Visa Lawyer Blog

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I am writing this Blog post from a Hotel room facing the Ocean in beautiful Maui. Maui is great place to visit this time of year, unless you happen to be there in the middle of a Tsunami (we experienced a long night evacuating from our Hotel last night). During the long waiting hours, I met an interesting person, who is also an international real estate investor. He was interested in my line of work and told me several facts about investment in Hawaii.

The Hawaii Real Estate Portal has some interesting facts about Foreign investment in Hawaii:

In recent years, total of 1,596,336 non-immigrant aliens came into Hawaii. Those in some selected categories are:

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New data has been released on cap-subject H-1b petitions. USCIS only allows 65,000 cap-subject petitions each year to be filed with USCIS. From the 65,000 petitions, there are currently 29,000 pending petitions that need a decision.There are 21,968 approved petitions, with 7,078 denied petitions. Taking the approval/denial ratio into consideration, it appears that 3 out of 4 petitions are being approved by USCIS. Notwithstanding any decisions overturned through the appeals process, that 75% rate is still low compared to years back where the approval rate for H-1b cap-subject petitions was closer to 90% approval rate.

Whether these numbers still reflect a concern for petitions based on fraud or whether it is based on any focus on bigger companies versus smaller companies filing the petitions, the fact is that USCIS has increased denials and even more cases were likely delayed approval because of requests for evidence on those cases. Hopefully the rest of the cases that are still pending will be met with more approvals.

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The immigration business plan is a unique document because it is drafted for an audience one. The only person reading the plan will be the reviewer at the immigration service center or a consulate. These civil servants start each day with a stack of visa applications. The document on the top of the pile of papers is the business plan. The quality of the business submission will set the tone for the evaluation of the visa application.

The purpose of the business plan is to convince the reviewer that the company is capable of staying in business for 3-5 years (depending on the visa). They want these questions answered:

• What is the company’s business

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An operation by federal immigration agents in Detroit set off protests from Latino and church groups on Wednesday after the officers stopped two illegal immigrants as they were dropping off their children at school.

Agents from Immigration and Customs Enforcement followed both immigrants, who are from Mexico, as they left their homes in southwest Detroit on Tuesday morning, officials from the agency said. Both men had children in their vehicles.

One of the men, Jorge Hernandez, said he was pulled over by agents in unmarked cars across the street from his 4-year-old daughter’s school, the Manuel Reyes Vistas Nuevas Head Start center in southwest Detroit. Mr. Hernandez was questioned but eventually released.

The other man, Hector Orozco Villa, told immigrant advocates that he had been detained by agents near the elementary school of two of his children, Cesar Chavez Academy, a few blocks from the Head Start center. Mr. Orozco remains in the custody of the agency, which is known as ICE.

The presence of the immigration agents has spread alarm among arriving parents and children in the Latino neighborhood, school officials said. More than 100 people rallied on Wednesday to protest, according to a report in The Detroit News, saying the immigration agency had broken an earlier promise to avoid arrests near schools and other community gathering points.

“It is very alarming to me to have this happen during the rush hour of people taking their children to school,” said Rashida Tlaib, a Democratic state representative who attended the rally. “We are really worried about the impact on these United States citizen children.” Several of Mr. Hernandez’s and Mr. Orozco’s children were born in the United States.

The incident revealed the raw sensitivities in some immigrant communities as federal agents are required to carry out the increasingly complex deportation policy of the Obama administration. Agents have been instructed to focus on capturing illegal immigrants who are convicted criminals or repeat immigration violators, and to avoid detaining those who have committed no serious crimes and have strong family ties to the United States. Determining which individuals fall in either category has been a difficult balance for ICE to maintain while carrying out the directive.

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USCIS has announced a new filing option on behalf of Canadian TN Nonimmigrants. As of October 1st, USCIS will begin accepting Form I-129, Petition for Nonimmigrant Worker, filed on behalf of Canadian citizens who are outside of the United States and seeking classification as a TN nonimmigrant. This change in the policy allows Canadians who wish to petition USCIS rather than applying at the port of entry through U.S. Customs and Border Protection (CBP) as has been the procedure in the past.

While this change does grant more options to Canadians who may not be able to readily make their way to a U.S. port of entry, it must also be noted that it is more expensive to apply to USCIS, as the filing fee is $325 rather than the less expensive fee of $56 at the port of entry. In addition, the filing for a TN petition with USCIS will take a longer time to get adjudicated because the immigration service center will need to review the petition. This could take anywhere from 1-2 months at a minimum, while a petition at the port of entry will have a decision that day for the TN visa and the visa will be issued that very day.

