Visa Lawyer Blog

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Last week we posted an article on how low skilled workers are not a priority in the U.S. despite the economic need for having low skilled immigrant workers within our economy. In this blog we bring to you news of a bill being proposed in the U.S. House of Representatives. House Judiciary Chairman Lamar Smith (R) of Texas unveiled a bill Friday that would grant 55,000 visas a year to foreign-born graduates of American universities with advanced degrees in science, technology, engineering, and math (STEM).

Rep. Smith reasons that “These students have the ability to start a company that creates jobs or come up with an invention that could jump-start a whole new industry. In a global economy, we cannot afford to educate these foreign graduates in the US and then send them back home to work for our competitors.”
The bill prioritizes PhD recipients who will work in the US for five years and who come from 217 universities that are qualified as top research institutions by the Carnegie Foundation. The bill attempts to protect US workers from foreign competition by excluding biological and biomedical advanced graduates from the program and requiring companies that want to hire applicants for the special visa to post the job on the site of state workforce agencies.

The provocative question is not whether the US should have more STEM immigrants. From 165 university presidents who sent a letter to President Obama and congressional leaders arguing for STEM visas to bipartisan support on Capitol Hill for similar STEM-boosting legislation in the past to polls showing 3 in 4 Americans (including 6 in 10 conservatives) support such measures, support for more STEM immigration is widespread.

The thorny issue is that public support for more STEM visas has not been previously linked to reducing another form of immigration; can Congress and the president stomach more STEM visas if they come at the expense of the diversity green card program?
“I would like to improve the STEM visa program without doing damage to other parts of our legal immigration system,” said Rep. Luis Gutierrez (D) of Illinois in a statement. “The president has made this a priority, and I am prepared to support a clean STEM increase because it will help our economy and create jobs. Republicans are only willing to increase legal immigration for immigrants they want by eliminating legal immigration for immigrants they don’t want.”

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Since Deferred Action was announced, many many questions are still unanswered with respect to this program. In this post we have provided some of the recent few updates.

Temporary deferral of removal only means that DHS will not initiate or continue removal proceedings against eligible applicants during the relevant relief period. The applicant will similarly stop accruing “unlawful presence” which would otherwise bar eligibility for future relief. Deferred action does not confer lawful status or guarantee a path to citizenship; it does not excuse unlawful presence (UP) accrued before or after the relief goes into effect.

This means you continue to accrue UP until your case is approved, denied, or after the period of granted relief has passed without being renewed. However, deferred action does provide employment authorization. This allows you to apply for permission to work in the U.S. by showing “economic need.” DHS retains the discretion to terminate or renew the relief at any time.

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Many people view low-skilled immigrants as an economic burden because they produce few income taxes. But it’s not just these immigrants—almost half of all Americans had no income tax liability in 2011. In other words, according to the logic of immigration’s opponents, America’s economy would benefit from deporting half the country’s population. Despite its absurd implications, no other argument against immigration receives more attention from Congress and the media.

Many policies advocated by the major anti-immigration groups—NumbersUSA, the Federation for American Immigration Reform, and Center for Immigration Studies—rest on the assumption that the U.S. would benefit greatly from significantly fewer people. These groups’ founder, radical environmentalist John Tanton, argue that reducing the population leads to environmental progress, but “[if you] double the number of people,” he says, and “we’re back where we started.” All three groups he founded apply his views to immigration and use the tax argument in favor of deporting undocumented workers and even ending low-skilled immigration altogether.

This view misses the point that low wage earners contribute in a significant way to the economy and government budgets. These workers allow Americans to specialize in more productive endeavors. Consider for a moment the worker who files paperwork for a doctor. Because the doctor is now free to see more patients, the worker has created economic value from both his efforts and the doctor’s efforts. Child care providers free mothers to work; construction workers allow U.S. engineers to finish more projects; many others create similar benefits, and truly make a more substantial contribution to the economy and to the U.S. Treasury than appear on tax returns.

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The O-1 is a good visa option for individuals with extraordinary abilities in the sciences, arts, education, business, or athletics, or with a demonstrated record of extraordinary achievement in the motion picture or television industry who want to come to the U.S. to continue working in the areas of extraordinary abilities. Our office handles a lot of extraordinary ability petitions for scientists in a variety of fields. This article was prepared by attorney Ekaterina Powell from our office.

