Visa Lawyer Blog

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There is bipartisan interest in Congress in reforming high-skill immigration. New legislation is on its way, and here’s what to watch for. What bills have been introduced or are coming?
In the House, the most important Democratic initiative is from Zoe Lofgren (D-Calif.), whose district includes Silicon Valley. Her bill would make green cards available to students who earn advanced degrees in science, technology, engineering and mathematics — the so-called STEM fields. However, it isn’t expected to go anywhere.

The person to watch instead is Rep. Lamar Smith (R-Texas), who heads the House Judiciary Committee. Smith appears interested in some limited immigration changes expected in a bill from Rep. Jason Chaffetz (R-Utah). Chaffetz’s bill, which is due “soon,” is expected to call for elimination of the per-country limits on employment-based visas — as green cards are officially called.

The U.S. has a cap of 140,000 employment-based visas a year. Spouses and children of the workers are counted against that cap. The U.S. limits the number of green cards per country to no more than 7% of the total available visas. In India, where there is a big demand for green cards, the wait for one can be as long as 10 years. This is significant in terms of the availability of green cards to immigrants across the board.

If the per-country cap were eliminated, green card applicants who have been waiting the longest might see their expected waiting times reduced. But applicants from countries with relatively short wait times might find themselves waiting longer. Tech companies might support elimination of the per-country cap, since that would likely increase the availability of workers from China and India. Employers will take what they can get, but they might be hoping for something better out of the Senate.

Sen. Charles Schumer (D-N.Y.), who heads the Senate subcommittee on immigration, said this week that he intends to introduce legislation that, similar to Lofgren’s bill, will “staple” green cards to the diplomas of people who earn degrees in STEM fields. He is also promising reform of the H-1B visa process in his bill.

Overall outlook: If Schumer follows through and the House Judiciary Committee also produces legislation, a limited, targeted immigration reform bill could emerge. Both parties have strong reasons to please the tech industry.

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The following sample questionnaire was released by AILA for the benefit of H1B employers. U.S. Citizenship and Immigration Services (USCIS), through its Office of Fraud Detection and National Security (FDNS), has implemented an on-site audit program that subjects H-1B employers to random site visits to verify information provided in H-1B petitions.

FDNS’s mission is to detect and deter immigration fraud as well as to make sure that benefits are not provided to anyone posing a threat to national security or public safety. FDNS site visits are unannounced. They take place at the employer’s principal place of business and/or at the workplace location indicated on the H-1B visa petition filed with USCIS. FDNS uses these visits to verify information about the company and to confirm that the H-1B employee is actually working in compliance with the information provided in the visa petition, including hours, job duties, rate of pay, and education requirements.

H-1B employers should have action plans in place that employees can follow in the event of an unannounced FDNS audit. Any employees who may potentially be involved in the site visit should be made aware that this type of audit is possible. They should be advised of what the site visit involves and what actions they should take such as contacting counsel; requesting the name, title, and contact information of the site inspector; and accompanying the inspector at all times during the site visit.

Blow you will find a sample intake form presented to an H1B employer and all the questions asked:

Petitioner Employment Verification Questionnaire

Part I Employer Information (Petitioner):
␣ Name ␣ Address ␣ Number of employees ␣ Number of H1B employees
Employee Information (Beneficiary):
␣ Name ␣ DOB ␣ Address ␣ Phone # ␣ Worksite Address (list all) ␣
Provide the exact dates of employment at each worksite location as applicable ␣ Worksite Phone Number
␣ Work Hours ␣ Salary ␣ Date employment started ␣ Provide the end date of the current project/job ␣ Duty title and general role or responsibility in the job ␣
How much vacation and sick time does the beneficiary receive? ␣ Has the beneficiary been away from work other than normal sick or vacation time? If so,
explain the circumstance(s) and provide documentation.

Beneficiary’s Supervisor Information:
␣ Name ␣ Title ␣ Phone # ␣ Employer ␣ Worksite Address

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Citing the Defense of Marriage Act, the Obama administration denied immigration benefits to a married gay couple from San Francisco and ordered the expulsion of a man who is the primary caregiver to his AIDS-afflicted spouse.

Bradford Wells, a U.S. citizen, and Anthony John Makk, a citizen of Australia, were married seven years ago in Massachusetts. They have lived together 19 years, mostly in an apartment in the Castro district. The U.S. Citizenship and Immigration Services denied Makk’s application to be considered for permanent residency as a spouse of an American citizen, citing the 1996 law that denies all federal benefits to same-sex couples.

The decision was issued July 26. Immigration Equality, a gay-rights group that is working with the couple, received the notice Friday and made it public Monday. Makk was ordered to depart the United States by Aug. 25. Makk is the sole caregiver for Wells, who has severe health problems.

“I’m married just like any other married person in this country,” Wells said. “At this point, the government can come in and take my husband and deport him. It’s infuriating. It’s upsetting. I have no power, no right to keep my husband in this country. I love this country, I live here, I pay taxes and I have no right to share my home with the person I married.”
Husband’s pleas
Wells pleaded with Homeland Security Secretary Janet Napolitano and President Obama to intervene.

“Anyone can identify with the horror of having the government come in and destroy your family when you’ve done nothing wrong, and you’ve done everything right, followed every law,” Wells said.

