Ranchodlaw

Please contact the Ranchod Law Group in California, if you have any immigration questions and would like to schedule a consultation. We serve clients across the U.S. and at U.S. Embassies worldwide. To schedule a consultation contact us at 415-986-6186 or at info@ranchodlaw.com.

EB-1 Green Card

Deepak — Fri, 28 May 2010 10:40:10 +0000

Eligible Individuals

The individuals who are eligible for a green card in the EB 1 category include those in managerial or executive roles who are multinational, researchers or professors who are internationally recognized and those who have shown exemplary skill and ability in the areas of the arts, sciences, business, athletics or education. Let’s take a closer look at each of these categories.

Multinational Managers and Executives

In this area, the petitioner must be engaged in business for a year at the least and must be a U.S. employer that is a subsidiary, an affiliate or the same employer as the legal entity that employed the person in an executive or managerial position abroad.

An executive of manager is allowed to petition for an EB 1 green card if the person has been engaged in work for three years prior to the application and employed for a year at the very least by a corporation or firm outside the US. They must be seeking to come into the United States to serve in the same area to that same company. It’s important that prior to entering the U.S. that the employment was outside the nation and in the areas of either serving as an executive or a manager. They must have worked for the identical employer or an affiliate or a subsidiary of the organization for which the applicant wants to work.

Researchers and Professors Recognized Internationally

You may qualify for an EB 1 visa in the area of researcher or as a professor if you’ve been recognized internationally for success or achievements on an elevated level in an academic field. They must possess a teaching or research record of three years at the very least in their academic discipline and come to the U.S. in a comparable position at an institution of higher education in a tenure or tenure-track position. The employer may be a private or independent organization that employs a minimum of three people involved in full-time research and have verified success in an academic area. Evidence regarding the researcher’s or professor’s achievements must be offered.

Those of Extraordinary Ability

In the area of ability of an extraordinary nature, this designation may be earned for the EB 1 applicant in two ways. If the applicant has received an award that is of international note, they may qualify for the visa. The applicant may also qualify if they meet one-third, that is three of the 10, criteria listed below.

The applicant has been given in their area or field an internationally or nationally documented award of lesser value for achievement. Examples include a fellowship in areas of medicine or the medical field, Fulbright Fellowship or a special award such as the Caldecott Medal.
Associated connections in organizations, such as memberships, in their field that stipulate they only accept people of “outstanding achievement.”
Information, data or other material about the applicant that has been disseminated in major media or trade publications.
If the applicant has been on a panel serving in the capacity as an evaluator or judge of others in your field such as being a member of a team that’s engaged in peer assessment of a scientific article or working as part of a review committee for a dissertation or thesis.
Accomplishments in the area of a primary nature that is related to various areas, including scholarly, athletic, business or artistic.
Creating academic writings in your field that have been published or presented in juried journals or conferences or in major trade journal or distributed through major media.
Showcased or exhibited works.
Being a crucial or critical participant in the workings of an organization that possess distinguished reputations.
Earning elevated compensation within your field.
Recognized commercial achievement in performance areas such as acting, music and more.

Often the application for an EB-1 green card involves building a very strong case regarding the applicant’s credentials and international status. As an immigration lawyer, I focus on ensuring each of my clients is able to make the best case possible in their attempt to secure an EB 1 visa.

For more information please also see this page: EB-1 Extraordinary Ability, I-140 Petition for Doctors

Please contact the Ranchod Law Group with offices serving San Francisco, San Jose, and Sacramento California, at info@ranchodlaw.com or at 415-986-6186 if you have any questions regarding EB 1 visas or immigration.

Immigration Law Newsletter April 2010

kaushik — Sun, 11 Apr 2010 01:32:21 +0000

Important Update: USCIS Still Accepting FY 2011 H-1B Petitions

It is not too late to file for a H-1B petition. Just a few days ago the United States Citizenship and Immigration Services (USCIS), which started accepting petitions for H-1B petitions on April 1, announced that they had received approximately 13,500 petitions towards the general cap. They are accepting 65,000. They have also received 5,600 petitions for those who have earned a U.S. master’s degree or higher. That cap is set at 20,000 and those are exempt from the 65,000.

The H-1B General petition is used by U.S. businesses to hire foreign workers who are trained in specialty fields that require theoretical or technical expertise such as computers, science and engineering.

Petitions filed by those workers who have been counted against the cap in the past six years or by employers who are exempt from the cap are not counted towards the FY 2011 cap, which is mandated by the U.S. Congress.

If the cap is met, then the USCIS will issue an update as to that effect. Petitions are counted as they are physically received by the USCIS and not by the postmark date. The date that the USCIS informs the public that the cap has been reached may be different than the date that they receive the final petition. Updates regarding the number of petitions received may be found at http://www.uscis.gov/portal/site/uscis.

In this new era of immigration enforcement, the process is fairly complex. We’ve worked with quite a few individuals and businesses, ensuring that their petition is accurate and complete. Additionally, if your petition is received on the final date that the quota is filled, it may be randomly rejected. Thus, it’s best to get your petition in as soon as possible.

Those applying for a H-1B visa must prepare their petitions properly, filing all paperwork and following all regulatory guidelines. If this is not done, a person’s petition will be delayed and could be rejected. The starting work date for those filing can be no earlier than October 1, 2010.

We can help facilitate your application and make sure that all regulatory guidelines are met. We’ll perform all work in a timely manner and our experience, which is extensive in this area, allows us to perform our services quickly and in an exact manner. Contact us at 415-986-6186 to make an appointment.

How Success Stories Are Made

It’s always great to hear a success story and we have one for you. This involves a Ph.D. who received his degree from a prestigious U.S. university and his National Interest Waiver (NIW) petition.

It was in 2009 that Dr. X contacted the Ranchod Law Group and retained us to complete his NIW petition. Receiving a NIW is very difficult due to the criteria for approval. Basically, three things must be proven.

1. A petitioner must show that their work is of intrinsic merit.
2. They must also prove that it is of a national scope.
3. And they have to give convincing evidence their continued work is of greater benefit to the national interest of the U.S. than the laws that protect American workers.

Even if you prove the first two points, the third is very difficult to successfully illustrate and that means that a NIW is very difficult to secure. We focused on a few areas to build our case for Dr. X.

We argued that Dr. X’s educational background in combination with his experience provided the foundation necessary for the application. Additionally, we noted that he had been involved in numerous projects that were funded by U.S. National grants.

We advised him regarding what kinds of expertise and skills to emphasize in his petition. We also helped him in obtaining letters of recommendation from colleagues in his field of expertise, since these would be essential evidence. Upon receiving the letters, we reviewed them, edited many of the letters to focus on essential aspects of his experience, expertise and importance of his continuing contributions and submitted them to Dr X’s colleagues to review, and if they felt the changes were appropriate, for their approval.

After carefully compiling his documentation and writing a detailed supporting brief that powerfully brought together all of the important elements of his background in a manner that thoroughly supported our contention that Dr. X’s permanent residence status was in the national interest.

After submitting the petition with an adjustment of status application on November 20, 2009, the proposal was approved on January 14, 2010, making for a Happy New Year. In a mere seven weeks, approval had been given for his NIW and then just 12 weeks after our original petition was filed, Dr. X also saw his permanent residence application approved.

We had worked hard to help Dr. X go from a nonimmigrant temporary visa holder to a permanent resident in 12 weeks. Applying for a NIW is a daunting process. We would be honored to review your qualifications to help determine if you are a candidate for a national interest waiver petition. Contact us at 415-986-6186 to discuss whether you qualify for a National Interest Waiver . At the Ranchod Law Group we’re dedicated to working with individuals, Universities, and businesses to give them every opportunity to achieve their goals. Call us any time or email us at info@ranchodlaw.com to schedule a consultation.

The Latest News—Intercountry Adoption with Russia in Jeopardy

In compiling this month’s newsletter, I read this news story right at the deadline and felt a need to share it. There’s concern that what has been one of the richest resources for U.S. citizens in terms of intercountry adoption, Russia, may no longer be an option. The problem stems from an incident that has upset Russian authorities.

The incident I’m about to relate, which comes from Russian sources, has U.S. Department of State officials in talks with Russian officials in an attempt to avert a shutdown in intercountry adoption. This is what has allegedly occurred.

According to Russian news sources, a seven-year old boy who was adopted in 2009 was put on a plane on April 9, 2010. Russian sources have identified the boy as Artyom Savelyev. The boy is reported to have been placed on a plane in Tennessee alone and was flown to Washington State and then to Russia. He had in his possession a note that said the adoption was void and the boy was being returned to his homeland.

This abandonment has been internationally criticized and decried and it has many Russian officials, including Sergey V. Lavrov, the Minister of Foreign Affairs, demanding that adoptions to the U.S. be suspended. Lavrov has called for reforms in the process before any more adoptions are allowed. The U.S. Ambassador in Russia has also criticized the incident.

In the U.S., local authorities, according to the National Council for Adoption (NCA), are investigating the adoptive mother, Nancy Hansen. No charges have been filed as of yet.

Acting CEO of the NCA, Chuck Johnson, has said, “Child abandonment of any kind is reprehensible.” Johnson adds, “The actions of this mother are especially troubling because an already vulnerable, innocent child has been further victimized.”

I’m struck by the fact that there have been over 60,000 intercountry adoptions with Russia and that this incident, coupled with death of a Russian child died after his adoptive parents left him in a car last year in 100 degree temperatures, has jeopardized the entire process. It’s true that no system is perfect. And you can’t blame Russian officials for their concern or reactions. They can’t take this lightheartedly. Neither incident is defensible. And they should make us take a good hard look at the entire adoptive mechanism and process and make any reforms that are necessary.

But it’s my thought that after an investigation in the U.S. and carefully considered reforms in the process that intercountry adoption between Russia and the U.S. will continue. This terrible incident does illustrate very clearly the great responsibility that parents who engage in intercountry adoption bear. Parents who adopt within our country are accountable for their actions, as are any parents, but when you decide to pursue adoption beyond our borders there is the potential for creating an international incident. This is serious and a wakeup call for all of us.

Attorney Tip – Your Complete Attorney Resource

Extreme Hardship in an I-601 Waiver Case

Deepak — Mon, 15 Feb 2010 12:45:03 +0000

Immigration Attorney Explains Extreme Hardship in an I-601 Waiver Case

If you’ve read my articles on obtaining an I-601 Waiver when you’re married or engaged and trying to immigrate to the U.S. with your partner, you know the basic reasons why you may be turned down for a visa and the process you must go through to have your denial waived.

Importance of Extreme Hardship

Perhaps the most important part of the process designed to reverse the ban on your visa is where the Qualified Citizen, who would be either your spouse or fiancé, has to plead that your not being allowed to come into the country would cause them “extreme hardship.” When an extreme hardship case is made, it is done in writing and it requires logic, evidence and proper documentation.

In this article, I’m going to review some of the more persuasive extreme hardship circumstances that may apply to your partner’s situation. In my practice as an immigration attorney, I have found that in order to be successful at establishing and proving extreme hardship that a petitioner must be honest and persuasive. If you are the partner who possesses a visa, this article is specifically directed at you.

Examples of Extreme Hardship

Extreme hardship is related directly to your life and in creating this document you are giving real life circumstances that you can corroborate in which your life will be affected negatively in a major way. Here are five areas that can be utilized in your claim that the separation caused by the denial of your spouse’s of fiancé’s visa will cause extreme hardship or your foregoing the separation and residing in your partner’s country will greatly compromise your life.

Health and Medical Issues: Are you undergoing medical treatment that will be affected by your having to live in a different country? Are special treatments involved? Will the climate, cultural or living conditions cause problems? How long is the treatment, is it ongoing or long term and might the condition be worsened by living in a foreign land?

Financial Considerations: Do you own a home or business that will be lost or adversely affected by living in another country? Can you find employment in your spouse’s country? If you do have to live in another land will that involve additional training, affect your standard of living and result in additional costs? Do you have elderly family members in the U.S. who require your presence or will being away cause financial strain on you or them?

Educational Opportunities: Will you have less or a lower standard of education and training in your spouse’s country? Are you presently enrolled in an educational program in the U.S. that will be interrupted or compromised? Will you have to learn a new language to continue your learning process?

Personal Matters: If you live in the U.S. and your partner stays in their country how will that affect family life, especially that of your children? If you stay in your spouse’s country, how will that change affect any children or close relatives?

Special Factors: Do you have specific and real cultural, religious, and ethnic challenges and/or fears regarding persecution, harassment, physical harm, or injury? Might you and your family face social exclusion or stigma. Will you and your family be prohibited access to social institutions, public places or services?

Additionally, you should explain any other issue or circumstance that will cause excessive hardship. Petitions that include a wealth of legitimate, detailed evidence are most convincing. Including letters from professionals or experts, specific information regarding each situation and any other documentation will strengthen your case. Information such as statistics and reported trends from U.S. government sources is especially convincing.

Making Your Case

With so much on the line, your ability to make a convincing argument is essential. A knowledgeable immigration attorney can help guide you through this process. Please contact the Ranchod Law Group in California, if you have any questions regarding extreme hardship and the I-601 Waiver process. We represent clients across the US and at Embassies worldwide. To schedule a consultation contact us at 415-986-6186 or at info@ranchodlaw.com.

More Information:

I-601 Hardship Waivers
I-601 Hardship Waiver Process

I-601 Hardship Waiver Process

Deepak — Mon, 15 Feb 2010 12:42:43 +0000

Immigration Lawyer Focuses on I-601 Hardship Waiver Process

In an earlier article, I discussed some of the more common reasons that would make a foreign born spouse ineligible for a U.S. visa. My work as an immigration lawyer has brought me into contact with an array of people who are seeking an I-601 Hardship Waiver, which can lift the ban on someone who has been denied admittance to the U.S. In this entry, I’ll focus on the process of applying for the waiver.

I-601 Hardship Waiver

The officer will determine the following—if the applicant is ineligible for a visa, if the law allows the applicant to apply for a waiver, and if the applicant is eligible for a I-601 hardship waiver.

You cannot submit a waiver until you’ve been turned down for a visa. However, you may know in advance that you are going to be denied. If that’s the case, then you can help facilitate the process by completely filling out a waiver immediately after the denial. The consular officer will give you the waiver form with the reason for denial listed and denial codes included on the form.

The applicant will need to have their finger prints taken and pay a fee. Then a complete waiver package must be submitted.

Extreme Hardship

According to the law, the Qualifying U.S. Citizen, who would be the spouse, fiancée or fiancé with a visa, must prove that the denial of a visa will cause “extreme hardship.” Often the “extreme hardship” that is claimed is that the spouse, fiancée or fiancé will be forced to live outside the U.S. The hardship has to be “greater than the normal hardship the qualifying relative can be expected to experience if the Alien is denied admission.”

Standards vary and at some consulates the Qualifying Citizen will have to acknowledge not only why they cannot move to a foreign country but also why they cannot live in the U.S. without the person who has been denied a visa.

The Qualifying Citizen presents their extreme hardship case in a legal memorandum. Saying that you will miss your spouse greatly or will be lonely is not extreme hardship. This legal memorandum, which can benefit from the detailed and thoughtful preparation of an immigration lawyer, is the key element in the waiver process. It must be specific, detailed and accurate. Evidence and documentation are essential.

Decision

After the waiver form, fingerprints, hardship letter and evidence and fees have all been filed, the spouse or fiancé may not enter the country. They must wait for the adjudication process to run its course. The wait can be lengthy and it varies from consulate to consulate.

If a waiver has been granted, then a visa will be issued. The applicant will either be sent the visa on a predetermined date or will be instructed to pick it up at the consulate. With the visa in-hand, the applicant may enter the U.S.

What You Can Do

Applying for an I-601 Hardship Waiver can be time consuming and confusing. It’s also anxiety producing due to the fact that the hardship letter carries so much weight. It’s a huge responsibility. Please contact the Ranchod Law Group in San California, if you have any questions regarding or want to start the process of applying for an I-601 waiver. We represent clients across the United States and at Embassies worldwide. To schedule a consultation contact us at 415-986-6186 or at info@ranchodlaw.com.

More Information:

I-601 Hardship Waivers
Extreme Hardship in an I-601 Waiver Case

I-601 Hardship Waivers

Deepak — Mon, 15 Feb 2010 12:40:30 +0000

An Immigration Attorney Looks at Marriage to a US citizen and I-601 Hardship Waivers

Usually, a foreign born spouse can have their petition for a visa approved and they can enter the United States with their husband or wife. But in my capacity as an immigration attorney, I’ve found that matters get complicated when a spouse is found to be inadmissible due to various criteria that determine they are not eligible to enter the country (or your spouse is in the country but entered without a visa). This is when a foreign born man or woman who is married to a U.S. citizen turns to the I-601 Hardship Waiver in an attempt to gain admittance to the U.S. with their spouse.

Most Common Reason for Inadmissibility

As an immigration attorney, I’ve found that the most common reason for someone being turned down in their visa process and being termed “inadmissible” has to do with their entering without a visa (the legal term is entering without inspection).

Additionally, an overstay of 180 days will result in a person being barred for three years and a 365-day overstay garners a decade-long ban. Either of these violations require a waiver if the spouse hopes to reenter the country.

The three or ten year bar is in effect once the person leaves the country. If an individual has an overstay of less than 180 days, then no waiver is needed to be granted a visa and those under 18 years old will not need a waiver if they overstay for any length of time. If your spouse entered the U.S. lawfully but overstayed s/he could stay in the U.S. and adjust status to lawful permanent residency (green card) without leaving the U.S.

Other Reasons for Inadmissibility

There are various other reasons for prohibiting individuals from entering the U.S. Here is a partial list.

Falsely claiming U.S. citizenship (lifetime band).
Addiction to alcohol or drugs.
Have a dangerous mental or physical disorder.
Have a communicable disease.
Committed serious criminal acts, such as
- Drug trafficking.
- Moral turpitude.
- Prostitution.
Are unable to support him/herself and will become a charge of the state.

Your Recourse

The recourse that I help people take in my practice as an immigration attorney is to file an Application for Waiver of Grounds of Inadmissibility (Form I-601). The law requires that the ineligible party files the waiver and the Qualifying U.S. Citizen, the spouse who is an American citizen, will need to prove that not allowing their partner into the country will result in “extreme hardship.” In my I-601 hardship waiver process article, I address the basic process involved in I-601 Hardship Waivers. Please contact the Ranchod Law Group in California, if you have any questions regarding or want to start the process of applying for an I-601 hardship waiver. We serve clients across the U.S. and at U.S. Embassies worldwide. To schedule a consultation contact us at 415-986-6186 or at info@ranchodlaw.com.

More Information:

I-601 Hardship Waiver Process
Extreme Hardship in an I-601 Waiver Case

L1B Visa – Specialized Knowledge Worker

Deepak — Mon, 15 Feb 2010 12:26:57 +0000

A Consideration of L1B Specialized Knowledge Worker Visa Requirements

In my work as an immigration attorney, I’ve handled a range of L1 visa immigration cases. Perhaps the most time sensitive visa applications are those relating to workers coming to the United States to perform duties on a temporary basis. In this article, I’m going to outline the requirements for the L1B visa, which is designed to bring individuals into the country who are known as Specialized Knowledge Workers.

L1B Specialized Knowledge Worker Visa Basics

The L1B visa is designed for individuals from foreign countries who plan to come to the United States to work. These individuals possess specialized knowledge, skills and experience regarding the procedures, systems, services or products of a firm, corporation, company or other entity.

The original length of stay for these individuals is three years but it may be extended to five. In order to be considered for L1B visa, an individual must have been employed in a position requiring specialized knowledge for one of the three past years at a sponsoring company’s foreign division, branch, subdivision or other entity associated with that company.

L1B Visa Requirements for Companies

The company located in the United States is the petitioning company and must meet specific requirements. It’s essential that the U.S. company have a formal affiliation with the foreign entity. The connection may be as a subsidiary, division, affiliate or branch. The connection must be clearly established and verified. This relationship may be shown by the fact that both entities are controlled by the same person or group or by demonstrating that one company owns more than 50% of the other. An immigration attorney can expound upon and explain these requirements.

L1B Visa Requirements for Individuals

The area of specialized knowledge for the individual includes highly developed technical expertise or professional knowledge. It also relates to a person’s private, exclusive understanding relating to a company’s products, services, methods of production, organizational make up, marketing strategies or other information that’s connected to the successful functioning of the entity in the United States. Additional types of unique knowledge include that which is related to the company’s products and services and their successful application in the international market or an intimate and unique understanding of the company’s procedures, systems or methods.

Facilitating the L1B Visa Process

When applying for a L1B Specialized Knowledge Worker visa, time is often of the essence and an experienced immigration attorney can help ensure that you properly follow all procedures in the process. Please contact the Ranchod Law Group in San Francisco, California, if you have any questions or needs when it comes to the L1B Specialized Knowledge Worker visa. We represent clients in all 50 states. To schedule a consultation contact us at 415-986-6186 or at info@ranchodlaw.com.

L1A Visa – Executive Manager

Deepak — Mon, 15 Feb 2010 12:24:54 +0000

Immigration Attorney Offers Insights on Requirements for L1A Executive Manager

If you’re an executive manager planning on coming to the United States to work for a company in an executive or managerial capacity, then you’ll need to secure a L1A visa. As an immigration attorney who works closely with clients in this area, I know there are specific requirements that relate to the L1A visa. In this article, I’m going to examine those requirements that have been established by the United States Citizenship and Immigration Service (USCIS).

L1A Visa Basics

Those seeking a L1A visa, which is a temporary work visa that is good for seven years, have been an executive manager, that is someone who is in an executive or managerial position, for at least one of the three past years for a non-U.S. company, corporation or other such legal entity and are seeking to travel to the United States to work in a similar position. Those coming to the U.S. on a L1A visa will work in a managerial or executive capacity at a related firm in the U.S. or they will supervise the opening of a new unit or entity in the U.S. that is associated with the non-U.S. company, form or other entity for which they work.

L1A Visa Requirements for U.S. Company

The petitioning company, which is the entity located in the United States, must meet certain requirements. What follows are the basic requirements that an immigration attorney can explain further.

The U.S. company must have a formal relationship with the foreign entity. The affiliation may be manifested in various ways, including as a subsidiary, affiliate or branch. The formal relationship must be verified and it may be demonstrated by revealing that one company has control over the other or by the fact that the same group or person controls both entities.

L1A Visa Requirements for Executive Manager

Along with the requirements for a manager or executive noted in the L1A visa basic section above, there are specific duties relating to the positions of manager and executive that define these positions.

A person is considered a manager if he/she oversees and runs a specific area of a company, subdivision, department or the entire company. They may control, monitor and supervise various types of employees and/or essential functions of that company. A manager also has the authority to make decisions regarding the daily running of the entity or a specific area of the entity and is charged with making decisions related to personnel. In the company, they function at a senior level.

Those who work at the executive level possess the authority to create policies and goals for the entity and have the power to make decisions that affect the firm or company in a major manner. Supervision of an executive is undertaken by a select few such as stockholders, a board of directors or executives who possess a higher rank.

Attaining Your L1A Visa

In my practice as an immigration attorney, I’ve worked with companies and individuals to ensure that the L1A visa process is facilitated efficiently and successfully. Contact the Ranchod Law Group in California, if you have any questions regarding or want to start the process of applying for a L1A visa. We represent clients nationwide. To schedule a consultation contact us at 415-986-6186 or at info@ranchodlaw.com.

November 09-Immigration News

kaushik — Wed, 02 Dec 2009 00:58:27 +0000

H-1B Cap Count UPDATE for Fiscal Year 2010

As of November 13, 2009, approximately 55,600 H-1B cap-subject petitions had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

What is a “Cap”

The word “Cap” used in this Update refers to annual numerical limitations set by Congress on certain non-immigrant 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 non-immigrant 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 annual numerical limitations generally do not apply to persons who have already been counted against the cap in a particular non-immigrant classification and are seeking to extend their stay in that classification.

H-1B

The H-1B visa program is used by some U.S. employers to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field and a bachelor’s degree or its equivalent. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors. The H-1B visa program also includes certain fashion models of distinguished merit and ability and up to 100 persons who will performing services of an exceptional nature in connection with Department of Defense (DOD) research and development projects or coproduction projects. The current annual cap on the H-1B category is 65,000. Not all H-1B non-immigrants are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.

H-1B Employer Exemptions

H-1B non-immigrants who are employed, or who have received an offer of employment, by institutions of higher education or a related or affiliated nonprofit entity, as well as those employed, or who will be employed, by a nonprofit research organization or a governmental research organization are exempt from the cap.

H-1B Advanced Degree Exemption

The H-1B Visa Reform Act of 2004 makes available 20,000 new H-1B visas for foreign workers with aMaster’s or higher level degree from a U.S. academic institution. For each fiscal year, 20,000 beneficiaries of H-1B petitions on behalf of persons who hold such credentials are statutorily exempted from the cap.

Duplicate H-1B Petitions Filed Requesting Fiscal Year 2010 Employment

USCIS will deny or revoke all petitions filed by an employer for the same H-1B worker if more than one filing is discovered. If multiple petitions are discovered, whether one or more such petitions are approved, USCIS will data enter all those duplicative petitions, retain all fees, and either deny the petitions or, if a petition was approved, revoke the petition. The petitions will not be returned to the petitioner.