Dr. Y, a citizen of Ethiopia, came to the U.S. on a J-1 visa as a Research Scholar. For years, she has been engaged in extensive scientific research and has acquired recognition for her achievements in the field of probiotics. With her J-1 status expiring in the coming weeks, Dr. Y received a job offer from an established biotech company specializing in the development and commercialization of probiotic dietary supplements. In the proposed research position within the organization, Dr. Y could continue her innovative research for the development of probiotic supplements as an alternative treatment for kidney failure, as immune system optimization, and for prevention of many diseases.

Dr. Y came to our office inquiring about her options to stay in the U.S. and work for the biotech company. With no more H-1B visas available, the best option for Dr. Y was applying for an O-1 visa. With only a few weeks left to prepare the O-1 petition, Dr. Y was very worried at first that there was not enough time to get everything ready. We assured Dr. Y that with her cooperation in gathering the documents, we would do whatever it takes to prepare a strong case and file it within the deadline, and we were successful in doing so.

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There has been much discussion about counseling individuals applying for Deferred Action for Childhood Arrivals (DACA), employers that offer jobs to undocumented workers may have specific issues to consider. What issues an employer must consider as they are asked to produce documents that will support their employee’s eligibility for DACA. As DACA applicants are, by definition, undocumented youth, employers needs to consider a number of important implications regarding the employer’s potential exposure under the employer sanctions laws. The AILA Verification and Documentation Liaison Committee issued a good practice alert on this topic as well.

A determination that an employer has constructive knowledge that an employee is not work authorized can result in employer liability in the event of an ICE raid or audit. Constructive knowledge is defined as knowledge that can be fairly inferred through the existence of particular facts and/or circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition. Unfortunately, constructive knowledge in this context can be imputed to an employer who fails to complete or improperly completes the Form I-9; acts with reckless and wanton disregard for the legal consequences of permitting individuals to introduce an unauthorized alien into its workforce or to act on its behalf; and fails to take reasonable steps after receiving information that the employee may be an alien who is not work authorized, such as the request by the employee for evidence needed to file the DACA application.

While an employer may be tempted to terminate the employment of an employee based upon the DACA issue, this action could be discriminatory and could result in lawsuits filed by the terminated employee or by the Equal Employment Opportunity Commission (EEOC), or both.

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In a recent response to the deferred action executive order, California lawmakers approved a bill on Thursday to allow some young illegal immigrants who came to the United States as children to obtain driving licenses.

The bill, which passed the state Assembly by a 55-15 vote before being sent to the desk of Democratic Governor Jerry Brown, was introduced following the announcement of a federal program to relax deportation rules and grant some young immigrants temporary legal status in the United States.

“It is a victory for those who were brought here through no fault of their own, played by the rules, and are only asking to be included in and contribute to American society,” the bill’s sponsor, Assembly member Gilbert Cedillo, said in a statement

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Immigration Officials are advising educators that school records will be among the key documents that young undocumented immigrants must submit in their requests for deferred action, the new immigration policy that allows individuals who arrived in the United States as children to seek relief from deportation and gain work permits.

Applicants have to demonstrate, among other criteria, that they are currently enrolled in school, have graduated from high school, or have obtained a GED. But school records will also help many potential beneficiaries prove another key qualification: continuous presence in the U.S. for the last five years. A high school transcript documenting four years of schooling would be “fantastic evidence in a single document.”
Educators wanted to know how “official” school records must be. The answer, said DHS officials, is that there is no fixed requirement for what form the school records must take; what matters is content. The key pieces of information on those documents are the student’s name, the time period that the document covers, and evidence of coursework that was completed. DHS officials said that the U.S. Citizenship and Immigration Services agency—which is handling the reviews of all deferred action requests—is prepared to accept any documents that schools provide to applicants.

One school official who was concerned about students meeting the requirements asked how applicants could prove they had been present in the U.S. during summer months, or school breaks, particularly in cases where they would be relying on education documents to demonstrate continuous presence for five years. DHS officials said there was no requirement that applicants must prove that any given day or summer must be accounted for and that the agency would bear in mind that schools do have breaks.

Another important question from educators was whether students whose deferred action requests are approved will be eligible to receive federal financial aid, such as Pell Grants, or to participate in federal work-study programs. The answer was that no such financial aid will be available to those who are granted deferred action.

