Immigration & Green Card Law Firm, Lawyers, Attorneys: San Franscisco Bay Area to San Jose

Visa Bulletin For April 2011

2011-04-12T22:08:00.000-07:00

http://greencard1.com/uscis-visa-bulletin/

H-1B Administration Services

2011-04-12T22:05:00.000-07:00

Heller Immigration Law Group handles full H-1B Administration for corporate clients. Contract with Heller Immigration Law Group for completely trouble free management of your H-1B lottery applicants. Get the temporary workers you need to staff your business without the confusion and worry that comes from inexperienced HR staff handling of this critical issue.
http://greencard1.com/h-1b-administration/

Legal Services Updates

2011-04-10T22:13:00.000-07:00

While Heller Immigration Law Group is expert in handling all aspects of business, employment and family-based immigration (obtaining “green cards“), we are also widely known as the friendly immigration lawyers and a full service law firm willing to take on, and successfully tackle, not just the ordinary, but also the extraordinary situations that can arise.
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Call Heller Immigration Law Group for all your immigration law needs 1-800-863-4448 or email heller@greencard1.com

New Naturalization Certificate Designed to Enhance Security

2010-11-01T12:04:00.000-07:00

More than 600,000 new citizens will receive the enhanced certificate over the next year, according to U.S. Citizenship and Immigration Services (USCIS). Please click the following link to see the full article and the image of the new certificate.

http://greencard1.com/new-naturalization-certificate-designed-to-enhance-security/

Why Can’t Green Card Holder Vote? Could Face Deportation

2010-10-25T15:23:00.000-07:00

According to The New York Times, legal immigrants (including those who have green cards) who register to vote could face deportation charges for it. Click the following link to find out more:
http://greencard1.com/can-you-vote-green-card-holder-facing-deportation/

Top 10 booming-est and highest-paying jobs

2010-10-15T13:37:00.000-07:00

Here is a list of top 10 U.S. careers with great pay and growth prospects:
http://greencard1.com/10-booming-est-top-paying-jobs/

Source (top 100 careers): http://money.cnn.com/magazines/moneymag/bestjobs/2010/

If you want to know how you can get U.S. green cards through employment, please contact me for a free or paid lawyer consultation. Visit http://greencard1.com to schedule an appointment. I have more than 25 years experience in the U.S. Immigration Law.

USCIS increases immigration fees effective November, 2010

2010-09-24T16:20:00.000-07:00

USCIS increases immigration fees by an average of 10% effective November 23, 2010.

WHAT WOULD I DO? COMING TO AMERICA

2010-09-03T11:47:00.000-07:00

Having worked in this field now almost 30 years, I’ve always felt that my knowledge and insight about how immigration adjudicators (and the bureaucracy itself) actually think, from an insiders perspective, is of utmost importance and help to our clients.
Although this insider’s view is not technically ‘legal’ in nature, and goes beyond statutes and immigration regulations, that is, the law, it is profound. Over the years, this insight has allowed my firm to succeed where others might fail.

But it is also important for immigration practitioners to know how a foreign national thinks about immigration, even before they arrive or become a client? I’ve found over the years that most intending immigrants do not fully appreciate how illogical our immigration system is; they assume, wrongly, that it is a rational and fair system – that it makes sense. This presumption is a gross mistake. For example, one would never guess that if you marry a permanent resident (a green card holder), one must wait in line, right now for years, before joining one’s spouse here in the United States. Of course, this makes no sense to any rational person. One would naturally ask how is it that the U.S. government sanctions and legitimizes husbands and wives having to live separate and apart? But the law demands it. It makes no sense and dehumanizes in the process. Another anomaly is on the employment side of the equation. An employer under our immigration law must prove that there is no qualifying U.S. applicant for a job offered to a non-citizen. On first glance that makes some sense; but few, if any, would know that an employer must prove to the U.S. Dept. of Labor that there are no even “minimally qualified, able and willing” U.S. applicants. The standard makes no sense because what employer would actually hire a “minimally qualified” individual over a more qualified individual? How would a busines survive doing so? Just as irrational is the fact that once an approved “labor certification” is obtained, certifying the above, an employer must still often wait five years ore more before being able to actually hire the individual. Canada makes it simple and has a ‘skills list’ – a list of occupational categories or skills that the country seeks.

I’ve stated many times that this country’s future, and our ability to compete globally, will either be a product of deflated wages to compete with the low wages of China and India, or, better, we compete with intellectural manpower and innovation. To do that, we must have a rational immigration system. We not only need to attract the best and brightest, but keep those that are here. We also need lots of other good people too. In good economic times we might get away with a period when we shy away from immigrants, but these are not good times. We need all the help we can get.

Yes, ‘aliens’ are often alien to us. But they need to know the rules and that they are welcome. But the rules must be rational and understandable. And I am only speaking of legal immigration here. Our system is outdated and doesn’t serve the U.S. national interest. It’s a maze that is so complex, a labyrinth, that few understand. And those that do, understand it’s a disaster.

Please feel free to email me; I welcome comments. You can do so at: heller@greencard1.com or visit our website: greencard1.com.

Paul M. Heller, Esq.,
Founder of Heller Immigration Law Group,
http://greencard1.com,
Free Attorney Consult:1/800 863-4448.

IMMIGRATION & THE LEAKED MEMO: AN UNLIKELY SOLUTION

2010-08-03T10:40:00.000-07:00

It has now been revealed that the USCIS, formerly known as the Immigration & Naturalization Service (INS), has indeed been thinking about changes to our immigration laws that can be made absent Congressional action.

The internal 'discussion' was never meant to become public, certainly not prematurely, and has evoked outrage from Immigration restrictionists and those opposed to any reform until the borders are closed and "sealed". Many would like to see the 12+ million here illegally deported before any 'reform' takes place.

Of course, that day will never realistically come; any more than Israel, to use a good example, can truly stop suicide bombers from entering their country.

Yes, we can do a better job, but sealing the border means turning off the magnet, the lure that brings economic migrants, or drugs to users, to this side of the border.

Here are my thoughts about a comprehensive solution:

• Having a National Work or Identity Card. Essentially a 'smart card' issued to U.S. citizen and legal and undocumented immigrants (as well as future visitors).

• A guest worker program

• An immigration system that grants 'green card' status quickly to those we want to attract on the employment and investment/entrepreneurial side; on the family side, the issue is a system that brings families together promptly without year after year of waiting time.

• Employer sanctions - severe penalties and even jail time for hiring illegal aliens once a system is established; of course, with a guest worker program and more efficient immigration, employers won’t be desperate to look for undocumented workers.

• Document those that are illegally living here but who are otherwise obeying the law. These individuals must arrange to pay all back taxes owed (penalties waived), learn English, be gainfully employed, no welfare or public assistance to any family members for 10 years, and must find a way to immigrate within 10 years; if one has a relative who has or will be eligible to file a petition, the 10 year requirement will be lifted (until permanent residency is granted). But everyone will be at the end of the line, if they can get in line, regardless. This is not 'amnesty'.

• The period of time or window to 'register' for the above will be determined by Congress, with a proof of residence requirement as of the day of Enactment.

• Criminal aliens will undoubtedly not 'register' and will be isolated, detected by authorities in due course and removed (with or without family members).

• For those individuals who try to register under the law who are not eligible, i.e., they came to the country post enactment, they will be fingerprinted and have a permanent bar to future immigration, or any of the newly enacted programs, including the guest worker program.

MENTIONED IN THE ‘LEAKED’ MEMO: A PIECEMEAL SOLUTION AT BEST

• Work Permits for some non-immigrant dependents

• Expand 'dual intent', useful for TN visa holders

• Create a grace period for non-immigrants when one loses or leaves a jobs

• Eliminate unlawful presence bar (3/10 years) for adjustment of status applicants - allowing one to travel freely while case is pending

• Expand premium processing to all cases

• Change the eb5 program to become more expansive

• Automatic extension of work authorization when an extension is filed

• Use of ‘deferred action’ to give relief to those here illegally

The Arizona Law: A Solution

2010-05-04T14:36:00.000-07:00

Every American understands that illegal immigration is a country-wide problem seeking a national solution. Arizona, we all know, is frustrated that the Federal government is doing little to stem the flow of these individuals - and they are not picking up the tab.

On reflection, it is clear to me that Arizona’s law is a clever gambit to get Congress to do something. If actually implemented, forget about forthcoming lawsuits and litigation, neither Arizona nor Federal ICE officials (the enforcement arm of the USCIS) are truly prepared to do anything. It would overwhelm both systems.

The solution: If an officer stops an individual for a speeding ticket, determines the person pulled over has no papers, or a false ID or driver’s license, for example, they simply take them to the police station, fingerprint them, have them complete a simple form, and send them official Arizona ID card or Driver’s license.

Of course, they must still show up or paying their speeding ticket, get insurance for their car, get a Federal Tax ID (anyone can do so now), but they don’t have to worry about being deported. They can become a productive member of the Arizona population. Of course, they must, as all residents must, renew their ‘papers’ (and if they don’t show up, the authorities will have a much easier time tracking them down).

One last word: Either the Federal government or the Arizona authorities must truly shut down the border or this will certainly attract a new flow – but at least no one has to wait for Comprehensive Immigration reform (which in the only real solution).

Obama: A Disappointment So Far...

2009-10-02T09:43:00.000-07:00

Dear Readers,

I’m disappointed in Obama; as an independent (for years now), I, like many others, voted for him in the hope that he would be something different. Who else was there anyway? McCain was not himself, clearly older, senility had set in, nor the wiser - and then the choice of Sarah Palin. But Obama clearly turned out not to be the statesman, nor the leader, that I think I, and the country, had been looking for.

Of course, Obama turned out to be a…. politician. An elegant and smart guy, no doubt – but politician through and through. I’m worried now that he may be the wrong person, at the wrong time in our history. I'm willing to give him a little more time, but not much. I, and the country, need to see some cajones.

It is true unfortunately that all politicians, with few historical exceptions, are always running for office, their next term. That means follow the money, the backers, those that they owe.

But we don't elect a President who is thinking 2nd term and when running we always tend to believe we are electing a true leader, a statesman. Only after they enter the White House do we really see the character, the individual under stress, and his /her leadership. I like many, maybe most, wanted and hoped for a statesman this time around. I wanted and longed for a Jack Kennedy, a President Johnson, and yes, a Ronald Reagan. All three had flaws, but all were leaders and strong. I am talking here about leadership, strength, not about any particular political philosophy, mind you (albeit I do have my libertarian-like moments).

The public I believe longs for such an individual, but alas it may be like wishing to win the lottery. Once elected, my own personal 'test' of Obama's leadership was whether he would immediately strike down “don’t ask, don’t tell” - something Clinton, who says now it was his "biggest regret" (see what happens when a politician is not running for anything), nor Bush did anything about. Obama, of course, has done nothing, stayed away from the subject like it was plague, and when pushed, agreed it needs to be overturned - but it is "down his list" of things to do "right now".

It is this lack of leadership, fortitude, fear, that explains why Obama has shown no leadership on health care, refusing to forcefully articulate how in the end it will save taxpayers money and press those even in his own Party to follow his lead. He's done just the opposite and one wonders whether he believes anything he says or said on the campaign trail. I don't.

Of course, Obama, and very few others, see any connection between the economy, health care reform and immigration. In truth, they are all tied in together. But Obama has no idea what to do with the immigration situation, doesn't seem to even understand it, or how to move it forward. I'm sure it is another "down the list" thing. This is another disappointment.