The agency’s decision cited the Defense of Marriage Act as the reason for the denial of an I-130 visa, or spousal petition that could allow Makk to apply for permanent U.S. residency. “The claimed relationship between the petitioner and the beneficiary is not a petitionable relationship,” the decision said. “For a relationship to qualify as a marriage for purposes of federal law, one partner must be a man and the other a woman.”

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Last week, the U.S. House of Representatives passed two immigration bills before members left for their summer recess.

The first bill, H.R. 398, was sponsored by House Immigration Subcommittee Ranking Chair Zoe Lofgren (D-CA) and would amend the law that stipulates a 90-day period during which time an alien and petitioning spouse must file a petition and complete an interview to remove the alien’s conditional legal permanent resident status. Under the new legislation, the period of time would be placed on hold while either partner is a member of the U.S. military serving abroad, in order to extend the deadline.

The second bill, H.R. 1933, was sponsored by House Judiciary Chair Lamar Smith (R-TX) and would reinstate an expired program that admits nonimmigrant nurses in shortage areas for health professions. The new proposal would allow the government to issue 300 visas per year to eligible foreign nurses. The visas would be valid for three years and would be renewable for an additional three-year period. Now let us see what the Senate will do with respect to the above referenced bills.

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State lawmakers considered a record number of immigration-related bills this year, highlighting their continued frustration with federal government inaction on immigration laws, according to the National Conference of State Legislatures.

A total of 1,592 bills were introduced in all 50 states and Puerto Rico in the 2011 legislative session that ended June 30, a report by the bipartisan research organization found.

Legislators in 40 states enacted 151 of the bills, which mainly addressed law enforcement, identification and employment issues, said Ann Morse, program director of the conference’s immigrant policy project. An additional five laws were vetoed by governors.

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Recently, USCIS published new guidelines for the Employment Based Second Preference (EB-2) Immigrant Visa Category. In particular the new guidelines outline how Entrepreneurs can apply under the National Interest Waiver under this visa category. An Entrepreneur qualifies under this category in two ways, as a person holding an advanced degree, and a person who has an exceptional ability in the arts, sciences, or business.

First, the Entrepreneur must show that he or she is a person who holds an advanced degree or an individual of exceptional ability. Next, the Entrepreneur must show that their work is in the national interest. Although the term “national interest” is not defined by law, the case of New York State Department of Transportation has a three prong test that the Entrepreneur must meet in order to qualify. The three prongs of the test are:

1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.

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USCIS updated the Q & A document on employer-employee relationships for the purpose of determining H-1B eligibility. This updated Q & A follows from the memo entitled, “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements.

The updated Q & A document addresses several key points of the memo, including clarifications on the types of evidence that can be submitted to USCIS to demonstrate an employer-employee relationship and what a petitioner should do if specifically-requested documentation is not available or does not exist.

Specifically, USCIS states that the types of evidence that can be submitted to demonstrate the employer-employee relationship can be those listed in the original memo, which include:

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USCIS Director Alejandro Mayorkas discusses on the official USCIS blog, The Beacon, how current immigration policies will spur job growth and bolster the U.S. economy. The United States has a long, rich history of welcoming innovative entrepreneurs and skilled workers into our country. These men and women fuel our nation’s economy by creating jobs, and promoting new technologies and ideas. Secretary of Homeland Security Janet Napolitano and outlined a series of new policy, operational, and outreach efforts that will help fuel the nation’s economy and stimulate investment by making it easier for high-skill immigrants to start and grow companies and create jobs here in the United States.

Encouraging the kinds of streamlining measures USCIS is taking today has been one key focus of the President’s Council on Jobs and Competitiveness because they help ensure that America can continue to out-innovate and out-compete the world in a global economy.

As part of the Administration’s comprehensive effort to attract and retain high-skill entrepreneurs, USCIS announced that it will:

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A couple weeks ago, Representative Luis V. Gutierrez, a Democrat from Illinois who has become a perennial thorn on immigration for President Obama, was arrested Tuesday afternoon along with about a dozen activists in a protest outside the White House.

The protesters were arrested peacefully after they sat down on the White House sidewalk, following a rally where demonstrators denounced the Obama administration for deporting more than one million immigrants in the last two years.

In a letter to Mr. Gutierrez on Monday, Mr. Obama rejected his proposal to suspend deportations of illegal immigrant college students with clean criminal records. Last week, Mr. Gutierrez and three other House Democrats had sent a letter to the president requesting the suspensions and also asking him to take executive measures to make it easier for illegal immigrants married to American citizens to remain in the United States.

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Here we go again. A federal grand jury has indicted a former Sacramento immigration consultant and 13 other individuals alleging they participated in an elaborate immigration fraud scheme in which foreign nationals from Eastern Europe and Russia paid to enter into sham marriages with locally recruited U.S. citizens.

For foreign nationals, marriage to an American citizen is one means of obtaining lawful permanent residency in the United States. To initiate that process, aliens who are outside the country must apply for a fiancé visa, which enables them to travel to the United States to marry the citizen spouse. Alternatively, foreign nationals who are already in the United States and entered the country legally, may wed here and apply for lawful permanent residence based upon the marriage.

According to court documents, the scheme involved foreign nationals from Eastern Europe and Russia who paid fees of up to five figures to enter into sham marriages with U.S. citizens. U.S. Attorney Benjamin B. Wagner announced the unsealing of the multi-count indictment charging former immigration consultant Sergey Potepalov, 55, of Citrus Heights, Calif., and the other defendants with conspiring to commit marriage fraud, defrauding the United States, making false statements, and inducing aliens to enter and remain in the United States.

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