H-1B1

An H-1B1 is a national of Chile or Singapore coming to the United States to work temporarily in a specialty occupation. The law defines an H-1B1 specialty occupation as a position that requires theoretical and practical application of a body of specialized knowledge. The beneficiary must have a bachelor’s degree or higher (or equivalent) in the specific specialty. The combined statutory limit is 6,800 per year. The cap for H-1B1 for FY2010 has not been reached as of the date of this Update.

2011 Diversity Visa Lottery Program Registration

The Department of State announces the opening of the registration period for the DV-2011 Diversity Visa lottery. Entries for the DV-2011 Diversity Visa lottery must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Friday, October 2, 2009, and noon, Eastern Standard Time (EST) (GMT-5), Monday, November 30, 2009. Applicants may access the electronic Diversity Visa entry form (E-DV) at www.dvlottery.state.gov during the registration period. Paper entries will not be accepted. Applicants are strongly encouraged not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon EST on November 30, 2009.

The annual DV program makes visas available to persons meeting simple, but strict, eligibility requirements. The visas are distributed among six geographic regions, with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more than 50,000 immigrants to the United States over the period of the past five years.

Among those not eligible to apply because their countries sent a total of more than 50,000 immigrants to the United States in the previous five years:

BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO,

PAKISTAN, PERU, PHILIPPINES, POLAND, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

For detailed information about entry requirements, along with frequently asked questions about the DV lottery, please see the instructions for the DV-2011 DV lottery available at: www.dvlottery.state.gov .

Ranchod Law Group Success Story – Obtaining a No Objection Waiver and your Home Country

Recently we obtained a no objection waiver for our Tanzanian client.

First we contacted the Tanzanian government via phone since there was no information on the website regarding the no objection statement. After a short while and a few explanations of the situation, we were routed through the offices and were connected with a Tanzanian Embassy representative who knew exactly what we were after.

The most important thing on his list was who we wanted this information for! We let the applicant remain anonymous and after being told that the applicant would have to call and get the procedure themselves, the representative rattled off a list of hurdles to cross and documents to send.

The best part of the story is this: we prepared the J-1 waiver application, sent the documents to the US State Department and sent the package of documents required by Tanzania to the Embassy. We got a positive answer within two months! It was amazing since processing times may be lengthy. Neither the applicant nor our offices were contacted and asked for any additional documents so maybe getting it right the first time helped. But with nothing in writing from the Tanzanian government regarding their requirements (it evidently is not the Tanzanian way) it was dicey. We’re glad it worked out and want you all to know that no matter how impossible it can seem to work with your government’s bureaucracy and our government’s bureaucracy the job can get done!

Many top Nobel Prize Winners are Immigrants

According to Chris O’Brian from the Mercury News, in his recent article: Nobel Prizes Remind Us Why Immigration Matters, he comments, before you “puff out your chest and take pride in being American”, note that four out of the six American Nobel Prize winners were born outside the U.S.

While some people might be weary of immigration, the benefits have far outweighed the cost. O’Brian uses Silicon Valley as an example. “Silicon Valley has been a bigger beneficiary of this influx of brains and talent than perhaps any other region in the U.S. …However you feel about the H-1B visas that our tech companies hunger for … We need these immigrants to renew our economy and to prosper.” O’Brian goes on to say that the US needs to recognize the great contributions that immigrations have presented this country both in its economy and its fields of study. For the full story: http://www.mercurynews.com/ci_13500107?source=most_viewed&nclick_check=1

Contact info@ranchodlaw.com to learn about your immigration options.

Disclaimer: This information is not intended to provide solutions to individual problems and does not constitute an attorney client relationship. Readers are cautioned not to attempt to solve individual problems on the basis of information contained herein and are strongly advised to seek competent legal counsel before relying on this information. The above information should not be construed as legal advice and any reliance on this information is taken at your own risk. Please note that laws change frequently.

November 09-Immigration News

Deepak — Tue, 01 Dec 2009 23:47:50 +0000

H-1B Cap Count UPDATE for Fiscal Year 2010

What is a “Cap”

H-1B

H-1B Employer Exemptions

H-1B Advanced Degree Exemption

Duplicate H-1B Petitions Filed Requesting Fiscal Year 2010 Employment

H-1B1

2011 Diversity Visa Lottery Program Registration

Among those not eligible to apply because their countries sent a total of more than 50,000 immigrants to the United States in the previous five years:

BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO,

Ranchod Law Group Success Story – Obtaining a No Objection Waiver and your Home Country

Recently we obtained a no objection waiver for our Tanzanian client.

Many top Nobel Prize Winners are Immigrants

Contact info@ranchodlaw.com to learn about your immigration options.

EB-1 Extraordinary Ability, I-140 Petition for Doctors

Deepak — Tue, 01 Dec 2009 08:34:15 +0000

First Preference Classification Based on Extraordinary Ability

Doctors who are able to demonstrate extraordinary ability in the field of science may file an I-140 Petition without employer sponsorship, seeking the employment based first preference classification. If the doctor submits the petition without a sponsoring employer, the doctor must demonstrate that he or she is coming to the United States to continue work in his or her area of expertise. Evidence of such intent includes a letter from a prospective employer, documentation of prearranged commitments or a personal statement detailing plans on how the doctor intends to continue work in the United States.

Requirements for Extraordinary Ability

The definition of extraordinary ability for purposes of EB-1 classification is very similar to that of the O-1 visa category. The doctor must show that he or she has sustained national or international acclaim, and that his or her achievements have been recognized in the field of science. Such acclaim can be supported by evidence of a significant one-time achievement, i.e., receipt of a major, internationally recognized award. Alternatively, the doctor may provide documentation of at least three of the following:

Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor
Published material about the doctor in professional or major trade publications or other major media relating to the doctor’s work in the field of science
Evidence of the doctor’s original scientific contribution of major significance
Membership in associations that require outstanding achievements of their members, as judged by recognized national or international experts in the doctor’s discipline or field
Authorship of scholarly articles in professional or major trade publications or other major media
Participation on a panel or individually, as a judge of the work of others in the same or an allied field
Evidence that the doctor has performed a leading or critical role for organizations or establishments that have a distinguished reputation
Documentation showing that the doctor has commanded a high salary or other significantly high remuneration for services

The immigration regulations also include a “catch-all” provision which states that if the above standards do not readily apply to the beneficiary’s occupation, “comparable” evidence may be submitted to show the beneficiary’s extraordinary ability. It is important to consider each of the above factors and analyze other types of documentation in preparing an I-140 Petition requesting classification based on the doctor’s extraordinary ability. The United States Citizenship and Immigration Services (USCIS) has become more stringent in determining whether an individual truly has extraordinary ability pursuant to the immigration regulations. Thus, even if the doctor has previously been approved for O-1 status, there is no guarantee that the USCIS will approve an I-140 Petition seeking EB-1 classification based on extraordinary ability.

If you want to learn more about whether you qualify for EB-1 classification based on extraordinary ability or whether a different strategy would better suit your needs, please contact our office to schedule a consultation at 415-986-6186.

National Interest Waiver

Deepak — Tue, 24 Nov 2009 08:35:39 +0000

How can a National Interest Waiver help you obtain a Green Card?

The National Interest Waiver (NIW) is a great option for a permanent resident application if you qualify. It is a program that actually by-passes the Labor Certification (PERM) process. It offers the added benefit of putting the applicant in the employment based, second preference (EB-2) category. With the PERM process, the applicant must have an approved labor certification and a job offer. Using the NIW option, the applicant can apply without a job offer and most importantly, without going through the labor certification process.

What are the qualifications for a National Interest Waiver?

In order to qualify for the NIW program, an applicant must work in a field that is considered to be in the “National Interest.” The concept behind the NIW program is that the applicant is requesting that the job offer requirement be waived for the sake of the U.S. “National Interest.” There are three major requirements for approval of a National Interest Waiver application.

The first is that an applicant must be seeking work in an area that is defined to have “substantial intrinsic merit” to the United States.
The second is that the benefit from the applicant’s proposed activity will be national in scope.
And third that the U.S. National Interest would be adversely affected if a Labor Certification were required for the applicant.

To clarify, with the National Interest Waiver (NIW) program the PERM process itself is waived. As such, the applicant, even if they have no employer, can file a, NIW petition on their own, without a designated company or institution acting on their behalf. Even so, it should be noted that a U.S. employer can file a National Interest Waiver for an employee acting as the petitioner. The petition can be filed either way, with an employer or without.

The most difficult part of the National Interest Waiver process is building the case that the work that the applicant is doing is in the National Interest. Work that qualifies must be national in scope, having ramifications that are felt not just locally or statewide but on a national level.

In general of the types of work that would qualify based on the National Interest are scientific research in fields that have received U.S. government funding but there are other areas of employment that may qualify as well. It is important that you get assistance in preparing your National Interest Waiver (NIW) application because of the complexity of the issues and standards involved. The Ranchod Law Group legal team has successfully handled many National Interest Waiver cases over the years and our experience can be the key to your success.

Read a National Interest Waiver – Success Story

If you think that you might qualify for a National Interest Waiver petition please contact our team at 415-986-6186, we would enjoy discussing your possibilities with you.

San Francisco Bay Area Deportation Defense Lawyer

Deepak — Mon, 16 Nov 2009 15:45:35 +0000

We are currently not accepting deportation/removal cases.

What legal options do you have to legally stay in the United States?

The following legal remedies may be available to you if you are placed in Deportation proceedings:

Cancellation of Removal for Permanent Residents

Must have been a lawful permanent resident for at least five years;
Resided in the U.S. continuously for seven years after you were admitted lawfully to the US in lawful status
You must not have been convicted of an aggravated felony

Cancellation of Removal for Non-Lawful Permanent Residents
Adjustment of Status (green card)
Voluntary Departure
Asylum
Convention Against Torture (C.A.T.)

When you receive a Notice to Appear (NTA) (formerly an Order to Show Cause), it should inform you of the charges and legal authority for your alleged violations. It is imperative that you attend all hearings or an Immigration Judge can place you into an in absentia hearing. An in abstentia hearing allows the Immigration Judge to enter a removal order against you if you fail to appear.

In the event that your application for relief was denied we may be able to file an appeal with the Board of Immigration Appeals.

kaushik — Sat, 17 Oct 2009 03:42:49 +0000

Immigration News – April 09

Deepak — Wed, 29 Apr 2009 08:01:15 +0000

Ranchod Law Group Immigration Update

760 Market Street, Suite 921
San Francisco, CA 94102
Phone: 415-986-6186

Updated Count of FY2010 H-1B Petition Filings

The USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap. Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees; however, USCIS continues to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.

Do you have a Conditional Green Card?

If your marriage was less than two years old at the time you obtained permanent residence through marriage to a US citizen, he or she will be granted “Conditional Permanent Residence,” meaning that permanent residence is granted for two years. Prior to the end of the two years (within 90 days of the expiration of conditional residence), the spouse must submit an application to USCIS to remove conditional status. The applicant and the U.S. citizen must jointly file a petition to remove conditional residence. If applicant is divorced at the time of filing, applicant may submit a waiver application to USCIS for removal of the conditional status. The USCIS may call in applicant for a second interview to verify that the marriage was bona fide at the time it was contracted. Removing conditional status is an extremely important step, because if a spouse fails to submit this application, his or her permanent residence is automatically terminated, and will be removable from the U.S.

Addressing Employment-Based Visa Wait Times

As this topic has generated much concern, there are several steps that have been taken by USCIS to help ease the situation. These include the following steps:

Increasing emphasis on processing employment-based petitions. It is USCIS’ goal to complete adjudication on the older I-140 petitions and to process newer petitions within the targeted processing time of four months. USACIS anticipates reaching this goal by the end of September 2009.
Issuing employment authorization documents valid for two years, as needed.
USCIS is working with the State Department to make sure they use every available visa number. In 2007, USCIS had more visas available in the family-based categories than were needed, so as permitted by law, USCIS transferred those available family-based visas for use in the employment-based application process.

New Requirements for Hiring H-1B Foreign Workers Changes Apply to Companies that Receive TARP Funding

There are now additional requirements for employers, who receive funds through the Troubled Asset Relief Program or under section 13 of the Federal Reserve Act (covered funding), before they may hire a foreign national to work in the H-1B specialty occupation category. The new “Employ American Workers Act,” (EAWA) was enacted to ensure that companies receiving covered funding do not displace U.S. workers. Under this legislation any company that has received covered funding and seeks to hire new H-1B workers is considered an “H-1B dependent employer.” All H-1B dependent employers must make additional attestations to the U.S. Department of Labor (DOL) when filing the Labor Condition Application. EAWA applies to any Labor Condition Application (LCA) and/or H-1B petition filed on or after Feb. 17, 2009, involving any employment by a new employer, including concurrent employment and regardless of whether the beneficiary is already in H-1B status. The EAWA also applies to new hires based on a petition approved before Feb. 17, 2009, if the H-1B employee had not actually commenced employment before that date. EAWA does not apply to H-1B petitions seeking to change the status of a beneficiary already working for the employer in another work-authorized category. It also does not apply to H-1B petitions seeking an extension of stay for a current employee with the same employer.

$1.2 Million Citizenship Grant Program: Up to 12 Grants Offered to Community-Based Organizations Serving Immigrant Population

A competitive grant program is being offered through Grants.gov for a $1.2 million grant program to support citizenship preparation programs for legal permanent residents. To apply for this funding opportunity, visit the Grants.gov Web site at http://www.grants.gov.

Reminder for all U.S. Employers of Requirements to Use Revised Form I-9, Employment Eligibility Verification

The revised Form I-9, Employment Eligibility Verification (Rev. 02/02/09), goes into effect today for all U.S. employers. The revision date is printed on the lower right-hand corner of the form. The revised list improves the security and effectiveness of the Form I-9 process. The list specifies that expired documents are no longer acceptable forms of identification or employment authorization. Allowing for expired documents makes it more difficult for employers to verify an employee’s identity and employment authorization and compromises the Form I-9 process.

EB-5 Immigrant Investor Pilot Program Extended Certain Form I-526 Petitions and Form I-485 Applications Affected

The Immigrant Investor Pilot Program has been extended through September 30, 2009 due to yesterday’s signing of the “Fiscal 2009 Omnibus Appropriations Bill,” H.R. 1105.

As a result of the extension of the Pilot Program, USCIS will continue to receive, process, and adjudicate all Regional Center Proposals and Forms I-526, Immigrant Petitions by Alien Entrepreneur, and Forms I-485, Applications to Register Permanent Residence or Adjust Status, affiliated with Regional Centers relying on “indirect” job creation analysis.

H-1B visa and H-1B cap exemptions

Deepak — Mon, 30 Mar 2009 09:18:40 +0000

Click play to listen to the audio.

November/December Immigration Update

kaushik — Wed, 03 Dec 2008 21:16:08 +0000

USCIS has noted High Rate of H-1B Visa Fraud

Upon analysis, it was noted by the USCIS that 13% of H-1B visa petitions for United
States employers are fraudulent. Thus, the USCIS anticipates making procedural changes while also paying closer attention to instances of abuse that prevail toward workers that are employed on H-1B visas.

Approximately 300 Arrested by ICE Agents During Search of South Carolina
Poultry Plant

As ICE agents have already been inspecting the Columbia Farms poultry processing plant
for ten months now, they recently implemented a new search warrant that aims to
examine employees more intently to ultimately uncover unauthorized workers and illegal
aliens. This intensified search operation has already charged 11 supervisors and have
arrested nearly 300 illegal aliens. ICE reasons that since it is for employment purposes that most illegal immigrants flock to the United States, it is only by holding employers liable that any noticeable change is
going to be made.

DOS Publishes Final Rule Requiring Certification of Certain Foreign Health
Care Workers

As of October 20, 2008, the DOS put into effect a final rule concerning the issuance of
visas to specific health care workers. This rule adopts as final without change the Department’s interim rule published on December 17, 2002, at 67 FR 77158. The rule changes the requirements pertaining to the issuance of visas to certain health care workers. Certain foreign healthcare workers now need to present certificates establishing competency in a specific healthcare field. Certification is issued by the Commission on Graduates of Foreign Nursing Schools (CGFNS) or other credentialing organizations that have been approved by the Secretary of Homeland Security (DHS) in consultation with the Secretary of Health and Human Services (HHS). This rule facilitates greater uniformity between the regulations of DHS and the Department of State.

Update on New TN Regulation

If all of the TN regulations are met: all TN petitions that are received on or post October 16, 2008 will be granted for either the length of time they are filed for or for a three year period-depending on whichever interval is shorter.

Highlights of Fiscal Year (FY) 2008: PERM Certifications

As nearly 49,205 out of 220,883 applicants were accredited during the first quarter of FY
2008, there were five main states in which these permanent labor approvals were granted
to, including California, New York, New Jersey, Texas, and Florida. The job titles for the
aforementioned certifications range anywhere from Computer System Analysts to
Restaurant Cooks.

How Does the 2008 Supplemental final DHS rule about Social Security “no-
match” letters affect the federal lawsuit and injunction?

The DHS released an update concerning what an employer is to do when the Social
Security Administration sends them a “no match” letter about one of their employees.
The update reaffirms that as long as any given employer abides by the guidelines
outlined by DHS, the employer will have a defense against allegations of knowingly hiring undocumented workers. As this rule was to take effect in August 2007, it was delayed until September, but was ultimately preliminarily enjoined in October 2007 by the U.S. District Court for the Northern District of California, and this preliminary injunction remains in effect until today. By doing this, the court forbids the DHS from implementing its aforementioned rule with the intent to mail no-match letters. This preliminary injunction will stay in effect until otherwise ruled by the court.

Increase in the Number of Deportations

It has been observed that there has been a noticeably sharp increase in the number of
amount of deportations of illegal aliens in the year 2008, summing up to 345,000 which
contrasts with the 288,000 figure reached in the 2007. The current intensification of
immigration enforcement mechanisms is being correlated with the amplification of the
Criminal Alien Program, which essentially aims to pinpoint criminal illegal aliens
employed within any level of the United State’s economic system. As some people link
ICE’s exaggerated commitment to drive out illegal aliens to the terrorism witnessed in
2001, still others feel that their efforts are using far too many resources that may be
allocated elsewhere in a time of economic crisis.

This information is not intended to provide solutions to individual problems and does not constitute an attorney client relationship. Readers are cautioned not to attempt to solve individual problems on the basis of information contained herein and are strongly advised to seek competent legal counsel before relying on this information. The above information should not be construed as legal advice. Please note that laws change frequently.

September/October Immigration Update

admin — Mon, 06 Oct 2008 08:59:50 +0000

Search for Illegal immigrants goes far from border
USA Today reports that Border Patrol agents have dramatically increased their efforts in trying to detaining illegal immigrants. However, such assertive searches are also causing many individuals to feel like they are being racially profiled due to their skin color or accent. Though Border Patrol Agents deny this claim, their actions seem to show otherwise, as many people attest to seeing these agents target specific groups of people, because “Some people look more American than others,” (Bazer, 3A). Silvio Tores-Saillant, a naturalized citizen and college professor who uses public transportation frequently reports that the agents have singled him out on three different occasions within the past year, leaving him to feel he has lost some of his civil rights. As Border Patrol insists on inspecting whomever they want, I recommend that people carry evidence of their lawful status and identification with them at all times.

USCIS Released New Citizenship Test

All individuals who plan on applying for U.S. Citizenship post October 1, 2008 will be required to take a revised naturalization exam. The amended version of the test includes a denser English reading and writing segment, as well as a novel segment testing the applicant’s understanding of American history and democratic government. For individuals who filed their N-400 form either on, or prior October 1, 2008 have the discretion to take either the old or new exam, with the condition they do so by October 1, 2009.

Temporary Protected Status Extensions

It was announced that the temporary protected status for individuals from El Salvador, Honduras and Nicaragua has been extended due to the impact of severe weather conditions and natural disasters in these regions. These individuals must simply re-register with USCIS to qualify for the extension.

More than 1,100 Arrested in Cal Immigration Sweep

Immigration authorities claim that over 1,100 individuals were detained during a three week search that took place in California. This search was specifically aimed to arrest individuals who had previously been directed to leave the U.S. but managed to come back illegally.

Green Card Applicants Required to get HPV Vaccine

The HPV vaccine was added to list of vaccines required of immigrants filing for a green card. This requirement has stirred much controversy, particularly due to the fact that the vaccine must be injected at a very young age, because it is expensive, and also because this requirement is not imposed upon females born in the United States.

Immigrants Among Millions Unlawfully Detained

There are many immigrants who are unlawfully detained and confined into prisons where they are subject to dehumanizing circumstances. This especially concerned the U.N. High Commissioner for Human Rights, who feels that a large portion of immigrants and refugees are not criminals and imposing such severe and extensive detention upon then is unfair and should be a last resort.

USCIS Houston Office Re-Open for Customer Emergencies

The USCIS announced that two of its offices in the Houston area will reopen Monday, September 29, after having closed for business due to Hurricane Ike. Customers who missed naturalization and adjustment of status appointments will automatically be rescheduled by mail. Customers with INFOPASS appointments will need to reschedule.

Joint Statement by Department of State Senior Coordinator for Iraqi Refugee Issues Ambassador James Foley and Homeland Security Senior Advisor for Iraqi Refugees Lori Scialabba

“The DOS and DHS are pleased to announce that we have successfully achieved our goal of admitting more than 12,000 Iraqi refugees to the United States through the U.S. Refugee Admissions Program during fiscal year (FY) 2008. Throughout the course of FY 2008 we have developed an increasingly robust processing capacity for Iraqi refugees in multiple locations across the Middle East. This now includes an emerging in-country processing program in Baghdad. Both DOS and DHS are committed to continuing efforts to resettle vulnerable Iraqis and, barring unforeseen adverse developments in the region, expect to significantly increase the number of Iraqi refugees admitted to the U.S. for permanent resettlement in FY 2009.”

August/September Immigration Update

kaushik — Sat, 04 Oct 2008 22:04:13 +0000

USCIS Updates Projected Naturalization Processing Time

U.S. Citizenship and Immigration Services (USCIS) announced that it continues to make steady progress in reducing the significant number of naturalization applications it received last year.

USCIS field office projections are listed below. These projections indicate the average time it will take to complete a naturalization case as of the end of September 2008.

Estimate of Local Office Naturalization Processing Times by September 2008
Office Months Office Months
Agana, Guam……………………………. 5.0
Albany, N.Y. ……………………………. 5.6
Albuquerque, N.M…………………….. 8.4
Anchorage, Alaska ……………………. 5.0
Atlanta, Ga……………………………….. 6.7
Baltimore, Md. …………………………. 7.0
Boise, Idaho……………………………. 10.5
Boston, Mass. …………………………… 8.8
Buffalo, N.Y. ……………………………. 7.0
Charleston, S.C……………………….. 14.1
Charlotte Amalie, Virgin Islands…. 7.2
Charlotte, N.C…………………………. 14.9
Chicago, Ill. ……………………………… 5.1
Cincinnati, Ohio ……………………….. 7.0
Cleveland, Ohio………………………… 6.8
Columbus, Ohio………………………… 5.7
Dallas, Texas ………………………….. 11.0
Denver, Colo. …………………………… 5.2
Des Moines, Iowa……………………… 5.7
Detroit, Mich. …………………………… 5.0
El Paso, Texas ………………………….. 7.9
Fort Smith, Ark…………………………. 7.6
Fresno, Calif. ……………………………. 6.7
Harlingen, Texas ………………………. 5.0
Hartford, Conn………………………… 14.3
Helena, Mont. …………………………… 5.0
Honolulu, Hawaii ……………………… 5.0
Houston, Texas…………………………. 5.1
Indianapolis, Ind……………………….. 5.0
Jacksonville, Fla. ……………………… .7.4
Kansas City, Mo……………………….. 7.0
Las Vegas, Nev…………………………. 9.0
Los Angeles, Calif…………………… 12.5
Louisville, Ky…………………………… 7.1
Manchester, N.H……………………….. 5.3
Memphis, Tenn. ……………………….. 8.4
Miami, Fla……………………………… 12.0
Milwaukee, Wis. ………………………. 6.6
Mount Laurel, N.J. ……………………. 5.0
New Orleans, La. ……………………. 14.5
New York, N.Y. ……………………… 10.0
Newark, N.J……………………………… 7.4
Norfolk, Va. …………………………….. 7.2
Oklahoma City, Okla. ……………….. 8.6
Omaha, Neb. ……………………………. 5.0
Orlando, Fla. ……………………………. 9.5
Philadelphia, Pa………………………. 10.0
Phoenix, Ariz. ………………………….. 8.6
Pittsburgh, Pa. ………………………….. 6.0
Portland, Maine………………………… 5.5
Portland, Ore. …………………………… 5.4
Providence, R.I…………………………. 6.7
Reno, Nev………………………………… 5.0
Sacramento, Calif……………………… 5.0
Salt Lake City, Utah………………….. 5.0
San Antonio, Texas …………………… 5.0
San Diego, Calif……………………….. 5.0
San Francisco, Calif. …………………. 5.5
San Jose, Calif………………………….. 5.0
San Juan, Puerto Rico ……………… 10.4
Seattle, Wash……………………………. 9.0
Spokane, Wash…………………………. 5.0
St Albans, Vt. …………………………… 9.5
St Louis, Mo…………………………… 10.3
St Paul, Minn……………………………. 5.5
Tampa, Fla. ……………………………… 8.6
Tucson, Ariz…………………………… 12.0
Washington, D.C…………………….. 12.7
West Palm Beach, Fla. ………………. 5.0
Yakima, Wash………………………….. 5.0

HIV Travel/Immigration Ban Repealed

The House passed H.R. 5501, which includes a provision that would repeal the HIV travel/immigration ban by amending the current health-related ground of inadmissibility to exclude any reference to HIV. The Senate passed the same bill a week earlier. The bill has now been signed by the President. The long-standing discriminatory ban against individuals with HIV/AIDS designated HIV as being the only disease that holds ground for inadmissibility.