Although I would like to see comprehensive immigration reform of a clearly broken system, my passion and focus is on the immigration of scientists, researchers, post docs and scholars - about the shameful way we allow incredibly bright people who are here at our government labs, the many post docs, those doing important research at our best universities and those helping to invent new technologies in private industry from leaving their position or, more accurately stated, forced to leave. The untold story is that they are doing so in droves (and have been for many years). Too often these scientists then go on to create innovation and industry in other nations who do everything they can to ‘steal’ them from us, or more often do so in their home countries.

We can't afford this and neither can our economy. We are losing any advantage we as a nation have enjoyed. And that advantage has in large part come from these same foreign-born scholars, academics and scientists who want to stay here but are being told to leave. This is the deep secret that few really know about. We should have open arms to these scientists and researchers and do everything possible not only to attract more of them, but certainly do our best to keep those that are here from leaving.

Where is Obama on this issue? I am certain he has no clue. Immigration, the issue itself, has come to mean ‘illegal immigration’, undocumented workers and then there’s the “New McCarthyism” and general xenophobia that always surfaces in a bad economy.
The truth is that our immigration bureaucracy, the officers and adjudicators, the ‘system, look for every way in the world to harass and deny these important cases, instead of looking for ways to approve them. This is a dysfunctional system that does horrendous damage to our country and this economy. We can’t be this stupid I keep telling myself.

Everyone knows the USCIS is broken, but very few, and I'll bet Obama is among them, truly know what happens when a scientist applies for a green card under the immigration laws. Most would presume that the cases would swiftly be processed, the individual welcomed to this country, and he/she could get on to the business of helping to create cutting-edge industries, science and technology - thus helping to create jobs which in the end help all Americans.

The reality though is the opposite; yes, in the end, often with professional help and intervention by practitioners who understand the system, many of these cases are approved, but the process and resources it takes, take a toll. Too often I see individuals whose cases have been denied and by the time they seek help they just want to go home. Not only are these academics, researchers and scientists treated like some sort of criminal who are attempting to scam the system, but even the pre-eminent scientists and academics who send in their own 'advisory opinions' or reference letters to support the applicant find their own credibility and reputation tarnished in the process! It's crazy.

Immigration reform is not just about changing the travesty involving extraordinary or outstanding scientists, although that to a large part is my focus. It is also about making sure we separate and document those otherwise law abiding individuals so that we can more easily identify and deport those who have truly broken our criminal laws.
And I would be very harsh indeed to those that haven't behaved themselves. There's arrogance about it that disturbs me.

Entering the country illegally or overstaying should certainly not be tolerated by any nation, but we must be real and pragmatic and understand that ‘they’ are not leaving voluntarily and it is a pipedream to think otherwise - and we as a nation don't have the resources to force them do so. But more importantly we must be smart and realize that we can focus on the criminal element, if we can separate them from the otherwise lawful. We can't do so if we don't allow the many to come forward to help identify the few.

To me this is a tax issue; I'd rather see these individuals becoming tax payers, paying into the system their fair share, and in process of immigration reform require them to do all the things they now cannot do, but I believe they would be happy to do if documented. No, I would not given anyone a green card because there are many people in line ahead of them, but I would demand they act like responsible citizens i.e., buy auto insurance, pay federal and state income taxes, and on and on.
Right now these individuals are a heavy burden on the rest of us. Again, it is a tax issue for me.

I want one last word on Obama and Tarp. Whether the banks and financial institutions really needed saving is one thing, but as a side observer, and now with 20/20 hindsight, I called for at the time and would have allowed all of them, the auto industry included, to go into Chapter 11, which is reorganization, not truly bankruptcy anyway.

With that said, we now know what should have been understood from the beginning, "it’s about jobs, stupid". Giving any more TARP money away now is silly. It is just the powerful, the elite, feeding the powerful and perpetuating a system that rewards power over markets.

At the time I couldn't understand why not suspend payroll taxes for small business for 3-5 years? And I still can’t.

Iraq and Afghanistan – hasn’t anyone learned the lessons of history, i.e., that occupation and ‘nation building’ always fails. Whatever we do security wise, I know one thing: If I hear about it, it's worthless and we are throwing money. Period.
This country has always been too rich to think straight. We rarely think deeply or long term and too often act impulsively as a nation. Our culture is historically new. Obama seems like a smart guy, but he's clearly not a leader. My fear is that he's Jimmy Carter, someone who was distracted by the White House tennis schedule. No one said he was stupid, in fact they said he was very smart. But leadership is not about brainpower, but about judgment making decisions decisively (right or wrong). Read the job description of any CEO. Obama must remember he is in the White House and no longer in Congress, where deliberation and horse trading is the norm. They must do their constitutional duty, he must do his.

This country is in trouble and will continue to be without real leadership; the country needs a Statesman, a Churchill. Obama?

Readers: Please visit HILG's new Website...

2009-06-06T16:54:00.000-07:00

Today I floated a new website (www.hilglaw.com) and would like readers to visit it and tell me what they think; I was going for 'simple' as well as informative. site was designed by very good guys I found a designer Los Angeles web design I'd also like to know if I should add my 66 articles on this blog (the older ones are purely immigration law related articles and can be quite interesting and informative to read). These older 'blogs' were specifically written not to be a "how to" but to give non practitioners an insider's view, some true insight, of what the USCIS (formerly INS) and those at the U.S. Consulates are really thinking and looking for.

Thank you.

Immigration Reform: An Insider's View

2009-05-13T15:49:00.000-07:00

Over the past several weeks, I've had the chance to speak, more than once, with USCIS headquarters in Washington, DC (and to those running the Agency). I've also spoken, off the record, with the Judiciary Committee - which is responsible for any upcoming immigration legislation or reform.

Generally, these conversations, which are highly personal, often lead to us speaking about immigration philosophy, but also about very specific serious, endemic or systemic problems that have yet to be truthfully addressed, or more importantly, changed. And yes, more than likely, I will get into a case or two that I am dealing with which illustrates that the system is broken.

For example, on the philosophical front, I often wonder out load, not as a Democrat or Republican (I'm neither), what role should the U.S. government and/or USCIS or DOL bureaucrats play in telling a private U.S. employer who they can or cannot hire? If there is a role, shouldn't it be limited to a security check and to assure that the job offered is paid at the "the prevailing wage"; that is, if a U.S. employer finds that he/she wants to hire a foreign national, I believe the government should get out of the way, but it also seems reasonable that the individual hired be paid a U.S. wage (even if they were willing to work for less).

Forcing companies to hire a "minimally qualified" able and willing U.S. citizen over the chosen foreign national (who the company desires and feels will do the best job for them) seems extraordinarily dumb. The real issue is who chooses? Do U.S. companies have the right to recruit anyone, from anywhere, or should they be limited to the human resources in are own country?

We are a nation, unlike most in the world, who have a history of welcoming new people, attracting those that can innovate, invigorate, and work hard towards a uniform goal of keeping our economy and country strong and a leader (in science, technology, entrepreneurship).

The idea that some Washington bureaucrat can make decisions that can truly destroy our country's ability to create new jobs, innovate or create new technologies, and provide for a robust and growing workforce and economy, seems ludicrous to me - but that is what is happening on a case by case basis, everyday!

More on this later and why no one seems to care: stupidy or ignorance, or both?

GAY MARRIAGE AND IMMIGRATION

2009-04-08T15:30:00.001-07:00

GAY MARRIAGE AND IMMIGRATION

With the New U.S. Congress likely review the District of Columbia's recent action to recognize Gay Marriages, it is clear that we may see sooner than later a re-examination of the federally mandated Defense of Marriage Act - which forbids the Federal government from recognizing Gay Marriage.

Up to now, if a U.S. citizen 'partner' wanted to legalize the immigration status of their loved one, or give them 'dependent' status, they could not (as the USCIS did not recognize the relationship for immigration purposes).

Of course, eventually, the issue must come before the Supreme Court since one State generally cannot 'void' another State's laws under the U.S. Constitution. But until that happens nothing is likely to change.

Now this. The Congress will be forced, hopefully, to review the District of Columbia's decision and confront the issue frontally. If so, this may finally open the door to a re-definition of marriage for immigration purposes.

Let's see what happens.

H1b 2009 Lottery: A Status Update

2009-03-30T11:27:00.000-07:00

Dear Readers,

Here's the latest on the H1b 2009 Lottery:

USCIS has now confirmed that if they receive a sufficient number of H1B cap cases during the first five business days of April to reach the cap, the "lottery" will be based on petitions received all five days.

This allows us to accommodate more last minute H1B requests from clients (cases received on 4/7 will have the same priority status as cases received on 4/1), but please file the cases that are ready to go tomorrow, on 3/31, as originally planned.

Note: USCIS will not begin to issue receipts, until a determination is made that sufficient H-1B petitions have been received within the first five business days of April, ending April 7, 2009. After the "lottery" is conducted, the USCIS will then issue receipts for those cases which are selected, and the receipts will likely all have the same receipt date, April 8, 2009.

Most Recent Immigration Thoughts...

2009-03-24T11:55:00.000-07:00

Green Card Thoughts and More: An Immigration Overview...

It is clear that at least on the immigration front that the hopeful thoughts we all had with coming of the Obama administration haven't materialized. Immigration has become even more isolated and untouchable by a nation whose entire focus now is trying to figure out how to move forward and why we are here. Our leaders do not want to be distracted and the public at large, mad as they are, wants someone to do something. Immigration is on the back and last burner.

Of course, it shouldn't be.

One way 'out', historically, has been to revitalize the country with new immigrants, fresh blood. But the mood of the country is still in a shock mode (with the economy the way it is). I see many intending immigrants struggling with the question whether to stay with a process that is so protracted and broken that it is hard to find meaning in its continuation. Many are now asking themselves why are they here, and should they abandon their dreams and return to their home country?

One wonders why anyone who can leave (this mess) and go home actually stays? Their reasoning, the decision to stay, is the point. These intending immigrants see things that many of us don't. They see opportunity. They want to be part of the fabric of America and truly believe they will be America's future. They may see a challenging environment but they see so much more that is positive and worthwhile.

These same individuals, whether the hardworking 'unskilled', the skilled workers, or the "best and brightest", each and every one, want to help our country. The want no more than to be part of us - and if they need to motivate us, to help us move mountains, to do more than their fair share to get us moving again... they will.

An Obama Win: The Immigration Factor

2008-10-31T15:59:00.000-07:00

Dear Readers,

Let's talk about what's next, after the Presidential Election.

It's likely that Obama will win, for sure, but how will he approach immigration - and what's likely to happen?

Obama has stated that he is for 'Comprehensive Immigration Reform". This is a political statement, which has no bearing on reality.

McCain, for example, is also for CIR, but he wants to shut the borders down first. Again, a purely political pronouncement, directed to his 'right wing' (as was his VP choice).

Now let's get down to the truth: In difficult economic times, 'Joe' public usually falls for anti-immigration rhetoric and demagoguery.

Politicians almost always vote their constituency, meaning that they vote in a way to assure their continued reelection. Immigrants, by their nature, and status, do not vote as they are not U.S. citizens. Period.

You'd hope though, given that Obama is smart, thinks in terms of foresight, future generations and the like, that he'd consider as President elect (once elected, mind you), a sensible immigration policy.

I think he will. And although I don't expect a push for Comprehensive Reform, I do see some interest in eliminating crazy backlogs, enticing "the best and the brightest" to stay in this country, and if not here, to come here, .... to allow entrepreneurs, employers, and startups to seek the talented pool of foreign nationals that will help us build the "new economy".

I even see the promise of Obama at some point in his administration's first term leading the way towards 'documenting, the undocumented' in a fair and humane way and without a so-called 'amnesty', which would finally allow millions of otherwise law abiding residents to come out of the shadows - without shame or fear.

