Visa Lawyer Blog

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Recently, the Department of State released revisions to Section 40.11 N14.3 of the Foreign Affairs Manual regarding procedures for Nonimmigrant Visa (NIV) HIV Waiver Authorization. DOS released a checklist for individuals applying for a Non Immigrant HIV Waiver. The checklist is used in DOS’ new streamlined NIV waiver process, which allows individuals to certify to the list of conditions for obtaining the waiver as opposed to having to bring independent evidence to the consulate. Click here for checklist Download file

We welcome the changes and hope that this will improve America’s Image in the world, encouraging more visitors to come.

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Since my last Blog article on E2 visas, I have been getting numerous emails about this hot topic from across the globe. Investors are anxious to come, but need the most up to date information about the E2 visa as a way to relocate and start a business in America.

In this article I will discuss alternative financial transactions as investments. In addition to cash, payments in the form of leases or rents for property or equipment may be calculated toward the investment in an amount limited to the funds devoted to that item in any one month, since the remaining payments will presumably be paid out of earnings from the treaty business. However, more than one month of payments may be counted if they are made in advance. For example, if the treaty investor prepays his or her equipment lease for one year, the entire year’s worth of payments may be counted as part of the qualifying investment.

The amount spent for the purchase of equipment and for inventory already in the possession of the treaty investor may be counted as part of the qualifying investment. The value of goods or equipment transferred to the United States may be considered part of the qualifying investment, if it can be demonstrated that the goods or machinery will be put to use in an ongoing commercial enterprise. The treaty investor must establish that the purchased goods or equipment are for business, not personal purposes. While a company car may not meet this burden because it may also be used for personal purposes, inventory or industrial equipment certainly will.

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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.

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USCIS today announced an updated number of filings for H-1B petitions for the fiscal year 2010 program. USCIS has received approximately 44,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. It looks like less than 2000 cases were filed in the past two weeks, so it is very likely that the cap will not be met at least until the end of June.

Anti Immigration and H1B groups, blamed the economic crisis and job losses, on foreign workers coming to steal jobs from US workers. H-1B workers don’t “steal” jobs from U.S. workers. H-1B visas are issued to temporary, “nonimmigrant” workers in “specialty occupations.” As described by the Congressional Research Service, a “specialty occupation” is one “requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum.” H1B workers are a boost to any employer and not a threat. The current crisis is affecting H1B workers as well.

We will keep following the developments in the H1B saga.

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According to computerWorld, President Barack Obama has signaled interest in taking up comprehensive immigration reform. And any push for immigration reform is almost certain to include an increase in the H-1B cap. Patrick the reporter outlined 5 reasons why the cap will be increased; Read the excellent article here

The main lesson to be learned from the H1B saga this year, is that the market worked and won. Given the large number of jobs lost in the U.S. economy, employers submitted far less petitions than they did last year. Contrary to what critics of the program maintain, the cost of employing an H-1B worker exceeds that of hiring a U.S. worker given attorneys’ fees and government filing fees.

Congress should stop trying to control the program, and return to a simple market-based system. The plain truth is that the overwhelming majority of U.S. employers comply with the law. Those that abuse the law should be stripped of their ability to petition for H-1B workers. So bottom line is that, if you are in need of good quality workers, you can still hire them on the H1B visa. But you need to hurry.

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In the past week or so we have been receiving many requests for evidence on all H1b cases filed on April 1, 2009. The RFEs received by us and practitioners across the country so far appear to only request that the single page of the I-129 Data Collection sheet be sent with the TARP question answered.

Due to the passage of EAWA, USCIS is required to collect TARP (and Section 13 funding) information on each H-1B petitioner. However, by the time the new form became available, we had already completed our packages for the H-1B cap filing period for April 1, 2009. Therefore, USCIS confirmed that the new I-129 form was not mandatory and that only the one page (of the I-129 Data collection sheet requesting the TARP information) was urged to be included.