USCIS Changes Vaccination Requirements for I-485 Applications

USCIS announced changes to the vaccination requirements for adjustment of status applications. Those seeking permanent residency now require the following age-appropriate additional vaccinations: Rotavirus, Hepatitis A, Meningococcal, Human papillomavirus and Zoster. The June 5, 2008 edition of Form I-693 must be used for any medical examination completed on or after August 1, 2008.

Sneak Preview of ESTA Web Tool Now Available

On July 21, 2008, CBP announced that a preview of Electronic System for Travel Authorization under the Visa Waiver Program is now available. The ESTA is an electronic system for screening passengers before they begin travel to the United States. Applicants will need to provide biographical information and VWP eligibility information for the CBP to determine if they are fit to travel under the VWP. Travel authorization will become mandatory as of January 12, 2009.

Immigration Raids Updates
Over the past year, Immigration and Customs Enforcement has intensified immigration enforcement activities by conducting several large-scale worksite raids across the country.

In May, Rep. Braley (D-IA) sent letters to the DOJ, DOL, and DHS requesting further information about a possible investigation into labor practices at Agriprocessors facility in Postville, Iowa. On July 17, 2008, after receiving contradictory responses from ICE and the DOL about coordination before the ICE raid, Braley issued a follow-up letter.

On July 16, 2008, ICE announced that a former and current top executive for a McDonald’s franchisee in Nevada pled guilty to federal felony immigration offenses for encouraging undocumented foreign nationals to reside in the United States.

On July 21, 2008, ICE announced that it executed nine federal search warrants and arrested 43 foreign nationals in a raid on a Waipahu apartment complex. The men were employed by The Farms, an agricultural business. Two days later, the ICE arrested 58 employees at eight Casa Fiesta Restaurants throughout northern Ohio.

June/July 2008 Immigration Update

kaushik — Wed, 09 Jul 2008 20:58:13 +0000

FBI Name Check Update

Previously the FBI committed itself to providing the results of name checks within a 180 day period. Failure to comply results in the adjudicator approving the I-485, 601, 687 or 698. Prior to this policy, one or more year delays were common. Fortunately, the FBI has reported that it has initiated name checks for those individuals who applied for naturalization last summer.

EB-3 Category Unavailable until October 1st 2008

As per the July 2008 Visa Bulletin, beginning July 2008 the EB-3 category will become unavailable until October 1st, 2008. The EB-3 classification includes: 1) Aliens with at least two years of experience as skilled workers; 2) Professionals with a baccalaureate degree; and 3) Other workers with less than two years experience, such as an unskilled worker who can perform labor for which qualified workers are not available in the United States. Demand for numbers, primarily for adjustment of status cases, will bring the entire Employment Third preference category to the annual numerical limit by the end of June, and as a result, the classification will become unavailable beginning in July and will remain so for the remainder of the FY-2008. Such action will only be temporary and Employment Third preference availability should return to the cut-off dates established for June in October, the first month of the new fiscal year.

Presidential Amendment of Executive Order Requires E-Verify for Contractors

The Department of Homeland Security requires the use E-Verify as the electronic employment verification system to be used by federal contractors pursuant to Executive Order 12389. However, Executive Order 13465 now requires that federal contracting agencies enter into contracts with employers who have “used the best available means to confirm the work authorization of their workforce.” This is deemed to be fulfilled by using the E-Verify system. This new rule further enforces the “immigration laws of the United States, which includes the detection and removal of illegal aliens and the imposition of legal sanctions against employers that hire illegal aliens.” E-Verify is a web-based program that allows employers to verify that the name of the employee matches the Social Security number given on the I-9 form.

USCIS Resumes Premium Processing for Certain I-140s

On June 16^th, 2008, USCIS began accepting Premium Processing Service requests for Forms I-140 (Immigrant Petition for Alien Worker) filed on behalf of certain alien workers in H-1B classification. Premium Processing Service offers 15 calendar-day processing for designated employment-based petitions and applications upon request. There is a nonrefundable fee of $1000 for the service. USCIS is limiting Premium Processing Service for Form I-140 that are filed on behalf of aliens: 1) Who are currently in H-1B nonimmigrant status; 2) Whose sixth year will end within 60 days; 3) Who are only eligible for a further extension of H-1B nonimmigrant status under Sec. 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21); and 4) Who are ineligible to extend their H-1B status under Sec. 106(a) of AC21.

FY-2009 Cap-Subject H-1B Update

USCIS Service Center Operations has offered the following update regarding processing H-1B cases under the FY-2009 cap:

As of May 23, 2008, except where USCIS is reviewing cases it believes to be a potential duplicate filing, all receipts have been issued for the cases which were selected in the random lottery. Those cases that USCIS believes to be potential duplicate filings are being reviewed by hand, meaning they will be determined on a case-by-case basis.

Those cases picked during the random selection process have met the cap limit for the year.

USCIS Centralizes Naturalization Application Processing

USCIS has centralized initial processing of all applications for naturalization (Form-400) at its National Benefits Center in Missouri. This change is part of the USCIS initiative to increase the efficiency of case management and improve customer service. This internal administrative change will not change where applicants file their naturalization applications. Applicants will continue to file their naturalization applications, including all supporting documents and fees with the USCIS Service Center having jurisdiction over their place of residence. Applicants will also continue to report to a local field office for their interview and naturalization test. USCIS will send applicants a notice when the Service Center transfers their application to the National Benefits Center for initial processing.

Applicants should continue to send their N-400 application and supporting documents to the Service Center having jurisdiction over their place of residence.

AZ, CA, HI, NV, Guam, and the Northern Mariana Islands:

California Service Center

PO Box 10400

Laguna Niguel, CA 92607-1040

AK, CO, ID, IL, IN, IA, KS, MI, MO, MN, MT, NE, ND, OH, OR, SD, UT, WA, WI and WY:

Nebraska Service Center

PO Box 87400

Lincoln, NE 68501-7400

AL, AR, FL, GA, KY, LA, MS, NM, NC, OK, SC, TN or TX:

Texas Service Center

PO Box 851204

Mesquite, TX 75185-1204

CT, DE, DC, ME, MD, MA, NH, NJ, NY, PA, RI, VT, VA, WV, Puerto Rico, and the U.S. Virgin Islands:

Vermont Service Center

75 Lower Welden St

St. Albans, VT 05479-9400

I-9 Verification and Employer Resources

kaushik — Wed, 04 Jun 2008 23:43:25 +0000

How to Overcome the H-1B Visa Quota and Protect Your Organization from Immigration Audits

View our Power Point presentation for our HR Star Immigration Session at the Los Angeles Convention Center

Top Immigration Resources for Human Resources Professionals

Immigration Resources including contact information for Government Agencies

April/May Immigration Update

kaushik — Tue, 20 May 2008 00:49:19 +0000

USCIS TO ALLOW F-1 STUDENTS OPPORTUNITYTO REQUEST CHANGE OF STATUS
Short-term, Immediate Measure for Beneficiaries of Selected H-1B Petitions

U.S. Citizenship and Immigration Services (USCIS) announced today that it would allow

F-1 students who are the beneficiaries of selected H-1B petitions for fiscal year (FY) 2009 to request a change of status in lieu of consular notification. This short-term measure follows an April 8, 2008 interim final rule that, among other actions, automatically extends the F-1 status of qualifying students who are the beneficiaries of approved H-1B petitions to cover the gap between the expiration of a student’s F-1 status and the H-1B employment start date of October 1. To obtain the automatic extension, a student must be the beneficiary of an H-1B petition filed for the next fiscal

year (with an October 1 employment start date) and have requested a change of status. For F-1 student beneficiaries of petitions that USCIS subsequently rejects, denies, or revokes, or for those who violate their status, the automatic extension terminates at that time. Since the rule was published after the filing period had closed for new FY 2009 H-1B petitions, many petitioners of F-1 students did not include a request for a change of status with the H-1B petition. Instead, petitioners requested consular notification based on the assumption that these students would have been required to leave the United States to obtain an H-1B visa at a consular office abroad.

USCIS has determined that it will allow petitioners of F-1 students whose H-1B petitions were randomly selected to receive an H-1B visa number for FY2009 following the closure of the filing period, to now request a change of status on behalf of qualified beneficiaries, if such requests are received within 30 days of the issuance of the receipt notice.

To request a change of status in lieu of consular notification, petitioners (or authorized representatives) should send an e-mail with the request to the USCIS service center where their petition is pending within 30 days of the issuance of the receipt notice. Special email addresses for each service center have been established specifically for this purpose. These addresses are listed below and are posted on USCIS’ website. Petitioners should e-mail their requests for change of status in lieu of consular notification upon receipt of the notice so the agency has the request before completing H-1B petition adjudication. The requests should include the receipt number and both the petitioner’s and beneficiary’s name, date of birth, I-94 (Arrival/Departure Record) number, and Student and Exchange Visitor Information System (SEVIS) number.

NOTE: If an F-1 student, who is the beneficiary of a selected 2009 H-1B petition, has a pending request to change to a status other than H-1B but now wants to file under the process outlined above, he or she should withdraw the previously filed change in accordance with established regulations.

USCIS ISSUES REVISED GUIDANCE ON CHILD STATUS PROTECTION ACT (CSPA)

U.S. Citizenship and Immigration Services today issued guidance that will modify its

earlier interpretation of the Child Status Protection Act (CSPA) which permits applicants for certain immigration benefits to retain classification as a child even if he or she has reached the age of 21.

The new guidance, changes how USCIS interprets the applicability of the CSPA to aliens who had aged out prior to the enactment of the CSPA on August 6, 2002.

Under prior policy guidance, USCIS considered an alien beneficiary of a visa petition that was approved before August 6, 2002 to be covered by the CSPA only if the beneficiary had filed an application for permanent residence (either adjustment of status or an immigrant visa) on or before August 6, 2002, and

no final determination had been made on that application prior to August 6, 2002. This new policy extends CSPA coverage to aliens who had an approved visa petition prior to the enactment of CSPA but who did not have a pending application for permanent residence on the date of enactment of the CSPA.

Aliens who were ineligible under the prior policy and who subsequent to the enactment of the CSPA never filed an application for permanent residence may file an application for permanent residence to take advantage of this new interpretation. Aliens who filed an application for permanent residence after the enactment of the CSPA and who were denied solely because they had aged out may file motions to reopen or reconsider without a filing fee.

Questions & Answers

Q: What is the Child Status Protection Act (CSPA)?

A: CSPA changes who can be considered to be a “child” for the purpose of the issuance of visas by the Department of State and for purposes of adjustment of status of aliens by USCIS. The Act provides that if you are a U.S. citizen and you file a Petition for Alien Relative (Form I-130) on behalf of your child before he or she turns 21, your child will continue to be considered a child for immigration purposes even if USCIS does not act on the petition before your child turns 21. Children of lawful permanent residents also benefit if a Form I-130 is filed on behalf of their children (see below).

Q: Who benefits under the new CSPA guidance?

A: The new guidance allows aliens who had an approved immigrant visa petition prior to the enactment of the CSPA, but had not yet applied for permanent residence (either an application for adjustment of status or an immigrant visa) on the date of enactment to benefit from the CSPA. Under prior guidance, the CSPA did not apply to such applicants. The new guidance includes many aliens who, subsequent to the enactment of the CSPA, never filed an application for permanent residence and aliens who filed an application for permanent residence but such application was denied solely based on the applicant’s age.

Q: Are there other considerations impacting eligibility requirements?

A: Yes.

The new guidance does not include aliens who, prior to Aug. 6, 2002 (date CSPA was enacted), had a final decision on an application for permanent residence based on the immigrant visa petition upon which the applicant claimed to be a child.
If an alien filed an application for permanent residence after the enactment of the CSPA, and the application was denied, that denial must be ‘solely based’ on a finding that the applicant was not a child because the CSPA did not apply. An I-485 can be denied for various reasons; if your I-485 denial was based for a reason other than for CSPA, then this revised CSPA guidance does not apply to you. Finally, if you had an approved immigrant visa petition before August 6, 2002, and did not file an I-485 after

the enactment of the CSPA, you could still benefit if (1) you are filing as an immediate relative or (2) your visa became available on or after Aug. 7, 2001, you did not apply for permanent residence within one year of petition approval and your visa becoming available.

Q: How do I know if I was denied solely based on CSPA?

A: The written denial decision you received from USCIS will state the basis for the denial.

Q: Will it matter whether the child reaches the age of 21 before or after the enactment date of the CSPA to benefit from this revised policy?

A: No, provided the applicant did not have a final decision prior to Aug. 6, 2002 on an application for permanent residence based on an immigrant visa petition upon which the applicant claimed to be a child.

Q: Please explain the differences of benefit for an immigrant petition filed by a U.S. citizen and a Lawful Permanent Resident.

A: Immigrant Petition as a child filed by a U.S. citizen:

If the child is under the age of 21 on the date of the filed immigrant petition, he/she will not ‘age out’. He or she will be eligible for permanent residence as an immediate relative, provided that no final decision was reached prior to Aug. 6, 2002 on an application for permanent residence based on the immigrant visa petition upon which the applicant claimed to be a child.

Immigrant Petition as a child filed by a Lawful Permanent Resident:

If the immigrant petition was approved and the priority date becomes current before the applicant’s ‘CSPA age’ reaches 21, the child will not ‘age out’, provided that no final decision was reached prior to Aug. 6, 2002 on an application for permanent residence based on the immigrant visa petition upon which the applicant claimed to be a child. In order for CSPA coverage to continue, the child must apply for permanent residence within a one-year of the date the priority date became current.

Q: How do I calculate my ‘CSPA age’?

A: For preference category and derivative petitions, your ‘CSPA age’ is determined on the date that your visa, or in the case of derivative beneficiaries, the principal alien’s visa, becomes available. Your CSPA age is the result of subtracting the number of days that your immigrant visa petition was pending from your actual age on the date that your visa becomes available. If your ‘CSPA age’ is under 21 after that calculation, you

will remain a child for purposes of the permanent residence application.

Q: If my child is a derivative of a petition filed on my behalf, can my child benefit under CSPA?

A: Yes, so long as the child also meets CSPA eligibility requirements previously discussed and applies for permanent residence within one year of the priority date being current.

Q: If I was previously denied because of ‘aging out’, can I file a motion to reopen or have my I-485

reconsidered? If so, is there a filing fee incurred?

A: Under the new policy, USCIS will accept, without a filing fee, a motion to reopen or reconsider a denied

I-485 application if the following criteria are met:

A visa petition was approved prior to Aug. 6, 2002 and the I-485 was filed after Aug. 6, 2002;
The applicant would have been considered under the age of 21 under applicable CSPA rules;
The applicant applied for permanent residence within one year of visa availability; and
The applicant received a denial solely because he or she aged out.

Q: Is there a deadline for filing a motion to reconsider my I-485 if the original was denied solely for

‘aging out’? Where should I file the motion?

A: No deadline. Applicants should apply at their local USCIS field office.

Q: I did not have an application for permanent residence pending on Aug. 6, 2002 and did not subsequently apply for permanent residence? Am I still eligible for CSPA coverage?

A: Yes, provided the applicant meets the following criteria:

The applicant is applying for permanent residence as an immediate relative; or
The applicant’s visa became available on or after Aug. 7, 2001; and

The applicant did not apply for permanent residence within one year of the petition approval and visa availability, but would have qualified for CSPA coverage.

What travel documents and identification are required for a foreign national or green card holder to enter the U.S.?

Answer

ALL persons* traveling by air between the United States and Canada, Mexico, Central and South America, the Caribbean, and Bermuda are required to present a valid passport or Air NEXUS card.

Oral declarations are no longer accepted from U.S., Canadian or Bermudian travelers seeking to enter the U.S. by sea and/or land.

As Late as Spring 2009 – Date to be determined by the Secretary of Homeland Security, in consultation with the Secretary of State. ALL persons*traveling between the U.S. and Canada, Mexico, Central and South America, the Caribbean, and Bermuda by land or sea (including ferries), may be required to present a valid passport, Nexus, Fast card or other documents as determined by the Department of Homeland Security. While recent

legislative changes permit a later deadline; the Departments of State and Homeland Security are working to meet all requirements as soon as possible.

Ample advance notice will be provided to enable the public to obtain passports or passport cards for land/sea entries.

*Lawful permanent residents (LPRs), refugees, and asylees (of the United States) will continue to be able to use their Alien Registration Card (Form I-551),

issued by DHS, or the Travel Document issued to those with refugee or asylee status to apply for entry to the United States.

A foreign national or alien entering the U.S. is generally required to present a passport and valid visa issued by a U.S. Consular Official, unless they are coming

from a country eligible for the Visa Waiver Program, or are a lawful permanent resident of the U.S. or a citizen of Canada. The Visa Waiver Program allows

foreign nationals from certain countries to be admitted to the U.S. under limited conditions and for a limited time without obtaining a visa. The foreign national

must be coming from an eligible country, staying no more than 90 days, for pleasure/medical purposes, and able to prove they are not inadmissible. The foreign

national is still required to have a passport. To obtain a list of countries eligible for the Visa Waiver Program, please reference the Department of State web site.

Foreign nationals that are lawful permanent residents of the U.S. must present a Permanent Resident Card (“Green Card”, INS Form I-551), a Reentry Permit (if

gone for more than 1 year), or a Returning Resident Visa (if gone for 2 years or more), and their passport to reenter the United States if traveling from outside

the Western Hemisphere. If traveling to Canada or Mexico, the Permanent Resident Card is sufficient, although, carrying a passport as well could help facilitate your reentry. (LPRs that are out of the U.S. for more than 180 days are subject to new immigrant inspection procedures as per 8 USC 1101.)

Foreign nationals that have applied for permanent residency or a change of status may need to be approved for advance parole in order to be readmitted to the U.S. after traveling abroad. Canadian citizens generally are not required to have a visa or a passport (See new WHTI requirements above) and may visit the U.S. for up to 6 months. However, Canadians must be able to prove their identity and citizenship to enter the United States. CBP will accept either a birth certificate, citizenship certificate or passport as proof of citizenship. If the Canadian citizen does not have any of these because they were lost or stolen. The burden of proof is on the traveler to prove that they are Canadian citizens. Copies of correspondence requesting a replacement of documents, etc. might be accepted, but it is up to the CBP officer to determine whether or not such paperwork meets that burden of proof. Canadians coming as a Treaty Trader, classification E are required to have a visa to enter the U.S.

A visa and passport are not required of a Mexican national who is in possession of a Form DSP-150, B-1/B-2 Visa and Border Crossing Card, containing a

machine-readable biometric identifier, issued by the Department of State and is applying for admission as a temporary visitor for business or pleasure from contiguous territory. If the traveler is not coming from the Western Hemisphere, a passport is required.

Continuing students who are going to travel outside of the United States must see their foreign student advisor and obtain an endorsement from the DSO or

RO. The endorsement will be made on page 3 of the SEVIS Form I-20 or page 1 of the DS-2019. When returning to the United States, a continuing student/exchange visitor must present a valid SEVIS Form I-20 or DS-2019 with the DSO or RO signature showing that the student is active and in good standing with the school or program.

To obtain a nonimmigrant visa, contact the Department of State at www.state.gov. Be aware, the Department of State can authorize travel to the U.S. However, a visa does not guarantee that you will be allowed to enter the U.S. CBP has the authority to grant or deny your admission to the United States. The Bureau of Citizenship and Immigration

Services determines how long you may stay in the United States and whether or not you may extend your stay. You may contact them at 1-800-375-5283.

DHS Proposes Biometric Airport and Seaport Exit

Procedures

The U.S. Department of Homeland Security (DHS) announced a notice of proposed rulemaking that will establish biometric exit procedures at all U.S air and sea ports of departure. The majority of non-U.S. citizens are already required to submit digital fingerprints and a digital photograph for admission into the country. The US-VISIT Exit proposal would require non-U.S. citizens who provide biometric identifiers for admission to also provide digital fingerprints when departing the country from any air or sea ports of departure. “The 9/11 Commission called for biometric entry and exit records, because biometrics confirm that travelers are who they say they are and the purpose of their travel is as they claim it to be,” said Homeland Security Secretary Michael Chertoff.

The proposed rule would require commercial air carriers and cruise line owners and operators collect and transmit international visitors’ biometric information to DHS within 24 hours of leaving the United States. Carriers are already required to transmit biographic information to DHS for all passengers prior to their departure from the United States. The proposed rule does not designate a specific location within the port of departure for biometric collection and does not apply to small carriers or vessel owners and operators, or to general aviation. DHS completed a test of biometric exit procedures at several U.S. airports and seaports last year. Based on the results of this test, DHS determined that biometric exit procedures must be integrated into the existing traveler process to ensure compliance and provide visitors with a consistent experience from port to port. DHS intends to implement air and sea biometric exit procedures by January 2009. The notice of proposed rulemaking will be published in the Federal Register and will provide the general public an opportunity to submit written comments electronically or by mail.

Best,

Kaushik Ranchod

February/March Immigration Update

kaushik — Mon, 19 May 2008 23:17:17 +0000

Department of Homeland Security Publishes New Final Rule for REAL ID Card Standards

The DHS has established new minimum standards for state-issued driver’s licenses and other ID cards that federal agencies will accept for official purposes on or after May 11, 2008, in accordance with the REAL ID Act of 2005. These new standards encompass various aspects of the ID-issuing process: information and security features to be incorporated into all cards; application information to establish an applicant’s identity and immigration status before a card may be issued; and standards for the physical security of card-production facilities. This new final rule also provides a process by which states can pursue a further extension of the compliance deadline to May, 11, 2011 by demonstrating compliance with the Act and rule’s core requirements. Finally, considering the operational burdens on state DMVs, this rule permits the states that the DHS has determined to be in compliance with the Act to replace all licenses meant for official purposes with REAL ID-compliant cards. Those DMVs will have until December 1, 2014 to replace the cards of people born after December 1, 1964 and until December 1, 2017 for people born on or before December 1, 1964.

What are the Affidavit of Support poverty guideline requirements for 2008? The Affidavit of Support is a legal contract between the petitioner (also known as “sponsor”) and the foreign national that is required for some immigrant visas.

Sponsors must demonstrate that his or her income is equal to or greater than 125 percent of the federal poverty guidelines for his/her household size.

The Department of Health and Human Services has issued the 2008 Poverty Guidelines for the 48 Contiguous States and the District of Columbia:

Family Size

Poverty Guideline ($)

For families with more than eight people, add $3600 for each extra person.

2008 Poverty Guidelines for Alaska

Family Size	Poverty Guideline ($)
1	13000
2	17500
3	22000
4	26500
5	31000
6	35500
7	40000
8	44500

For families with more than eight people, add $4500 for each extra person.

2008 Poverty Guidelines for Hawaii

Family Size	Poverty Guideline ($)
1	11960
2	16100
3	20240
4	24380
5	28520
6	32660
7	36800
8	40940

For families with more than eight people, add $4140 for each extra person.

New Centralized Filing Location for Some H-1B Cap-Exempt Petitioners

As of January 30, 2008 USCIS has created a special unit at its California Service Center (CSC) just for processing certain types of H-1B cap-exempt petitions. These “cap-exempt” petitions include petitions filed by the following:

- Institutions of higher education (as defined in section 101(a) of the Higher Education Act of 1965, 20 USC 1001(a))

- Nonprofits or organizations affiliated with or related to institutions of higher education

- Nonprofit or governmental research organizations (as defined in 8 CFR 214.2(h)(19)(iii)(C)

H-1B petitioners should now use the mailing address that follows for their qualifying H-1B cap-exempt petitions. Your petition can only be qualified if your organization or institution falls into one of the above categories.

Direct Mail:

U.S. Citizenship and Immigration ServicesCalifornia Service CenterATTN: CAP EXEMPT H-1B Processing UnitP.O. Box 30040Laguna Niguel, CA 92607-3004

For non-USPS deliveries (FedEx, DHL, etc.):

U.S. Citizenship and Immigration ServicesCalifornia Service CenterATTN: CAP EXEMPT H-1B Processing Unit2400 Avila Road, Room 2312Laguna Niguel, CA 92677

Petitioners should write “EXEMPT” on the outside of the envelope and on Form I-129’s top margin to assure the quick identification and filing of the petition.

The largest volume of H-1B filings is in April (six months prior to the new fiscal year). Applying in April could result in receipting delays or other processing-time interruptions. Petitioners may file a qualifying H-1B cap-exempt petition at any time of the year, but no earlier than six months before their intended start date.

USCIS Revises Process for Background Checks

In cases where the application is approvable but the request for an FBI name check has been pending for more than 180 days, the adjudicator will approve the I-485, 601, 687 or 698 and proceed with card issuance. The FBI has committed to providing the results of these name checks within this time period. This is a significant step forward for the USCIS since prior to this policy applications could be pending for one or more years due to USCIS background checks.

Note that there is no change in the requirement that FBI fingerprint and name checks and an IBIS check be obtained and resolved before an Application for Naturalization (N-400) is adjudicated.

In the event that these checks reveal actionable information after the immigration judge gives permanent resident status to an alien, DHS may detain and begin removal proceedings against that permanent resident.

