to satisfy the requirement, the Service requested job listings or letters from similar companies hiring PR Specialists with the same degree requirement. In addition, USCIS requested evidence from the professional associations in the PR field that made a degree a requirement for entry into the field.

Job Listings

With the Response to the Request for Evidence, we submitted numerous job listings, letters from other small tourism agencies, and letters from the professional associations noting the degree requirement for PR Specialists. In addition, we submitted numerous prior H-1B approvals with their corresponding supporting documents to show the Service’s policy to consider the position of PR Specialist to be a “specialty occupation”.

USCIS found that evidence insufficient to satisfy the requirement because, in the opinion of the Service, 22 job listings are not sufficient evidence of a degree requirement common to the industry. In addition, the Service stated that the hiring employers should be similar in size (by number of employees) and annual incomes to the petitioner. In the denial, USCIS stated that it was not clear from the face of the advertisements if the employers were similar to the petitioner’s business.

So, what is the sufficient number of advertisements? Interestingly, USCIS does not provide any guidance on this and only states that each case is analyzed on a case-by-case basis. Such uncertainty gives too much power to USCIS to deny the petitions even when extensive evidence is provided.

Unfortunately, review of inappropriate denial decisions can take months and costs a lot of money. Therefore, not many petitioners are willing to go through the process. Refiling the case, in the hope that another, more reasonable, adjudicator will review the petition, is not always an option because it is associated with paying the filing fees all over again, which are not refundable, and the adjudication may take a long time.

Often times, employers need workers who could fill the position soon, and, therefore, the employers may not be willing to go through this lengthy process again and, as a result, they lose the much needed talent.

It is the author’s opinion that, following the Service’s logic, it is practically impossible to meet the overly restrictive agency’s standards. Where would you find a job listing that shows how many employees are in the company and disclosing the company’s annual incomes? This is not a realistic requirement and it can never be satisfied.

Letters from Business Owners

In addition to the job listings, with the RFE response we provided letters from the owners of similar businesses to that of the petitioner. The business owner attested to the fact that his company hired PR Specialists with the particular degrees. The denial stated that no corroborative evidence was provided to prove that the business owner actually hired someone in the PR position.

This adjudicator’s statement appeared from the thin air because the RFE did not ask for corroborating evidence in that respect. Denying the petition based on fact that the corroborating evidence along with the statement was not provided is abuse of adjudicator’s discretion not supported by the law and the current policies.

Letters from the Professional Associations in the Field

In addition, the Service stated that the letters from the professional associations in the field of public relations that we provided are also insufficient to prove industry standard. The decision states “ the record does not include sufficient evidence to substantiate that the business representative is associated with the petitioner’s industry”.
This statement has no merit. The statements from the professional associations were provided to show that professional associations in the field of public relations concur on the fact that it is common to all industries to require candidates for the positions of Public Relation Specialists to have a baccalaureate level of education in a communications-related field.
Public Relations Specialist position is so complex or unique that it can be performed only by an individual with a degree

As an alternative to demonstrating that the degree requirement is common to the industry in parallel positions among similar organizations, the petitioner may show that the proffered position is so complex or unique that it can only be performed by an individual with a degree.

With the RFE response, we provided numerous materials of the petitioner on the public relations campaigns, current projects and events of the company along with promotional materials and showed that the beneficiary will have discretionary decision-making authority and will exercise independent judgment. Therefore, the position is complex and requires a professional with a bachelor’s degree in a specific field to fill the position.

However, when the petitioner is a small company, USCIS scrutinizes the H-1B petition even more justifying its decision by a statement that the company does not have organizational complexity that would require the services of a PR professional with a bachelor’s degree.
The petitioner normally requires a degree in a specific specialty or its equivalent for the position of Public Relations Specialist and similar positions

For the last criterion, the RFE asked the petitioner to present evidence showing the number of persons employed in similar positions and showing how many of those persons have a baccalaureate or higher degree.

With the RFE response, the petitioner submitted the resume, copy of the degree and H-1B approval notice of a Marketing Manager employed by the petitioner.
Marketing Manager’s duties were related to that of a PR Specialist. However, even that was not enough to satisfy the onerous standards.

THE PETITIONER HAS PROVEN BY PREPONDERANCE OF EVIDENCE THAT THE POSITION QUALIFIES AS A SPECIALTY OCCUPATION

In our motion, we pointed out that analysis of each and every criteria of “specialty occupation” and the facts of this case show that the Service has used the inappropriate standard of review in reaching its decision. The standard of review in H-1B cases is preponderance of evidence, which means that we only have to prove that it is “more likely than not” that the position qualifies as a specialty occupation.

According to the analysis in the motion, we have proven that it is more likely than not that the proposed position of Public Relations Specialist is a specialty occupation.

Conclusion

The need for a reform and extensive training of USCIS officers to ensure consistency in adjudications is evident. USCIS continues to use its overly restrictive interpretations and uses its discretion sporadically without providing a rational basis for the denials.

In our Motion to Reconsider in this case, we were able to show the specific instances where the law was inappropriately applied by USCIS and that the facts of the case were not properly reviewed. As a result of the Motion, the wrongful denial decision was overturned and the case was finally approved!

Immigration services scams are getting so sophisticated that fraudsters now advertise online with websites that perfectly mimic those of official government agencies, federal officials said Thursday as they rolled out a nationwide awareness campaign meant to combat such practices. Officials from several federal, state and local agencies, as well as immigration lawyers and advocates, met in Newark on Thursday to expand nationwide a campaign that started in seven pilot cities. It focuses on enforcement, education and inter-agency collaboration.

"They are not just high-tech scams, they are people in the neighborhoods: people who know people, people who are out there shaking hands," said Kelvin Chen, an attorney with the Federal Trade Commission, as he spoke about the need to increase awareness among immigrants who are often preyed upon by members of their own communities.

The campaign is aimed at educating legal and illegal immigrants to avoid everything from unlicensed service providers to websites that mimic those of government agencies. Most scams involve people who pretend to be able to provide legal aid or other services for immigrants, take victims' money and fail to deliver.

The initiative is also intended to inform immigrants about how to get legitimate legal help and how to report fraud. It began in Atlanta, Baltimore, Detroit, Los Angeles, New York City, San Antonio, and Fresno, Calif.

The campaign, spearheaded by U.S. Citizenship and Immigration Services, features ads, posters and leaflets published in English and Spanish, and a website with information available in 12 additional languages. USCIS officials say they are working to strengthen partnerships at the federal, state and local levels to improve coordination, information sharing and enforcement.

By the time they reach the offices of attorney Lloyd Bennett of the American Immigration Lawyers Association, immigrants have often been steered wrong elsewhere. Bennett said an acute and ongoing problem in the northern New Jersey communities where he works is with "'notarios," or storefront offices that offer an array of immigration services and are prevalent in Spanish-speaking communities. Bennett said the word "'notario'" or "notary" is actually translated as "attorney" in many Spanish-speaking countries, so those seeking services assume they are legitimate.

"My clients have absolutely no idea what's going on, they see a sign for a 'notario,' they walk in, they get scammed," Bennett said. "They're given forms or applications for programs that don't exist, or they steal their money, or sometimes applications are filed, but incorrectly, and when it comes to their attention, it's often too late." Preying on this language distinction has allowed the fraud to be easily perpetrated in many communities. Hopefully the efforts by this campaign will have an impact in preventing further fraud from occurring.