But true 'Comprehensive Immigration Reform', as proposed? Forget about it. A pipedream. Not in the cards for a variety of reasons.

Congress won't have time to tackle the issue, and I don't believe even look at it seriously, for years to come. Our representatives will no doubt be struggling with putting policies in place that will help to revive this country and get it working again.

Many of Obama's other issues will have to fall by the wayside as well.

Will increased immigration help this country - you bet! Will there be useful legislation on the immigration front? Let’s wait and see, but I’d bet yes.

Immigrants are just too important. Let's cross our fingers and hope that our leaders, and our President, see it the same way.

Thank you.

USCIS Announces 2 YR Renewal Pollicy!

2008-06-13T15:16:00.000-07:00

Office of Communications
USCIS Update
June 12, 2008

USCIS to Issue Two-Year Employment Authorization Documents
New EADs Limited to Certain Individuals Who Have Applied for LPR Status

WASHINGTON— U.S. Citizenship and Immigration Services (USCIS) announced today that beginning on June 30, 2008 it will issue Employment Authorization Documents (EAD) valid for two years.

The new two-year EAD is only available to individuals who have filed to become a lawful permanent resident (LPR) using a Form I-485, Application to Register Permanent Residence or Adjust Status, and filed for employment authorization under Section 274.a.12(c)(9) of Title 8, Code of Federal Regulations (8 C.F.R.) but are unable to become an LPR because an immigrant visa number is not currently available.

USCIS will decide whether to renew an EAD for either a one or two year validity period based on the most recent Department of State Visa Bulletin available at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.

For applicants who have an available immigrant visa number and who are filing for employment authorization under 8 C.F.R. Section 274.a.12(c)(9), USCIS will continue to grant EADs that are valid for one-year. USCIS may issue a two-year renewal EAD if the applicant’s immigrant visa availability date retrogresses (when actual demand for visa numbers exceeds forecasted supply) after the Form I-485 is filed.

If an individual requests to replace an EAD that has not expired, USCIS will issue a replacement EAD that is valid through the same date as the previously issued EAD. However, if the previous EAD has expired, USCIS will process the request for a renewal EAD and determine the appropriate validity period based on the applicant’s priority date and the Department of State Visa Bulletin.

For more information on Employment Authorization Documents, please contact the USCIS National Customer Service Center at (800) 375-5283 or review the USCIS Employment Authorization Documents web page at: http://www.uscis.gov/.

– USCIS –

Office of Communications
Frequently Asked Questions
June 12, 2008

USCIS to Issue Two-Year Employment Authorization Documents (EADs )
New EADs Limited to Certain Individuals Who Have Applied for LPR Status

What is an EAD?
Certain aliens who are temporarily in the United States may file a Form I-765, Application for Employment Authorization, to request an Employment Authorization Document (EAD), which authorizes them to work legally in the U.S. during the time the EAD is valid.

Who is eligible for an EAD that is valid for two years?
The two-year EAD is available to pending adjustment applicants (i.e., those who have filed a Form I-485, Application to Register Permanent Residence or Adjust Status) who have filed for an EAD under Section 274.a.12(c)(9) of Title 8, Code of Federal Regulations (8 C.F.R.) and who are currently unable to adjust status because an immigrant visa number is not currently available. USCIS will continue to grant EADs that are valid for one-year for adjustment applicants who have an available immigrant visa number and are filing for employment authorization under 8 C.F.R. Section 274a.12(c)(9).

When will applicants expect to receive the new two-year EAD?
USCIS expects to implement this initiative for cases pending on June 30, 2008. Applicants filing Form I-765 under 8 C.F.R., Section 274.a.12(c)(9) should begin to receive their two-year EAD a couple of weeks after the anticipated June 30, 2008 implementation date.

Where can someone get more information on the new EADs?
For further information, please review the USCIS Update on the new two-year EAD posted online at: http:/www.uscis.gov.

Will applicants get a two-year EAD when they file an I-765 with their I-485 adjustment of status application?
Generally no. Initial EAD filings will generally receive an EAD that is valid for one- year because they are usually submitted with the Form I-485 that can only be filed when there is an immigrant visa number immediately available to the individual. Applicants are only eligible for a two-year EAD if their immigrant visa availability date retrogresses (i.e., when actual demand for visa numbers exceeds forecasted supply) after the Form I-485 is filed. If an immigrant visa number is available, USCIS will grant the one-year EAD.

How will USCIS decide whether to issue an EAD valid for one or two years?
USCIS will decide whether to renew an EAD for either a one or two-year validity period based on the most recent Department of State Visa Bulletin available at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html. If an applicant’s visa number has retrogressed and is unavailable, USCIS may issue a renewal EAD valid for two years. USCIS will continue to issue the EAD in one-year increments when the Department of State Visa Bulletin shows an employment-based preference category is current as a whole or the applicant’s priority date is current.

If I am filing for a replacement EAD under 8 C.F.R., Section 274.a.12(c)(9), how long is the EAD valid?
If an individual requests to replace an EAD that has not expired, USCIS will issue a replacement EAD that is valid through the same date as the previously issued EAD. However, if the previous EAD has expired, USCIS will process the request for a renewal EAD and determine the appropriate validity period based on the Department of State Visa Bulletin and the applicant’s priority date. If USCIS determines that an applicant has filed multiple Forms I-765, the agency may deny the applications for the replacement or renewal EAD.

Why is USCIS changing the validity period for some EADs?
USCIS views this change as a way to better serve its customer base, and in particular, persons who are waiting to become lawful permanent residents and are impacted by the lack of immigrant visa numbers. On July 30, 2004, USCIS published an interim rule, “Employment Authorization Documents," at 69 Federal Reg. 45555. This interim rule authorized USCIS, in its discretion, to issue EADs with validity periods other than one year based on certain criteria deemed appropriate by the Department of Homeland Security.

I filed my Form I-765 more than 90 days ago and I have not received a decision, who should I contact?
If you have not received a decision within 90 days of the USCIS receipt date and you have properly filed your EAD application, you may apply to obtain an interim EAD by appearing in person at your local USCIS District Office. You must bring proof of identity and any notices that you have received from USCIS in connection with your application for employment authorization.

If I believe I have received an EAD with the wrong validity period or other incorrect information who should I contact?
If you believe that you have received the wrong validity period, you should contact the USCIS National Customer Service Center at 1-800-375-5283 or 1-800-767-1833 (TTY).
For additional information, or if your application has been approved and you have not received your EAD, please contact the USCIS National Customer Service Center at 1-800-375-5283 or 1-800-767-1833 (TTY)

What Happens Next: ?????

2008-06-06T12:07:00.000-07:00

Well... what is the answer to that question. Will there be immigration reform, green cards for all, celebrations galore by the immigration bar? Will there be a blanket amnesty, with latinos, and others, dancing in the street?

The answer, the truth, if you want to hear it, is that we just don't know. There is no point in pretending, or engaging in wishful thinking. But as a veteran in this arena here's my best guess or, for those of you wanting a fancy word... prognastication.

PRESIDENTIAL RACE AND IMMIGRATION REFORM:

Now that we have an actual race between a Republican and Democarat, the first thing to realize is that both will move to the center. Yes, the center. That means there won't be radical and far right or far left pronouncements or promises. I think the 'anti-immigrant' rhetoric will soon stop. A solution to the immigration mess and a very broken system is another matter.

At the same time both candidates move rapidly to the 'center' politically, both will also, unfortunately, shy away from speaking "the truth". But who knows, maybe a surprise will be in store.

I have my fingers crossed. The truth, as I see it, is that for the 15+ million people here in an undocumented state we truly need to bring them into the system. Humanitarian reasons aside, we need these undocumented to come out of the shadows and pay their fair share of taxes! This needs to be said and I think will be palatable by all sides.

There is nothing racist, or anti-immigrant about blunting stating that those here illegally should be allowed to pay federal taxes (they pay state and local taxes for sure), and even to require them to pay 'back taxes'; but it should be articulated within the context of bringing these individuals who for the most part have come here to work out of the shadows. Until immigration reform most of these individuals cannot do so. The law as it now stands forbids it. The public needs to understand this 'truth'. Nor is it wrong to recognize the extra tsx burden on hard-working Americans - and for them to understand that if we can resolve this problem it is a "win/win". It should also be understand that immigration reform will also illuminate and isolate the criminals among the undocumented (so we can rid them from society). I would think rightly that most Americans would have very little tolerance or sympathy for these true law breakers. Let's focus on them, not the otherwise hard-working. They will no longer be able to hide among the masses.

Secondly, we need to reform a crazy 'legal immigration system', especially the rules on the employment-based side - my area of expertise and my focus here.

If an American employer chooses to hire the "best person for the job" and it happens to be a foreign national, and pay them a truly American wage, and the individual passes security clearances, why not? What is the point of governmental entanglement in private enterprise?

COMPETITION: A NEW AMERICAN CONCEPT?

This may be much harder for working Americans to swallow - since no one really likes competition. But we have to compete now in a global world, and we can no longer just rely on our own population to fill the numerous skilled and unskilled workers.

There are many advantages to hiring a hard working American, and certainly a U.S. worker should have a 'leg' up in the labor market, but a job should not be guaranteed to U.S. workers. That, I thought, is anathema to a free enterprise system. The idea that a broken governmental beaurocracy is telling a U.S. employer how to run one's business, is a crazy idea. The fact that our yearly allotment of temporary (professional) work visas given to Industry, mostly used by 'high tech, is used up in a few days, is insane. That is a "recipe for disaster", and this blogger believes strongly that much of what is happening to our economy is a result of our lack of innovation - and immigration (not just the oil or housing crisis).

As a nation, we have become complacent and lazy as a workforce, and to compete in the world markets, we must learn again to compete among ourselves.

Creme always rises to the top - so don't despair. But this needs to be said to the American public. That we are competing and in competition with the rest of the word. No more free rides. Can you imagine a sports team limited only by Americans? They want to find the best talent, regardless of cost. They want to win!

Third, we must discuss those interminable lines to finally "get here".

If we are going to 'refresh' our economy with new immigrants, as we must every generation or so, and ask the hard working, the "best and brightest", and others, to come to our shores, play by the rules, and offer them to become part of the fabric of new America, we can't keep these "new citizens" in limbo forever. We must show them light at then end of the tunnel (so many see themselves in).

We should want them to feel secure and confident - so that they can be free to be enterprising, innovative, and successful in their new culture. There's no question that we will be quite dependent on these new scientists, engineers, entrepreneurs, and those that are in support, and simply the 'hard working', for many years to come. I believe this will be the case, and we will be dependent on immigration, until we revitalize our education system, and motivate our kids, to take education seriously.

Some feel that the Iraqi government that we installed is not serious because we are doing the hard work for them. This is natural. We can't expect that our children will work hard, if they feel that their future will be bright (regardless of what they do).

I can assure all my readers that my clients who are 'waiting' with no real sense their case or green card is shortly coming have a very difficult time getting the energy and motivation up to create the next Google or Microsoft. And these are brilliant people, very capable of doing so.

But even the highly motivated, the brilliant, can be disheartened by our present system.

If one looks back to all those 'immigrants', or even children of immigrants, that have contributed, generations past, one will see that they helped build America not while in some interminable line (at Ellis Island), but after leaving the island for shore. Today, we are holding back millions of such people unnecessarily. A dark cloud looms over our shores.

Anyway, that's how I see it.

America in Trouble: Immigrant Saviors...

2008-05-08T09:59:00.000-07:00

Dear Readers,

I felt this needed to be said, so I am saying it. Immigrants, come one, come all!