Best,

Kaushik Ranchod

H-1B Compliance

admin — Tue, 18 Mar 2008 22:37:07 +0000

Filing your H-1B petition for your candidate with United States Immigration Services (USCIS) is only the first step in the process. You must also obtain a certification of a labor condition application (LCA) from the Department of Labor (DOL). At the very beginning, you need to make sure to post the LCA at two conspicuous locations at your place of business.1 The employer must attest that the applicant is paid the prevailing wage, or actual wage of similar workers, and will receive similar benefits to that of other workers in a similar position. The employer is also required to give notice to the applicant of the required wage rate and working conditions; attest that there is no strike or lockout for this position; and notify the DOL after the LCA is filed of any strike or lockout within three days of the strike or lockout.

Be prepared for an audit

After you’ve filed your H-1B petition, complied with the LCA attestations, the employer’s attestations must kept in a “public access file” in case of a DOL audit. This file should contain a copy of the signed and certified LCA with the dates that you posted this LCA; strike and lockout attestation; copy of the prevailing wage determination, including the source you used, and your reasoning of how the applicant falls within the specified prevailing wage; documentation demonstrating the actual wage; evidence that the applicant is receiving similar benefits as others in similar positions; documentation stating the current rate of pay of the H-1B worker; and labor condition application.

Remaining in compliance after hiring your H-1B applicant

During your applicant’s H-1B status, you must continue to pay the prevailing wage. And, if there are other employees in the same position with similar education and experience receiving raises, you should also provide your H-1B worker with similar raises or be prepared to justify why the worker did not receive similar raises.2 If your worker transfers to another work site that was not listed on the initial LCA, you must file a new LCA and meet other LCA requirements. Exceptions include short term travel work assignments or non work-site locations.

In today’s economic environment, hiring foreign talent is often a necessity. You can skillfully avoid the most common pitfalls by keeping these points and strategies in mind in order to retain your long-term competitive edge.

If the employer has a bargaining representative the employer must provide notice of the LCA filing to the bargaining representative of the employer’s employees in the occupational classification.
The USCIS, DOL, or employees can file a complaint. The Wage and Hour Division (WHD) of the Employment Standards Administration (ESA) will determine if a violation has occurred. Penalties include paying back wages and benefits, fines up to $35,000 per violation, and inability to file immigration petitions for up to three years.

H-1B Transfer and H-1B Extensions

admin — Tue, 18 Mar 2008 22:34:41 +0000

What are the Requirements for an H-1B Transfer?

The H-1B applicant must be in H-1B status; admitted lawfully to the U.S.; maintained lawful status; worked in lawful status; and the new petition must be filed prior to the expiration of the employee’s current H-1B status.

If you are a Physician, Scientist or Researcher please visit our:

Doctor and Scientist Resource Center for more information pertaining to H-1B visas.

When is the 7th year extension available for an H-1B applicant?

An H-1B visa is granted for three years, but can be extended for three more years for a total of six years.

The “seventh year extension” under the American Competitiveness in the 21st Century Act (AC21) affords the applicant the right to extend his H-1B visa beyond the six-year limit, in one-year increments, if a labor certification, or I-140 petition or adjustment of status application (based on an approved certification), has been pending for more than 365 days from the date the labor certification or I-140 was filed. The 7th year rule applies even if the labor certification or I-140 petition was filed by another employer.

Is an H-1B applicant eligible for the three-year extension beyond the six-year limit?

If a person has an approved I-140 employment-based immigrant petition but is unable to adjust status because immigrant visa numbers are not currently available, he or she could extend his H-1B visa for three more years beyond the six year limit. This exception only applies if there are no immigrant visa numbers available for the employee to immediately apply for permanent residence (i.e., green card). This rule also applies to L-1B visa holders. In this case, the H-1B employee should make sure that he or she has more than one and a half (1½) years left on his or her H-1B visa to accommodate labor certification and I-140 processing times.

What are the other H-1B Extension Options?

If the H-1B applicant is unable to extend his or her H-1B visa beyond six years, what other options does he or she have to maintain lawful status? Even if s/he has less than one year left on his or her H-1B visa, the employer could file for a labor certification on the H-1B applicant’s behalf; although this is not a perfect solution. After the labor certification is approved, which may take anywhere from one day to a year before the U.S. Department of Labor approves the application, the employer may file for an employment-based I-140 petition. After the employment-based petition is approved, the employee may file for adjustment of status to permanent residence and work authorization card, if immigrant visa numbers are available. When the work authorization document is issued, the employee may continue to work for the employer based on the work authorization card.

The suggestion above assumes that the H1B candidate will be able to adjust status before his or her H-1B visa expires. Recently in 2008 visa numbers have not been immediately available for Indian and Chinese nationals for second and third employment-based categories, unless they qualify under the employment-based first preference category.

In other words, even if the H-1B applicant qualifies under the employment-based second preference category based on a master’s or higher degree, he or she could still be waiting three years before being eligible to file for permanent residence.

For more detailed information, please visit our H-1B Transfer page on www.doctorsimmigrationlaw.com.

Recapturing time an H-1B applicant has spent outside of the U.S.

admin — Tue, 18 Mar 2008 22:33:14 +0000

If an H-1B applicant is unable to extend his or her H-1B visa for more than six years, and if he is not eligible for work authorization based on a pending permanent residence application, what does the H-1B applicant do to avoid these limitations? The employer could file an extension of the employee’s H-1B status for the period of time the employee was physically outside the United States during his or her H-1B status. This strategy allows the applicant to “recapture” or use the days of his or her H-1B status otherwise lost while outside the United States, on vacation for example. The application for H-1B extension must be filed before the employee’s current H-1B status expires.

Regardless of the number of days available for recapture, the law allows the employee to remain in legal status beyond the I-94 expiration date during the pendency of the extension application for up to 240 days or until USCIS makes a decision, which ever comes first.

The H-1B applicant can remain and work beyond that time, if USCIS grants the extension for a period in excess of those 240 days. Unfortunately, the number of days authorized to be recaptured is calculated from the date of expiry of status, not the date of approval.

July Immigration Update

admin — Tue, 26 Feb 2008 13:39:17 +0000

Immigration Update July 11, 2007

Fee Increase

A reminder that the increased fees for applications and petitions takes effect July 30, 2007.

New Labor Certification Procedures

USCIS announced new labor certifications procedures.

United States Citizenship and Immigration Services (USCIS) is instituting new procedures for filing a Petition for Alien Worker (I-140) that requires an approved labor certification application.

The Department of Labor (DOL) rule takes effect on July 16, 2007. This rule will significantly impact the filing of Form I-140 petitions with USCIS because it:

1. Prohibits substitution of alien beneficiaries or any permanent labor certification application after the application has been filed with DOL.

2. Establishes a 180-day time period with which a DOL-approved labor certification must be filed with USCIS in support of a Form I-140 petition in order to remain valid.

3. Requires that any labor certification approved by DOL prior to July 16, 2007 be filed with USCIS in support of an I-140 petition with 180 days after the effective date of the DOL final rule in order for the certification to remain valid.

JULY VISA BULLETIN FIASCO

USCIS announced that it is rejecting all employment-based adjustment of status applications where the priority date is not current under the revised visa bulletin. USCIS Service Center Operations has advised AILA liaison that it will be rejecting ALL employment-based adjustment of status applications received for the remaining month of July.

However, after Representative Lofgren sent a letter to the Secretary of Homeland Security the USCIS decided to accept employment adjustment of status applications until August 17, 2007.

Representative Lofgren’s letter contains thirteen separate questions and requests for information relevant to the issuance of the updated Visa Bulletin.

“The Department’s unprecedented decision to reject adjustment of status applications has caused needless hardship and disruption to countless immigrants,” noted Rep. Zoe Lofgren. “It has also come to my attention that USCIS began returning visa numbers to the State Department as early as Thursday, July 5, 2007, due to their inability to review applications effectively. The Department of Homeland Security has once again demonstrated its inability to complete even its core missions. This debacle demonstrates the need for more transparency and oversight of the department’s operations and procedures.”

The full text of the letter is included below:

July 11, 2007

The Honorable Michael Chertoff
Secretary
U.S. Department of Homeland Security
Washington, DC 20528

Dear Secretary Chertoff:

On July 2, 2007, the Department of State (DOS) issued an “Update to July Visa Availability,” which the Department of Homeland Security (DHS) apparently relied on to suspend its acceptance of adjustment of status applications based on employment-based immigrant petitions. DOS and DHS acted on these matters despite my request that the agencies provide the Subcommittee with certain information before taking such actions.

At no point since my letter to you dated July 2, 2007, have I received any information in writing from the Department. Given this failure, I am now requesting that you provide to me, within three days of the date of this letter, the following information:

1. All correspondence, e-mails, memoranda, notes, field guidance or other documentation relating to the issuance of or the Department of Homeland Security’s actions regarding the July Visa Bulletin, which made all employment-based immigrant visa categories (except the “other worker” category) current. The term “Department of Homeland Security” includes DHS or any component thereof.

2. All e-mails, correspondence, memoranda, notes, field guidance or other documentation relating to the issuance of or the Department of Homeland Security’s actions regarding the “Update to July Visa Availability” issued on July 2, 2007. The term “Department of Homeland Security” includes DHS or any component thereof.

3. All correspondence, e-mails, memoranda, notes, field guidance or other documentation between the Department of Homeland Security, the Department of State, the Department of Justice and/or the Federal Bureau of Investigation relating to the availability of visa numbers for the month of July 2007, the issuance of or the Department of Homeland Security’s actions regarding the “Update to July Visa Availability” issued on July 2, 2007, the processing of security or name checks in connection with visa number requests through the end of FY 2007, and/or the determination to suspend or reject the acceptance of adjustment of status applications. The terms “Department of Homeland Security,” “Department of State,” “Department of Justice” and “Federal Bureau of Investigation” include DHS, DOS, DOJ, FBI or any components of those agencies.

4. A detailed description of any existing or proposed understanding, arrangement and/or agreement between DHS (or any component thereof, including, but not limited to, U.S. Citizenship and Immigration Services) and the FBI (or any component thereof) relating to name checks or other security checks conducted with respect to immigration applications or petitions.

5. A detailed description of how DHS and/or the FBI expect the processes for such name or security checks to change through the end of FY 2007, and, in particular, within the month of July 2007.

6. A detailed description, including, but not limited to, a statistical tallying, of all employment-based immigration cases, petitions, applications or other files for which DHS (or any component thereof, including, but not limited to USCIS) requested a visa number between May 2007 and July 2, 2007, inclusive, for which any name or security check was pending, uncompleted or otherwise awaiting action on a security or name check. (Hereinafter, such cases will be referred to as cases for which visa numbers were “pre-requested.”)

7. The specific legal authority on which DHS (or any component thereof, including, but not limited to, USCIS) relied to “pre-request” visa numbers for cases, applications, petitions or other files for which security or name checks were pending, uncompleted or otherwise awaiting action. The response to this question shall include copies of the specific legal authority, including statutory provisions, regulations, field manuals, policy memoranda, policy guidance or other documentation relied upon, as well as the date or dates on which such authority was last revised or issued, the substance of any revision and the original text that was revised.

8. Any and all correspondence, e-mails, memoranda, field guidance, notes or other documentation discussing or referencing the agency’s decision to “pre-request” visa numbers for which security or name checks were pending, uncompleted or otherwise awaiting action.

9. Any and all field guidance, e-mails, correspondence, memoranda, notes or other documentation discussing or referencing the agency’s plans, policies or other proposed or expected actions in the event security or name checks for cases, applications, petitions or other files for which the agency “pre-requested” visa numbers are not or do not get completed during July 2007 or the remainder of FY 2007, including, but not limited to, whether the agency has proposed or intends to return, or has discussed returning, visa numbers for such cases to DOS.

10. Any and all correspondence, e-mails, memoranda, notes or other documentation between DHS (including any component thereof, including, but not limited to, USCIS) and DOS regarding the availability of visa numbers for June 2007, July 2007, or any remaining month of FY 2007, including, but not limited to, the anticipated numbers available during such months, the expected or anticipated usage of or requests for such numbers and/or the update, revision, restatement or alteration of the July Visa Bulletin.

11. Any and all records or other documentation (with a summary for ease of analysis) regarding historic patterns of overtime ordered for work on weekends, including specifically the weekend leading up to July 2, 2007, and the reasons in each case that prompted the overtime, for the past three years.

12. Any and all records or other documentation (with a summary for ease of analysis) regarding historic patterns of adjudication of adjustment of status cases, including a breakout for adjustment of status cases based on employment-based immigrant petitions, on a monthly basis for the past three years.

13. Any and all records, analyses, spreadsheets, related e-mails, memoranda, correspondence or other documentation evaluating the potential financial effects to DHS (or any component thereof, including, but not limited to USCIS) if adjustment of status cases eligible for filing under the initial July 2007 Visa Bulletin were filed before, on or after July 30, 2007.

Thank you for your immediate consideration of this very important matter.

Sincerely,

Zoe Lofgren
Chairwoman
Subcommittee on Immigration, Citizenship,
Refugees, Border Security & International Law

cc: Secretary Condoleezza Rice, U.S. Department of State

July 31, 2007

Rep. Lofgren Introduces Bill to Void Immigration Fee Increases

Rep. Zoe Lofgren (D-San Jose) today introduced a bill to void the recent increases in immigration fees by U.S. Citizenship and Immigration Services (USCIS). The bill would void the new fee structure set to take effect today and reinstate the previous fee structure. We applaud Rep. Lofgren’s efforts to stand up for the rights of immigrants, businesses and families across the U.S. Unfortunately, the bill may not pass and we will wait and see whether or not CIS does improve its customer service. We hope that applicants will no longer continue to wait up to 45 minutes to speak to an immigration officer who often is unable to provide an accurate answer to your questions.

“Our immigration services need to move into the 21^st century,” stated Rep. Zoe Lofgren. “But, USCIS has consistently failed to explain or justify the amounts and distributions of this new fee increase. While I agree that USCIS needs to modernize its existing infrastructure and procedures, they must do so in a transparent and open manner. After repeated requests over several months, USCIS has yet to provide Congress with a detailed plan for its infrastructure modernization efforts. Our immigration system should be both effective and fair; sacrificing one to achieve the other should not be an option.”

________________________________

This information is not intended to provide solutions to individual problems and does not constitute an attorney client relationship. Readers are cautioned not to attempt to solve individual problems on the basis of information contained herein and are strongly advised to seek competent legal counsel before relying on information in this e-mail. The above information should not be construed as legal advice. Please note that laws change frequently.

August Immigration Update

admin — Tue, 26 Feb 2008 13:36:14 +0000

Will 750,000 Permanent Residents need to replace their Green Cards?

U.S. Citizenship and Immigration Services (USCIS) issues Permanent Resident Cards (Forms I-551) to lawful permanent residents to serve as evidence of immigration status, registration, identity, and employment authorization, and as an entry document upon return from a trip outside of the United States. The USCIS proposes to terminate the numerous lawful permanent residents’ green cards that possess cards without expiration dates. This rule proposes to establish a 120-day period to apply for replacement cards. The application process proposed by this rule will enable USCIS to electronically store applicants’ biometric information that can be used for biometric comparison and authentication purposes.

In addition, USCIS proposes to notify the public of the termination of this new requirement in a Notice published in the Federal Register. Please note that the cards, issued between 1977 and 1989, do not have expiration dates.

This policy raises some serious concerns to permanent residents who have green cards without expiration dates. First, USCIS must address how they will provide adequate notice to applicants who are affected by this policy. Thus, USCIS has announced that they will not contact the card holders, will only allow 120 days to replace their cards, and will need to pay nearly $400.

In response to these issues Senator Robert Mendez raised important concerns regarding the implementation of this policy in a letter to Department of Homeland Security (DHS) Secretary Michael Chertoff.

“While I commend the Department for taking important steps to reducing fraud and improving the security of our homeland by making sure we know who is carrying a green card, I have concerns about the process in which this effort will be carried out and the impact it could have on hundreds of thousands of legal permanent residents – people who have played by the rules for 20-30 years,” wrote Menendez.

Menendez is asking USCIS to provide specifics as to how they will be able to handle such a large influx of applications, when delays exist for current new applications. Additionally, he is asking for USCIS’ outreach plan, since individual cardholders will not be contacted directly. Finally, he requests that USCIS reconsider the application fee, as many of the cardholders may be on fixed incomes and unable to handle the cost.

Full text of the letter follows:

August 24, 2007

The Honorable Michael Chertoff
Secretary of Homeland Security
United States Department of Homeland Security
Washington, DC 20528

Dear Secretary Chertoff:

I am writing with regard to recent reports of a proposal announced by the Citizen and Immigration Services Division of the Department that would require replacement applications and fees for legal residents carrying green cards that lack expiration dates. While I commend the Department for taking important steps to reducing fraud and improving the security of our homeland by making sure we know who is carrying a green card, I have concerns about the process in which this effort will be carried out and the impact it could have on hundreds of thousands of legal permanent residents – people who have played by the rules for 20-30 years, many of whom may be living on a limited income, and will now have to come up with almost $400 to pay these new fees in a short period of time.

My first concern has to do with the proposed time frame of 120 days, in which the Department will have to process approximately 750,000 legal permanent residents applying for new green cards. In light of recent changes in passport regulations which have resulted in unexpected delays, frustration, and a huge backlog of applications, it seems questionable that 120 days is sufficient time to process and replace hundreds of thousands of green cards. As a United States Senator from New Jersey, my office was inundated with questions and requests for help on the passport issue. That is why I request that the Department outline the specific plans they will have in place to avoid or deal with such setbacks, should they occur, so I can better help my constituents impacted by this proposal.

My second concern is the fact that the proposal states affected legal residents will not be individually notified. With legal permanent residents given only 4 months to come up with almost $400 to reapply for permanent residency, I would hope that the Department has a specific outreach plan for reaching those affected by this change in regulation. Therefore, I specifically request information on the Department’s plans to adequately get the word out to legal permanent residents who need to apply for new green cards.

Finally, I believe the fee is excessive for people who have been here contributing to our country for decades, have played by the rules, obeyed the law, and otherwise have no reason to be hit with an unexpected $400 fee. In addition, they will only have 120 days to come up with the fee, which may be impossible for those on fixed incomes.

We all share the same goal – to ensure that the security of our nation is protected by knowing who is here to live the American dream and who is here to destroy it. However, I believe we have to use caution so that we are not inefficiently or unfairly treating those who are abiding by the law. That is why I request details as to how the Department plans to notify green card holders affected by this proposed regulation and to deal with the volume of requests that will be flowing in. I also encourage you to reconsider the fees these individuals will have to pay in order to maintain their legal status.

Thank you for your attention to this critical issue. I look forward to your prompt response.

Sincerely,

ROBERT MENENDEZ
United States Senator

Looking into the Crystal Ball – October 2007 Employment-based Immigrant Visa Cutoff Dates Projected

Charlie Oppenheim, Chief of Immigrant Visa Control and Reporting at the State Department, discussed with AILA Liaison informal projections on employment-based visa availability for the October 2007 Visa Bulletin. It is predicted that October 2007 First and Second Preference categories will be similar to the September 2007 visa bulletin. In the Employment Third preference categories, the cut-off dates are likely to be similar to those found in the January 2007 Visa Bulletin.

On a positive note, all numbers available under the FY-2007 Employment annual numerical limit will be utilized.

Changes to Expedited Passport Processing

The government has issued its new proposed expedited passport processing rule. It no longer will commit to processing passports within three days. We speculate that the government has changed its policy due to the criticism it received for not complying with its own expedited processing policy. The new expedited processing program will be posted from time to time on the Department of State website.

Question of the Week: The United States Citizenship and Immigration Service (USCIS) made a mistake, what do I do?

“The USCIS sent me a receipt notice with an error stating that I previously filed two I-129 petitions. How do I correct this error to accurately reflect the fact that I only filed one petition?”

Answer: As a member of The American Immigration Lawyers Association (AILA), we have a liaison system that can be used to resolve these types of errors. After we contact our AILA liaison he will raise this error to the appropriate USCIS representative to resolve the government’s mistake.

Best,

Kaushik Ranchod

________________________________

This information is not intended to provide solutions to individual problems and does not constitute an attorney client relationship. Readers are cautioned not to attempt to solve individual problems on the basis of information contained herein and are strongly advised to seek competent legal counsel before relying on information in this e-mail. The above information should not be construed as legal advice. Please note that laws change frequently.

September Immigration Update

admin — Tue, 26 Feb 2008 13:31:13 +0000

H-2B Cap Reached

On October 1, 2007, USCIS announced that the H-2B Cap had been reached for the first half of Fiscal Year 2008.

September 27, 2007 is the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to April 1, 2008. The “returning worker” provisions initially enacted in the “Save Our Small and Seasonal Businesses Act of 2005″ (SOS Act expired on September 30, 2007. It is uncertain whether the H-2B “returning worker” provisions will be extended by Congress.

New Citizenship Test

USCIS announced the 100 questions and answers that comprise the civics component of the new naturalization test will be administered beginning October 8, 2007.

The range of acceptable answers to questions will increase. For example, one of the new questions with a range of answers is: “What is one right or freedom from the First Amendment?” The applicant may respond with a variety of possible answers such as assembly, press, religion and petition the government. Questions regarding geography have also been added to the test. For instance there is a question regarding the Missouri/Mississippi Rivers.

Question of the Month:

Question: Am I Eligible for the 7th Year Extension?

Answer: An H-1B visa is granted for three years, but can be extended for three more years for a total of six years. The “seventh year extension” under the American Competitiveness in the 21st Century Act (AC21) affords your right to extend your H-1B visa beyond the six-year limit, in one-year increments, if a labor certification, or I-140 petition or adjustment of status application (based on an approved certification), has been pending for more than 365 days from the date the labor certification or I-140 was filed. The 7th year rule applies even if the labor certification or I-140 petition was filed by another employer.

What is Section 287(g) of the Immigration and Nationality Act and how does this affect you?

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), effective September 30, 1996, added Section 287(g), performance of immigration officer functions by state officers and employees, to the Immigration and Nationality Act (INA). This authorizes the secretary of the U.S. Department of Homeland Security (DHS) to enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law enforcement functions, pursuant to a Memorandum of Agreement (MOA). Local law enforcement officers must receive appropriate training and function under the supervision of sworn U.S. Immigration and Customs Enforcement (ICE) officers.

Memorandum of Agreement

The MOA defines the scope and limitations of the authority to be designated. It also establishes the supervisory structure for the officers working under the cross-designation. The MOA also prescribes the agreed upon complaint process governing officer conduct during the life of the MOA. Under the statute, ICE will supervise all cross-designated officers when they exercise their immigration authorities. Once the scope of limitations of the MOA has been reached, the assistant secretary of ICE, and the governor, a senior political entity, or the head of the local agency may sign the MOA, requesting the cross-designation. The 287(g) program is designed to enable state and local law enforcement personnel, incidental to a lawful arrest and during the course of their normal duties, to question and detain individuals for potential removal from the United States, if these individuals are identified as undocumented illegal aliens and they are suspected of committing a state crime.

287(g) Signed MOAs as of 9-14-07 : 28

AL Alabama State Police
AZ Department of Corrections
AZ AZ Department of Public Safety
AZ Maricopa County Sheriff’s Office
CA Los Angeles County Sheriff ‘s Department
CA Orange County Sheriff’s Office
CA Riverside County Sheriff ‘s Office
CA San Bernardino County Sheriff ‘s Office
CO Dept. of Public Safety
CO El Paso County Sheriff ‘s Office
FL Collier County Sheriff’s Office
FL Florida Department of Law Enforcement
GA Department of Public Safety
GA Cobb County Sheriff’s Office
MA Department of Corrections
MA Framingham Police Department
MA Barnstable County Sheriff’s Office
NC Alamance County Sheriff’s Office
NC Cabarrus County Sheriff’s Office
NC Gaston County Sheriff’s Office
NC Mecklenburg County Sheriff’s Office
NH Hudson City Police Department
OK Tulsa County Sheriff’s Office
TN Davidson County Sheriff’s Office
VA Herndon Police Department
VA Prince William-Manassas Adult Detention Center
VA Rockingham County Sheriff’s Office
VA Shenandoah County Sheriff’s Office
Number of Task Force MOAs in Field: 10
Number of Jail MOAs in Field: 14
Number of Joint MOAs in Field: 4
Number of Officers Trained to date: 485
Number of Arrests: More than 25,000

Best,

Kaushik Ranchod, Esquire

Main Office
870 Market Street
Ste. 570
San Francisco, CA 94102
Phone: 415-986-6186
Fax: 415-399-9416

Santa Clara Office
3333 Bowers Avenue
Suite 130
Santa Clara, CA 95054
Phone: 408-844-9197

Sacramento Office
3550 Watt Avenue
Suite 140
Sacramento, CA 95821

________________________________

This information is not intended to provide solutions to individual problems and does not constitute an attorney client relationship. Readers are cautioned not to attempt to solve individual problems on the basis of information contained herein and are strongly advised to seek competent legal counsel before relying on information in this e-mail. The above information should not be construed as legal advice. Please note that laws change frequently.

October Immigration Update

admin — Tue, 26 Feb 2008 13:26:43 +0000

Form I-9 Amended

U.S. Citizenship and Immigration Services has recently amended Form I-9, “Employment Eligibility Verification.” Form I-9 is required of employers to verify newly hired employees’ identities and employment authorization. The revised Form updates the list of acceptable employment authorization and identity documents in accordance with current regulations. As of November 7, 2007, only the new version of Form I-9 is valid. However, The Department of Homeland Security will not penalize employers for using a previous version as long as they do so on or before December 26, 2007.

