Visa Lawyer Blog

With all the recent mess in this country the recent news about Americans giving up their Citizenship is interesting.

The Federal Register, the government publication that records such decisions, shows that 502 expatriates gave up their U.S. citizenship or permanent residency status in the last quarter of 2009. That is a tiny portion of the 5.2 million Americans estimated by the State Department to be living abroad.

Still, 502 was the largest quarterly figure in years, more than twice the total for all of 2008, and it looms larger, given how agonizing the decision can be. There were 235 renunciations in 2008 and 743 last year. Waiting periods to meet with consular officers to formalize renunciations have grown.

Anecdotally, frustrations over tax and banking questions, not political considerations, appear to be the main drivers of the surge. Expat advocates say that as it becomes more difficult for Americans to live and work abroad, it will become harder for American companies to compete.

Relinquishing citizenship is relatively simple. The person must appear before a U.S. consular or diplomatic official in a foreign country and sign a renunciation oath. This does not allow a person to escape old tax bills or military obligations.

Now with the new Arizona Immigration Bill, some Americans are telling me they are ashamed of their country and may consider giving up Citizenship and moving away. What do you think?

Read more from the NY Times

The American Immigration Lawyers Association is a great organization, and I am proud to be an active member. We know that this is also important to our clients and future clients.

The American Immigration Lawyers Association (AILA) will celebrate its 4th Annual Citizenship Day on Saturday, April 17 by helping more than 2,000 legal permanent residents apply to become US citizens. In partnership with the "ya es hora ¡Ciudadanía!" campaign, AILA will hold 43 naturalization clinics in 30 states serving more than 2000 immigrants who are preparing to become citizens.

s a single-day, nationwide event, AILA Citizenship Day provides free or low-cost assistance to eligible legal permanent residents who wish to apply for U.S. citizenship, utilizing partnerships between AILA chapters across the country and grassroots organizations such as the "ya es hora ¡Ciudadanía!" campaign. In 2010, AILA Citizenship Day will celebrate its 4th anniversary on a national scale and its second year with the campaign.

AILA's successes are due in large part to the national collaborative relationships that AILA has developed both with community organizations and stakeholders, as well as the USCIS Office of Citizenship. "The work we do together is much greater than the work we do apart," said Susan Timmons, AILA's Pro Bono Associate who coordinates Citizenship Day. "We reach at least a thousand more people with the help of our community partners than we'd be able to independent of them. Together we help hard working residents become citizens of the United States-we help them live their American dream."

AILA Citizenship Day is an award winning venture, capturing the 2008 Award of Excellence in the Associations Advance America Awards program, a national competition sponsored by the American Society of Association Executives (ASAE) and The Center for Association Leadership.

Click here Download file
for the schedule nationwide and find your local San Diego Free event as well. Members of our team will be there as well.

A great program on KPBS this morning covered the case of Ruben Flores-Villar. Flores-Villar, 35, was born in Tijuana, Mexico, but grew up in the San Diego area, in the care of his father and grandmother.

When he sought U.S. citizenship in 2006 — to fend off criminal charges of being in the country illegally — U.S. immigration authorities turned him down. For people born before 1986, their U.S. citizen fathers had to have lived in the U.S. for 10 years, at least five of them after the age of 14. Flores-Villar’s father could not meet the second part of that requirement because he was only 16 when his son was born. American mothers need only have lived in the U.S. continuously for a year before the birth of a child.

Later this year, the Supreme Court will enter a curious corner of U.S. immigration law that applies only to children born outside the U.S. to one parent who is an American and one who is not. The law makes it easier for children whose mother is a citizen to become citizens themselves. Even after reform legislation in 1986, children of American fathers face higher hurdles claiming citizenship for themselves.

Lower federal courts upheld Flores-Villar’s conviction and rejected his discrimination claims. Flores-Villar has previously been deported at least five times since he was convicted of importing marijuana when he was 22, the government said in court papers. The Obama administration argued that the less stringent residency requirement in the 1986 law was one of several reasons for the court to stay out of the case.

The 1986 Citizenship law states:

Children born abroad to two US citizen parents, one of whom has resided in the US prior to the birth of the child, continue to be US citizens at birth, and need take no special actions to retain citizenship.

Children born to one citizen parent and one foreign national will obtain citizenship at birth if the citizen parent resided in the US for five years before the birth, with two of those years after the age of 14. The child does not need to take any special action to retain US citizenship.