So while the change is a good one for providing Canadians more options when filing for a TN visa, the considerations mentioned above should be discussed with any employer before deciding what is best when applying for a TN visa. Our office has been very successful in getting TN visas granted for our clients and can answer any questions you may have should a TN visa be in your future.

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Clients and Blog readers are often asking about the Conditional Green Card, what conditions? Very Confusing subject. In this Blog Article, Marie Puertollano from our office covers this issue.

An immigrant can obtain a Permanent Resident Card, also called “green card,” through marriage to a US citizen. The green card is conditional if the marriage was less than two years old on the day the applicant (the immigrant) was given permanent residence.

The conditional green card is valid for two years only. The applicant must file an I-751 application before the green card expires. Never count on the USCIS to remind you of the two year deadline.

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A recent decision by the Immigration Administrative Appeals Office overturned an L-1 denial on the grounds that the Immigration Service Director erred in denying the case on the grounds that there was not a qualifying relationship between the parent company and the U.S. subsidiary. The main concern the Director had was that the transfer of ownership did not make sense given that the purchase price was too low in light of the company’s revenues.

In order for a qualifying relationship to exist, the qualifying organization must meet one of the following definitions: “It meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate or subsidiary…is or will be doing business (engaging in international trade is not required) as an employer in the United States and in at least one other country directly or through a parent, branch, affiliate or subsidiary for the duration of the alien’s stay in the United States as an intracompany transferee.” A “subsidiary” for these purposes means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity.

When the case came on appeal, the company showed that the foreign employer acquired 51 percent ownership interest in the U.S. company and submitted evidence to verify the ownership interest. In addition, in the request for evidence, the foreign company showed that the foreign entity agreement to purchase 51 membership units from the existing member also noted the net liabilities by which the foreign entity was willing to accept and was willing to accept those liabilities.

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We had a lot of interest in the past few weeks from our Blog readers as well as the Facebookpage (facebook.com/myimmigrationlawyer), about the future of Entrepreneurs in this country. There are many concerns that our current immigration system is driving talented people away.

I wanted to share this great article by Stuart Anderson about the American Dream.

Immigrant entrepreneurs capture the imagination and provide economic benefits to the United States. Nothing more symbolizes the American Dream than the “rags to riches” stories of immigrants who came to this country with little more than the clothes on their backs and started a successful business. Immigrants like Ovidiu Colea.

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The federal government will formally instruct immigration agents to consider same-sex relationships the same way as heterosexual relationships in deciding whether a person should be deported.

The announcement by Department of Homeland Security Secretary Janet Napolitano comes as welcome news to some Democrats in Congress, including House Minority Leader Nancy Pelosi (Calif.), who had voiced concerns already that informal instructions to do so could be ignored by immigration agents.

Napolitano said on Thursday she would issue the instruction in writing to immigration agents. The administration had only informally indicated same-sex relationships would be taken into account when making deportation decisions.

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This post was provided by AILA today before the debate, wanted to share with our readers. Who do you think did better this evening?

Questions for Mitt Romney on immigration for the first debate:

1. You’ve stated that within two years of taking office “we will have the full immigration reform plan” you’ve proposed in place. To date you have stated that you would veto the DREAM Act, that you are in favor of self-deportation, and that you support visas for graduates with advance degrees. Can you detail for us the main components of your immigration reform package? Specifically, how you will resolve the issue of the 11 million aspiring citizens who don’t have legal status?
2. Do you feel that you will have to prioritize immigration reform over other key domestic policy goals in order to ensure that it is put in place within your first two years of office?
3. What will happen to those “DREAMers” who have received work permits if you are not successful?

Questions for Barack Obama on immigration for the first debate:

1. You’ve said that you’re “biggest failure” was not getting comprehensive immigration reform done and that you are going to “try to do it in the first year” of your second term. How exactly will you accomplish this while facing, most likely, a divided Congress? Why will your second term efforts be more successful than the first?
2. What other key domestic priorities are you willing to sacrifice in order to get immigration reform done?
3. Your opponent claims that the temporary reprieve you offered “DREAMers” is just a “temporary measure that…will be just enough to get [you] through the election.” Why is he wrong? What specific efforts will you make to pass the DREAM Act in a 2nd term?

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