Processing Times Advisory

In July and August of this year, the USCIS had almost 2.5 million applications filed (of which over 1.4 million were applications for naturalization), more than double last year’s number. The USCIS has hired roughly 1,500 new employees and plans to take other steps to address this issue. Even so, processing times for some kinds of applications may increase. Specifically, applications for naturalization filed after June 1st of this year may have a processing time of 16-18 months.

The USCIS’s New Final Rule on Nonimmigrant Travel Published

Under the new rule, some H-1 B/H-4 and L-1/L-2 nonimmigrants returning to the United States after traveling internationally are no longer required to present I-797 receipt notices for their adjustment of status applications to prevent their applications’ being deemed abandoned. This small change does away with an unnecessary documentation requirement that the Department of Homeland Security has decided creates an unnecessary burden for H and L nonimmigrants, especially given that the USCIS cannot always guarantee that Form I-797 receipt notices can be issued and mailed immediately. This rule is effective as of November 1st.

Department of State revises text regarding DUIs and consular processing

The Department of State now requires consular officers to send nonimmigrant visa applicants with certain previous drunk driving concerns for medical examinations with panel physicians. The qualifying concerns are: 1) if the applicant has had a drunk driving arrest or conviction in the last three calendar years or 2) if the applicant has had two or more drunk driving arrests or convictions within any time period. Furthermore, if there is any evidence to suggest that an applicant has an alcohol problem, consular officers are now required to refer that applicant to a panel physician. Nonimmigrant visa applicants who disclose alcohol-related arrests in the US must also submit to National Crime Information Center processing that includes an $85 fingerprinting and a wait period—1-2 days with electronic fingerprints, up to two months with ink—for the results of the applicant’s FBI record. Full disclosure is advised, as some consulates have independent access to the records of local DUI cases and the Department of State may choose to have an applicant undergo fingerprinting and the NCIC processing for other reasons, which would most likely reveal a previous arrest. A failure to disclose such an arrest on Form DS-156 could result in a misrepresentation finding and inadmissibility, even if the conviction(s) or arrest(s) do not result in Class A determination.

It is recommended that visa applicants with alcohol-related arrests have copies of their arrest reports, certified court dispositions, and, if possible, a declaration and an attendant legal brief. Declarations from the applicant and others who can testify to the applicant’s moral character are also helpful.

Best,
Kaushik Ranchod

November Immigration Update

admin — Tue, 26 Feb 2008 13:23:42 +0000

Form I-9 Amended

Processing Times Advisory

The USCIS’s New Final Rule on Nonimmigrant Travel Published

Department of State revises text regarding DUIs and consular processing

The Department of State now requires consular officers to send nonimmigrant visa applicants with certain previous drunk driving concerns for medical examinations with panel physicians. The qualifying concerns are: 1) if the applicant has had a drunk driving arrest or conviction in the last three calendar years or 2) if the applicant has had two or more drunk driving arrests or convictions within any time period. Furthermore, if there is any evidence to suggest that an applicant has an alcohol problem, consular officers are now required to refer that applicant to a panel physician. Nonimmigrant visa applicants who disclose alcohol-related arrests in the US must also submit to National Crime Information Center processing that includes an $85 fingerprinting and a wait period-1-2 days with electronic fingerprints, up to two months with ink-for the results of the applicant’s FBI record. Full disclosure is advised, as some consulates have independent access to the records of local DUI cases and the Department of State may choose to have an applicant undergo fingerprinting and the NCIC processing for other reasons, which would most likely reveal a previous arrest. A failure to disclose such an arrest on Form DS-156 could result in a misrepresentation finding and inadmissibility, even if the conviction(s) or arrest(s) do not result in Class A determination.

Best,
Kaushik Ranchod

________________________________

December/January Immigration Updates

admin — Tue, 26 Feb 2008 13:14:29 +0000

H-1B Cap

In 2004 the H-1B cap was reduced to 65,000 visas. In 2007 the H-1B cap was met on the first day. Over 100,000 applicants applied for the H-1B visa and the United States Immigration Service (USCIS) held a lottery to determine who would be the lucky winner of the H-1B visa lottery.

This year, H-1B petitions may be filed on April 1, 2008 for employment that commences on October 1, 2008. We are currently preparing H-1B petitions for applications that may be submitted on April 1, 2008 and if you have any questions regarding H-1B eligibility please contact our office.

Application Fees for Nonimmigrant visas increased on January 1, 2008

As of January 1, 2008, the fee to process a nonimmigrant visa (MRV) or Border Crossing Card (BCC) application has increased from $100 to $131 while the fee to process immigrant visas has increased to $355.

The Department is legally required to recoup the cost of processing nonimmigrant visas by collecting the Machine-Readable Visa application fee. This fee has been raised twice since 9/11 and was last raised in 2002.

Applicants who paid the former $100 application fee before January 1 will only be processed if they have been scheduled for and will appear at a visa interview prior to January 31, 2008. Applicants who paid the former fee but will have their visa interviews after January 31 must pay the $31 difference before they may be interviewed.

New I-9 Form

Employers Must Use the New I-9 Form after December 26 or be penalized with all applicable fines.

H-2B Visa Cap

On January 2, 2008 USCIS reached the H-2B cap for petitions requesting a start date before October 1, 2008.

The H-2B visa permits US employers with seasonal, periodic or peak-load needs to use temporary workers to supplement their workforces. This visa category also permits employers to increase their workforces temporarily if a one-time event makes it necessary. H-2B workers are generally needed in health care, landscaping, construction, lumber, food service and processing, resort and hospitality services, and manufacturing.

USCIS permits employers to file for H-2B visas up to 6 months in advance, but to do so, H-2B petitioners must first receive temporary labor certification from the Department of Labor (DOL). The DOL does not allow employers to file for temporary labor certification more than 120 days before they need temporary employees. Therefore the USCIS usually does not begin receiving H-2B petitions for October posts until June or July.

What is the H-2B Numerical Limit?

Congress limits the number of H-2B visas granted to 66,000. As of October 1 this year, Congress has yet to amend the “returning worker” provisions of 2005′s Save Our Small and Seasonal Businesses Act (SOS Act) to include the 2008 fiscal year.

Before October 1, if a petition was approved solely to (a) extend an alien’s stay under H-2B status, (b) to change or add or employers, or (c) to alter the terms of employment, then the worker would not be counted against the limit. However, an alien who changed his or her nonimmigrant status to H-2B would normally be counted against the 66,000-worker quota.

Does USCIS authorize more H-2B workers than the 66,000 limit?

USCIS decides H-2B petitions on the basis of the facts that the petitioner presents in his or her petition. In the event that the H-2B petitioner’s alien beneficiaries are abroad, USCIS will send the approved petitions to the Department of State (DOS) for processing at the consulate. However, employers may decide that they no longer need the aliens for whom they petitioned. In these cases, the DOS will not issue H-2B visas to those aliens. Additionally, if the applicant is unable to demonstrate that he or she intends to return home after their temporary employment in the U.S., the consular officer may deny the H-2B visa. In other cases, after H-2B visa approval some aliens do not appear at the consular post for their visa interviews. Finally, the DHS Customs and Border Protection (CBP) may decide at a port of entry that an approved H-2B petitioner’s beneficiary is inadmissible and refuse to allow the beneficiary to enter the US.

Due to these “dropouts,” USCIS authorizes more potential H-2B workers than the number of visas issued for approved petitions, which are the basis of the numerical limit.

E-Verify Policy for Large Employers

The Department of Homeland Security (DHS) has introduced a new policy in which a company with more than 1000 employees can sign a single MOU that will cover all hiring sites chosen by the company for E-Verify. Carrying out this MOU will produce one E-Verify identification number that can be used for the whole company or whichever part of it participates in the E-Verify program. When a company decides to use E-verify for some or all of its hiring sites, the address of the corporate office must be used on the MOU. When enrolling in E-Verify this way, employers should use the “multiple site” button during registration. At the “multiple site” button, the company should enter the number of hiring sites (per state) that will first participate in E-Verify. The number of hiring sites that participate in E-Verify may be changed later, in accordance with the company’s later decisions and actions. For example, when a company expands and/or decides to explore business opportunities in other parts of the US, the number of sites may change and the company may decide to enroll some, all or none of its sites in E-Verify. Such changes should take place on the company’s E-Verify profile. Regardless of the hiring site’s initial title (local office, satellite office, branch office, etc.), the decision to use or not to use E-Verify must be done in a way that is nondiscriminatory.

Note: the DHS has yet to amend MOU to reflect this new policy, but is currently considering such an amendment.

Best,
Kaushik Ranchod

Immigration News

admin — Tue, 26 Feb 2008 10:22:59 +0000

Ranchod Law Group Newsletter – February 2011

To view previous newsletters, please visit the Immigration News Archive.

Please fill out the field below if you would like to receive immigration updates from the Ranchod Law Group.

Marriage-based Client Services

admin — Mon, 25 Feb 2008 19:48:05 +0000

K-3 Marriage Visa Client Services

USCIS PREPARATION

Our office prepares and submits all documentation for the immediate relative and K3 petition. We will provide you with advice on documentation that should be submitted with both the immediate relative and K3 petition so that your application does not experience unnecessary delays. If our office makes a determination that your documents do not meet the USCIS (formerly INS) specifications we will suggest appropriate supplemental documentation. Our office corresponds and communicates with you and your spouse without additional attorney’s fees. Additionally, our clients can view their case status 24/7 via our online case status case management software. Forms will be sent via overnight mail for your signature and our office will submit the final forms to the USCIS.

US EMBASSY PREPARATION

Our office will also prepare all embassy forms, review all documentation and prepare your spouse for the interview. We will contact and communicate with the United States Embassy on your behalf. After approval of your K3 petition, our office will contact the U.S. Embassy to update their office of USCIS approval. In order to expedite the process, our office completes all forms and sends them to your spouse, before your K3 petition is approved.

Our office corresponds and communicates with you and your spouse without additional attorney’s fees. Unlike other lawyers that only prepare the K3 petition; we continue to provide you and your spouse with legal guidance throughout the entire K3 visa process and monitor your case at the USCIS service center and US embassy. Additionally, we prepare you for the USCIS interview by having you and your spouse undergo a simulated USCIS interview. We also ensure that you provide the appropriate evidence for the interview. The above preparation and dedication to your case contributes to our high success rate.

O-1 Extraordinary Ability Achievement Visa

admin — Mon, 25 Feb 2008 17:46:42 +0000

O-1 Individuals of Extraordinary Ability or Achievement

Employment Based Visas

Highly talented or acclaimed foreign nationals may eligible for an O visa. Individuals who may qualify for this visa are entertainers, scientists and high-end chefs, businessman, and athletes.

For more information, please visit our specialized O-1 Visa page on www.doctorsimmigrationlaw.com

H-1B Specialty Occupation Visa

admin — Mon, 25 Feb 2008 15:49:31 +0000

H-1B Specialty Occupation Visa

H1-B Specialty Occupation

What is an H-1B visa?

The H-1B visa is a nonimmigrant classification used by an alien who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability.

Is there a limit on the number of H-1B aliens?

Yes. Under current law, there is an annual limit of 65,000 aliens who may be issued a visa or otherwise provided H-1B status. Under the L-1 Visa and H-1B Visa Reform Act of 2004, beginning March 8, 2005, up to 20,000 additional H-1B slots were available to graduates of U.S. master’s degree (or higher) programs. There are some types of jobs that are exempt from the H-1B cap.
The number of H-1B visas for fiscal year 2005 was reached on the very first day of the fiscal year. Petitions for positions starting on or after October 1, 2005, could be submitted up to 180 days ahead of the requested start date. In other words, applications for the next quota of H-1B visas (excluding the new 20,000 slots for graduates of U.S. higher education programs) were accepted beginning in April 2005.

How does one apply?

In an H-1B visa application, the U.S. employer is called the petitioner and the foreign worker is called the beneficiary. After an offer of employment is made, the petition process begins.
The first step is for the petitioner to ensure that the worker will be paid at 100% of the prevailing wage paid to similarly employed workers in the geographic area where the beneficiary will be employed. The employer must also be sure not to pay less than the actual wage paid to other employees with similar qualifications.
The prevailing wage can be determined through a private wage survey or through a state Employment Security Agency. The benefit of relying on a state wage determination is that it cannot be challenged later by the U.S. Department of Labor (DOL). On the other hand, state determinations are frequently not a close match to the job performed and are slow in being issued.
Once the wage information has been obtained, a Form ETA 9035 Labor Condition Application (LCA) must be submitted to the DOL. On this form, the employer must submit the wage to be paid, the prevailing wage and must make certain attestations. The form is submitted on the Internet or by fax, and the DOL only reviews the form to make sure it is properly completed. It does not look to see whether the information is accurate and instead investigates a small percentage of cases in which violations of the regulations appear to be occurring. (For more information, see the DOL’s Foreign Labor Certification web page at http://atlas.doleta.gov/foreign.)
The certified LCA petition is submitted to the U.S. Citizenship and Immigration Services (USCIS) as part of the H-1B petition package. Other information that should be included in the petition includes documentation of the beneficiary’s qualifications, the petitioner’s type of business and the type of work the beneficiary will be performing.

What are the fees associated with the H-1B visa?

There are four government filing fees that come up in H-1B cases. First, the base filing fee for an H-1B case is applicable in every case. Presently, the fee is $320. In late 2004, Congress passed legislation restoring a worker-retraining fee. The previously applicable worker-retraining fee was reinstated and increased from $1000 to $1500. Employers with fewer than 25 full-time equivalent employees in the U.S. (including employees of affiliates and subsidiaries) pay $750. Previously exempt employers will continue to be exempt from the fee. The fourth fee is a $500 fraud prevention and detection fee.

Nurse and Health Care Visas

admin — Mon, 25 Feb 2008 10:55:07 +0000

Visa Options for Nurses-Nurse Visas

Nonimmigrant visa options for nurses are limited because most employers only require a two-year associate degree rather than a four-year bachelor’s degree. Note: Most states do not require bachelor’s degrees for a nursing license.

H-1B Visas

H-1B visas are available to individuals who work in an occupation that requires specialized knowledge and a bachelor’s or higher degree in the specific specialty or its equivalent.

The USCIS has determined that nursing, as a profession, is not a specialty occupation, because a bachelor’s degree is not generally required to become a registered nurse (RN). However, in a 2002 memorandum, the United States Citizenship and Immigration Service acknowledged that there are areas of nursing where the duties are so specialized and complex that the knowledge required to perform them is usually associated with the attainment of a bachelor’s or higher degree. These areas include:

Advanced Practice Registered Nurses (APRNs), including clinical nurse specialist, nurse practitioner, certified RN anesthetist, certified nurse-midwife or certified nurse practitioner. If the APRN position also requires that the employee be certified in that practice, then the nurse will be required to possess a registered nursing license, at least a bachelor of science degree in nursing and some additional graduate level education; Administrative nurse positions, such as “upper-level nurse managers” in hospital administration positions; and Nurses in certain specialized areas.

The USCIS specifically cites critical care and peri-operative (operating room) nurses as two examples of positions requiring a higher degree of knowledge and skill than a typical RN or staff nurse position. The USCIS indicates that passing a certification examination for a particular type of position is an important indicator. Examples of these types of certification examinations are school health, occupational health, rehabilitation nursing, emergency room nursing, critical care, operating room, oncology and pediatrics. Applications should include evidence such as affidavits from independent experts or other means showing that the job duties are so specialized and complex that a bachelor’s or higher degree is appropriate. Unfortunately, because these types of cases are adjudicated on a case-by-case basis, the USCIS has applied the memorandum with very strict scrutiny. Nevertheless, the memo certainly will be relevant in cases where employers and applicants seek to appeal denials of properly filed cases.

TN Professionals

As an alternative to filing an INS petition for H-1 cases, citizens of Mexico and Canada can apply for TN status. To qualify the applicant must be employed in one of the sixty-three listed professions in NAFTA. Most professions require either a bachelor’s or a licensures degree.

TN-1 Visas TN-1 visas are available under the North American Free Trade Agreement (NAFTA). Although not uniformly recognized as a specialty occupation for H-1B purposes, RNs were specifically included on the list of professions for which TN visas could be used, and any RN position can potentially qualify.

Under NAFTA, the applicant must possess the required credentials to be considered a professional under the TN category. RNs must demonstrate eligibility by providing a provincial or state license or Licenciatura degree. However, in order to be admitted, the RN must present a permanent state license, a temporary state license, or other temporary authorization to work as an RN, issued by the state nursing board in the state of intended employment.

Expanded Opportunities for J-1 Physicians

In 2005, the President signed a bill expanding opportunities for foreign-born, American-trained physicians. Under the new law, physicians are eligible for a waiver of the home-residency requirement (which mandates that they return to their home country for two years before they can get an H-1B visa or permanent residency) if they can show that their departure would cause an extreme hardship for a United States citizen or permanent resident spouse or child; they would face persecution; or a government agency vouches that the physician’s remaining in the U.S. is in the public interest.

It is that last category — the interested government agency waiver — that is used by most doctors wishing to stay in the U.S. There are a few common requirements:

The physician needs to work in a shortage area designated by the U.S. Department of Health and Human Services, generally a Health Professional Shortage Area (HPSA) or a Medically Underserved Area (MUA).
The physician must work for at least 40 hours a week in the shortage area.
The physician must work for three years on an H-1B visa in the shortage area before changing employers and seeking permanent residency.

In December 2004, President Bush signed Public Law 108-441, extending the Conrad program (created to allow state health departments to sponsor up to 20 doctors a year) for two years and making several changes to state and federal J-1 waiver programs:

State and federal agency waiver applicants are exempt from the annual H-1B numerical cap.

Each state will be able to use five waivers per year for applicants taking jobs outside of federally designated medical shortage areas if they can demonstrate that they will be serving people who live in shortage areas.

Both state and federal agencies can sponsor specialists.

The five flexibility slots available to each state will represent a major opportunity for large regional hospitals that cannot qualify for shortage- area designation but service populations in shortage areas.

In short, Congress recognized that one way to address the shortage of physicians in the U.S. is to allow J-1 physicians to remain in the U.S. if they can obtain a waiver of the home-residency requirement. Now the U.S. is in a situation in which it has a serious shortage of doctors, and a large portion of the foreign physicians training here are from countries not particularly concerned if they return home (India, for example, has an unemployment problem for physicians in many specialties). With the passage of this law, foreign physicians now have expanded opportunities in the U.S., and physician shortage areas will have greater access to physicians.

Grounds for Inadmissibility

In order to obtain a visa a nurse must also be admissible to the United States.

The concept of inadmissibility arises in a number of contexts. It is an issue when a visa application is made and the foreign national seeks entry to the United States. It also comes up when a person in deportation proceedings is alleged to have been inadmissible at the time of entry or was not inspected at his or her entry. Inadmissibility can also be a factor if a permanent resident is alleged to have abandoned his or her status. There are 10 basic grounds of inadmissibility.

Health-related grounds: Persons with communicable diseases that are considered significant public health risks are inadmissible. In addition, a failure to show documentation of certain vaccinations is a ground of inadmissibility. Persons with a history of physical or mental disorders that have or may in the future pose a threat to the person or others are inadmissible. Finally, people found to be drug abusers are inadmissible.

Criminal grounds: An individual convicted of a crime involving moral turpitude is inadmissible. However, a single offense that occurred before the age of 18 and more than five years before the application for the visa will not be considered, nor will offenses for which the maximum punishment was only one year and the alien was sentenced to six months or less. Engaging in prostitution or commercialized vice, as well as convictions involving controlled substances, are all bases for inadmissibility. One who committed a serious offense in the U.S. and has claimed immunity from prosecution is also inadmissible.

Security grounds: If a consular officer or U.S. Citizenship and Immigration Services (USCIS) inspector has reasonable ground to believe that the person is coming to the U.S. to engage in espionage or sabotage, or to violate any law relating to prohibitions on exports from the U.S., this renders one inadmissible. Members of designated terrorist organizations are inadmissible, as are those engaged in terrorist activities.

If it is determined that the alien’s presence in the U.S. would have negative foreign policy consequences, the person can be denied admission. Current or former members of the Communist Party or other totalitarian organizations, people who assisted in Nazi-era persecution and/or those who have engaged in genocide are inadmissible.

Public charge grounds: A person who is likely to become a public charge is inadmissible. The effect of this is that family-based immigrants must have a valid affidavit of support.

Labor certification grounds: A person coming to the U.S. to work must have a labor certification, unless he or she qualifies for another employment-based immigration category. People coming to the U.S. to work as physicians must pass parts I and II of the National Board of Medical Examiners Examination or its equivalent. Other health care workers must present certification from designated entities.

Undocumented entry and immigration status grounds: Anyone coming to the U.S. without permission from the USCIS or the State Department is inadmissible. Failure to attend removal proceedings without a good reason makes a person inadmissible for five years, as does violating the terms of a student visa. Anyone who engages in fraud or misrepresentation in an effort to enter the U.S. is inadmissible, including those who have made a false claim of U.S. citizenship.

Documentation grounds: An applicant for entry who does not possess a valid immigrant or nonimmigrant visa is inadmissible.

Ineligibility for citizenship grounds: A person permanently barred from obtaining U.S. citizenship is inadmissible. This category includes those who evaded military service based on their status as an alien and those who left the U.S. to avoid the draft.

Previous removal or unlawful presence grounds: After a first deportation, an individual is inadmissible for five years; after subsequent deportations, the period of inadmissibility is 20 years. A person deported because of an aggravated felony is permanently inadmissible. Those who have been unlawfully present in the U.S. for more than 180 days, but less than one year, are inadmissible for three years. Unlawful presence of more than a year leads to inadmissibility for 10 years.

Miscellaneous grounds: Those who are coming to the U.S. to engage in polygamy, those who are required to assist another person who is inadmissible, those who have detained a U.S. citizen child outside the U.S. (until they comply with any court order (s) regarding the child’s custody) and former U.S. citizens who renounced their citizenship for tax purposes are all inadmissible.

Employment-based Green Card – Article

admin — Mon, 25 Feb 2008 10:41:51 +0000

Green cards through employment are divided into five categories:

First Preference EB-1 Priority Workers (no labor certification is required)

Priority workers are divided up into three subcategories:

i) Workers of Extraordinary Ability
Extraordinary ability is demonstrated through achievements that have been publicly recognized in a period of sustained national or international acclaim.

ii) Outstanding Professors and Researchers
An applicant qualifies for this category if they have an international reputation in being particularly outstanding in a particular academic field and have three years minimum of either teaching or research experience in that field. Additionally, the applicant must accept a teaching or tenure position at a research university or accept a job conducting research with a research organization or industry.

iii) Multinational Executives and Managers
The qualifications for multinationals and executives are similar to L-1 intracompany transfer visas. An applicant may qualify for this category only if a qualified company outside the U.S. employed them as an executive or manager for at least one out of the past three years. The position must be similar and with a United States branch, affiliate or subsidiary of the same company.

The advantage of an EB-1 classification is that no labor certification is required.

Second Preference EB-2

This category is applicable to workers who are members of the professions holding advanced degrees or their equivalent and workers who have exceptional ability in the sciences, arts, or business. Labor Certifications are normally required for this category.

i) Advanced Degree Professionals
An advanced degree professional must hold a graduate level degree, or a professional degree requiring postgraduate education. An applicant can substitute the advanced degree requirement with a bachelor’s degree plus five years of progressively responsible experience.

ii) Persons of Exceptional Ability
This subcategory covers applicants in the area of arts, sciences, and business. Although the standard is less than international acclaim the applicant must still be considered significantly more accomplished than the average person in that profession.

Third Preference EB-3(Labor Certification is required)

The EB-3 category is divided into three subcategories:

i) Skilled Workers
To qualify for this subcategory workers must be engaged in occupations that need two years of training or experience. These positions do not normally require a bachelor’s degree.

ii) Professionals
Professionals include such occupations as architects, lawyers, physicians, engineers, accountants, therapists, and chemists. The professional subcategory in preference three requires that the applicant have a bachelor’s degree.

iii) Unskilled workers
Occupations generally requiring less than two years of experience fall into this category. The applicant must meet the qualifications of the job and the job must not be seasonal or temporary. Applicants categorized as unskilled workers will have to wait much longer than applicants in the other subcategories do, since this category is severely backlogged.

Fourth Preference Religious Workers EB-4

The EB-4 Category encompasses religious workers, and former employees of the United States government and other organizations.

Religious Workers
This category covers religious workers that
i) have been a member of the religious organization of a recognized religion that has a non-profit organization in the U.S. for at least two years.
ii) employed in that religious group for two years and
iii) the sole reason for coming to the United States must be to work as a religious worker for their religious organization.

The applicant must have a “Letter from the Authorized Official” who belongs to the applicant’s religious organization. The letter must state:
(a) that the applicant performed work as a religious worker before applying for the visa. Volunteer work does not suffice as work experience. The applicant must have a minimum of 2 years experience in the religious occupation or vocation.
(b) The letter must also show that the applicant qualifies for the religious position.
(c) Finally, the letter must explain how the applicant will be paid. The applicant’s organization will also need to provide documentation demonstrating that it is a tax-exempt non-profit organization.

In addition, the law provides three categories of religious workers under EB-4 classification. They include: (1) ministers of religion, (2) professionals working in religious vocations or occupations, and (3) other workers in religious vocations or occupations. Based on the information you provided, the third category appears most appropriate for your intended employment. Working in a religious occupation requires that the individual’s occupation relate to a traditional religious function. For instance, positions that have met this definition are religious instructors, counselors, and missionaries.