Children born out of wedlock to a US citizen mother will be US citizens if the mother resided in the US for one year prior to the birth of the child. Children born out of wedlock to a US citizen father will acquire US citizenship if the following conditions are met:

* There is an established blood relationship between the father and the child,
* The father was a US citizen at the time of the birth,
* The father has agreed to financially support the child until it is 18, and
* Before the child is 18 it is legitimated, or the father acknowledges paternity in a document signed under oath

The court ruled on a related issue in 2001, holding that it was all right to require American fathers, but not mothers, of children born out of wedlock and abroad to get a court order of establishing paternity or swear to it under oath.

The case is Flores-Villar, 09-5801.

Let us know what you think, is this a law that favors children of US mothers, over US fathers?

Most lawyers that are versed in the H1B visa process, are getting busier and busier these days. As we are nearing the April 1, 2010 filing deadline for the H1B visa. Many speculations out there as to when will the Cap be reached this year. The economy is still in recovery mode, and employers are careful before hiring. Yet, many Immigration experts feel the Cap will be met early this year, but when is the big question.

With drastic changes to the Labor Condition Application process (now taking more than 7 days to process), as well as unreasonable denials, planning early is the key to a successful H1B case this year. But in this post, I want to go back to the basics, the Cap and the legislative background.

Background

On October 21, 1998 Congress passed, and the President signed into law, the much debated American Competitiveness and Workforce Improvement Act of 1998, Pub. L. No. 105-277 (hereinafter ACWIA). This legislation was first introduced by Senator Spencer Abraham (R-MI), the Chairman of the Senate Subcommittee on Immigration, in response to the inadequate numbers of H-1B visas available in any fiscal year. As part of the Immigration Act of 1990, Congress imposed a 65,000 per year cap on these visas. In 1997, the cap was reached prior to the end of the fiscal year. The situation grew to crisis proportions in fiscal year 1998 when all 65,000 visas numbers were taken in May of 1998.

In early March 1998, Senator Abraham introduced a bill entitled, "The American Competitiveness Act." The legislation was introduced on the heels of numerous reports and hearings concerning the high tech worker shortage in the United States. The primary goal of the legislation was to address the looming exhaustion of the H-1B professional or specialty occupation worker visa numbers.

The ACWIA went through many different stages before an agreement could be reached. A complete elimination of the cap had originally been proposed by Senator Abraham. The legislation was then modified to increase the number of H-1B visa numbers available during the government fiscal year; provide additional funds for scholarships in the computer science and mathematics areas; increase enforcement of the Department of Labor component of the H-1B visa process; and provide clarification on the prevailing wage requirements of the process. The legislation also addressed permanent residence by providing for an extension of the H-1B visa should a permanent residence petition be pending, and through restructuring the allocation of the employment-based immigrant visa numbers.

This legislative game between conservative isolationists/liberal protectors of the U.S. workforce and moderate Democrats and Republicans supporting business needs and demands, caused chaos among U.S.-based businesses in need of skilled professional workers. From May 11, 1998 until October 1, 1998 U.S. businesses, research institutions and other organizations were unable to recruit foreign workers as temporary professionals. With the U.S. economy still booming and unemployment rates remaining at an all-time low, businesses, especially in the high tech sector, encountered many problems as a result of the cut-off in H-1B visa availability. These problems included, but were not limited to, taking employees off the U.S. payroll, sending employees back to their home country or to sites outside the U.S. as well as the termination of some critical development projects.

Requirements in the Statute

The ACWIA purportedly balances the need for increased professional visas numbers for foreign workers and the desire to protect the U.S. workforce. The following is a summary of the significant changes made by the legislation.
A. Temporary Increase in the Number of Professional Visas Available

There will be an increase from 65,000 to 115,000 visas for fiscal year 1999 and 2000 (through September 30, 2000). In fiscal year 2001, 107,500 visas will be available. Beginning October 1, 2001 the numbers will revert back to 65,000.
B. Electronic Postings

LCA notices may be posted electronically in situations without a bargaining representative. This provision was effective upon date of enactment.
C. Attestations Required for Employers Dependent Upon Foreign Professionals

U.S. employers of 51 or more employees, whose workforce is comprised of 15% or more foreign nationals in the H-1B category are considered dependent employers and must make certain attestations. Employers will also be considered dependent if they employ 26- 50 full time employees and have more than 12 H-1B employees or if they employ 7 -25 employees and have more than 7 H-1B employees.

The dependent employer must attest that it has not and will not displace a U.S. worker within 90 days before and 90 days after filing the visa application. This attestation carries through to employers who place employees at another worksite. The H-1B dependent employer must also attest that it has taken good faith steps to recruit U.S. workers using industry wide standards and has offered the position to any U.S. worker who is equally or better qualified for the job the foreign worker is sought.

