Visa Lawyer Blog

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Since the recent Memo from USCIS re Employer Employee relationship, our office has been receiving anxious calls from employers and clients alike. U.S. Citizenship and Immigration Services (USCIS) issued in Janauary updated guidance to adjudication officers to clarify what constitutes a valid employer-employee relationship to qualify for the H-1B ‘specialty occupation’ classification. The memorandum clarifies such relationships, particularly as it pertains to independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites. The memorandum is titled: “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements.

The memo make it more difficult for staffing companies who hire professionals to work at third-party work locations to obtain H-1B visas on their behalf. The memo states that staffing companies must demonstrate that they “control” their employee’s daily tasks.

Moreover, the memo prevents corporations owned by a future H-1B beneficiary from submitting an H-1B petition on behalf of the beneficiary. The grounds for denial would be that the beneficiary rather than the petitioning company will be controlling the beneficiary’s work.

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U.S. Citizenship and Immigration Services (USCIS) today announced that it has posted a revised Application to Register Permanent Residence or Adjust Status, Form I-485. In addition to a revised form, there are new filing locations. The changes are part of an overall effort to transition the intake of USCIS benefit forms from Service Centers to Lockbox facilities. Centralizing form and fee intake allows USCIS to provide the public more efficient and effective initial processing of applications and fees.

Beginning February 25, 2010, most applicants must submit Form I-485 to a USCIS Lockbox facility, depending on the eligibility category under which they are filing, as provided in the form instructions. USCIS Service Centers will forward all Form I-485 applications to the appropriate Lockbox facility until March 29, 2010. USCIS will accept previous versions of Form I-485 until March 29, 2010. After March 29, 2010, USCIS will only accept the Form I-485 dated “12/03/09.”Any previous versions of the the form that are submitted will be rejected. After the transitional period, the Service Centers will return any incorrectly filed Form I-485 with instructions to send the application to the correct location.

At this time, applicants should not concurrently file Form I-485 with an Immigrant Petition for Alien Worker (Form I-140) at a USCIS Lockbox facility. Refer to the Form I-140 filing Instructions for information on how to file forms concurrently.

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On March 1, U.S. Citizenship and Immigration Services welcomed 50 new citizens at a special citizenship ceremony at the Robert F. Kennedy Department of Justice’s Great Hall. U.S. Assistant Attorney General for Civil Rights Tom Perez delivered keynote remarks, and USCIS Director Alejandro Mayorkas will administer the Oath of Allegiance.

Each year, hundreds of thousands of immigrants choose to become American citizens by taking the Oath of Allegiance at naturalization ceremonies across the United States and overseas.

Here are the Citizenship Statistics:

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There is still a lot of confusions when it comes to Orphans from Haiti and the legal procedures concerning adoptions from that country. Under normal circumstances, a child immigrating to the United States from Haiti as the adopted orphan child of a U.S. citizen is adopted before leaving Haiti, and is then admitted to the United States with an immigrant visa for Lawful Permanent Residence (LPR) status. The adopted child then acquires citizenship upon entry as specified in section 320 of the Immigration and Nationality Act (INA).

In light of the devastating earthquakes in Haiti, the Secretary of the Department of Homeland Security authorized Haitian children, who were adopted or were in the process of being adopted by American families prior to the earthquake, to be paroled into the United States. “Category 1” parolees are Haitian orphans who were already legally adopted in Haiti. “Category 2” parolees are certain Haitian orphans whose cases had not yet resulted in final adoptions.

o determine what steps to take next, it is most important to understand where you were in the adoption process in Haiti, click here for a complete guide from USCIS

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The Government of India has stated that educational cooperation is an “important facet” of Indo-UK ties. They will be in contact with the British High Commission to “better understand the reasons” for the temporary freeze on UK student visa applications by those based in Northern India.

The Indian Government is trying to help genuine students planning to study in the UK who have been affected by the temporary ban on student visa applications made at UK Visa application centers in New Delhi, Chandigarh and Jalandhar from 1 February 2010. An Indian official said, “Student exchanges form a vital component of this cooperation. We would remain in touch with the BHC (British High Commission) on this matter.”