Overcoming CIS delays & Private Immigration Bills

admin — Thu, 21 Feb 2008 14:07:18 +0000

How do I force the USCIS to move forward with my case?

Most people who have ever had to deal with the United States Citizenship and Immigration Services (formerly the INS) know that the agency does not always move forward with a case even when the individual has taken all the correct steps. When this happens, the aggrieved party ultimately has the option of filing a lawsuit. This usually is the only option available to you when the CIS refuses to move forward on your case.

This type of lawsuit is known as a “writ of mandamus”
(Writ). A Writ is a form of civil action designed to compel a government official to perform a duty owed to the plaintiff. In this type of lawsuit you are the plaintiff and the government is the defendant. It is important to note that mandamus only forces the USCIS to take action that it is legally obligated to take. It is not used to force the USCIS to reach a favorable result, and it can possibly result in a denial of the application.

Before filing the lawsuit

There are several initial steps that should be taken so that when the suit is filed, the plaintiff has clearly done everything he or she can — short of filing a lawsuit — to resolve the problem. A plaintiff who appears in court without having tried to resolve the situation in other ways will not be particularly sympathetic.

The first step

The first step to take when processing on a case that has gone beyond the stated time is to make inquiries with the USCIS. Members of the American Immigration Lawyers Association (AILA) have access to fax numbers that can be used to make these inquiries at the USCIS Service Centers, as well as numbers for local USCIS offices that are not always publicly available.

The American Immigration Lawyers Association (AILA) also has a liaison system that can be used to make inquiries. Although there are no requirements for inquiries at local offices, it is advisable to make a couple of inquiries before proceeding with a lawsuit.

The second step

If no resolution is reached, the next step is to draw up the legal complaint that will be filed in court. The suit will be filed in the federal court with jurisdiction over the petitioner or applicant.

There are a number of formal requirements for the complaint, including a statement that jurisdiction and venue are properly filed with the court. The lawsuit must also lay out the facts of the case. Some of these facts should include efforts that have been taken to resolve it. It is a good idea initially to send a copy of the complaint to the USCIS office handling the case, with a letter explaining the situation and noting that if the case is not resolved within a certain period, generally 30 days, further action will be taken.

This step will often have the desired effect, if not producing a decision, of at least prompting the USCIS to begin working on the matter. If the USCIS asks for additional evidence (which can sometimes function as a delaying tactic) and still will not take action after the requested documentation is supplied, the mandamus process should be resumed.

If sending the complaint does not produce results, it should be rewritten to include the latest efforts to resolve the case and sent to the USCIS again as well as to the appropriate U.S. Attorney. This is when most cases are resolved. The U.S. Attorney does not want to spend time in court defending the USCIS’ failure to take action. Consequently, the U.S. Attorney often contacts the USCIS office and advises that it should act.

Filing the complaint

If after a month there is still no action on the case, the complaint should be updated. Next the case should be prepared for actual filing. Procedures vary from jurisdiction to jurisdiction, but the general process is the same. The complaint is taken to the Clerk of Court, where it is registered as filed. When a suit is filed against the government, a copy of the complaint must be sent to the government official who has failed to act (the head of the USCIS office involved), the proper U.S. Attorney and the U.S. Attorney General. This action often has the effect of prompting the USCIS to take action. If not, the parties proceed with the case. As in any federal case, the first step is a conference with the judge assigned to the case, the plaintiff’s attorney and the U.S. Attorney representing the government. At the conference, the judge makes efforts to help the parties resolve the dispute.

If this effort fails, the case then proceeds to trial. Given the large caseload of federal courts, this process can take many months. A few months after the trial, the judge issues a decision. If the decision is favorable to the plaintiff, the decision will also include an order compelling the USCIS to take action on the application. If the USCIS fails to act, officers of the agency are subject to being held in contempt of court. Only rarely is there an excessive delay that does not have a favorable outcome, at least at the trial stage of a mandamus case. The good news is that most of these cases can be resolved with favorable results without having to go to court.

Contact a U.S. Immigration Attorney to learn more about filing a Writ of Mandamus.

Private Immigration Bills

When there is no other form of relief available you may want to consider a Private Immigration Bill. Private bills are a rare form of relief from immigration laws. Additionally, these bills are generally reserved for the most compelling cases, when all other immigration options have been exhausted. In the legislative process, private bills are treated like any other law, going through the committee process to a vote by the full Congress. However, getting a private bill introduced is not easy. The immigration subcommittees in both the House of Representatives and the Senate have detailed rules on what is required for the introduction of such a bill.

The most important step in obtaining a private bill is finding a member of Congress willing to sponsor it. Following the introduction of the bill, detailed information about the person it will benefit needs to be supplied to the chair of the immigration subcommittee by the member of Congress sponsoring it. The procedure from there is similar to other legislation, although once passed by both houses of Congress and signed by the President, the bill becomes a private, not public, law. The members of Congress who support private bills do a tremendous amount of work to ensure their success and, without their efforts, the beneficiary of the bill would not have other immigration options.

Citizenship and Residency

admin — Thu, 21 Feb 2008 14:06:02 +0000

Naturalization: The Basics

The most basic requirement for naturalization is that the applicant must be at least 18 years old. Children younger than 18 years whose parents are naturalized automatically obtain United States citizenship as long as the children have also met the requisite residency requirements. There are a number of requirements related to residency in the U.S. that must be satisfied for naturalization. In most cases, the applicant must: have continuously resided in the U.S. for five years after becoming a permanent resident (three years if married to a U.S. citizen); have spent at least half of the permanent residency time physically in the U.S.; and have lived for at least three months in the jurisdiction where the application will be filed.

The applicant must demonstrate good moral character and an attachment to the principles embodied in the U.S. Constitution. Finally, he or she must possess basic English skills and knowledge of the history and government of the U.S.

There are some groups of people who, even if they could demonstrate these requirements, are still not eligible to become citizens. These include people who have held certain ideological beliefs and people who have deserted the U.S. military. While criminal offenses do not of themselves preclude a person from being naturalized, since 1996 people convicted of aggravated felonies are considered unable to show good moral character. U.S. law no longer contains provisions that prevent a person from naturalizing because of ethnicity.

Citizenship Rules for People Born Outside the United States

All persons born in the United States are citizens of the U.S. (with the minor exception of certain children of diplomatic personnel). This is perhaps the only simple rule of U.S. citizenship.

Persons born abroad before May 24, 1934, to a U.S. citizen father who had resided in the U.S. at any point before the birth are considered U.S. citizens at birth. The status of the mother did not matter unless the child was born out of wedlock.

In 1940, Congress passed a law making illegitimate children born abroad to U.S. citizen women citizens if the mother had resided in the U.S. However, under this law, if the child was legitimated by the foreign national father before his or her eighteenth birthday, the child would not be considered a citizen. The U.S. citizen parent must have resided in the U.S. prior to the birth. This residence could have been in the U.S. itself, or in certain U.S. territories.

The rules changed for people born between May 24, 1934, and January 13, 1941. In 1934, Congress passed a law allowing U.S. citizen parents, regardless of their gender, to pass citizenship to their children born abroad. If both parents were citizens, only one was required to have resided in the U.S., and as with the previous law, there was no required length of time that the parent must have resided in the U.S. Illegitimate children born aboard between 1934 and 1941 became citizens under the general provision.

The rules changed again for people born between January 14, 1941, and December 23, 1952. When one parent was a citizen and the other a foreign national, the rules changed substantially. To pass on citizenship, the citizen parent must have resided in the U.S. for at least 10 years before the birth of the child, and at least five of those years had to be after the parent turned 16. Children born out of wedlock to a U.S. citizen mother who met the residence requirements were automatically citizens. For a child born out of wedlock to a U.S. citizen father, to obtain U.S. citizenship the child must have been legitimated before the age of 21.

The rules changed again for people born between December 23, 1952, and November 13, 1986. When one parent was a U.S. citizen and the other a foreign national, the U.S. citizen parent must have resided in the U.S. for a total of 10 years prior to the birth of the child, with five of the years after the age of 14. Children born out of wedlock to a U.S. citizen mother were U.S. citizens if the mother was a resident in the U.S. for a period of one year prior to the birth of the child. Children born out of wedlock to a U.S. citizen father acquired U.S. citizenship only if legitimated before turning 21.

For those born on or after November 14, 1986, children born to one citizen parent and one foreign national obtain citizenship at birth if the citizen parent resided in the U.S. for five years before the birth, with two of those years after the age of 14. Children born out of wedlock to a U.S. citizen mother will be U.S. citizens if the mother resided in the U.S. for one year prior to the birth of the child. Children born out of wedlock to a U.S. citizen father will acquire U.S. citizenship if the following conditions are met: There is an established blood relationship between the father and the child. The father was a U.S. citizen at the time of the birth. The father has agreed to financially support the child until he or she is 18. Before the child is 18 he or she is legitimated, or the father acknowledges paternity in a document signed under oath. While these are general rules, Congress has continually amended and revised many laws relating to citizenship, particularly those dealing with the requirements for retention of citizenship. If a person believes that he or she has a claim to U.S. citizenship, the person should consult with an attorney for a full examination of that possibility.

RESIDENCY

Residency Requirements for Naturalization

As a general rule, an applicant for naturalization must have been a permanent resident of the United States for at least five years and also meet certain requirements dealing with the time actually physically spent in the U.S. During the five years immediately preceding the application, the person must have resided in the U.S., with half of that time physically spent in the U.S.

A legal permanent resident whose spouse is a U.S. citizen may seek U.S. citizenship after only three years as a permanent resident, rather than five years. The couple must have been married for the entire three years and the spouse must have been a U.S. citizen for the entire three-year period.

During the three months preceding the application, the person must have resided in the U.S. Citizenship and Immigration Services (USCIS) district where the application will be filed. Between the filing of the application and the granting of citizenship, the applicant must continue to reside in the U.S. While travel is not forbidden, one must not change his or her place of residence during this time, and the requirement of spending half of one’s time in the U.S. continues to apply at the time of naturalization as well as the time of application.

Absences of more than one year will terminate continuous residence unless the applicant complies with certain requirements. First, the applicant must have been physically present in the U.S. for one continuous year following admission as a permanent resident. Any absence from the U.S., however brief, is not allowed during this period. Additionally, the applicant must be employed by one of the following:
the U.S. government; a U.S. research institution recognized by the Attorney General; a U.S. business engaged in the development of foreign trade and commerce; or a public international organization of which the U.S. is a member. Before the one-year period outside the U.S. is up, the applicant must file an application with the USCIS to preserve residency and must demonstrate employment by one of the organizations listed above. The applicant must then prove again that the absence from the U.S. was because of employment. Even when these requirements are met, it is important to remember that the requirement that half of the five years prior to filing the naturalization application be spent in the U.S. still applies.

P Visas, Performers, Entertainers, Athletes

admin — Thu, 21 Feb 2008 14:05:10 +0000

P Performing Entertainers and Athletes

Employment Based Visas

P visas are available to non-immigrants internationally known athletes and entertainment groups. Performing artists who fall under a reciprocal exchange program are available for a P-2 visa. P-3 visas are applicable to culturally unique entertainers. To discuss your case, with an immigration attorney call our San Francisco, California, at 415-986-6186.

R-1 Religious Workers

admin — Thu, 21 Feb 2008 14:03:16 +0000

R-1 Religious Workers

The R-1 visa allows religious workers to come to the United States to participate in a religious occupation and perform services for their religious organization. The religious organization must already be established in the United States. To discuss applying for an R-1 Religious Work visa with an immigration attorney, call our office in San Francisco, California, at 415-986-6186.

F-1 Student Visa and M-1 Occupational Visa

admin — Thu, 21 Feb 2008 14:01:38 +0000

F-1 Student Visas

The F-1 student visa is designed to allow students from other countries study full-time at an accredited college or university. The student may be eligible for practical work training for twelve months before or after graduation. If you are in optional practical training should contact an immigration attorney to create a strategy for maintaining lawful status, after your OPT status expires.

M-1 Occupational Visa

The M-1 visa is designed for individuals interested in studying at an established vocational non-academic institution. Technician, hair salon or mechanic schools are some examples of these vocational institutions.

E-2 Investor Visa

admin — Thu, 21 Feb 2008 14:00:42 +0000

Nationwide E-2 Investor Visa Lawyer

The Ranchod Law Group works with investors throughout the world to help them with all of their E-2 treaty investor visa and immigration needs. An E-2 treaty investor visa is available for foreign nationals living in countries with which the United States has a treaty relationship. If you are interested in learning more about E-2 treaty investor visas, contact The Ranchod Law Group in San Francisco, California, to schedule a consultation.

Requirements for E-2 Treaty Investor

In order to qualify for an E-2 Treaty investor visa you must meet the following requirements:

Treaty of commerce or friendly nation status exists with the United States
Applicant possess the nationality of the treaty country
Applicant has invested or is actively in the process of investing
Investment focus is a real and operating commercial enterprise
Investment is substantial
Investment is more than a marginal one solely to earn a living
Applicant is in a position to develop and direct the enterprise
Applicant maintains majority control over the investment funds
Applicant intends to depart the U.S. when the E-2 status terminates

Investment Requirements

To qualify, you must demonstrate that you have possession and control of the funds you have invested. The investment must be made in an organization in which you may realize return on your investment, or conversely face possible loss of the investment. Therefore, a substantial donation to a non-profit organization will not qualify for an E-2 treaty investor visa.

In addition, there are complex criteria that pertain to commercial loans and indebtedness. Whatever portion of the investment is not subject to an element of risk may not be considered legitimate for E-2 visa consideration. Funding the investment with loans secured with personal assets place your assets at risk, and therefore is considered legitimate for consideration.

Funds must be Irrevocably Committed

The funds or assets to be invested must be committed to the investment and the commitment must be real and irrevocable. Moreover, you must be close to the start of actual business operations, not simply in the stage of signing contracts or scouting for suitable locations and property. Merely having the intent to invest, possessing uncommitted funds in a bank account, or having investment arrangements entailing no present commitment, are not adequate for E-2 treaty investor visa purposes.

The Investment Must Be Substantial

To determine whether you meet the substantial investment requirement, consular officers reviewing E-2 visa applications will view the proportionate amount of funds invested, as evidenced by the proportionality test, in light of the nature of the business and the projected success of the business. The proportionality test is a comparison between two figures: the amount of qualifying funds invested, and the cost of an established business or, if a newly created business, the cost of establishing such a business.

To learn more about the complexities of obtaining an E-2 treaty investor visa, contact The Ranchod Law Group for a consultation.

E-1 Treaty Traders Visa

admin — Thu, 21 Feb 2008 13:59:50 +0000

Requirements for (E-1) Treaty Trader

To qualify for an E-1 Treaty Trader visa you should meet the following criteria:

(1) The requisite treaty exists
(2) The individual and/or business possesses the nationality of the treaty country
(3) The activities constitute trade;
(4) The trade is substantial;
(5) The trade is principally between the United States and the treaty country; (6) The applicant, if an employee, is destined to an executive/ supervisory position or possesses skills essential to the firm’s operations in the United States and
(7) The applicant intends to depart the United States when the E-1 status terminates.

Overcoming CIS delays & Private Immigration Bills

admin — Thu, 21 Feb 2008 13:54:26 +0000

How do I force the USCIS to move forward with my case?

Before filing the lawsuit

The first step

The second step

Filing the complaint

Contact a U.S. Immigration Attorney to learn more about filing a Writ of Mandamus.

Private Immigration Bills

Preserving Green Card and Family-based Green Card Overview

admin — Thu, 21 Feb 2008 12:08:08 +0000

Family-Based Green Card Overview

Immediate relatives of U.S. citizens have the advantage of not being restricted to quotas.

Individuals who qualify as immediate relatives:

i) Spouses of U.S. citizens
ii) Unmarried people under the age of 21 who have at least one U.S. citizen parent
iii) Parents of U.S. citizens, if the U.S. citizen child is over the age of 21

The preference relative category is limited by quotas, unlike the immediate relative category. The four preferences of relatives are as follows:

i) Family first preference
Unmarried people of any age who have at least one U.S. citizen parent.

ii) Family second preference
2A: Spouses and children under 21 years old, of green card holders.
2B: Unmarried sons and daughters of green card holders who are at least 21 years old.

iii) Family third preference
Married people of any age who have at least one U.S. citizen parent.

iv) Fourth Preference
Sisters and brothers of U.S. citizens, where the U.S. citizen is at least 21 years old.

Preserving Green Card Status

To discuss applying for a Green Card with an immigration attorney
contact our office at 415-986-6186

Preserving Green Card Status During Trips Abroad – Re-entry Permits
It is an all too common situation — after years of bureaucratic entanglements, a person finally obtains lawful permanent residence in the United States, only to find that business or family concerns will keep them out of the U.S. for an extended period of time. Often, the lawful permanent resident (LPR) will try to re-enter the U.S. and then have a port of entry officer or consular official tell them they have abandoned their permanent residence status.

Absences from the U.S. of more than six months raise a rebuttable presumption that an individual intends to abandon permanent resident status, and absences of more than one year invalidate the green card as an entry document unless the person holds a valid re-entry document. This means that a foreign national who has been continuously abroad for more than 12 months may still be a permanent resident, but a special immigrant visa issued by a U.S. consul may be necessary to re-enter the U.S. unless the individual has a valid re-entry permit.

Extended absences may also adversely affect U.S. citizenship eligibility, despite the existence of a re-entry permit. Therefore, when planning an extended trip abroad, it is necessary to plan ahead to avoid abandonment. Among the many factors that influence the decision on abandonment are the length and reason for the absence and the number and type of connections the LPR maintains in the U.S.

Re-entry Permits
Of course, the LPR can obtain a re-entry permit if the absence is to be longer than one year. A re-entry permit, filed on Form I-131, is usually granted for two years and serves as recognition by the U.S. Citizenship and Immigration Services (USCIS) that the individual does not intend to abandon permanent residence despite prolonged absence from the U.S.

This application is typically submitted by the individual while physically present in the U.S. and must be used prior to the expiration of the document, or two years from the date of issuance. If the holder of a re-entry permit is a conditional permanent resident, the permit will be valid to the date the conditional resident must apply for removal of conditional status.

Documentation of Intent to Remain in the U.S.
One of the most important factors in preserving permanent residence is the proper filing of U.S. tax returns while abroad and filing as a U.S. resident and not as a nonresident. Because of international tax laws, there will often be no tax owed to the U.S. government, but failure to file a return is almost always considered a sign that LPR status has been abandoned. The LPR should also maintain a bank account and credit card(s) in the U.S, both of which should be active. For example, if the LPR is employed abroad, the salary should be deposited in the U.S. account. The LPR should also continue to renew his or her U.S. driver’s license. If possible, the LPR should also purchase property in the U.S. If the LPR’s absence is due to employment, a letter from the employer detailing the terms and length of employment is very important. If the absence is for family or personal reasons, these should be noted. While such reasons are acceptable, the ease with which they can be manipulated means they should be well documented. A commonly held but mistaken assumption is that a visit every year to the U.S. will preserve LPR status. While an LPR needs only the green card to re-enter the U.S. after an absence of less than one year, this is not enough to indicate the intent to remain a resident of the U.S. As mentioned above, the LPR must take additional action to preserve his or her status.

CCA Regulations for Children Adopted Abroad

The Child and Citizenship Act (CCA) of 2000 provides U.S. citizenship to certain children born abroad. In 2004, U.S. Citizenship and Immigration Services (USCIS) restructured the processing of Certificates of Citizenship for certain children adopted abroad. These procedures target newly entering IR-3 children, those fully and finally adopted abroad, who are automatically U.S. citizens upon arrival in the United States.

The USCIS implemented a streamlined process for newly entering IR-3 children, which ensures that these children receive the Certificate of Citizenship within 45 days of entering the U.S. A foreign-born child automatically acquires citizenship on the day that the following requirements are met:

The child must have at least one U.S. citizen parent, whether by birth or naturalization. The parent need not have been a citizen at the time of the child’s birth;
The child must be under age 18;
If the child is adopted, the adoption must be full and final; and
The child must be admitted to the U.S. as an immigrant or lawful permanent resident.

Since automatic citizenship is an operation of law on the day the child is admitted to the U.S., no application is necessary.

A child who is a citizen under the CCA permanently residing in the U.S. can receive documentation by applying for the Certificate of Citizenship. The necessary application is Form N-600 (Application for Certificate of Citizenship). The completed form should be submitted to the USCIS office with jurisdiction over the region of residence along with the necessary fees. For adopted children, evidence of a final adoption and evidence that the child is a permanent resident of the U.S. must be submitted.

A child residing abroad can apply for citizenship by filing form N-600K (Application for Citizenship and Issuance of Certificate under Section 322). This application can be filed at any USCIS office or suboffice in the U.S. Children presently outside the U.S. can obtain U.S. citizenship if five requirements are met:

1. The child must have one U.S. citizen parent, whether by birth or naturalization;

2. The U.S. citizen parent must have resided in the U.S. for at least five years, at least two of which must have been after age 14, or have a U.S. citizen grandparent who meets this residency requirement;

3. The child must be under age 18;

4. The child must be residing outside the U.S. in the physical and legal custody of the U.S. citizen parent; and

5. The child must be temporarily admitted to the U.S. in lawful status and must maintain that status until taking the oath of citizenship.

Immediate Relative Green Card (parents)

admin — Thu, 21 Feb 2008 12:07:09 +0000

Parental Adjustment of Status Green Card

Adjustment of Status (When the Parent is in the United States)

Parents of a U.S. citizen are immediate relatives and their ability to obtain an immigrant visa is not restricted by numerical limitations. Under the immigration laws, there are only a certain number of immigrant visas available for different classes of immigrants (the preference categories). An individual’s ability to apply for lawful permanent residence is determined by their “priority date.” For immediate relatives of U.S. citizens, these restrictions do not apply. If the U.S. citizen child is over the age of 21, he or she may file an immediate relative petition as a “one step” application, which would include the Form I130 (Petition for Alien Relative) the beneficiary’s Form I-485 (Adjustment of Status Application). In order to take advantage of this process, the parent of U.S. citizen must be in the U.S., and have proof of lawful entry (generally in the form of a Form I94 issued upon entry). The parent must show that he or she is admissible to the United States and not deportable. The burden of proof is on the petitioner to demonstrate that there is a family relationship. If the petitioner or beneficiary does not have a birth certificate or other proper documentation, the petitioner should consult an immigration attorney to determine appropriate documentation that is in accordance with the guidelines determined by the U.S. Department of State.

In situations where a U.S. citizen wishes to have a parent, who has entered the U.S. with a visitor’s visa, reside permanently in the U.S., the U.S. citizen and the parent must be aware of the legal concept of nonimmigrant intent. Those who enter the U.S. as visitors are understood to hold the intent to return to their home country before the designated period of stay expires. If a visitor takes steps to become a lawful permanent resident, the U.S. Citizenship and Immigration Services (USCIS) may perceive that to be contrary to the intent represented, and determine that the visitor has violated the terms or his or her stay. Consequently, the USCIS may find that the visitor committed misrepresentation, which is a serious violation of immigration law, and deny the application. Generally, the USCIS will scrutinize, among other factors, the timing of the steps taken by the parent to become a lawful permanent resident. As a result, it is very important that those wishing to apply for adjustment of status based on a family relationship consult an immigration attorney.

Consular Processing (When the Parent is residing abroad)

Alternatively, if the parent of a U.S. citizen is residing abroad, the U.S. citizen may file a Form I130. This is the first step of the immigrant visa process. When the USCIS approves the I130 petition, the approval notice is forwarded to the Department of State’s National Visa Center. Depending upon the beneficiary’s country, the National Visa Center will issue a packet of documents and process the initial forms. After the petitioner completes these documents, the National Visa Center will forward the case to the appropriate U.S. consulate. If the parent is granted an immigrant visa, he or she will enter the U.S. as a lawful permanent resident unless the Port of Entry Officer makes a determination that the Immigrant Visa was improperly granted.

After 9/11, this process has become more frustrating for many applicants because consular and USCIS procedures have changed frequently. Furthermore, consulates may issue a denial if there is an error or omission in the application, or if the applicant did not meet the regulatory guidelines in providing the necessary supporting documentation.

CLIENT SERVICES

Our office achieves a high success rate because we:

Prepare all of the forms for our clients
Ensure that all of the documentary evidentiary requirements are met

i.) Analyze proper documentary evidence proving a bona fide relationship

ii.) Evaluate whether birth certificate documentation meets the
Department of State and USCIS regulations

iii.) Assess if photos are in accordance with USCIS regulations

Analyze your case to ensure you are in legal compliance
Manage your case through the entire process and contact USCIS if there are delays

· Perform a simulated USCIS interview

We are also successful in obtaining approvals for our clients by evaluating the legal issues affecting eligibility for lawful permanent residence, including:

prior visa denials
unlawful presence
failure to maintain lawful status
public charge issues
proper documentation demonstrating a bona fide relationship

Green Card Services – Attorney in San Francisco

admin — Thu, 21 Feb 2008 12:06:07 +0000

Marriage Based Adjustment of Status

Adjustment of status is the process by which a nonimmigrant, while residing in the United States, may apply for lawful permanent residence (green card) based on a family based immigrant visa petition (I130) or employment based immigrant visa petition (I140). A U.S. citizen may petition for his or her spouse to obtain permanent residence if the spouse is residing in the U.S. has proof of lawful entry (generally in the form of a Form I94 issued upon entry). The spouse must be admissible to the United States and not deportable.