H-1B employees with a Master’s degree or a salary of $60,000 or higher are not included in the attestation requirements and for the first 6 months following the implementation will not be included in the dependent employer calculation.
D. Increased Enforcement and Penalties for Violations

The Department of Labor may fine employers between $1,000-$35,000 per violation and preclude participation in the H-1B program for up to three years.
E. Back Benching H-1B Employees

Employers must pay H-1B nonimmigrants the wage stated on the H-1B petition even if the beneficiary is in nonproductive status. This does not apply to non-productive time due to non work related factors.
F. Benefits

Employers must offer foreign workers benefits and eligibility for insurance, disability, retirement and savings plans, stock options, etc., on the same basis as offerings made to U.S. workers.
G. Additional Fee for Use of H-1B Program

Beginning December 1, 1998, employers are required to pay an additional fee of $500 for an initial H-1B petition and for the first extension. These fees are to be used to support job training programs and scholarships for U.S. workers.
H. Prevailing Wage Computations

For institutions of higher education, related or affiliated non-profit entities or non profit or governmental research organizations, the prevailing wage shall take into account employees at such institutions in the area of employment.
I. Academic Honoraria

Payments of honoraria may now be made to B-1 and B-2 visitors for usual academic activity lasting 9 days at an academic institution or affiliated non-profit entity or a non-profit governmental research organization. No more than 5 honorarium may be received within a six month period.

Employers based in the U.S. now have a temporary reprieve when hiring foreign professionals. However, it is uncertain whether the 65,000 visas for this fiscal year will be adequate to meet the demand for this year and next. Some government officials estimate that visas will be unavailable as early as the beginning of May 2010. In addition, it is still unclear what is on the legislative horizon, reform or not. Pro Immigrants want to come with a proposal to reform legal immigration. U.S. employers employing foreign nationals in any capacity would be well advised to carefully monitor future legislative and regulatory proposals on the horizon. All I can say is that if you plan on hiring a foreign worker, you better call your lawyer now!!!

After health care, Immigration is going to be the next big thing. On Tuesday, December 15, Congressman Luis V. Gutierrez (D-IL) will introduce new legislation, the Comprehensive Immigration Reform for America's Security and Prosperity Act of 2009 (CIR ASAP), to the U.S. House of Representatives. Gutierrez will be joined by members of many different faiths and backgrounds, including the Congressional Hispanic Caucus, Black Caucus, Asian Pacific American Caucus and Progressive Caucus.

"We have waited patiently for a workable solution to our immigration crisis to be taken up by this Congress and our President," said Rep. Gutierrez. "The time for waiting is over. This bill will be presented before Congress recesses for the holidays so that there is no excuse for inaction in the New Year. It is the product of months of collaboration with civil rights advocates, labor organizations, and members of Congress. It is an answer to too many years of pain —mothers separated from their children, workers exploited and undermined security at the border— all caused at the hands of a broken immigration system. This bill says 'enough,' and presents a solution to our broken system that we as a nation of immigrants can be proud of."

We will follow the Bill's progress and update our readers.

Immigration activists say they are hopeful that Gov. Deval L. Patrick will support proposals in an advisory report calling for more English classes for the state’s immigrants and in-state tuition for undocumented college students. Patrick released the report containing 131 recommendations, which he called a “values” statement, at a luncheon for immigrant advocates.

Since July 2008, resident immigrants and activists have crowded meetings around the state pressing for those programs and others, including allowing immigrants to get state drivers licenses.

Read more...

Today is Veterans day, and I wanted to send warm wards of support to our Veterans and the active duty men and women fighting for our country day and night.

On October 20, 2009 the U.S. Senate voted to pass the Department of Homeland Security Appropriations Bill Conference Report that contained a provision to end the widow penalty. The House of Representatives previously voted to pass the bill. The bill became Public Law Number 111-83 upon President Obama’s signature of October 28, 2009.

In the past the government has argued that the spouse’s death before the two-year mark ends the marriage, canceling the foreigner’s right to be considered for residency and opening the door to deportation.

The new provision does not directly address the government’s definition of marriage, but it allows foreigners married to Americans for less than two years to submit their own petition for residency within two years of the spouse’s death, as long as they have not remarried and can prove a good-faith marriage.

The law is also retroactive; any immigrant whose citizen spouse died less than two years after they wed, no matter how long ago, would have two years from the law’s enactment to petition for residency. Because the law was enacted on October 28, 2009, the deadline is October 28, 2011. After this two-year period, a petition must be filed within two years of the citizen’s death.
For those married at least two years at the time of the citizen’s death, the law remains the same: an I-360 must be filed within two years of the citizen’s death.