The Ministry of External Affairs has been in touch with the British High Commission on this matter to better understand the reasons behind this decision and also to ensure that genuine Indian students planning to go to the UK for studies are not adversely impacted. It is also interesting to note that the UK Border Agency is investigating a number of UK education providers. This week approximately 60 education providers in the UK were suspended from the sponsors’ register.

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Australian immigration will soon start implementation of biometric checks for Australian visa applications in ten Countries. $69 million Australian dollars will be invested over four years. The Australian Government had the following to say about the new Australian visa biometric requirements.

* If you apply for an Australian visa in any of the ten Countries you will need to also submit your fingerprints and facial images This biometric data is unique to a particular individual and will enable the Australian Government to confirm the true identity of visa applicants.

* Checks will be made in databases for known terrorists and criminals and other people of concern.

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Important notice to our clients from Eritrea. Consular operations, including visa services, at the U.S. Embassy in Eritrea have been suspended until further notice. According to Embassy Asmara, the closure is in response to the Government of Eritrea’s flagrant violations of the Vienna Convention on Diplomatic Relations. These violations include failing to notify U.S. consular staff of the arrest of American citizens, hindering the travel of Embassy officials to visit American citizens in distress, and interfering with the delivery of the U.S. Embassy’s diplomatic pouches. The Consular Section will continue to provide emergency services to U.S. citizens.

Information courtesy of the Rome District Chapter (RDC) of AILA.

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We like to intimate about the special tax return filing requirements for foreign students. According to Notice 2005-77:

“Non-resident aliens whose U.S. wages do not exceed the personal exemption amount are not required to file a tax return”.

We encouraged to go for Tax filing in order to receive a refund. If you are a student and having a taxable scholarship, partially or fully exempted income, or any other taxable income, you are required to file a tax return. If you are a foreign student having an income from a foreign source, a tax free scholarship/fellowship, other non-taxable income, income generated through interest at a U.S. Bank, U.S. savings and loan institution, U.S. credit union, U.S. insurance company, or an investment that accrues portfolio interest, you are not required to file a tax return.

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The Department of Labor announced Public Briefings on the Changes to the Labor Certification Process for the Temporary Agricultural Employment of H-2A Aliens in the United States. Members of our office will attend the briefings tomorrow in San Diego.

On February 12, 2010, the Department of Labor (the Department or DOL) amended the H-2A regulations at 20 CFR part 655 governing the certification of temporary employment of nonimmigrant workers in temporary or seasonal agricultural employment. See, Temporary Agricultural Employment of H-2A Aliens in the United States, Final Rule, 75 FR 6884, Feb. 12, 2010 (the Final Rule). The Department’s Final Rule also amended the regulations at 29 CFR part 501 to provide for enhanced enforcement under the H-2A program requirements when employers fail to meet their obligations under the H-2A program. The Department has also made changes to the Application for Temporary Employment Certification, ETA Form 9142.

The Final Rule will become effective on March 15, 2010. All H-2A program users will be required to file their applications under the new regulations, and to comply with all applicable program requirements.

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Here are some important changes to the K visa process, effective February 1st, 2010, when both the I-129F petition for a nonimmigrant K visa and the I-130 petition for an IR-1 (or CR-1) spouse of a U.S. citizen visa have been approved by USCIS and sent to the National Visa Center (NVC), the availability as well as the need for a nonimmigrant K-3 visa ends. If the NVC receives both petitions: The nonimmigrant K visa will be administratively closed.

If the NVC does not receive your I-130 petition and I-129F at the same time, the NVC will process your I-129F petition. Then NVC will send the petition to the embassy or consulate in the country where the marriage took place. If your marriage took place in the U.S., the NVC will send the petition to the embassy or consulate that issues visas in your country of nationality. If your marriage took place in a country that does not have an American embassy, or the embassy does not issue visas, the NVC will send your petition to the embassy or consulate that normally processes visas for citizens of that country. For example, if your marriage took place in Iran where the U.S. does not have an embassy your petition would be sent to Turkey.