Alternatively, if the spouse of a U.S. citizen is residing abroad, the U.S. citizen may file an I130, and the spouse may apply for an immigrant visa upon the approval of the I130. If the spouse is granted an immigrant visa, he or she will enter the U.S. as a lawful permanent resident.

Because of the delays in the processing of the I130 petition, the U.S. citizen may apply for a K3 visa, which will allow the spouse to enter the U.S. while the I130 is pending. After the spouse enters the U.S., he or she may then apply for an adjustment of status. The adjustment of status process is also the final step for fiancées of U.S. citizens. When fiancées enter the U.S. with a K1 visa, they must marry within 90 days. After the marriage, they must apply for an adjustment of status.

In situations where a U.S. citizen wishes to marry, or has married, an individual who has entered the U.S. with a visitor’s visa, the couple must be aware of a concept in immigration law regarding nonimmigrant intent. Those who enter as a visitor are understood to hold the intent to return to their home country before the designated period of stay expires. If a visitor takes steps to become a lawful permanent resident, the U.S. Citizenship and Immigration Services (USCIS) may perceive that to be contrary to the intent represented, and may determine that the visitor has violated the terms or his or her stay, and may find that the visitor committed misrepresentation, which is a serious violation of immigration law. Generally, the USCIS will scrutinize the marriage to ensure that it is bona fide and not entered into solely for the purpose of gaining immigration benefits.

Furthermore, applications that are completed without meeting regulatory requirements, or do not have the appropriate supporting documentation could be rejected for filing. The burden of proof is on the applicants to establish eligibility for permanent residence. At the interview, the officer may also make a determination that the application is deficient or the applicant did not meet the burden of proof to demonstrate that the marriage is bona fide. These findings result in delays of potentially more than one year or a denial.

APPLICATION PROCEDURE

The U.S. citizen files an I130 immediate relative petition with the local service center. The spouse files the adjustment of status application simultaneously with the immediate relative petition and many other forms. Additionally, the application must be submitted with supporting documentation. With the adjustment of status application, the spouse may also apply for employment authorization and permission to travel while the adjustment of status is pending. All applicants should note that if they travel without the proper authorization, their adjustment of status application will be considered abandoned. Subsequent to filing the application, the applicant will receive a fingerprinting notice to have his or her fingerprints taken for an FBI background check. Depending on the local service center, interviews are scheduled within 120 to 700 days of filing. For instance in San Francisco interviews take approximately 7-12 months before an interview is scheduled.

At the interview, the USCIS officer will make a determination of whether or not the marriage is bona fide by evaluating the applicant’s answers to the officer’s questions and evaluating the applicant’s evidence. The officer will also evaluate other issues involving the applicant’s admissibility under immigration law (such as whether the applicant meets the affidavit of support requirements or properly entered the United States).

CONDITIONAL PERMANENT RESIDENCY

If the marriage is less than two years old at the time the spouse is granted permanent residence, he or she will be granted “Conditional Permanent Residence,” meaning that permanent residence is granted for two years. Prior to the end of the two years (within 90 days of the expiration of conditional residence), the spouse must submit an application to USCIS to remove conditional status. The applicant and the U.S. citizen must jointly file a petition to remove conditional residence. If applicant is divorced at the time of filing, applicant may submit a waiver application to USCIS for removal of the conditional status. The USCIS may call in applicant for a second interview to verify that the marriage was bona fide at the time it was contracted. Removing conditional status is an extremely important step, because if a spouse fails to submit this application, his or her permanent residence is automatically terminated, and will be removable from the U.S.

For more information, please read the following articles in our blog:

Marriage Green Cards

admin — Thu, 21 Feb 2008 12:05:06 +0000

San Francisco Marriage Green Card Lawyer

U.S. citizens are eligible to apply for a fiancée visa or marriage green card for their intended spouse to reside in the United States legally. Our firm in San Francisco, California, works with clients nationwide who are seeking marriage green cards and other family visas that may be available for immediate relatives.

An immigration attorney who cares about getting things right

Although getting a green card through marriage can often be the easiest way to obtain residency for a non-U.S. citizen, approval is not automatic. U.S. citizens applying for a fiancée visa or marriage green card must be aware that immigration officials will scrutinize their applications to ensure that the marriage is legitimate and bona fide, and not for the sole purpose of gaining immigration benefits. Ranchod Law Group has significant experience in this area of law and knows what documentation the USCIS looks for. We have successfully handled hundreds of fiancée and marriage immigration cases. Our expertise can guide you through USCIS policies and prevent unnecessary delay and denials due to mistakes.

Who is eligible for a Marriage Green Card/Adjustment of Status?

Adjustment of status is the process by which a nonimmigrant, while residing in the United States, may apply for lawful permanent residence (green card) based on a family based immigrant visa petition (I130) or employment based immigrant visa petition (I140). A U.S. citizen may petition for his or her spouse to obtain permanent residence if the spouse is residing in the U.S. and has proof of lawful entry (generally in the form of a Form I94 issued upon entry). Alternatively, if the spouse of a U.S. citizen is residing abroad, the U.S. citizen may file an I130, and the spouse may apply for an immigrant visa upon the approval of the I130. If the spouse is granted an immigrant visa, he or she will enter the U.S. as a lawful permanent resident.

Learn more about family-based visas at these pages on our website:

K-1 Fiancée Visa fiancée visa
K-3 Marriage Based Client Services marriage visa
Marriage-based Client Services
Marriage-based Green Card
Immediate Relative Green Card
Preserving Your Green Card and Family Based Green Card Overview

If you are U.S. citizen considering marriage to a foreign national, contact The Ranchod Law Group to discuss your K-1 fiancée visa, K-3 marriage visa, and green card legal needs today, or visit our specialized marriage green card page on www.doctorsimmigrationlaw.com.

K-3 Marriage Visa

admin — Thu, 21 Feb 2008 12:04:07 +0000

K3 Visa – Marriage Visa

In situations where a U.S. citizen wishes to marry or has married an individual the K3 visa, K1 visa, or adjusting status to lawful permanent residence (green card) are typically the most expeditious visas to reunite the U.S. citizen with his spouse or fiancée. A fiancée of a US citizen is eligible for the K1 visa and a spouse residing abroad is eligible for a K3 visa. A U.S. citizen may petition for his or her spouse to obtain permanent residence if the spouse is residing in the U.S.

Applicants must be aware of non-immigrant intent, unlawful presence, and public charge issues to ensure that they are in compliance with immigration law. Furthermore, the USCIS will scrutinize the relationship to ensure that it is bona fide and not entered into solely for the purpose of gaining immigration benefits.

K3 VISA OVERVIEW

K3 visas are appropriate for spouses of US citizens residing outside of the US. Congress created the K3 visa to reduce the long wait that the US citizen and her spouse experienced, while waiting for an immigrant visa. The K3 visa allows one to enter the US in nonimmigrant status to eventually adjust status to lawful permanent residency while in the United States. USCIS will grant the applicant with a two-year admission period when the K3 visa holder enters the United States. Foreign national spouses present in the United States can travel outside of the United States and return using their K3 visa. While in K3 status, if one has filed for adjustment of status in the US prior to departure from the US, USCIS will not presume that the departure constitutes abandonment of an adjustment application.

ELIGIBILITY REQUIREMENTS FOR THE K3 VISA:

1. Be the spouse of a U.S. citizen.
2. An immediate relative petition, that is pending, must have been filed in the United States.
3. A K3 petition must be completed and submitted by the US citizen and submitted to USCIS.

K3 VISA PETITIONS:

To obtain K3 status for your foreign national spouse an immediate relative petition is filed by the U.S. citizen with USCIS. After the applicant receives a receipt of the initial petition, (s)he may file a K3 petition with USCIS on behalf of the foreign national. Once USCIS approves the petition, the application is sent to the National Visa Center to perform security checks. The National Visa Center will forward the petition to the US embassy. If your marriage occurred abroad, a K3 visa must be issued in the country where the marriage took place.

WHAT HAPPENS AFTER THE K3 VISA PETITION IS APPROVED?

The consulate will send a letter to your spouse requesting a list of documents necessary to obtain the K3 visa. The consulate will also commence security clearance processing. The security clearance will partly determine whether or not the beneficiary is inadmissible to enter the United States on a K3 visa. The consular officer may deny the K3 visa if the officer determines that the beneficiary is inadmissible. Alternatively, the officer may deem that a waiver of inadmissibility is necessary. In this situation, the USCIS must approve an I-601 waiver, before the consular officer will issue a K3 visa.

Once all processing is completed, and the applicant has all necessary documents, a consular officer will interview your spouse to determine if she is eligible for the K3 visa. The officer will review all of the documents and question the K3 visa applicant to determine if the marriage is bona fide, ensure the applicant is not inadmissible and will not become a public charge. If the consular officer finds that your spouse is eligible she will issue a K3 visa. The K3 visa applicant may adjust status to lawful permanent residency or obtain an immigrant visa at the consular post in the country of where the marriage took place. The K3 visa admits an applicant to the United States for two years.

K4 VISA:

A child may qualify for a K4 visa if they are a minor, unmarried child less than 21 years of age of a qualified K3 visa applicant.

If I enter on a K3 visa can I change status to another non-immigrant visa category?

No. K3 visa holders cannot change status in the United States to another nonimmigrant visa category.

Does the K-3 visa applicant need the I-864, Affidavit of Support?

K3 visa applicants DO NOT need to submit the Form I-864 Affidavit of Support, until they adjust status to lawful permanent residency in the United States in the U.S. However, the Affidavit of Support for non-immigrant visas, may be deemed appropriate by the consular officer.

Can I obtain work-authorization and a social security through a K-3 visa?

Yes. USCIS will usually grant employment authorization in two-year increments.

What is advance parole? Do I need to apply for Advance Parole if I have a K3 visa?

Advance parole allows the applicant to enter and reenter the United States for the duration of the validity of the advance parole document. The K3/K4 is a multiple entry visa that allows you to reenter the United States without Advance Parole.

If I am out of status may I obtain a K3 visa?

K3 visa applicants are subject to the 3-year bar if they accrued more than 180 days of unlawful presence in the US. If they accrued one or more years of unlawful presence, they are subject to a 10-year bar. However, they may apply for a waiver to overcome the 3 or 10-year bar.

K-1 and K-3 Marriage Visa Client Services

admin — Thu, 21 Feb 2008 12:03:10 +0000

K-1 and K-3 Marriage Visa Client Services

To discuss applying for a K-1 visa with an immigration attorney contact our office at 415-986-6186.

We prepare your K-1 visa petition

Filing the K-1 Petition

1. We prepare the K-1 petition in accordance with USCIS regulations.

2. Prior to filing we will provide you with advice on documentation that should be submitted with both the immediate relative and K-1 petition so that your application does not experience unnecessary delays.

3. If our office makes a determination that your documents do not meet the USCIS (formerly INS) specifications we will suggest appropriate supplemental documentation.

4. Our office corresponds and communicates with you and your spouse without additional attorney fees until the visa is approved.

5. Additionally, our clients can view their case status 24/7 via our online case status case management software.

6. Forms will be sent via overnight mail for your signature and our office will submit the final forms to the USCIS.

US EMBASSY PREPARATION

7. Our office will also prepare US Embassy forms, review all documentation and prepare your spouse for the interview. In order to expedite the process, our office completes all forms and sends them to your spouse, before your K-1 petition is approved.

8. We provide you and your spouse with a ten (10) page US Embassy guidance letter outlining the necessary documentation for the interview.

9. All forms that we prepare are tabbed and indexed and organized into a complete “US Embassy packet” that your spouse submits at the time of interview.

10. We continue to provide you and your spouse with legal guidance throughout the entire K-1 visa process and monitor your case at the USCIS service center and US Embassy.

11. Additionally, we prepare you for the USCIS interview by having you and your spouse undergo a simulated USCIS interview.

12. We also ensure that you provide the appropriate evidence for the interview. The above preparation and dedication to your case contributes to our high success rate.

K3 Marriage Visa Client Services

To discuss applying for a K3 visa with an immigration attorney contact our office at 415-986-6186.

We prepare your K-3 visa petition

Filing the K-3 Petition

13. Our office prepares and submits all documentation for the immediate relative petition.

14. We also prepare the K-3 petition in accordance with USCIS regulations.

15. Prior to filing we will provide you with advice on documentation that should be submitted with both the immediate relative and K3 petition so that your application does not experience unnecessary delays.

16. If our office makes a determination that your documents do not meet the USCIS (formerly INS) specifications we will suggest appropriate supplemental documentation.

17. Our office corresponds and communicates with you and your spouse without additional attorney fees until the visa is approved.

18. Additionally, our clients can view their case status 24/7 via our online case status case management software.

19. Forms will be sent via overnight mail for your signature and our office will submit the final forms to the USCIS.

US EMBASSY PREPARATION

20. Our office will also prepare US Embassy forms, review all documentation and prepare your spouse for the interview. In order to expedite the process, our office completes all forms and sends them to your spouse, before your K3 petition is approved.

21. We provide you and your spouse with a ten (10) page US Embassy guidance letter outlining the necessary documentation for the interview.

22. All forms that we prepare are tabbed and indexed and organized into a complete “US Embassy packet” that your spouse submits at the time of interview.

23. We continue to provide you and your spouse with legal guidance throughout the entire K3 visa process and monitor your case at the USCIS service center and US Embassy.

24. Additionally, we prepare you for the USCIS interview by having you and your spouse undergo a simulated USCIS interview.

25. We also ensure that you provide the appropriate evidence for the interview. The above preparation and dedication to your case contributes to our high success rate.

K-1 Fiancée/Fiancé Visa

admin — Thu, 21 Feb 2008 12:01:37 +0000

K1 Fiancée Visa

In situations where a U.S. citizen wishes to marry or has married an individual the K1 visa, K3 visa or adjusting status to lawful permanent residence (green card) are typically the most expeditious visas to reunite the U.S. citizen with his fiancée or spouse. A fiancée of a US citizen is eligible for the K1 visa and a spouse residing abroad is eligible for a K3 visa. A U.S. citizen may petition for his or her spouse to obtain permanent residence if the spouse is residing in the U.S.

The K1 visa is the most effective method for bringing an alien fiancée to the United States. A U.S. citizen may bring their fiancée to the United States by filing a petition with the United States Citizenship and Immigration Services (USCIS). The alien fiancée is allowed to stay in the United States for ninety days. Subsequent to the ninety-day period, the U.S. citizen and alien fiancée must marry and file for lawful permanent residency (green card). Moreover, the U.S. citizen and alien fiancée must have met within two years of filing the petition. A waiver may be obtained to overcome the two-year meeting requirement. Both parties must be legally able to marry. Therefore, divorces must be finalized prior to filing the K1 visa petition.

Applicants must be aware of immigrant intent, unlawful presence, and public charge issues to ensure that they are in compliance with immigration law. Furthermore, the USCIS will scrutinize the relationship to ensure that it is bona fide and not entered into solely for the purpose of gaining immigration benefits.

WHAT HAPPENS AFTER THE K1 PETITION IS APPROVED?

Once USCIS approves the petition, the application is sent to the National Visa Center to perform security checks. The National Visa Center will forward the petition to the US embassy.

The consulate will send a letter to the alien fiancée requesting a list of documents. The consulate will also commence security clearance processing. After 9/11 security checks have significantly increased the complexity of consular processing and have increased processing times. The security clearance will partly determine whether or not the beneficiary is inadmissible to enter the United States.

Once all processing is completed, and the applicant has all necessary documents, a consular officer will interview your fiancée to determine if she is eligible for the K1 visa. The officer will review all of the documents and question the K1 visa applicant to determine that the relationship is bona fide, ensure the applicant is not inadmissible and will not become a public charge. If the consular officer finds that your fiancée meets all of the legal requirements she will issue a K1 visa valid for one entry for a period of six months. Alternatively, the officer may deem that a waiver of inadmissibility is necessary, issue a denial or request additional documentation. U.S. embassy processing tends to be the most intricate aspect of the fiancée visa process. Consequently, non-approvals may occur at the U.S. Embassy even if there is an approval by the USCIS.

AFTER MY FIANCEE ENTERS THE UNITED STATES WHEN MUST WE MARRY? IS MY FIANCE/FIANCEE ELIGIBLE FOR WORK AUTHORIZATION?

The fiancée must marry the U.S. citizen within ninety (90) days of entry and apply for adjustment of status to obtain permanent residency (green card). Work authorization may be granted to K1 visa holders and typically requires an additional application after entry to the United States. With the adjustment of status application, the fiancée may also apply for employment authorization and permission to travel while the adjustment of status is pending. If an applicant enters the United States on a K1 visa they are ineligible for an extension of stay or change of status.

Fiancée Visa

admin — Thu, 21 Feb 2008 11:54:45 +0000

U.S. Immigration Lawyer Serving Clients in San Francisco and Nationally

If you are a U.S. citizen considering getting married to a non-U.S. resident, Ranchod Law Group in San Francisco, California, can help you with your K-1 fiancée visa application. We have successfully handled hundreds of fiancée and marriage-based and family-based immigration applications. If you are concerned about getting a K-1 fiancée visa for your intended fiancée, contact us today.

Learn more about K-1 visas at these pages on:

K-1 Fiancée Visas Client Services
K-3 Marriage Based Client Services Client Services
Marriage Based Green Cards
Immediate Relative Green Cards (Parents)
Preserving Green Card and Family-Based Green Card Overview

Some things you should know about filing for a K-1 fiancée visa

Applying for a K-1 fiancée visa can be more complex than it seems. Here are some basic things you should discuss with your immigration attorney.

In order to file a successful application for a fiancée visa, a U.S. citizen must first file form I-129F Petition for Relative or Fiancée. To avoid delays, the form must be completed accurately and filed with the United States Citizenship and Immigration Services (USCIS). The USCIS office in which you file depends upon the jurisdiction in which you currently reside. Processing times and procedures for a K-1 fiancée visa vary depending on the Service Center and U.S. Embassy.

Upon approval of the I-129F, the application for the K-1 fiancée visa will be forwarded to the American consular office nearest the city of your fiancée’s current residence. The petition is valid for only four months; however, the consular office may revalidate the application upon request.

An I-129F petition is not automatic

A properly filed application is of the utmost importance. If the application is not filled out correctly, or supporting documentation is improper or incomplete, your application could be delayed or denied. Additionally, if your fiancée has been convicted of a serious crime, has a dangerous mental disorder, or a dangerous communicable disease, the visa will be denied. If your fiancée was convicted of a crime such as prostitution or minor drug distribution, he or she may be ineligible for entry and eventual citizenship. If your fiancée was on a J-1 visa in the United State within the past two years, he or she may also be declared ineligible until the mandatory waiting period for return to the U.S. is completed.

After the I-129F application is approved, your fiancée will be notified by the American consular office and sent the appropriate K-1 fiancée visa application forms to be completed and submitted. Your fiancée will be required to meet strict requirements regarding documents and records. The documents and records that your fiancée will be required to supply include:

Birth certificate from the home country
A current passport
Death certificate of previous spouse, if applicable
Divorce certificate, if applicable
Official record of all legal residences since 16 years of age
Doctor’s certificate of health
Evidence supporting your fiancée’s intent to enter into marriage

In addition, your fiancée will be required to supply evidence that you intend to enter into a legal marriage in the United States within three months (ninety days) of receiving the K-1 visa. You will need to establish that your relationship is bona fide, and show proof that the two of you have met previously in person during the past two years. Finally, the U.S. consular office interviews your fiancée about these matters, prior to approving the application for final processing.

To learn more about K-1 fiancée visas and how The Ranchod Law Group can help you with your legal needs, contact us.

J-1 Waivers for Physicians

admin — Thu, 21 Feb 2008 11:52:13 +0000

J-1 Waivers for Physicians

Two Year Home Residency Requirement

Most doctors who enter the U.S. on a J-1 visa to participate in a residency program are subject to the two year home residency requirement (INA Section 212(e)). The two year home residency requirement requires the doctor to return to their home country for two years. Doctors may overcome returning to their home country by obtaining a waiver. Please visit our J1 Visa Waiver Resource Center for Doctors at http://j1visawaiver.net for more information pertaining to J1 waivers.

For news and articles, please visit our Immigration Blog for Physicians and Scientists.

Doctors are eligible for any of the following waivers set forth below.

Interested U.S. Government Agency Waiver

An IGA waiver is available, if it is demonstrated that the grant of this waiver is in the public interest of the U.S. The J1 exchange visitor must be able to show why it would be detrimental to the agency if the exchange visitor were required to return home upon completion of the J1 exchange program. The designated official or head of the interested government agency must submit the request directly to the Waiver Review Division.

For your convenience, we have included a list of US Government agencies that are authorized to submit waiver requests on behalf of exchange visitors.

Persecution Waiver

Persecution waivers are based on the J1 exchange visitor’s belief that he or she would suffer persecution based on race, religion, or political opinion if he or she were to return to his or her home country. The exchange visitor must initially submit this request to the USCIS, which will then notify the Waiver Review Division of its determination.

Exceptional Hardship Waiver

The J1 exchange visitor may request a waiver based on the exceptional hardship his or her U.S. citizen (or lawful permanent resident) spouse or child would suffer if the exchange visitor were required to leave the United States. Exceptional hardship does not include family separation caused by the exchange visitor’s departure from the U.S. An exchange visitor may not simultaneously apply for a persecution and hardship waiver.

Conrad 30 Waivers – State Health Department Waiver

Out of all of the waivers, most foreign medical doctors seek this waiver. Most state public health departments are allowed to request 30 waivers per federal fiscal year. The J1 Conrad 30 Waiver require that the doctor: 1) have an offer of full-time employment at a health care facility in a designated health care professional shortage area or at a health care facility which serves patients from such a designated area; 2) agree to work 40 hours per week and for three years or longer at a health care facility; and 3) begin employment within 90 days of receiving the Conrad 30 waiver.

For a free consultation with an Immigration Attorney please contact our office at 415-986-6186.

B-1 Business & B-2 Pleasure Visa

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The most common nonimmigrant visa is the B visa, of which there are two types: B-1 visas for business visitors and B-2 visas for pleasure visitors. The application for the visa is made at a United States consulate. When applying, the applicant must demonstrate financial arrangements for the trip, specificity of trip plans, ties to the applicant’s home country and ties to the U.S.In most cases, successful applicants for the visa will be given a multiple entry visa stamp saying “B-1/B-2” that is valid for 10 years. However, this does not mean that a person can stay in the U.S. for as long as the visa is valid. The U.S. has a two-part system for entering. The visa is the first part, allowing the alien to seek admission at a U.S. point of entry. The second part is the white I-94 card issued by the inspector at the point of entry, authorizing the visitor to stay in the U.S. for a specified period of time. Thus, the 10-year visa would allow a person to seek admission multiple times over the 10 years, but an inspector will determine the length of time authorized for each visit.B-1 Business Visitors
The B-1 Business Visitor category is available to persons who can demonstrate that they have no intention of abandoning their residence abroad and they are visiting the U.S. temporarily for business. Most B-1 admissions are approved for just the period necessary to conduct business, and individuals are normally permitted to stay no longer than three months.Business visitors are limited in the activities in which they are permitted to engage. B-1 visa holders must not be engaged in productive employment in the U.S. either for a U.S. employer or on an independent basis. Any work done in the U.S. must be performed on behalf of a foreign employer and paid for by the foreign employer. The work should also be related to international commerce or trade.B-2 Pleasure Visitors
The B-2 pleasure visa covers tourists, visits to relatives or friends, visits for health reasons, participation in incidental or short courses of study, and participation in amateur arts and entertainment events. In order to qualify for a B-2 visa, an individual must meet a few broad requirements necessary to show nonimmigrant intent including: The alien is coming to the U.S. for a specific period of time; The alien will not be engaging in work; and The alien has no intention of abandoning his or her residence abroad during the period of stay in the U.S.

The Visa Waiver Program

Started as a pilot program in 1986 and made permanent in 2000, the visa waiver program (VWP) allows citizens of designated countries to enter the United States as business or tourist visitors for up to 90 days without requiring them to obtain a visa. Millions of people use the program each year.

Currently, 27 countries participate in the program: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. The applicant for entry under the VWP must be a citizen of the participating country, not merely a permanent resident. In the case of the United Kingdom, the person must be a British citizen, not a British overseas citizen or citizen of a Commonwealth nation.

Under the program, the participation of designated countries must be reviewed every five years. To continue participation, the rejection rate of applications for B-1/B-2 visas for that country cannot be over three percent. In addition, the country must allow U.S. citizens to visit under the same terms as the U.S. allows that country’s citizens to enter the U.S. on the VWP. When the program was made permanent in 2000, a provision was included that allowed for the immediate termination of a country in the event of an emergency such as war or economic collapse.

The applicant for entry must have a machine-readable passport, if the passport was issued prior to October 26, 2005. Passports issued or extended between October 26, 2005, and October 25, 2006, must contain a digital photograph printed on the data page or an integrated chip with information from the data page. Passports issued on or after October 26, 2006, must be electronic passports, containing the integrated chip.

Additionally, applicants must show that they have the financial resources to support themselves during their stay in the U.S. Those who arrive by boat or plane must have a return ticket. Upon arrival, applicants complete an I-94W form. On this form, applicants indicate that they waive the right to a hearing in the event they are ordered deported and that they understand they cannot apply for an extension or change of status in the U.S. Therefore, if the purpose of a person’s visit to the U.S. is to investigate possible employment or education, he or she should obtain a traditional B-1/B-2 visa.