Furthermore, the deceased must have been a U.S. citizen at the time of death, and the Widow or Widower must not have been legally separated from their citizen spouse at the time of death.

In addition, the Widow or Widower must not have remarried in order to file this self-petition.
The petition must be filed with:
1. A copy of the marriage certificate to the U.S. citizen and proof of termination of any prior marriages of either person;
2. Copies of evidence that the deceased spouse was a U.S. citizen, such as a birth certificate if born in the United States, Naturalization Certificate or Certificate of Citizenship issued by USCIS; Form FS-240, Report of Birth Abroad of a Citizen of the United States; or a U.S. passport that was valid at the time of the citizen’s death; and
3. A copy of the death certificate of the deceased U.S. citizen spouse.

For further information please contact our office.

On October 13, hundreds of people from across the nation will be gathering in Washington and across America to tell Congress that immigration reform can't wait. We encourage our readers to take action as best as you can. If we want for a major reform to pass this time, this has to be an effort taken by all of us nationwide.

October 13 is the day! Thousands of supporters will descend on our nation’s capital on Tuesday to lobby Congress in person for progressive immigration reform. But they can’t do it alone! If you can’t make it to Washington to meet with your Representative personally, you can still make a difference with a simple fax or phone call.

Read more

Since the last fee hike in 2007, it was only a question of time until discussion about more Immigration fee increase will be a hot topic. U.S. immigration officials are considering another possible round of fee increases and budget cuts next year, prompting concern among immigrant rights groups.

The agency is facing a $118-million revenue shortfall this year in part because applications for citizenship and skilled worker visas are below projections, according to officials. Citizenship applications plunged to 58,000 last year from 254,000 the previous year in the Southern California district. Most experts blame the decline on a fee increase of 69% to $675 in 2007.

Immigrant advocates said, that any additional fee increase would severely hamper legal immigrants from pursuing citizenship. "Right now the high cost of citizenship is putting the dream of naturalization out of reach of low- and moderate-income legal permanent residents, and any future increase will just make the situation worse," said Rosalind Gold of the National Assn. of Latino Elected and Appointed Officials Educational Fund in Los Angeles.

We hope that fee increases can be avoided. In any case, the best advice is that if one is eligible to apply for Citizenship or any other benefit, do it now, before any fee changes.

We now know that Immigration, especially illegal immigration is a big part of the American Health care debate. President Obama's prime-time address to Congress and the nation on health care prompted a Republican congressman to shout "you lie!" when the president covered Health coverage for illegal Immigrants.

The President said that his proposal would not cover illegal immigrants, a remark that prompted Republican Rep. Joe Wilson of South Carolina to shout "You lie!"

The president is correct: The House bill contains a section (Sec. 246) titled "NO FEDERAL PAYMENT FOR UNDOCUMENTED ALIENS," which states: "Nothing in this subtitle shall allow Federal payments for affordability credits on behalf of individuals who are not lawfully present in the United States."

However, conservative critics object to a lack of specific enforcement measures in the bill. They argue that the lack of a specific verification mechanism constitutes a loophole that would allow illegal immigrants to get benefits despite the legal prohibition. Republican Rep. Dean Heller of Nevada proposed an amendment to the bill that would have required the use of the Systematic Alien Verification for Entitlements program to check the citizenship of anyone applying for federal coverage or affordability credits. SAVE is the program used by Medicaid and similar entitlement programs. That amendment was voted down along party lines by the House Ways and Means Committee.

Republicans have a point here: More could be done to enforce the ban. But it's worth remembering that, as a spokesperson for the American Immigration Lawyers Association told NewsWeek, attempting to get a health care credit would have legal repercussions.

"Making a fraudulent claim to an entitlement program when you're not actually entitled to it would have serious consequences for any person," the spokesperson told Newsweek, "but especially if it's considered a false claim to citizenship, that would have serious immigration consequences that could ultimately lead to deportation." Moreover, if an illegal immigrant lies and obtain public assistance benefit such as the new health care coverage, such person may never be able to Immigrate or get residency. One of the questions on the Green Card application is exactly that - Have you ever received public assistance or benefits form the State? A yes answer may result in a denial. Finally, any person who is not a US citizen and claim to be falsey in order to secure a benefit, may be barred for life from becoming a legal resident in the future. So the protection mechanism is already set in our immigration system. Most illegals live with the hope of becoming legal one day, I am sure that not many will risk it just to get coverage.

And Rep. Wilson certainly was out of bounds to call the president's statement a "lie." He later issued a statement apologizing for his "inappropriate and regrettable" comments.

The Center for Trade Policy Studies, published a recent report about the economics of a possible Immigration reform.