America (meaning the United States - no offense South America) is in trouble, big time. This did not happen yesterday, and it has been a long time coming. Holes this deep don't get dug overnight. There are many reasons, including 'globalization', developing countries... developing; China and India.. growing, OPEC - sticking it to us. The world is just changing, all around us and rapidly.

But this blogger thinks we wouldn't be in the mess, and can get out of it, if we had an immigration policy that made sense - instead we have had years now, unrelenting years, of anti-immigrant scapegoating. A refusal to "let go". A society, a government, a population that refuses to see what should be obvious, that dismisses our past reliance on new immigrants, that does not understand that we must "every so often" refresh, and, in computer terms - 'restart' our sytem, should be held at least partly responsible for the mess we are in.

As many insiders know, and most if they are not should be aware, that we've shut for the most part shut down U.S. immigration - and, to our detriment, the world, our competitors, and, most importantly, to those stuck in this lousy immigration system, know it. They can be the saviors, but we won't let them.

I am not just speaking about illegal entrants or those waiting for some type of amnesty. Yes, our economy needs even these people to become part of the system, to help us energize, pay taxes, become part of the new fabric that we will no doubt create. But just as importantly we need to send a clear message to those here (waiting to get through the legal immigration gate), and to those outside the country, that we also need the highly skilled, the scientists, engineers, entrepreneurs, and other builders of a society, to come, and recognize that the delays in our system for those going through it can be disheartening, and energy zapping, and for those wishing and willing to come - an impossible dream.

America, wake up! Closing our borders is not good for our economic well-being.

The future will involve teamwork, and we will certainly need 'all' of our people, including new immigrants, to become excited about America and its promise. We need immigrants and U.S. citizens alike to feel confident the future is bright and then together we can move American forward. This "promise of America" will not happen, I feel, until we 'refresh' - and that means allowing comprehensive immigration reform and bringing in those that will do the hard work, that will help us innovate, energize, and bring new entrepreneurial spirit to America; just like immigrants from generations past.

Right now everyone is stunned, and we as a society in a holding pattern, waiting for the worst, and it is very bad for America. We need to wake up.

Push the button America and watch the computer boot up! Release the energy that is just waiting for its time. Go ahead, push the button.

USCIS Picks H1B Lottery Winners - Latest Update

2008-04-15T20:01:00.000-07:00

Dear Readers,

This is the latest Bulletin from USCIS on the H1b Lottery.

Of course, not all 'winners' have been chosen; our law firm has already received several emails from USCIS announcing that the Premium Processing Unit has received the file and will adjudicate the specific case within a 15 day timeframe (but this is only on cases that we specifically filed with the $1000 fee and form I-907).

Further, at least so far, it seems that USCIS - and today's emails informing us bears this out, has only chosen among those with a U.S. advanced degree; it appears that within the next month or so, all will have been notified.

Please read on (and don't hesitate to call or email me); thanks.

Best,

p

____________________________

April 14, 2008

USCIS RUNS RANDOM SELECTION PROCESS FOR H-1B PETITIONS

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) today conducted the computer-generated random selection processes on H-1B petitions, to select which H-1B petitions for fiscal year 2009 (FY 2009) would continue to full adjudication. If approved these H-1B petitions will be eligible to receive an H-1B visa number.

USCIS conducted two random selections, first on petitions qualifying for the 20,000 “master’s or higher degree” (advanced degree) exemption, and second on the remaining advance degree petitions together with the general H-1B pool of petitions, for the 65,000 cap.

The approximately 163,000 petitions received on the first five days of the eligible filing period for FY 2009 (April 1 through April 7, 2008) were labeled with unique numerical identifiers. USCIS has notified the appropriate service centers which numerical identifiers have been randomly selected, so each center may continue with final processing of the petitions associated with those numerical identifiers.

Petitioners whose properly filed petitions have been selected for full adjudication should receive a receipt notice dated no later than June 2, 2008. USCIS will return unselected petitions with the fee(s) to petitioners or their authorized representatives. As previously announced, duplicate filings will be returned without the fee. The total adjudication process is expected to take approximately eight to ten weeks.

For cases selected through the random selection process and initially filed for premium processing, the 15-day premium processing period begins today (April 14), the day of the random selection process.

USCIS has “wait-listed” some H-1B petitions, meaning they may possibly replace petitions chosen to receive an FY-2009 cap number, but that subsequently are denied, withdrawn, or otherwise found ineligible.

USCIS will retain these petitions until a decision is made whether they will replace a previously selected petition.

USCIS will send a letter to the wait list petitioners to inform them of their status USCIS expects that for each of these wait-listed petitions, it will either issue a receipt notice or return the petition with fees within six to eight weeks.

– USCIS –

Alert: F-1 OPT to H1B (October 1 2008); Read Carefully!

2008-04-04T14:51:00.000-07:00

To my readers, listen and read carefully - this is good news for many!

For those of you on F-1 OPT but whose 'work auhorization' would have expired prior to October 1, 3008 (if lucky enough to be chosen under the H1b lottery), you may be in luck.

The USCIS announced today that they will extend the OPT for 17 months for certain foreign students.

Please read on:

________________

Questions and Answers: USCIS Announces New Rule Allowing Extension of Optional Training Program for Qualified Students

PRIOR F-1 Regulations Relating to Practical Training:

What is optional practical training?
Optional Practical Training (OPT) is temporary employment that is directly related to an F-1 student’s major area of study. Under existing rules, an F-1 student may be authorized to receive up to 12 months of practical training either pre- and/or post- completion of studies.

Pre-completion OPT:
An F-1 student may be authorized to participate in pre-completion OPT after he/she has been enrolled for one full academic year. The pre-completion OPT must be directly related to the student’s course of study. Students authorized to participate in pre-completion OPT must work part-time while school is in session. They may work full time when school is not in session.

Post-completion OPT:
An F-1 student may be authorized to participate in post-completion OPT upon completion of studies. The post-completion OPT must be directly related to the student’s course of study.

What is the application process to participate in pre- or post-completion OPT?
Students must initiate a request by having their Designated School Official (DSO) recommend the OPT by endorsing Form I-20 and by making the appropriate notation in SEVIS, the system used to track F-1 academic students.
Students then file Form I-765, Application for Employment Authorization Document (EAD), with USCIS. If approved, the student will be issued an EAD.
The student may begin engaging in pre- or post-completion OPT once an application has been approved and an EAD has been issued.

How many students stand to benefit from today’s announcement?
There are approximately 26,000 students on OPT that have earned a bachelor's, master's, or doctorate in a STEM field. ICE and USCIS estimate that approximately 12,000 will take advantage of the STEM extension. Some of these students will be selected for an H-1B to start October 2009. Others may choose to continue their education, while some will depart the United States.
We estimate another 10,000 students will benefit from the automatic "cap gap" extension.

What is the maximum duration of post-completion OPT?
Under the new rule, certain students will be eligible to receive a 17 month STEM extension of post-completion OPT.

Do the periods of pre-completion OPT count against the available periods of post-completion OPT?
Yes. All periods of pre-completion OPT are deducted from the available periods of post-completion OPT.

Are there fees associated with filing for extended OPT?
Yes. USCIS charges $380.00 when an applicant files an I-765 for optional practical training.

Current H-1B/Cap Gap Regulations for F-1 Academic Students:

What is the H-1B cap?
The cap is the Congressionally-mandated limit on the number of individuals who may be granted H-1B status during each fiscal year. For FY08, the cap is 65,000.

What is the cap-gap?
Cap-gap occurs when an F-1 student’s status and work authorization expire in the current fiscal year, before they can start their approved H-1B employment in the next fiscal year beginning on October 1. An F-1 student in a cap-gap situation would have to leave the United States and return at the time his or her H-1B status becomes effective at the beginning of the next fiscal year.

How does cap gap occur?
Many employers file H-1B petitions on behalf of F-1 students after their post-completion OPT expires. An employer can not file, and USCIS could not approve, an H-1B petition submitted earlier than six months in advance of the date of actual need for the beneficiary’s services or training.
As a result, the earliest date that an employer can file an H-1B petition for consideration under the next fiscal year cap is April 1, for an October 1 employment start date. If that H-1B petition and the accompanying change of status request are approved, the earliest date that the student may start approved H-1B employment is October 1.

Consequently, F-1 students who are the beneficiaries of approved H-1B petitions, but whose periods of authorized stay (including authorized periods of post-completion OPT and the subsequent 60-day departure preparation period) expire before October 1, must leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status.

What are the current cap-gap regulations?
Current regulations address the cap gap by authorizing an extension of the student’s authorized stay, but they do not extend the student’s employment authorization. This extension was not automatic, which meant that a notice had to be published in the Federal Register announcing the extension.
When this Federal Register notice was published, the student’s authorized stay was extended, but not the employment authorization. This means the student can remain in the United States until October 1, when the approved H-1B employment can begin, but cannot work until then.
If a Federal Register notice is not published, the student must leave the United States, apply for an H-1B visa, and seek readmission to the United States in H-1B status.

How is the cap-gap situation changed under the interim final rule?
F-1 academic students on post-completion OPT maintain valid F-1 status until the expiration of their OPT. Once that OPT has ended, they are authorized to remain in the United States for up to 60 days to prepare for departure.
This cap-gap extension automatically becomes effective when the H-1B cap has been reached and the student has an H‑1B petition filed on his/her behalf during the acceptance period.
If the H-1B petition filed on behalf of the student is not selected during the acceptance period, the automatic extension terminates when USCIS announces completion of the random selection on its public web site.
If the H-1B petition filed on behalf of the student is selected during the acceptance period, the student may remain in the United States and continue working until the October 1 start date indicated on the approved H-1B petition. The student may benefit from this provision only if he/she has not violated his/her status.

What is covered and clarified under the interim OPT Rule?
F-1 academic students may now apply for post-completion OPT 90 days before their academic programs end and no later than 60 days after their academic programs end.
This allows F-1 students seeking post-completion OPT to apply during their 60-day departure preparation periods, in the same way that they are allowed to apply for H-1B status during their departure preparation periods.
This allows students to ensure that they meet graduation requirements before applying for post-completion OPT.

Is there additional post-completion OPT available to students in the high-tech industry?
F-1 academic students who receive science, technology, engineering, and mathematics (STEM) degrees and who receive an initial grant of post-completion OPT, may apply for a 17-month extension for a maximum of 29 months of post-completion OPT.
This gives U.S. businesses two chances recruit these highly desirable graduates through the H-1B process.

Who is responsible for the development of the designated list of STEM degrees?
The STEM Designated Degree Program List is based on the "Classification of Instructional Programs" developed by the U.S. Department of Education's National Center for Education Statistics.

What are the eligible STEM degrees?
To be eligible for the 17-month OPT extension, a student must have received a degree in one of the following fields:
Computer Science Applications Life Sciences
Actuarial Science Mathematics
Engineering Military Technologies
Engineering Technologies Physical Sciences.