Deferred action does only two things, DHS officials said: It removes the potential for deportation for at least two years, and opens up the possibility for obtaining work authorization. There are no other benefits.

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In a recent letter from the Department of Health and Human Services (HHS) concerning individuals with Deferred Action for Childhood Arrivals, the HHS issued a statement concerning whether these individuals qualify for Medicaid. The letter directed to State Health Official and the Medicaid Director was intended to inform them regarding the implications for Medicaid and the Children’s Health Insurance Program (CHIP) and the U.S. Department of Homeland Security’s (DHS) announcement on June 15, 2012, wherein they state that it will consider providing temporary relief from removal by exercising deferred action on a case-by-case basis with respect to certain individuals under age 31 as of June 15, 2012 who meet certain guidelines, including that they came to the United States as children and do not present a risk to national security or public safety. This process is referred to by DHS as Deferred Action for Childhood Arrivals (DACA). DHS has explained that the DACA process is designed to ensure that governmental resources for the removal of individuals are focused on high priority cases, including those involving a danger to national security or a risk to public safety, and not on low priority cases. DHS began accepting requests for consideration of deferred action on August 15, 2012.

Section 214 of the Children’s Health Insurance Program Reauthorization Act of 2009 (CHIPRA) gave states the option to provide Medicaid and CHIP eligibility to children and/or pregnant women who are “lawfully residing” in the United States and otherwise eligible for Medicaid or CHIP. The Center for Medicare and Medicaid services (CMS) provided guidance on the definition of “lawfully residing” in a July 1, 2010 State Health Official Letter. Because the reasons that DHS offered for adopting the DACA process do not pertain to eligibility for Medicaid or CHIP, HHS has determined that these benefits should not be extended as a result of DHS deferring action under DACA. For this reason, individuals with deferred action under the DACA process shall not be eligible for Medicaid and CHIP under the CHIPRA state option with respect to any of the categories (1)-(9) set forth in the July 1, 2010 letter.

While many Republicans have argued that the Deferred Action would grant these individuals with more public benefits, the letter from HHS clearly demonstrates that such individuals will not be eligible for Medicaid benefits. This means that U.S. taxpayers are not going to be paying into the Medicare/Medicaid system thinking that those services are going to individuals who are not here legally. While health care should always be provided to children who truly need it in order to stay healthy, this letter is in line with the position of the Obama Administration that this relief is for those low risk offenders who deserve a reprieve while Congress figures out what to do regarding all of these young individuals who were brought to the U.S. as children. In the meantime, it is important that those who are seeking Deferred Action understand that the benefits of this action are limited to what DHS has granted during this process at this time.

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Recently, USCIS issued new procedures for applying for, submitting, and renewing E visas at the U.S. Consulate in Italy. The new procedures concern renewals, additional applicants for an already existing E visa enterprise, and first time applicants. All E visa petitions are being processed through the U.S. Consulate in Rome, Italy.

There are two types of renewals for an E visa, either with an interview or without an interview. For those cases that do not require an interview, the E visa renewal must meet the following requirements: You are a citizen or permanent resident of Italy and currently present in Italy; all ten fingerprints were captured at a prior consular interview (not at the airport); your previous visa is currently valid, or has expired within the last twelve months; you are applying for the exact same type of visa as your current/previous visa; your visa does not have Clearance Received annotated on it. If your E visa petition meets these requirements, the E visa package will require the DS 160 form, DS 156E form, last three years of corporate tax returns, passport, and original receipt of processing fee.

If the E visa renewal does require an interview, one must write to the U.S Consulate in Rome at RomeEvisas@state.gov by putting “E VISA RENEWAL WITH INTERVIEW” in the subject line. The Rome Consular Section will contact you to make the appointment. The required documentation (DS-160; DS-156E; original receipt of processing fee; passport and last three years of corporate tax returns) must be hand carried to the interview.

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This is a great information article provided by AILA and we wanted to share this with our Blog Readers.

One of the challenges in preparing an O-1 petition is obtaining three years of status for the beneficiary. This is particularly true for artists whose cases require an itinerary that projects three years into the future. Often the artist might have only a few confirmed gigs covering just a short period of time. In such a case, how can you obtain a full three-year period? This practice pointer will focus on proving future engagements and activities to qualify for the three-year maximum duration of an O-1 petition.

Petitioner

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