By the latest estimates, 8.3 million workers in the United States are illegal immigrants. Proposed policy responses range from more restrictive border and workplace enforcement to legalization of workers who are already here and the admission of new workers through a temporary visa program. Policy choices made by Congress and the president could have a major economic impact on the welfare of U.S. households. This study uses the U.S. Applied General Equilibrium model that has been developed for the U.S. International Trade Commission and other U.S. government agencies to estimate the welfare impact of seven different scenarios, which include increased enforcement at the border and in the workplace, and several different legalization options, including a visa program that allows more low-skilled workers to enter the U.S. workforce legally.

Read the report here...

President Obama promised during the election campaign that Immigration reform will be high on his list once elected president. Speaking to Hispanic reporters at the White House, Obama said last week he hopes a bill for comprehensive immigration reform will be drafted by the end of this year.

Obama tapped Homeland Security Secretary Janet Napolitano on June 25 to work with Congress to speed up immigration reform as senators warned another failed effort could doom chances for a generation. Obama said he asked Napolitano to meet regularly with lawmakers to systematically work through a number of controversial issues, such as how to handle the 12 million illegal immigrants already in the United States and how to prevent future illegal immigration.

The president has been criticized for not following through on a campaign pledge to tackle the issue this year. He has urged the Democratic-controlled Congress to start pushing now to pass legislation.

bama joked that his opponents had another reason to block his immigration reform effort: "There are many members of the Republican Party who think now that I am illegal immigrant," he said.

Read the article here

U.S. President Barack Obama says he is committed to passing comprehensive reform of the country's immigration laws. The president told a gathering of Hispanics the nation's borders must be strengthened to stop illegal immigration.

President Obama said that while immigration is vital for America's future, illegal immigration cannot continue.

"The American people believe in immigration," he said. "But they also believe that we cannot tolerate a situation where people come to the United States in violation of the law."

At the Esperanza National Hispanic Prayer Breakfast and Conference, Mr. Obama said the millions of people who are in the U.S. illegally should have the chance to become citizens.

Continue reading "Obama Calls for US Immigration Reform " »

White House Press Secretary Robert Gibbs said there are not enough votes for the Obama administration to achieve its desired immigration reform, and change in the system as we know it today.

The plan was derailed when conservative activists, who claimed the program would have constituted "amnesty" for illegal immigrants, managed to pick off enough Republicans in the House and Senate to forestall a vote. Gibbs said that the White House would make an effort, though, to win the votes for a reform plan, for which President Obama reiterated his support.

Read more...

President Barack Obama will gather congressional leaders at the White House next month to launch a policy discussion on immigration, according to an administration official, but legislative action isn't likely until next year at the earliest. he June 8 meeting is meant to show the White House is moving on the issue -- which is key for Hispanic advocacy groups that helped Mr. Obama get elected in November.

Mr. Obama has embraced the general concept of creating a program to provide a path to citizenship for illegal immigrants already in the U.S., while continuing to tighten the border with Mexico.

Read more

I was shocked when the June 2009 visa bulletin came out. The cutoff date for India in the EB2 category has retrogressed to January 1, 2000. The June Visa Bulletin will become effective as of June 1st. Thus, the May Visa Bulletin, with an EB2 India cutoff date of February 15, 2004 remains effective through May 31, 2009.

Why is this happening clients ask? The high level of demand in the EB2 India category, and the need to keep within the annual limits set by law. The DOS stated that it is currently not possible to estimate whether this retrogression will continue for the rest of the fiscal year. My predication is that it will get worse before it will get better. We will keep you posted.

Click here for the June 2009 Bulletin

Several thousand immigration rights advocates marched in Los Angeles, San Diego and hundreds gathered in the rain in San Francisco on Friday, but crowds in California appeared much smaller than in previous May Day demonstrations.

Marches in downtown Los Angeles took on a festive atmosphere with people carrying signs and banging drums while vendors sold food, cotton candy and ice cream from pushcarts with ringing bells. One group walked to a building housing federal immigration offices and blared salsa music from loudspeakers.

Immigrants and supporters in San Francisco's Dolores Park hoped to keep immigration reform on Obama's agenda. They held signs calling for amnesty for undocumented immigrants and an end to immigration enforcement raids. Many argued that allowing undocumented immigrants to become citizens and take a more active role in the economy will improve the country's financial outlook. Dozens of students participated, many calling for passage of the DREAM Act, which was reintroduced in the U.S. Senate in March, and would make undocumented immigrants brought into the U.S. under the age of 15 eligible for in-state tuition.

Read more...

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

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

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

We really need this to pass.