The STEM degree list is posted on the ICE website in the Related Links section of this page.
What are the eligibility requirements for the 17-month extension of post-completion OPT?
The student must have a bachelor’s, master’s or doctorate degree in a STEM field.
The employer must be enrolled in E-Verify.
The student must apply on time (at least 90 days before the current post-completion OPT expires).
What is the E-Verify program?
The E-Verify program is an internet-based system operated by USCIS, in partnership with the Social Security Administration (SSA).
The E-Verify program currently is the best means available for employers to determine employment eligibility of new hires and the validity of their Social Security Numbers.
E-Verify electronically compares information contained on the Employment Eligibility Verification Form I-9 with records contained in SSA and DHS databases to help employers verify identity and employment eligibility of newly-hired employees.
Is there a cost associated with employers participating in the E-Verify program?
No, E-Verify is a free, easy to use web-based system available to employers and in all 50 states, the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands.
What is the application process for the 17-month STEM extension?
The student files Form I-765 with USCIS, Form I-20 endorsed by the DSO, a copy of the STEM degree, and the required application fee.
Form I-765 is being amended to require the student to indicate the degree and provide the employer’s E-Verify information.
Students who timely file their STEM extension applications with USCIS may continue working while their applications are pending for 180 days or the date of the decision, whichever date is earlier.
This interim extension minimizes disruption in the student’s employment and also ensures that employers will conduct the necessary employment eligibility re-verification.
What must a student do after being granted the 17-month STEM extension?
The student must report to his or her DSO (by email, within 10 days) any change in:
Legal name;
Residential and mailing address;
E-mail address;
Employer name;
Employer address;
Job title or position;
Supervisor name and contact information;
Employment start-date; and
Employment end-date
The student must also report to his or her DSO every six months (by email), confirming the information listed above; even if there have been no changes.
The requirement to report continues if the student’s 17-month STEM extension is extended further by the automatic cap-gap extension.

AC21 Portability and You: Moving Around after 180 Days

2008-03-30T15:00:00.000-07:00

To My Readers:

The below USCIS Memo is still the ultimate in understanding how the Immigration Service looks at 'porting' under AC21, that is, leaving ones job and sponsor - who filed a visa petition on one's behalf, to take another job (but before the individual has obtained PR status).

The Service and Congress decided that if one was in the last stages of obtaining permanent resident status (plus 180 days), one could leave one's petitioning employer to go to a job in the "same or a similar" job category with another employer - and not lose one's right to obtain his/her 'green card'.

It was clear that Congress decided that at some point these individuals must have 'free reign'.

In my opinion, this was Congress' way of helping to 'fix' a broken immigration system, but that is another blog (and I've been there, done that). Reforming or immigration system that is so out of step with reality, the global nature of things today - and competing in such a world, our broken educational system... is not really possible. A total recall is in order.

Back to the issue of porting and helping readers understand what is written below. The most important thing is that porting is possible and no one should feel forced to stay with a petitioning employer after 180 days after the I-485 is filed.

On my own cases, where I know the file was put together properly, that the merits are all in order, in my mind 180 days mean 180 days. If USCIS could artificially delay the porting somehow - thus changing the timeframe mandated by Congress then it would have no meaning.

The memo, however, suggests just that - and most practitioners still advise clients, I believe erroneously, that they must "wait" until the underlying employment-based visa petition (submitted on form I-140) is approved.

Is it prudent to wait? In situations where a meritorious RFE (Request for Evidence) may ensure, yes. Does the Memo lead one to believe that one should fear one's employer (after leaving them to 'port') can refuse or fail to respond to an RFE issued by the Service - and thus sabotage one's future immigration? I think the memo suggests that the Service has no alternative and I understand this. But if one's I-140 petition has merit and was properly prepared by qualified and experienced immigration counsel, I don't think there should be a problem (and them Memo overreaches). That is just my opinion.

Most non-citizens fear the Immigration Service as they should naturally fear any authority; however, truth has strength too - and can be a very, very powerful weapon itself. Everyone should remember that.

The Memo:

____

To: REGIONAL DIRECTORS

SERVICE CENTER DIRECTORS

From: Michael Aytes

Acting Director of Domestic Operations

Date: December 27, 2005

Re: Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313)

This memorandum serves to reissue the prior guidance of May 12, 2005 without change except to clarify the answer to question 1 in Section I. The entire reissued memorandum, with the clarification, follows:

Purpose

The purpose of this memorandum is to provide field offices with interim guidance on:
(1) Processing Form I-140 petitions and Form I-485 applications in connection with the I-140 portability provision of §106(c) of AC21;

(2) Adjudication of H-1B petitions in connection with the 7th year extension provisions of §106(a) of AC21;

(3) Adjudication of H-1B petitions in connection with the 7th year extension provisions of 104(c) for aliens subject to per country visa limitations; and

(4) Adjudication of H-1B petitions in connection with the H-1B portability provisions of §105 of AC21;

This interim guidance will only be in effect until regulations that are currently in progress are published as a final rule. The proposed rule may take a more restrictive position than this memorandum. Please note that the Adjudicator’s Field Manual (AFM) will not be updated at this time.

Prior AC21 Guidance

􀂃 On January 29, 2001, the Office of Field Operations issued a memorandum entitled "Interim Guidance for Processing H-1B Applications for Admission as Affected by the American Competitiveness in the Twenty-First Century Act of 2002, Public Law 106-313."

􀂃 On June 19, 2001, the Office of Programs issued a follow-up memorandum entitled "Initial Guidance for Processing H-1B Petitions as Affected by the American Competitiveness in the Twenty-First Century Act (Public Law 106-313) and Related Legislation (Public Law 106-311) and (Public Law 106-396)."

􀂃 On February 28, 2003, the Immigration Service Division issued a memorandum entitled “Procedures for concurrently filed family-based or employment-based Form I-485 when the underlying visa petition is denied.”

HQPRD 70/6.2.8-P20 Massachusetts Avenue, NW
Washington, DC 20529

Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313)

Page 2

􀂃 On April 24, 2003, the Office of Operations issued a memorandum entitled “Guidance for Processing H-1B Petitions as Affected by the Twenty-First Century Department of Justice Appropriations Authorization Act (Public Law 107-273).”

􀂃 On August 4, 2003, the Office of Operations issued a memorandum entitled “Continuing Validity of Form I-140 Petition in Accordance with Section 106(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21).”

All of these memoranda remain in effect and this memorandum supplements the existing guidance.

New AC21 Guidance

New issues and questions in connection with I-140 portability cases and H-1B cases have arisen since the previous guidance memoranda were issued. Implementation of the provisions of AC21 have been further complicated by the interim rule published on July 31, 2002, allowing, in certain circumstances, the concurrent filing of Form I-140 and Form I-485. Previous Service regulations required an alien worker to
first obtain approval of the underlying Form I-140 before applying for permanent resident status on the Form I-485.

This guidance is intended to address those questions and issues. This memorandum is divided into four separate sections, establishing guidelines and interim procedures for use by USCIS personnel:

􀂃 Section I - Processing of Form I-140 petitions and Form I-485 applications when there is a question of eligibility for I-140 portability benefits under §106(c) of AC21.

􀂃 Section II - Processing of H-1B petitions where there is a question of eligibility for an H-1B extension past the 6-year limit under §106(a) of AC21.

􀂃 Section III - Processing of H-1B petitions where there is a question of eligibility for an H-1B extension past the 6-year limit under §104(c) of AC21 (aliens subject to per country limitations).

􀂃 Section IV - Processing of H-1B petitions where there is a question of the affect of H-1B portability under §105 of AC21.

I. Q & A ON PROCESSING OF I-140 PETITIONS AND I-485 APPLICATIONS UNDER THE I-
140 PORTABILITY PROVISIONS OF §106(C) OF AC21

Question 1. How should service centers or district offices process unapproved I-140
petitions that were concurrently filed with I-485 applications that have been pending
180 days in relation to the I-140 portability provisions under §106(c) of AC21?

Answer: If it is discovered that a beneficiary has ported off of an unapproved I-140 and I-485 that has been pending for 180 days or more, the following procedures should be applied:

A. Review the pending I-140 petition to determine if the preponderance of the evidence establishes that the case is approvable or would have been approvable had it been adjudicated within 180 days. If the petition is approvable but for an ability to pay issue or any other issue relating to a time after the filing of the petition, approve the petition on it’s merits. Then adjudicate the adjustment of status application to determine if the new position is the same or similar occupational classification for I-140 portability purposes.

B. If a request for additional evidence (RFE) is necessary to resolve a material issue, other than post-filing issues such as ability to pay, an RFE can be issued to try to resolve the issue. When a response is received, and if the petition is approvable, follow the procedures in part A above.

Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313)

Page 3

Question 2. How should service centers or district offices process unapproved I-140
petitions that were concurrently filed with I-485 applications that have been pending
180 days and a Request for Evidence (RFE) has been issued?

Answer: If a response to an RFE is received, and the response does not adequately address the issues, or the response is simply that the beneficiary no longer works for the petitioner, or a response is not received at all, and the petition still cannot be approved:

A. Deny the petition on the merits of the case; and

B. Deny the I-485 and the portability request since there was never an approved petition from which to port.

Question 3. What is “same or similar” occupational classification for purposes of I-140 portability?

Answer: When making a determination if the new employment is the “same or similar” occupational classification in comparison to the employment in the initial I-140, adjudicators should consider the following factors:

A. Description of the job duties contained in the ETA 750A or the initial I-140 and the job duties of the new employment to determine if they are the “same or similar” occupational classification.

B. The DOT code and/or SOC code assigned to the initial I-140 employment for petitions that have a certified ETA 750A or consider what DOT and/or SOC code is appropriate for the position for an initial I-140 that did not require a certified ETA 750A. Then consider the DOT code and/or SOC code, whichever is appropriate for the new position to make a determination of “same or similar” occupational classification.

C. A substantial discrepancy between the previous and the new wage. (See Question 5 of this section for further clarification).

Question 4. Should service centers or district offices use a difference in geographic location of the employment in the approved labor certification and initial I-140, and the new employment as basis for denial in I-140 portability cases?

Answer: No. The relevant inquiry is if the new position is the same or similar occupational classification to the alien’s I-140 employment when considering the alien’s new position and job duties and not the geographic location of the new employment.

Question 5. Should service centers or district officers use a difference in the wage offered on the approved labor certification and initial I-140, and the new employment as basis for denial in adjustment portability cases?

Answer: No. As noted above the relevant inquiry is if the new position is the same or similar occupational classification to the alien’s I-140 employment. A difference in the wage offered on the approved labor certification, initial I-140 and the new employment cannot be used as a basis of a denial. However, a substantial discrepancy between the previous and the new wage may be taken into consideration as a factor in determining if the new employment is “same or similar.”

Question 6. Can multinational managers or executives classifiable under 8 USC
203(b)(1)(C) avail themselves of AC21 §106(c) (8 USC §204(j)) portability benefits even where the alien changes to a new job as a manager for an unrelated company? Can
“same or similar” for multinational employees mean employment with an unrelated
company?

Answer: Yes, multinational managers or executives can avail themselves of portability benefits where the alien changes to a new job as a manager or executive even for an unrelated company. However, there may be factual circumstances where such aliens cannot benefit from porting (i.e. where the job Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313)

Page 4

duties are vastly different, so that that the new position is not in the same or similar occupational classification as the I-140 employment).

Question 7. Should service centers or district offices request proof of “ability to pay” from successor employers in I-140 portability cases, in other words, from the new company/employer to which someone has ported?

Answer: No. The relevant inquiry is whether the new position is in the same or similar occupational classification as the alien’s I-140 employment. It may be appropriate to confirm the legitimacy of a new employer and the job offer through an RFE to the adjustment applicant for relevant information about these issues. In an adjustment setting, public charge is also a relevant inquiry.

Question 8. Can an alien port to self-employment under INA §204(j)?

Answer: Yes, as long as the requirements are met. First, the key is whether the employment is in a "same or similar" occupational classification as the job for which the original I-140 petition was filed.

Second, it may be appropriate to confirm that the new employer and the job offer are legitimate through an RFE to the adjustment applicant for relevant information about these issues. Third, as with any portability case, USCIS will focus on whether the I-140 petition represented the truly intended employment at the time of the filing of both the I-140 and the I-485. This means that, as of the time of the filing of the I-140 and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate.

