Visa Lawyer Blog

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The government is delaying a requirement that companies that receive new federal contracts check the immigration status of their employees using the Homeland Security Department’s E-verify system.

Facing a lawsuit by five industry associations, the government is delaying implementation of the rule until Feb. 20, said Lawrence Lorber, attorney for the trade groups.

The rule was supposed to take effect Jan. 15, but the industry groups, including the U.S. Chamber of Commerce, sued to block it from taking effect.

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I have tried to cover most of the key issues that a couple will need in order to succeed in filing the marriage based Green Card. But with a topic a involved and ever changing as this one, there are always questions that couples still like to ask. We have compiled a list of the most common questions that people ask us when attempting to file the Marriage based Green Application in the United States. Hopefully the following Questions and Answers will make your journey through this process a little less confusing.

1. How soon can an applicant that entered the US as a tourist or under the Visa Waiver Program marry a US Citizen, Could they apply for the Green Card in the United States?
Answer: A US citizen can marry a tourist or VW visitor and apply for the Green Card from within the US. It is better to marry 60 days after entry to lift the presumption that the immigrant entered the US in order to get married.

2. How soon after marriage can the US Citizen petition and file the immigration paperwork for the immigrant spouse?
Answer: There is no waiting period that must pass before the immigration petition can be filed. Make sure to have the certified Marriage Certificate registered with the county before you can file.

3. How long will it take to get the work permit after filing the case? How long will it take to get to the final interview after filing?
Answer: Currently it takes 90 days after filing the Marriage based Green Application for the Government to issue the work permit. In some cases the final interview is scheduled even before the Work permit can be issued. In this case, if there is an approval at the interview, there will be no need for the work permit at that time. In most cases though, interviews are scheduled, 5 months or so after filing.

4. What if there is a mistake in your name or date of birth on the Green Card?
Answer: If there is a mistake on your new Green Card you must take steps to correct it immediately. If you fail to do so, you will not be able to receive your social security number and any other documents as a result. You must file form I-90 (get it from USCIS.GOV website) with USCIS. Make sure to Check box d in part 2.2 of the application. There is NO FEE to pay as it was not your fault. You will need to mail the original card to the following address:
National Benefits Center
Attn: I-551 Corrections
705B SE Melody Lane, Box 2000
Lee’s Summit, MO 64063
5. How do you know what taxes to file now that you are a Green Card holder?
Answer: The Internal Revenue Service has several publications you can download or obtain from a local IRS office. www.irs.gov
” Publication 519…..US Tax Guide for Aliens
” Publication 514…..Foreign Tax Credit for Individuals
” Publication 501…..Exemptions, Standard Deduction, and Filing Information
” Publication 54…….Tax Guide for US Citizens and Resident Aliens Abroad
6. How long does a person need to wait after getting the Conditional Green Card before Applying for US Citizenship?
Answer: If the Immigrant is still married to the US Citizen and living together 3 years after getting the Conditional Green, they may apply for Citizenship. If the couple is no longer married and living together, the immigrant must wait 5 years after getting the Conditional Green in order to apply.

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Last week, the Attorney General overruled the Board’s decisions in Matter of Lozada, and Matter of Assaad. The decision held that there is no Fifth Amendment right to counsel in immigration proceedings. Matter of Compean-Bangaly-J-E-C, 24 I&N, Dec. 710 (A.G. 2009).

When immigrants face possible deportation, they don’t have the right to a state-appointed attorney. Now, Attorney General Michael Mukasey says this means they also don’t have the right to a new hearing if the lawyer they hire turns out to be incompetent or a fraud. This decision could hurt thousands of immigrants seeking to stay in the U.S.

For 20 years, various courts have ruled that the clients of such a lawyer had a constitutional right to ask for a new trial with a new attorney. But the Justice Department has disagreed with that concept, and recently some courts upheld its view. The ruling does allow the Justice Department to use its discretion to grant new trials if an immigrant can show that his lawyer’s actions were “egregious,” and if the agency believes the immigrant has a valid claim to avoid deportation.

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As we anticipated, on January 8, 2009, USCIS updated its H-2B visa count page to announce that the cap has been reached for FY 2009. Thousands of employers in need of seasonal workers will once again need to search for alternatives.

The word “Cap” used in this posting refers to annual numerical limitations set by Congress on certain nonimmigrant visa classifications, e.g., H-1B and H-2B. Caps control the number of workers that can be issued a visa in a given fiscal year to enter the United States pursuant to a particular nonimmigrant classification. Caps also control the number of aliens already in the United States that may be authorized to change status to a cap-subject classification.

