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.

1. 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.
2. 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.

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.

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.

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.

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.

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.

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

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.

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

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.

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 1^st.

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

________________________________

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.

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

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.

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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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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