Question 9. Must a successor employer in an I-140 portability case provide a new labor certification?

Answer: No. There is no requirement that successor employers in adjustment portability cases obtain a new labor certification for those occupations traditionally requiring one. AC21 also provides that any underlying labor certification also remains valid if the conditions of §106(c) are satisfied. The
beneficiary of an approved labor certification may benefit from it although the alien seeks to adjust on the basis of different employment.

Question 10. Should service centers or district offices deny portability cases on the sole basis that the alien has left his or her employment with the I-140 petitioner prior to the I-485 application pending for 180 days?

Answer: No. The basis for adjustment is not actual (current) employment but prospective employment. Since there is no requirement that the alien have ever been employed by the petitioner while the I-140 and/or I-485 was pending, the fact that an alien left the I-140 petitioner before the I-485 has been pending 180 days will not necessarily render the alien ineligible to port. However, in all cases an offer of employment must have been bona fide. This means that, as of the time the I-140
was filed and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate.

Question 11. When is an I-140 no longer valid for porting purposes?

Answer: An I-140 is no longer valid for porting purposes when:

A. an I-140 is withdrawn before the alien’s I-485 has been pending 180 days, or

B. an I-140 is denied or revoked at any time except when it is revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days.

Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313)

Page 5

Question 12. Can the 180 days that an I-485 application must be pending for I-140
portability eligibility accrue during a period when visa numbers are unavailable?

Answer: Yes. The fact that a visa number becomes unavailable after the filing of the I-485 application does not stop the number of days required for I-140 portability eligibility from accruing.

Question 13. Does the alien’s priority date change as a result of porting under §106(c) of AC21?

Answer: No. The priority date continues to be determined at the time of the initial labor certification filing with the Department of Labor or at the time the initial I-140 immigrant petition is filed with USCIS (in cases where no labor certification is required).

Question 14. Must the alien have a new offer of employment at the time the I-485 is being adjudicated under the I-140 portability provisions?

Answer: Yes. The alien cannot still be looking for “same or similar” employment at the time the I-485 is being adjudicated under the adjustment portability provisions. The alien must be able to show there is a new valid offer of employment at the time the I-485 is adjudicated.

II. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE EXTENSION PROVISION OF
§106(A) ALLOWING EXTENSION PAST THE H-1B 6 YEAR LIMIT

Question 1. When an alien would otherwise be eligible for an H-1B extension, is it necessary to first file a Form I-129 requesting an extension of time to allow the beneficiary to complete or nearly complete the initial 6 years, and then file an additional Form I-129 requesting an extension of time beyond the 6 years?
Answer: No. Section 106(a) of AC21 allows an alien to obtain an extension of H-1B status beyond the 6-year maximum period, when:

A. 365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or

B. 365 days or more have passed since the filing of an EB immigrant petition.
Once these requirements have been met, the alien may be granted an extension beyond the 6-year maximum on or prior to the date the alien reaches the 6-year maximum. Such extensions may only be granted in one-year increments, but may be requested on a single (combined) extension request for any remaining time left in the initial 6-year period. Requiring the filing of two extension petitions merely increases petitioner and CIS workloads, and has no basis in statute. In no case, however,
may the total period of time granted on an extension exceed a cumulative total of 3 years. 8 CFR 214.2(h)(15)(ii)(B)(1).

Question 2. How early can a request for an H-1B extension beyond the 6th year be filed?

Answer: The April 24, 2003 guidance memorandum is modified in the following manner: a petitioner must establish that the above criteria (see Question 1 outlining requirements under Section 106(a)) were or will be met either on or before the requested start date on the H-1B extension application. Thus, an alien is eligible for an extension of H-1B status beyond the 6th year as long as either the qualifying labor certification application or I-140 petition has or will have been pending for at least 365 days prior to the alien’s requested start date, regardless of whether the H-1B extension application was filed prior to the passage of such period If the alien would no longer be in H-1B status at the time that 365 days from the filing of the labor certification application or immigrant petition has run, thus leaving a gap in valid status, then the extension of stay request cannot be granted.
Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313)

Page 6

Question 3. Are there cases where an alien, who has been granted an H-1B extension
beyond the 6th year, will nonetheless only be allowed to remain for the 6-year maximum period of stay?

Answer: Yes. As addressed in the April 24, 2003 guidance memorandum, USCIS is required to grant the extension of stay request made under section 106(a) of AC21, in one-year increments, until such time as a final decision has been made to:
A. Deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification;

B. Deny the EB immigrant petition, or

C. Grant or deny the alien’s application for an immigrant visa or for adjustment of status. If at any time before or after the filing of the single (combined) extension request a final decision is made on the above-stated grounds, the beneficiary of the extension request will not be entitled to an extension beyond the time remaining on his or her 6-year maximum stay unless another basis for exceeding the maximum applies.

Question 4. In a labor substitution context, can both the original alien and the substituted alien apply for an H-1B extension beyond the 6-year limit based on §106(a) of AC21?

Answer: No. Only the “current” beneficiary (meaning the alien that was most recently substituted into the labor certification) is eligible to get an H-1B extension beyond the 6-year limit.

Question 5. Does a timely and non-frivolous I-140 appeal pending at the AAO allow an alien to request an H-1B extension beyond the 6-year limit?

Answer: Subject to regulatory modification, as long as a decision may be reversed on direct appeal or certification to the Administrative Appeals Office (AAO), USCIS will not consider that decision final for this purpose.

Question 6. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification was filed over 365 days ago, has been approved, but the I-140/I-485 has not yet been filed?

Answer: No. Until further guidance is published, a request for an H-1B extension beyond the 6-year limit should not be denied on the sole basis that an I-140 petition has not yet been filed.

Question 7. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification or immigrant petition from an employer who is not the H-1B petitioner was filed for the beneficiary more than 365 days ago?

Answer: No. The statute does not require that the labor certification or immigrant petition must be from the same employer requesting the H-1B extension.

Question 8. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification or the immigrant petition was filed over 365 days ago, but the H-1B nonimmigrant intends to consular process rather than adjust status?

Answer: No.

Question 9. Are H-4 dependents eligible for an H extension beyond the 6-year limit?
Answer: Yes. H-4 dependents are eligible for an extension of their H-4 status beyond the 6-year limit provided they meet the H-4 requirements and based on the principal (H-1B) alien’s eligibility for an H-1B extension beyond the 6-year limit. This includes cases where the dependent may have held another status prior to becoming an H-4 dependent. However, in order to qualify for an H-1B Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313)

Page 7

extension beyond the 6 year limit year of their own H-1B status, the alien must meet all the requirements independently of their H-1B spouse’s eligibility for a 7th year extension.

Question 10. What are the guidelines for processing 7th Year Extensions with the
implementation of the new DOL PERM Program?

Answer: Guidance on this subject will be provided via separate memorandum.

III. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE “ONE-TIME PROTECTION
UNDER PER COUNTRY CEILING” PROVISION OF §104(C) ALLOWING EXTENSION PAST
THE H-1B 6-YEAR LIMIT

Question 1. Must an alien be the beneficiary of an approved I-140 petition in order to qualify for extension of H-1B status beyond the 6-year limit based on §104(c) of AC21?

Answer: Yes. Consistent with prior USCIS guidance on this subject, an approved I-140 petition is required in order for an alien to qualify for an extension of H-1B status beyond the 6-year limit under § 104(c).

Question 2. If an alien qualifies for an extension past the H-1B 6-year limit under §104(c), may an extension be granted for a period of up to three years?
Answer: Yes, provided all other H-1B statutory and regulatory requirements are met (e.g., the petition must request three years, and include a Labor Condition Application covering such period).

Question 3. If an alien qualifies for an extension past the H-1B 6-year limit under §104(c), may more than one extension be granted?

Answer: Yes. USCIS recognizes that in some cases, because of per country visa limitations, it may take more than three years for the alien to be eligible to adjust. Thus, despite the reference to a “onetime protection” a qualifying alien may be granted more than one extension under this provision.

IV. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE H-1B PORTABILITY
PROVISIONS

Question 1. Can an H-1B temporary worker “port” under §105 of AC21 (INA § 214(n)) from one employer to another even after the alien’s I-94 or last approved petition has expired as long as he or she is still in a “period of stay authorized by the Attorney General”?

Answer: Yes. Under certain circumstances, an H-1B alien may still be able to port to another H-1B employer even after the alien’s I-94 or last approved petition has expired. In order to port, however, such alien must meet all the requirements of INA § 214(n), including the requirement that the new petition be filed while the alien is in a “period of stay authorized by the Attorney General.” USCIS has previously determined and issued guidance explaining what constitutes a “period of stay authorized by the Attorney General.” One example would be:

Alien is in H-1B status. Employer A timely files a non-frivolous extension of the alien’s H-1B status. Alien’s original petition, approved for Employer A, expires during the pendency of the extension. Alien is then in a “period of stay as authorized by the Attorney General” while Employer A’s extension is pending. Employer B then files new petition and alien wants to port to Employer B. Under INA § 214(n), the alien should be permitted to port because he or she is in a
“period of stay as authorized by the Attorney General.” In other words, porting under INA §214 does not require that the alien currently be in H-1B status as
long as he or she is in a “period of stay authorized by the Attorney General.”
Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313)

Page 8

Question 2. Can there be successive H-1B portability petitions filed for an alien while the previous H-1B petitions remain pending (i.e. creating a “bridge” of H-1B petitions)?

Answer: Yes. However, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay.

Question 3. If successive H-1B portability petitions can be filed, what happens if an alien’s nonimmigrant status expires while the H-1B portability petitions are pending and a petition in the “bridge” is denied?

Answer: As stated above, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay. In the event the alien’s nonimmigrant status has expired while the petitions are pending, the denial of any filing in the string of extension of stay and/or change of status filings undercuts the “bridge” that “carried” any petition
filed after the expiration of any approved status which will result in the denial of the successive requests to extend or change status.

* * * * *
Questions regarding this memorandum may be directed through appropriate channels to Service Center Operations.

Now that the H1B fiasco is over.....

2008-03-30T14:08:00.000-07:00

I asked people on LinkedIn what they thought about an upcoming Immigration Article. My LinkedIn Question asked readers about their experience or thoughts on Employee Retention. It could have been subtitled: IMMIGRATION: A BROKEN SYSTEM - Will We (THE USA) Go Down with the Ship?

______ Here is my response to one email.

Paul M. Heller, Esq. wrote:

Hi Dimitrios,

Of course what you said was very perceptive (and we are in 100% agreement); it is very sad that this country is, and has been, headed the way of the British Empire and Rome - but I do believe we are fighting an uphill battle against our own politics (too bad only US citizens vote).

Xenophobia always thrives in bad economic times (really since 1999), i.e., scapegoats and the concept of 'devil' have been around forever, and it also arises when 'McCarthyism' raises its ugly head. I coined the term "New McCarthyism" after 9/11 - but it really hasn't been picked up yet.

But I think that it isn't just "bad economic times"; it is globalization and an economic and seismic shift that we aren't prepared for (and still don't fully understand). It is easily defended against not by closing or tightening immigration but by changing our country's immigration policy to attract those that we need "to innovate" and compete in a global market for a brighter and better future.

The "best and brightest" still want to come to this country if it affords them the opportunities and freedoms often lacking in other cultures. At this point in time we have an unbelievable 'closed door' policy (that makes absolutely no sense - except to U.S. politicians who are voted in and out of office and who feel there role in this society is to keep their job!