At the AILA Spring Conference in Washington, D.C., Barbara Velarde, Chief, USCIS Service Center Operations, mentioned that if the TARP information was not included in the filing, the petitions would not be rejected. However, USCIS would need to send an RFE for the TARP information. Unfortunately, this was not clearly explained in the USCIS fact sheet on TARP issued on March 20, 2009. Nevertheless, USCIS is required under the EAWA statute to obtain this information and the easiest way for USCIS to comply is to send an RFE. This is a very annoying and time consuming process for all us dealing with H1B filings, and even more confusing for the clients. We hope that USCIS explain better such crucial changes in future matters.

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I can not remember a time in my practice when I got so many inquiries and emails about investing and relocating to the United States. You would think that in these tough economic times, people will stir away from this country. The opposite is true. In these challenging times, many foreign investors are looking at the US as a potential gold mine. Trying to position themselves for the moment the economy takes a different course.

According to Jack Welch, in these recessionary times, a new business doesn’t stand much of a chance unless it provides a demonstrably superior value proposition than the market’s current offerings. Sure, not that long ago, you could still take a competitor’s service or product, tweak it or slap on a new feature or two, and persuade customers to buy it at a premium. But with everyone in hunker-down mode, the days of marginal up-selling are gone, and could be for some time to come.

That said, if you’re an entrepreneur or a foreign investor who has actually come up with a product or service that will significantly improve people’s lives—for significantly less than the going rate—here’s why right now might be the right time to forge ahead.

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The new LCA Form (ETA-9035) will be available for use starting TODAY, April 15. However, the current version of the form will still be accepted through May 14. Starting on May 15, LCAs may be filed only through the iCERT system. DOL will disable the existing online system, but employers/attorneys will continue to have online access for case status checks and LCA withdrawals.

The most notable thing about the new LCA system is that DOL advises users to expect processing times for LCAs to increase up to 7 business days as there will be an official review and DOL certification of each LCA submitted. Employers and attorneys will need to plan accordingly.

The DOL will start accepting the new PERM Form ETA-9089 for processing on July 1. Again, the current version of the ETA-9089 will be accepted through July 31. Starting on August 1, PERM applications may be filed only through the iCERT system. DOL will disable filing functionality in the existing online system, but will continue to provide online access for case status checks and PERM application withdrawals.

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The U.S. Department of State (DOS) has issued the Visa Bulletin for May 2009, which announced EB3 unavailability for all countries of chargeability. The EB2 cutoff dates for China and India had been February 15, 2005 and February 15, 2004, respectively, and have not changed for May 2009. The EB3 visa unavailability is due to high demand for immigrant visa numbers and, particularly, a large number of cases with older priority dates.

The EB2 category continues to be current for all countries, except India and China. The cutoff dates for India and China did not change from the prior month. The cutoff date for India remains as February 15, 2004. China’s cutoff date is still February 15, 2005.

Lets see what the summer will hold for all visa categories.

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Living in a border city like San Diego we hear stories like this one from time to time. The AP report about Pedro Guzman has been an American citizen all his life. Yet in 2007, the 31-year-old Los Angeles native — in jail for a misdemeanor, mentally ill and never able to read or write — signed a waiver agreeing to leave the country without a hearing and was deported to Mexico as an illegal immigrant.

For almost three months, Guzman slept in the streets, bathed in filthy rivers and ate out of trash cans while his mother scoured the city of Tijuana, its hospitals and morgues, clutching his photo in her hand. He was finally found trying to cross the border at Calexico, 100 miles away.

In a drive to crack down on illegal immigrants, the United States has locked up or thrown out dozens, probably many more, of its own citizens over the past eight years. A monthslong AP investigation has documented 55 such cases, on the basis of interviews, lawsuits and documents obtained under the Freedom of Information Act. These citizens are detained for anything from a day to five years. Immigration lawyers across the nation say there are actually hundreds of such cases.

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