The H-2B visa is designated for temporary, non-agricultural workers and is issued for one year with two one-year extensions allowed. Sixty-six thousand visas are reserved for this category each year, with the stipulation that U.S. employers demonstrate that the need for the labor is temporary. It can be seasonal, tied to peak-load demands, or even a one-time occurrence. H-2B visas are a key staffing option for many industries including landscaping, seasonal hospitality, and seasonal construction, and are also critical at peak times in manufacturing, food packaging, and fisheries.

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The Senate and House of Representatives are back in Session today. This Congress is certainly promising on Immigration reform, but we are not so optimistic as to what will happen in practice.

U.S. Congressman Bennie Thompson, chairman of the Homeland Security Committee of the U.S. House of Representatives in Washington, was among the first to urge the incoming Obama Administration to place immigration reform on the list.

According to Dr. Jorge G. Castaneda, professor of Latin American and Caribbean studies at New York University in Manhattan, Immigration reform is the sort of complex and costly project that, as a rule, presidents accomplish only at the peak of their power –when their term begins,” he wrote in an Op-Ed in a national newspaper. “If Mr. Obama decides to postpone immigration reform until later, he runs the risk of no longer possessing the leverage to convince his party’s legislators to brace the furies of the extreme right wing.”

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According to the Dairy Herd Migrant or foreign labor is a must for the dairy industry and other parts of agriculture, and a reduction in the workforce could cost consumers considerably. Labor and immigration are tied together, and it includes both legal and illegal immigration, says David Anderson, AgriLife Extension economist in College Station, Texas.

The value of milk production is $28.7 billion and this part of the dairy industry alone provides 147,000 jobs nationwide. If the related industries are added in, it is a $55 billion industry with 363,000 jobs. If you had a foreign labor reduction of only 20 percent, you would lose 33,000 employees, $5.5 billion in sales and $1.5 billion in income, Anderson explains. Total elimination would be a lot higher, he adds. Illegal immigrants make up 50 percent of agriculture’s workers.

About 20 percent of the dairy owners said they see labor shortages and are increasing wages to attract workers. Wages are higher where competing jobs are located. There is a vacuum of available workers, in part caused by the failure to pass immigration reform and the movement of penalties from civil to criminal.

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When the Illegal Immigration Reform and Immigrant Responsibility Act was passed by Congress in 1996, among its main goals was expelling and stiffening penalties against aliens who overstay visa allowances and improving security against illegal immigration on the borders and internally. While the law achieved some its objectives, it also spawned a population of immigrants, green-card holding “lawful permanent residents,” who could be more easily deported.

Key reason for this was a provision in the law that greatly expanded the list of crimes that qualified as “aggravated felonies” that would make aliens deportable. When the category of “aggravated felonies” was first added to immigration law in 1988, it encompassed only murder and trafficking in drugs or firearms. Those crimes along with a number of other violent and sex crimes remain as deportable offenses. But the 1996 law also added dozens of lesser offenses. These can include forgery, burglary, tax evasion, domestic abuse and any attempt to commit an aggravated felony. A number of crimes make aliens deportable if the sentence is a year or more, regardless of time served or whether the sentence was suspended. It even includes crimes that are misdemeanors in some states.

The legislation also reduced leeway for judges to consider providing relief. Issues such as immigration status, time lived in the U.S., existence of family who are citizens, ties to the community, or service to the U.S., including military, are not considered.

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I wanted to wish a wonderful New Year wishes to all our readers and friends. May the coming year bring all the best to you all. See you next year.

Jacob

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USCIS published a notice announcing the revision of its Direct Mail Program so that certain filings of Form N-400, Application for Naturalization, will now be filed at a designated lockbox facility instead of a USCIS Service Center.

During the first 30 days after this notice takes affect, USCIS will forward incorrectly addressed Form N-400s to the proper address, rather than reject it. USCIS will forward any improperly addressed Form N-400s covered by this notice as follows:

Any Form N-400 from non-Armed Forces applicants will be forwarded to either the Dallas or Phoenix lockbox facilities.

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Due to the economic downturn, I get many emails from current H1B visa holders that are interested in starting their own companies. They are either worried about loosing the current H1B job or are in the process of being laid off. It can be really difficult for start up and small companies to file for and get H-1B visas.

Last April many Immigration lawyers received very similar requests for evidence focusing on few very particular issues. USCIS were looking for small companies filing for H1B’s or for job shop employers. Truly, if people are being hired outside the U.S. Normally USCIS will want you to prove the following:

1. Employer is capable of paying wages;

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