Fear is a powerful tool of the powerful and often used by those who govern over the governed. It is a sad time that we live in. Everyone is waiting for a true Statesman (man/woman) to arrive on the scene.

Email me directly and we will then be e-Connected; thanks.

Best,

p

On 3/30/08 8:51 AM, Dimitrios Goranitis wrote:
--------------------
Hello Paul,

I would like to reply privately to this if you dont mind.

I am a european union citizen (greek), but I spent 5 years in New York where I got my MBA and then worked for Bear Stearns and UBS. Even though I understand the problem US faces with immigration I would expect a different treatment towards low risk countries and I would call them low risk in terms of low possibility to pursue permanent stay in the US. I find two basic flaws in the current situation:

- First of all, more strict laws block human capital traffic creating a non competitive HR market. The consuquence for that would be less effective firms and finally a less effective economy.
- Second, such laws restrict the choices an expat has in terms of employment (it was clear that only a big bank and not a boutique could sponsor my visa...) and also restrict negotiating power of the employee (based on sponsoring my visa, each bank could force me to comply with its terms of employment - money, ttile)

There is an urban myth that becomes more and more intense that immigrants steal jobs from citizens, and that myth has been used as a toy in the hands of politicians in several societies. Upon this myth, politicians take measures that hurt economy and restrict its growth. Simply put, if I make money in the states, I spend it in the states and I pay taxes, feeding the economy, which expands and creates more employment opportunities.

This is my view of the situation. I hope it helps.

Best,

Dimitrios

Question Details:
--------------------
Writing an Article on U.S. Immigration Law - Employee Recruitment & Retention: The Good, Bad & Ugly.

View question - Respond to Paul M. Heller, Esq.
LinkedIn Answers
• View question

• Respond to Paul M. Heller, Esq.

Great News on the Immigration Front: USCIS revises FBI Name Check Policy!

2008-02-07T14:13:00.000-08:00

USCIS Revises Name Check Policy.

This is great news!

The USCIS previously required that the FBI name check clearance be obtained before any immigration benefits applications were approved, regardless of the length of time required for the FBI name check approval.

This has led to many frustrated clients (often brilliant scientists) that often have been waiting for years.

Now the USCIS has issued this new policy, which essentially says that they'll wait 180 days for a clearance - and if the case is approvable it will be granted! This is the USCIS' way of forcing the FBI to do its job.

As an aside, this has been a long time in coming. Let's all cross our fingers for more!

_________________

"Where the application is otherwise approvablc and the FBI name check request has been pending for more than 180 days, the adjudicator shall approve the 1-485,1-601,1-687, or 1-698 and proceed with card issuance. The FBI has committed to providing FBI name check results within this timeframe."

FEB4- 2008

HQ 70/23 & 70/28.1

Interoffice Memorandum

TO: Field Leadership

FROM: Michael Aytes

Associate Director, Domestic Operations

SUBJECT: Revised National Security Adjudication and Reporting Requirements
Background

U.S. Citizenship and Immigration Services (USCIS) conducts background checks on alt
applicants, petitioners, and beneficiaries seeking immigration benefits. This is done both to enhance national security and to ensure the integrity of the immigration process. USCIS has previously mandated that FBI name checks be completed and resolved before any positive adjudication can proceed on certain form types. This memorandum modifies existing guidance for applications where statutory immigration provisions allow for the detention and removal of an alien who is the subject of actionable information that is received from the FBI or other law
enforcement agencies after approval of the application. USCIS is issuing revised guidance in response to recommendations of the DHS Office of Inspector General (OIG-06-06) regarding the need to align the agency's background and security check policies with those of U.S. Immigration and Customs Enforcement (ICE). The
Background and Security Investigations in Proceedings Before Immigration Judges and the Board ofImmigration Appeals regulations prevent immigration judges and the Board of Immigration Appeals (BIA) from granting benefits to aliens before DHS confirms that all background and security checks have been completed. See 8 C.F.R. § 1003.47(g); 8 C F R. § 1003.1(d)(6)(i). In the context ofremoval proceedings, ICE has determined that FBI fingerprint checks and Interagency Border Inspection Services (IBIS) checks are the required security checks for purposes of the applicable regulations. In the unlikely event that FBI name checks reveal actionable information after the immigration judge grants an alien permanent resident
K?5 ??iLmay detain and initittt0 remoya proceedings against the permanent resident. See 8 U.S.C. § 1227; see also 8 U.S.C. § 1256 (allowing DHS to rescind an alien's adjustment of status).

WWWUUClLgOV

LINKEDIN QUESTION: NEVER EXPECTED SUCH A RESPONSE!

2008-01-24T21:51:00.000-08:00

I am a member of the business networking site Linkedin (http://linkedin.com); I now have almost 1200 'connections' and am very gratified that so many people willingly link to me and want to be in my network.

Today I posted a Question on Linkedin about the H1b lottery coming up in April. I was astonished that almost immediately I received several comments attacking me for helping foreigners take away American's jobs.

Below is my response to one such email:

_________________________

Hi John,

I’m interested in your views. Call me. (THIS WAS MEANT TO CALM THE GUY DOWN...)

For your information, the clients and companies that I deal with – no, I do not represent the Indian type recruiting companies, cannot find the skill sets and senior people they need, and as a last resort may turn to an H-1b type employee (but I assure you it is not their first choice). No company in their right mind would do so. However, within my clients, the wages paid at least here in Silicon Valley are generally $90k - $120k for this type of talent pool of software type engineers (higher if they come from an Agency).

I have two very good friends, one from UC, an American, and a Scientist at NASA, the other his girlfriend, also American, who works at SRI, a MIT PhD and Stanford grad too, both of whom rail against the unfair competition of the evil foreigners taking jobs away from American citizens. I believe that attitude is more reflective of personal fears for their own job security in bad economic times than any reality of ‘abuse’ often alleged.

If a company is willing to pay the ‘prevailing wage’, don’t you think they should be able to hire whomever they choose (and for a variety of reasons)? Should the government force them to hire American? Do we want a government official to decide that the American offered is ‘sufficiently’ qualified, thereby forcing the U.S. employer to hire someone they choose not to? On its face, that scenario is absurd and contrary to a market based, private sector, economic system (unless I’m mistaken).

Generally, I don’t like the Government involved in my affairs (personal or otherwise). And I am not a Republican!

Best,

p

_______________________________
Paul M. Heller, Esq. (Founder/Principal)

Heller Immigration Law Group, LLP

2479 E. Bayshore Rd., Suite 709
Palo Alto (Silicon Valley), CA 94303

A Silicon Valley-based law firm specializing in family and employment-based immigration, offering corporations a fixed monthly retainer fee option.

Toll-Free: 1/800 863-4448; Int'l/Local: 1/650 424-1900; Fax: 1/415 276-9099

Email: heller@greencard1.com; http://greencard1.com

Blackberry/Cell: 1/650 799-0123

Heller Blog: http://blog.hilglaw.com

YM: paulhilg; GoogleTalk: hilglaw

"Best and Brightest": Let's Keep Them Here!

2008-01-24T07:28:00.000-08:00

Dear Readers,

I thought you might find the below article interesting. Our Presidential hopefuls should 'listen' carefully to the story told.

It is about one individual, an Indian national, who did come here (circa 1993) as a young and brilliant graduate of one of India's most prestigious academic institutions - only to obtain hiS PhD and go on to start 6 U.S. companies. Eventually he obtained his U.S. citizenship.

His message? Today, fewer "best and brightest" want to come here!

Read on...

____________________________________

First Published in Forbes Magazine in early 2007..

Letter From Silicon Valley
Silicon Valley's Immigration Problen

____________________________________

Reposted Article:

If you could choose between starting a high-tech career in India or the U.S., which would you pick?

Indian immigrant Rosen Sharma opted for the U.S. in 1993 and has done extraordinarily well here. But if he were just coming out of college these days, he says, he would pick India. The business opportunities are better, he says, and quality of life issues are at least as good: Nice housing? Schools? Safe streets? The chance to feel prosperous on a young engineer's salary? India is holding its own just fine against the U.S., he believes.

Sharma's answer is unnerving. A big part of the U.S. tech boom over the past 20 years has come from our ability to pull in the best and the brightest from India, Taiwan and other Asian countries, year after year. We've taken it for granted that these talented immigrants want to come here and that they will help the next generation of American start-ups achieve greatness.

But Sharma's perspective demands our attention.

In 1993, he says, after graduating with flying colors from the Indian Institute of Technology in Delhi, Sharma headed straight for the U.S. So did most of his classmates. Of the 40 people in Sharma's graduating class at IIT Delhi, he says, all but three came to the U.S.

It was a smart move for him and a great deal for the U.S. Sharma earned a Ph.D. from Cornell University and has since started more than a half-dozen companies--building products, generating revenue, rewarding investors and creating jobs. Now he sits on five company boards and runs his own start-up, SolidCore Systems, in Palo Alto, Calif.

The U.S. is home to Sharma now. He's applied for U.S. citizenship. He's raising his children here. He wants the U.S. to be an engine of innovation, for U.S. companies to build sought-after products and to generate good returns for workers and shareholders.

But Sharma, who is president of the IIT Delhi Alumni Association, says the next generation of Indian engineers are unlikely to feel the way he does: Last year, only 10 of the 45 IIT graduates who went through the same program Sharma did decided to pursue jobs in the U.S., he says.

If this represents a trend, it will have significant consequences for the U.S. AnnaLee Saxenian, now dean of the School of Information at the University of California, Berkeley, has devoted years to tracking the impact of immigrant entrepreneurs. Along with researchers at Duke University, she reported in January that foreign-born immigrants helped start one of every four U.S. technology start-ups over the past decade. Together, those companies employed 450,000 people and generated $52 billion in sales in 2005, according to the study.

As America staggers toward the next national election, we'll hear plenty of slogans about making the U.S. "more competitive." Candidates will debate tax policies and vow to fix our public schools. Chances are you won't hear them talking about making the U.S. more receptive to ambitious graduates from overseas. But they should.

But take another look at my first question: It doesn't just apply to foreign nationals. If you're a bright young person born in the U.S., where should you begin your career? In this country or abroad?

"Overseas," asserts Sharma--but this time, for positive reasons. In order for U.S. companies to be competitive, to serve the largest number of customers and build the most suitable products for customers all over the globe, they will need executives who have broad global experience.

Students are already sensing this trend: Several months ago, when I spoke to business school students touring Silicon Valley about job prospects, many said they were actively considering international opportunities, too.

It sounds like a contradiction--that the U.S. should continue to try to try to woo the best and the brightest from overseas even as homegrown emerging stars seek their fortunes outside our borders. But in a world where competition is truly global, that kind of exchange program makes sense--particularly if those Americans eventually return home and help build stronger companies.

National Interest Waivers: The Untold Story!

2008-01-23T01:15:00.001-08:00

Heller Immigration Law Group, LLP (http://greencard1.com), and our staff, are extremely adept and highly successful at expeditiously putting together and then filing EB2/NIW cases for advanced degreed professionals, or those who possess exceptional abilitiy in the sciences, arts, or business.

There is some confusion about eligibility under this category, and this is the reason for the blog, here it is:

1/ Contrary to what is often said, an applicant does not need international fame, or renown; we have many I-140 approvals of individuals whose recognition is limited to their own home country; that is, it is perfectly OK and acceptable that one's fame does not extend beyond one's own border!

Of course, HILG - on behalf of the client - must still convince the USCIS that giving such an individual a green card will benefit the United States and will truly be in the U.S. "National Interest".

2/ Letters of reference and advisory opinions that we receive (and often redraft) attesting to the applicant's exceptional ability do not need to come from U.S. sources at all. Each and every one can be from individuals or entities that are within the applicants own country - and even written in one's own language!