J-1 & J-2 Exchange Visitor Visa

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Applicants qualify for a J-1 & J-2 Exchange Visitor Visa if they are coming to the U.S. to participate in a program of studies, training, research, or cultural enrichment specifically designed by the United States Department of State (DOS). Individuals who qualify under this category are trainees, scholars, professors, teachers, medical graduates, students, and trainees.

J-2 Exchange Visitor Status

Like some other visa categories, such as H, L, R, etc., the J-1 exchange visitor visa also has a derivative visa status for the J-1 visa holder’s spouse and/or minor children (under age 21), known as the J-2 visa. However, unlike some visa categories with derivative status, the J-2 visa differs because the holder is allowed to work and can be subject to the home residency requirement.

The application procedure for J-2 status is the same as that for the J-1 primary visa applicant. When one applies for a J-1 visa, the exchange program sponsor must approve the accompaniment of the spouse and/or children. Once approved, each J-2 dependent, whether spouse or minor child, must have his or her own DS-2019, just as each has his or her own visa stamp and Form I-94 Departure Record. The spouse and children of a J-1 visa holder may apply for their J-2 visas at an embassy after the J-1 principal applicant has already traveled to the United States. The J-2 applicants must present the following at the embassy or consulate abroad: Form DS-2019 provided by the program sponsor;

Proof that the J-1 principal applicant is maintaining J visa status; Copy of the J-1 principal applicant’s visa; Proof of relationship to the J-1 principal applicant (marriage certificate, birth certificate, etc.); and Proof of finances to cover expenses in the U.S. Like J-1 visa holders, those with J-2 visas can enter the U.S. up to 30 days before the J-1 applicant’s exchange program start date. However, the J-2 dependents may not enter the U.S. before the principal J-1 has entered. The J-2 spouses and minor children of exchange holders can choose to accompany or follow to join the J-1 exchange visitor to the U.S. A J-2 spouse or holder seeking to engage in employment must obtain authorization from USCIS (U.S. Citizenship and Immigration Services). This is done by submitting a completed Form I-765, the application for the Employment Authorization, with the correct fee to the USCIS office having jurisdiction over the J-1 applicant’s U.S. residence. J-2 spouses and dependents are only allowed to work if the money earned is used to support the family’s customary recreational and cultural activities. If the J-2’s income will be used to financially support the J-1 visitor, the application for employment authorization may be denied by USCIS. Those who accept unauthorized employment are in violation of status and can have their status terminated. A J-2 visa holder’s employment can be authorized for the duration of the J-1 principal’s authorized stay or for a period of four years, whichever is shorter. The employment authorization is valid only if the J-1 principal is maintaining his or her lawful status and the relationship to the J-1 visa holder (such as marriage) continues to exist. Once the application is approved, the J-2 holder may engage in any employment.

At the end of the exchange program, the visitor and his or her dependents are expected to return home to share their U.S. experiences. The exchange visitor and his or her dependents have up to 30 days from the end of the program to leave the U.S. This time restriction does not apply if the family has changed visa status or has received extensions of stay. Some exchange visitors are required to return to their home country for a minimum of two years upon completion of their exchange program, known as the home residency requirement. If this applies to a J-1 exchange visitor, then it will apply to his or her spouse or children. If the family would like to apply to waive the home residency requirement, the J-2 holders may be included in the J-1’s application.

There are several instances when a J-2 visa holder can apply for a waiver separately from the J-1 principal. In these cases, the U.S. State Department may sponsor the waiver. These exceptions include A J-2 spouse whose marriage to a J-1 exchange visitor has terminated by either death or divorce; or If a J-2 child marries, turns 21, or leaves the household.

O & P Entertainers, Performers and Athletes

admin — Thu, 21 Feb 2008 11:49:12 +0000

San Francisco Artist and Performer Visa Lawyer

The Ranchod Law Group is one of the nation’s leading immigration law firms focusing on employment visas. We invite you to contact us in San Francisco, California, to discuss how we can help you with your O and P visa needs.

P Visas

P visas allow internationally recognized performers, artists, and athletes to work temporarily in the Unites States. In addition, spouses and children may accompany the holders of P visas to the United States for the length of the visa, but may not secure employment in the United States. P visas may be issued to an individual, a performing group, or an entire team.

To be eligible for a P visa, the following criteria must be met:

The performer or athlete must perform at a level that attains international recognition
Entertainers may be granted a P-2 visa to participate in an international reciprocal exchange program with a U.S. organization
An applicant for P-3 visas to coach or teach under a cultural exchange program must typically be at least eighteen years of age

O visas

The O-1 visa is a temporary visa specifically for individuals who have extraordinary ability or achievement in academics, arts, or athletics. In order to obtain an O-visa for an employee or a contract worker, the employer must demonstrate that the individual’s ability has earned national or international recognition. O-1 visas are granted for up to three years initially, however, the visas may be extended in single-year increments if the same work continues.

Eligibility

A sponsoring contractor or employer must demonstrate that the individual meets criteria such as:

Received a major award, typically internationally recognized, such as a Nobel Prize
Awarded a national prize for excellence in his or her academic field or profession
Member of an academic or professional society that requires recommendation for membership based on exceptional achievement
Authorship of professional or academic articles or books, or other major media productions of international acclaim
Membership as a judge or panel determining the merit of a scholarly or professional achievement of others in the appropriate field
Letters of recommendation from at least five prominent colleagues in the field which specify the individual’s contributions to the field

Read more about O and P visas at these pages on our website:

O-1 extraordinary ability achievement visas
P Visas for performers, artists, and athletes

To learn more about O and P visas, contact The Ranchod Law Group today.

Employment-based Green Cards

admin — Thu, 21 Feb 2008 11:48:00 +0000

U.S. Employment Green Card Lawyer

If you are an employer or an employee with employment visa concerns or questions, you may also have legal issues regarding residency and green card status, Ranchod Law Group in San Francisco, California, can assist you. Immigration issues are governed by federal law, and immigration law can be practiced throughout the United States. Contact our business immigration law offices to discuss your situation. We will help you resolve your issues quickly.

If you are a Physician, Scientist or Researcher please visit our Doctor and Scientist Resource Center for more information pertaining to Green Cards.

Who qualifies for employment-based green cards?

Every year, the U.S. Citizenship and Immigration Services (USCIS) approves permanent employment green cards for approximately 400,000 workers who hold temporary visas in the U.S. Interestingly, the 400,000 green cards are distributed equally across the number of countries with whom the U.S. has signed a treaty. It does not matter whether the country has more than a billion residents, such as China or India, or only the population of a small island. Every country is allotted 7% of the total approvals.

Receiving a green card requires multiple complex steps that can require several years of patience and hard-fought legal effort.

Some steps include:

Determining whether a foreign national with a work visa is eligible for permanent residence
The sponsoring employer must be willing to continue to sponsor the worker and submit to a labor certification PERM process
Upon PERM approval, the employer must submit forms I-140 Immigrant Petition for Alien Worker and I-485, establishing the sponsorship

There are several options available

Employment visas and green cards can be applied for in a number of different categories. To learn more about business immigration visas, visit these pages:

E-2 Investor Visa treaty investor visas
H-1B Working Visa specialty occupational visa
L-1 Employment Visa
Nurse Visa
O-1 Extraordinary Ability Visa extraordinary ability achievement visa
P Entertainers and Athletes Visas for performers, entertainers, and athletes
Labor Certification / PERM
R Religious Worker Visas for religious workers

Contact The Ranchod Law Group to schedule an appointment to discuss your employment green card needs.

PERM Labor Certification

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PERM Labor Certification

PERM stands for Program Electronic Review Management. It is the word most often used to refer to the labor certification process for employers seeking permanent green card status for an employee. If you have a full time job offer you may qualify for Permanent Residence through the PERM process. The Ranchod Law Group in San Francisco and Santa Clara California, can help you with all of your labor certification and PERM legal needs. Learn more about PERM labor certification on this page, then contact our office to discuss your green card, permanent residency, or other PERM needs.
Please visit our Doctor and Scientist Resource Center for more information pertaining to PERM labor certification.

How can I obtain a labor certification?

PERM is an electronic filing and tracking system used by the U.S. Department of Labor to process labor certification applications on their dedicated web site. The U.S. Immigration Service allows employers to petition a foreign worker using the PERM process. Through the PERM process, the Department of Labor issues a certification that allows the foreign worker to apply for permanent residence. The certification program is designed to assure the US Department of Labor that there is no equally qualified United States worker who is ready and available for the position offered to the foreign worker.

Part of the PERM process, along with certifying that the job cannot be filled by a qualified, willing, and able United States worker, the petitioning employer must also demonstrate that hiring the foreign worker will not hurt wages or working conditions typically afforded United States workers in the same economic marketplace. The law is in place to encourage the hiring of qualified United States workers, and discourage the hiring of foreign workers below the prevailing wage and benefits of the area.

If you are considering sponsoring an employee who is currently working on temporary employment visa status, or is presently overseas and you wish to bring them to the United States, The Ranchod Law Group can help. We invite you to learn more about employment visas at these pages:

Employment-based Green Card
E-2 Investor Visa treaty investor visas
H-1B Work Visa specialty occupational visa
L-1 Employment Visa (Intra-Company Transfers)
Nurse and Health Care Visas
O-1 Extraordinary Ability Visa extraordinary ability achievement visa
P Entertainers and Athletes Visas for performers, entertainers, and athletes
R Religious Worker Visas for religious workers

Contact The Ranchod Law Group to learn more about how labor certification and PERM requirements affect your business, or visit our specialized PERM labor certification page on www.doctorsimmigrationlaw.com.

Click here to contact us today.

The PERM Process:

With the PERM process the US Department of Labor mandates that an employer go though a series of steps toward certification of the job offered. This can be done by the employer with The Ranchod Law Group’s guidance.

PERM Recruitment Requirements

STEP 1: The first step in the process is recruitment. The PERM employer must recruit for the position offered in specific ways. Depending on the type of position offered these can include print media, online recruitment sources, employer website, in-house recruitment programs, specialty publications, and other avenues. The Ranchod Law Group can help you select the correct recruitment program for the position you are offering.

Once the recruitment plan has been determined, the employer must place the ads as specified. The Ranchod Law group can help you to compose the ads. We will also guide you through the entire recruitment process while maintaining a professional and ethical, “arms length” relationship with you, the employer, throughout the process. This is done to ensure that you are successful in obtaining an approval of your PERM application. If the law office is involved directly in the recruitment process, the application will be denied.

PERM Application

STEP 2: Once the employer has completed the recruitment process, the Ranchod Law group will prepare the PERM application and with the employer’s authorization, file the application through the PERM online resource. The entire PERM process from initial planning to filing of the application takes from three to four months and must take place within a six month recruitment window. This can be explained in detail by calling the Ranchod Law Group.

Post PERM filing – Employment Based Green Card

After the PERM application is approved, time frames are subject to change but currently it is taking approximately one year before an application is approved by the Department of Labor.

After your PERM application is approved the employer files a petition for the employee with the United States immigration service. This petition, called the I-140 is accompanied by the certified PERM application and other support material depending on the type of PERM application filed. Ranchod Law Group will be able to compile a completed package for filing this step of the process. In some cases, the application for Permanent Residence (Green Card) for the foreign worker and their family can accompany the I-140 in a one step process. In other instances, the I-140 is filed alone and the foreign worker and their family wait while visa issuance timeframes (called quotas) are met. The Ranchod Law Group will guide you the employer and you the foreign worker throughout the process. We are an experienced team who take pride in our work and truly care about the outcome of each petitioner’s and beneficiary’s case.

Please call the Ranchod Law group at 415-986-6186 for more information or to see if you qualify for permanent residence based on the PERM process.

E2 Investor Visa | E2 Visa

admin — Thu, 21 Feb 2008 11:45:57 +0000

Nationwide E2 Investor Visa Lawyer | E2 Visa

The Ranchod Law Group works with investors throughout the world to help them with all of their E-2 treaty investor visa and immigration needs. An E-2 visa is available for foreign nationals living in countries with which the United States has a treaty relationship. If you are interested in learning more about E-2 investor visas, contact The Ranchod Law Group in San Francisco, California, to schedule a consultation.

Requirements for E-2 Treaty Investor

In order to qualify for an E-2 investor visa you must meet the following requirements:

Treaty of commerce or friendly nation status exists with the United States
Applicant possess the nationality of the treaty country
Applicant has invested or is actively in the process of investing
Investment focus is a real and operating commercial enterprise
Investment is substantial
Investment is more than a marginal one solely to earn a living
Applicant is in a position to develop and direct the enterprise
Applicant maintains majority control over the investment funds
Applicant intends to depart the U.S. when the E-2 status terminates

Investment Requirements

Funds must be Irrevocably Committed

The Investment Must Be Substantial

For more information on L1 Visas, please visit the E2 Visa section of our blog.

Latest Articles:

To learn more about the complexities of obtaining an E-2 treaty investor visa, contact The Ranchod Law Group for a consultation.

Doctor, Nurse and Healthcare Visas

admin — Thu, 21 Feb 2008 11:44:41 +0000

San Francisco Doctor and Nurse Visa Lawyer

Our firm has a concentration in representing nurse recruiters, small to large hospitals and foreign nurses. We are passionate about helping foreign nurses and hospitals succeed in the immigration system to meet the healthcare shortage. Attorney Ranchod became aware of the profound impact that individuals in the healthcare industry have since his father practices in the healthcare field.

Doctors and J1 Visas
To find out more information about doctors and J1 Visas click here. To learn more about Green Cards for Physicians visit our Doctor and Scientist Resource Center.

As noted in this article there are very limited options for a nurse to obtain an H-1B visa, although physical therapists may obtain an H-1B visa. Since most nurses are not eligible to obtain an H-1B visa, obtaining permanent residency is the most advantageous option for nurses to immigrate to the U.S. We assist nurses and hospitals in obtaining permanent residency (commonly known as the green card) through the labyrinth of bureaucracy in the nursing immigration process.

Nurses and physical therapists are able to obtain permanent residency and are not required to obtain a labor certification since there is a recognized shortage of nurses in the U.S. “Schedule A Worker Category”

Nurses must meet a myriad of qualifications, including passing nursing exams and English tests. Specifically, in order to be eligible for permanent residency, nurses must pass the TOEFL or IELTS exam, which evaluate the nurse’s English skills.

To qualify for Schedule A, Group I processing, a nurse must be employed as a professional nurse and must hold either a CGFNS certificate or unrestricted license to practice professional nursing in the state of intended employment.

Currently, the acceptable examinations are by the Commission on Graduates of Foreign Nursing Schools (CGFNS) or actual passage of the National Council Licensure state licensing examination, which is now offered at overseas locations. CGFNS certifies that the foreign nurse’s training and license are equivalent to that of a U.S. nurse, that all their documents are authentic, that the foreign nurse has an unrestricted license, that the foreign nurse is sufficiently proficient in written and spoken English, and that the foreign nurse has in fact passed a state licensing exam.

If the nurse meets the above requirements, an employer such as a hospital must petition the nurse by filing the I-140 petition. The employer must demonstrate their ability to pay the nurse and the employer must pay the nurse the prevailing wage.

If the nurse is already in the US, the employer can file the I-140 simultaneously to filing the I-I-485 for adjustment of status (green card), if the priority dates are current. If the nurse is abroad, the nurse will go through consular process after the I-140 petition is approved, and apply for the Immigrant Visa before the US Embassy.

We have experience helping individuals, health care recruiters, and healthcare providers meet their nurse visa requirements. Contact our office in San Francisco, California, to schedule a consultation about a nurse visa and other H-1B visa issues, including permanent residence and green card status for nurses and specialty workers in the healthcare field.

For more information, visit our Nurse and Health Care Visas description page

H-1B Specialty Worker visas

H-1B Specialty Worker visas give professionals in specialty occupations, including some positions in the healthcare field, such as physical therapists, an opportunity to contribute their skills to the American economy. Every year 65,000 H-1B visas are issued for up to a three-year period, which may be extended an additional three years under special circumstances.

Eligibility for H-1B Specialty Worker visa

Profession must be listed as a specialty occupation by the U.S. Citizenship & Immigration Services (USCIS) (formerly part of the INS) (certain specialized areas of nurses are considered a specialty occupation)
Petition must be submitted by the employer, based on employer’s need
Bachelor’s degree required or requisite experience

TN visa under NAFTA

In addition, nurses and other specialty healthcare workers who are citizens of Canada or Mexico may be eligible to receive special consideration for a visa under terms of NAFTA. The spouse and children of TN visa holders may be eligible to accompany the visa holder in the United States, but will not be able to work legally while here.

Eligibility for a TN visa under NAFTA

Available only to Mexican and Canadian citizens
Must work in a profession recognized on the NAFTA list; nurses are included
Must meet specific professional nurse training and licensing criteria
Must be employed (or will be employed) by a U.S. employer to be eligible

Contact The Ranchod Law Group to learn more about nurse and health care visas and how we can help.

H-1B Work Visa

admin — Thu, 21 Feb 2008 11:42:38 +0000

San Francisco, California, H-1B Visa Lawyer

The Ranchod Law Group advises and represents individuals and organizations nationwide who are seeking experienced legal help with their H-1B and H-2B visa needs. We are ready to help you with all of our employment visa needs. Contact our office to arrange a consultation to discuss your business immigration issues.

What an H-1B visa can do for you

The U.S. Citizenship and Immigration Services (USCIS) (formerly part of the INS) recognizes that there is a shortage of American workers available to fill specialty occupations at businesses and professional organizations in the United States. Approximately 65,000 H-1B Specialty Occupation visas are available through the USCIS each year. Typically, the visas are granted for three years, but may be extended an additional six years. In addition, if the sponsoring employer is willing to continue sponsoring the specialty worker for residency status, the employee may apply for green card status to remain legally in the United State permanently.

For more information about H-1B transfers, extensions and compliance, please visit:

H-1B Transfer and Extension

H-1B Extension by Recapturing Time

H-1B Compliance

Various specialty occupations

There are several occupations that are currently listed by the USCIS as specialty occupations, and additional occupations may be considered on a per-applicant basis. The list includes occupations such as:

Certain healthcare professionals
Accounting professionals
Computer analysts
Programmers
Database administrators
Engineers and scientists
Licensed professionals such as architects and lawyers

Eligibility for H-1B Specialty Worker visa

Profession must be a “specialty occupation”
Petition must be submitted by the employer (there are some exceptions to this requirement)
Bachelor’s degree required or requisite experience
Employee must have a bachelor’s degree or US equivalent or experience in the specialty occupation
The employer must pay the employee the prevailing wage
The employee meets state licensing requirements if such license is required

H-2B visas

Employers may file H-2B visas for their semi-skilled or skilled employees to meet seasonal, intermittent, one-time occurrence or peak time needs. For instance large resorts that cannot meet their staffing needs are eligible to file an H-2B visa to meet their “seasonal” needs. The employer must file a labor certification application with the Department of Labor (DOL) and demonstrate that no qualified worker is able to fulfill the position. Subsequent to meeting this requirement, the employer may file an H-2B petition with the USCIS. Unlike the H-1B visa, the employer may file a blanket petition for their workers. Thus multiple employees may be included in the labor certification and USCIS petition. Since there are only 66,000 visas allotted for the year, it is important that the H-2B petition is filed before the H-2B cap is met. We are currently preparing H-2B applications for individuals who will commence employment on April 1, 2008. To learn more about the H-2B visa requirements contact our office.

Other business immigration visas

In addition to H-1B visas for specialty occupations, the USCIS also grants business immigration visas for workers who lack the requisite college education, but have recognized experience in the field. Other business immigration visas include, TN visas under NAFTA, and E-1 treaty traders visas.

For more information about business immigration visas, please visit:

Employment-Based Green Card
E-2 Investor Visa treaty investor visas
H-1B Work Visa specialty occupational visa
L-1 Employment Visa (Intra-Company Transfers)
Nurse and Health Care Visas
O-1 Extraordinary Ability Visa extraordinary ability achievement visa
P Entertainers and Athletes Visas for performers, entertainers, and athletes
R Religious Worker Visas for religious workers

H1-B Frequently Asked Questions

What is an H-1B visa?
The H-1B visa is used by a foreign national who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability.

Is there a limit on the number of H-1B aliens?
Yes. Under current law, there is an annual limit of 65,000 aliens who may be provided H1B status or issued a visa. Under the L1 Visa and H1B Visa Reform Act of 2004, beginning March 8, 2005, up to 20,000 additional H-1B slots were available to graduates of U.S. master’s degree (or higher) programs. There are some types of jobs that are exempt from the H-1B cap. In April 2007, the H1B cap was reached in one day.

How does one apply?

In an H-1B visa application, the U.S. employer is called the petitioner and the foreign worker is called the beneficiary. After an offer of employment is made, the petition process begins.

The first step is for the petitioner to ensure that the worker will be paid 100% of the prevailing wage paid to similarly employed workers in the geographic area where the beneficiary will be employed. The employer must also be sure not to pay the worker less than the actual wage paid to other employees with similar qualifications.

The prevailing wage can be determined through a private wage survey or through a state Employment Security Agency (ESA). The benefit of relying on a state wage determination is that it cannot be challenged later by the U.S. Department of Labor (DOL). On the other hand, state determinations are not generally a close match to the job performed and are slow in being issued.

Once the wage information has been obtained, a Labor Condition Application (LCA) must be submitted to the DOL. On this form, the employer must submit the prevailing wage, the wage to be paid, and must make certain attestations. We usually submit this form on behalf of employers via the Internet, and the DOL only reviews the form to make sure it is properly completed. It does not look to see whether the information is accurate and instead investigates a small percentage of cases in which violations of the regulations appear to be occurring. (For more information, see the DOL’s Foreign Labor Certification web page at http://atlas.doleta.gov/foreign). The certified LCA petition is submitted to the U.S. Citizenship and Immigration Services (USCIS) as part of the H1B petition package. Other information that should be included in the petition includes documentation of the foreign national, the petitioner’s type of business and the type of work the beneficiary will be performing.

What are the fees associated with the H-1B visa?

The following government-filing fees apply in H-1B cases.

The base filing fee for an H1B case applies in every case. Presently, the fee is $320.
In late 2004, Congress passed legislation restoring a worker-retraining fee. The previously applicable worker-retraining fee was reinstated and increased to $1500. Employers with fewer than 25 full-time equivalent employees in the U.S. (including employees of affiliates and subsidiaries) pay $750. Previously exempt employers will continue to be exempt from the fee.
Additionally, there is a $500 fraud prevention and detection fee.

Immigration filing fees change frequently, and you should contact an immigration attorney prior to filing an H1B visa to ensure that you are in compliance with the most recent regulations and filing fee requirements

Wherever you are in the United States or the world, contact The Ranchod Law Group to schedule a consultation about your U.S. immigration law issues.

L1 Visa – Employment (Intra-Company Transfers) | L1 Visa Attorney

admin — Thu, 21 Feb 2008 11:37:34 +0000

L1 Visa Attorney

The Ranchod Law Group in San Francisco, California, works with business organizations around the world to help employers secure L1 visas for employees working in the United States on intra-company transfer status. Contact U.S. immigration attorney Kaushik Ranchod to schedule an appointment to discuss an L1 visa and other employment visa issues.

L1 visa, L-1A visa, and L-1B visas for managers, executives, and specialized workers

U.S. businesses and organizations with operating facilities in foreign countries may apply to have a manager, executive, or other worker with specialized knowledge transferred to a U.S. facility through the L-1 intra-company transfer visa process. There are many advantages to having an employee apply for an intra-company transfer visa, as opposed to other types of employment visas. Primarily, there is no limit to the number of L-1 visas that are issued. An entity only has to demonstrate an organizational need to place an existing foreign employee at a facility in the United States, without having to prove that an American national is not capable of filling the job. In addition, the employee may apply for permanent residency while in the United States on an L-1 visa, and getting a green card for permanent status is often considered easier.

The requirements for an L visas

In order to qualify for L visa status, the applicant must have been continuously employed for a minimum of one year for the parent U.S. entity or subsidiary in the foreign country. The entity does not have to be an incorporated business, and may include religious groups and non-profit organizations. There are special considerations for employees who have not continuously worked for the entity, or have worked a part of the time in the United States within a three-year period. The Ranchod Law Group can clearly explain the subtleties of L1 visa law when we meet for a consultation.

In addition, the U.S. entity and the foreign operation for which the applicant is employed must share a common owner. The rules in this area can be quite complex, as there are special considerations for organizations in which an owner does not control a majority of the entity.

The employee must intend to leave, but may apply for permanent status

L visas are considered temporary work visas, and the applicants must be willing to state that they intend to return to their home country at the conclusion of the visa period. Despite this, L1 visa status is considered to be one of the easiest platforms from which employees may gain permanent green card status. Executives and managers may stay in the United States for up to seven years on an L1 visa. Specialized workers may remain at the U.S. facility for up to five years. During that time, employment, operational, and even family needs may be used as a legitimate reason to secure permanent residency.

For more information about employment visas, visit these pages:

Employment-Based Green Card
H-1B Specialty Occupational Visas
P Visas for performers, entertainers, and athletes
O Visas for people with extraordinary ability and achievement
PERM/Labor Certification
R Visas for religious workers

We will give you complete information about L-1 intra-company law

Wherever you may be in the United States or around the world, contact our offices in San Francisco, California, to discuss your L1 visa needs.

For more information on L1 Visas, please visit the L1 Visa section of our blog.

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