As stated, HILG can file these NIW cases for those that are presently here in the United States, and except for Indian and Chinese citizens (who have a backlog in the EB2 category), we may proceed directly to filing an adjustment of status of the principal and all dependent family members through concurrent filing procedures.

The entire family will be eligible for work authorization and be given authority to travel abroad (EAD and AP).

FOR THOSE WISHING TO IMMIGRATE FROM ABROAD:

If the individual is outside of the United States, please notify us and we will ask you for certain documentation, including completing a Questionnaire, and sending us a CV/Resume. Once we establish eligibility, HILG will immediately send out an Engagement Package. We will then put together the case with your help, and then directly file the I-140 (NIW) petition with the USCIS.

After the Approval is received, the case will proceed to Visa Processing at the appropriate U.S. Consulate - and soon thereafter the obtaining of immigrant visas for the entire family.

It should be noted that these cases will almost always be filed with the USCIS under self-petition rules and there is no need for an immediate job offer (often a stumbling block for those living abroad with very little contact with the United States).

Even the lack of English skills is not a stumbling block. However, we caution our many NIW clients who we self-petition from abroad that within a reasonable time after entering with their green card, the individual should expect to and truly seek employment in one's specialized field.

For more information, please contact me: heller@greencard1.com

H-1b Cases Need to be Filed Now: Why is our Gov't doing this to us?

2008-01-19T12:33:00.001-08:00

Let's talk about alternatives to capped H-1b filings - and, more importantly, why we are in the mess we are in. These cases should be filed no later than April 1, 2008 (for any chance to receive one of these visas).

"Capped exempt" cases do not have to participate in the lottery coming up, because individuals previously accorded H-1b status, or who are presently working under this status, are exempt from the upcoming quota. However, new H-1b cases are capped at 65,000 per year, with an additional 20,000 for those with a U.S. "advance degree". The foreign equivalent, even with a proper credential evaluation, will not allow an applicant to utilize one of these special visas.

The situation described, each year running out of H-1b visas, and going into a lottery situation, is a disaster for this country and our technology companies especially.

Although Silicon Valley continues to function, and the entrepreneurial spirit here persists despite our country's, and really the world's, economic woes, thre is no question in my mind that our broken immigration system (yes, let's just talk about legal immigration), and the Government's total inattention to the extraordinary needs of American business to hire and/or keep what I call "the best an brightest", is inexcusable.

Whether the the pundits and so-called experts finally realize that we are now in a recession (something the 'average citizen' could have easily called), the fact remains that there are still no new H-1b visas available. These visas, often called temporary "work permits" for professionals, and the employers that use them, will not be alloted or be able to be used until the beginning of fiscal year 2009 - which begins 10/1/2008!

If one speaks to HR Directors and Engineering Managers, CEOs, Venture Capitalists, and the many other Executives and Managers who are responsible for our 'innovative' and cutting edge industries, there is a huge shortage of highly technical and skill U.S. workers, most apparent in the 'high tech' sector.

But it is not just a shortage of highly skilled scientists, academics, and PhD engineers that is killing our economy. Our companies also need to import and staff positions of lesser high technology and other workers - including skilled programmers and software engineers. This workforce too is in short supply in the United States.

Our colleges are filled with exceptional foreign students, as are our graduate schools. U.S. citizens generally do not go into the sciences, but seek MBAs ad Law degrees. Forcing these exceptional individuals home to compete against is just lousy immigration policy. Let's at least give them an option to stay here (and become part of our local economy). I'm not even mentioning the extraordiary foreign citizens who are interested in coming here to work.

To force companies to wait one year to even apply for an H-1b prospective employee, and then not even be guarantee the workforce they need (remember there is a lottery), it is no wonder more and more companies are giving up and off-shoring their talent pool.

Yes, there is a globalization aspect to the phenomenon, but it is, contrary what one might read, a situation too often forced by necessity, ignorance, or just plain "stupdity".

One must ask, why is our Government doing this to us?

Cont'd....

An Immigration Solution: Not bad for a Politician...

2008-01-13T12:19:00.000-08:00

Watching the Sunday cable news shows I came across Rudy Guiliani, the Presidential candidate from NYC ("the country's mayor"). Of course, I do not like his silly attempts to exploit 9/11, but I do think he's a smart guy. I don't want to get into politics here, or in the blog itself (maybe later); let it just be said that I am a registered independent, socially progressive, "progressively conservative", but really I just have a strong 'independent' bent that avoids being categorized (pretty much I don't like government or anyone to tell me what I should do or think). My mother, now deceased, was a Stanford 'Limo Liberal' who pretty much listened without critique or skepticism to NPR. In her mind, I was some sort of "right winger" (nothing, of course, could be further from the truth). However, I love ideas, and concepts, and therefore, god (small 'g') forbid in her mind ... I watched Fox news! It's not interesting to listen to those one agrees with. Well, in her mind, and in Palo Alto where I was born and raised, a Republican was automatically a racist, sexist, stupid, evil... (and you would certainly never associate yourself with 'that kind'). I'm not a Republican, nor have I ever been one, but the idea of small government, markets, low taxes, no IRS (ad valorem tax), liberatarianism, "no nation building", religious freedom, all appeal to me. It's to bad that the party of Lincoln was taken over by the religious right and the neo-cons who seem to have forgotten their own party's roots. The Democrats? I personally think that there is a huge amount of hypocricy on both sides, but I'd say more from the Democrats. Show me a poor Democrat (who hasn't already made it - whatever that means). To me, let them give away their own fortune first, show me their tax returns so I can verify that they've done so, then ask others to... The phrase itself is an Oxymoron. Of course, the Republicans have their own hypocricy. How can one be for personal freedom, free markets, low taxes, capitalism, free enterprise, then be for a war that costs the national a trillion dollars? Rail against "nation building" in Yugoslavia (under Clinton), then for it in Iraq? Philosophically it is the party for less government, for less government involvement, for personal privacy, and "State's Rights", less Federalism, but then we watch them constantly propose and have a strong legislative agenda (different, mind you; different constituencies) that does its best to invade that same personal privacy, and citizen's freedoms (to be free of an over zealous government). What is that about? Of course, the Democrats do the same thing. Have their own interest groups that they fight for. Did I talk about Religion? Why are our Politicians, both on the left and the right, talking about Christianity in the Presidential race? Explain that again? OK, there's so much more to say but I'll stop here for now.

Immigration and Guiliani? The purpose of this blog? Yes, that's why it is called a blog... you can meander. Give me a few hours...

An Immigraton Solution: Continued...

2008-01-13T12:17:00.000-08:00

Ok...back to the Sunday shows and what Rudy had to say about immigration. It is highly unlikely that I'll vote for him but the fact that someone out there in "la la land" is actually speaking somewhat intelligently and thoughfully about immigration issues gives me hope. Could the press or other candidates actually pick up on it (not likely, but who knows).

Essentially, Rudy's the only candidate that I've seen or heard that has actually thought about the issue or has advisors who have - and can actually articulate it quite well. When I hear John McCain talk about the subject (and he's actually authored and tried to push through comprehensive immigration reform!), I wonder if he has any real idea what he is talking about. The other Presidential candidates are just engaging in either demogagory or mouthing nonsense (that they were given) and have absolutely no understanding of the issue - on both sides of the isle.

RUDY'S PLAN (OR HOW HE WOULD PROCEED):

1/ Nothing happens (and I agree to a point) until the borders are secured (high tech and low tech - a fence). He understands that no matter what program is agreed upon, any immigration reform, comprehensive or otherwise, will be a magnet for a new wave of illegals to come in if this doesn't really occur.

2/ At present, and then after the border is secured, he wants to focus on and catch and deport criminal aliens (legal and undocumented) who remain; this too makes sense.

3/ That leaves those otherwise law abiding illegals, ok... undocumented. Let's get them to come forward, give them the ability to drive, pay taxes, get insurance, buy homes, educate their children/themselves, and make certain they learn English. He argues they should pay a fine, and be given time to "get in line" and become citizens, but in the back of it. And no, it would be silly to make them leave the country. This is his mind, and I agree, is not Amnesty. He says amnesty is "just giving them a green card". Oh yes, those that don't come forward probably have their reasons so they to should be deported.

4/ The basis for the above is practical; he knows that we cannot deport 12 or more million people. He argues that for government to actually do something (as opposed to talking about it), the problem must be attacked realistically and be manageable. I couldn't agree more. So why not concentrate on criminals?

But in the end none of the above will or can happen until the borders are secure and the public is convinced that is the case.

IS LEGAL IMMIGRATION BEING LEFT BEHIND?

ARE WE LOSING OUT TO OTHER COUNTRIES?

SHOULD A MODERN IMMIGRATION POLICY BE ABOUT BRAINPOWER?

ALLOWING THE "THE BEST AND THE BRIGHTEST" TO COME AND STAY?

WHAT ABOUT BRAWN? THE LOW SKILLED WORKER?

SHOULD WE CONSIDER BOTH?

MAYBE WE SHOULD PROTECT AMERICAN JOBS AND SHUT DOWN IMMIGRATION PERIOD?

Just some of the questions I'd like comments on.... more soon.

Filing a new H-1b Case: Are there alternatives?

2008-01-13T10:16:00.000-08:00

Dear Readers,

With the 2009 H-1b lottery fast approaching, and the need to get these matters properly prepared before the end of March 2008, I advise my clients (both individuals and companies) to get their cases to me now.

I ask the HR Directors, or other human resource staff, to gather up a spreadsheet of all company employees with some sort of immigration status (especially those on F-1 OPT), and to speak with Hiring Managers about any potential employees they are now interviewing and seriously looking at - and may want to offer a position to. I'll want to see the CV/resume as well. For example, if the individual has a U.S. advanced degree, there are additional H-1b visas available for them (20,000). It is imperative that I find out the nationality/birthplace of the individuals as this too is an important consideration. Are they Australian (E3 eligible)? From Chile or Singapore (H1b1)? Canadian or Mexican professionals (TN)?

This process has other advantages for HILG's company clients as well. It allows me to get into a new or renewed dialog with HR, often with the CEO or CFO, about the consequences of ignoring immigration as a matter of "policy"; I see it differently. I see it as an issue of employee retension. And my attitude is adamant. Too often I see companies "playing games" with an employee who long ago should have had their immigration status adjusted over to permanent residence, or at least should have begun the process. This is a huge mistake. More on this next......

H-1B Cases - Get Ready Now

2008-01-07T12:28:00.000-08:00

Heller Immigration Law Group, LLP, and many immigration law firms, is beginning to prepare for filing new H-1b cases in late March 2008. In fact, we've started taking on new cases for 3 months now. Because of the volume of cases, we utilize INSZoom case management software, which is a comfort to clients who are given a 'login' code so that they can follow the progress of their cases.

Whether HILG is retained by an HR/corporate client or the individual him/herself, the H-1b petitioner will always be a validated and 'bona fide' company.

The concept behind H-1b is pretty straightforward. First, the petitioner/employer must be a legal entity, that is, a valid and verifiable business; it must have a tax or federal id number, employees, and be solid financially (to convince USCIS that it can actually pay the proferred wages). It does not have to be a large or formal 'inc' corporation and can even be organized as a sole proprietorship or partnership. USCIS, however, frowns upon anything that looks like "self-employment".

Another thing that can cause USCIS to take a closer look at a case is the appearance of what has become known as "speculative employement". Athough there is nothing in the statute or regulations that allow the USCIS to go there, they can and do (and if the issue is missed by the USCIS at this end, often it will come up at the US Consulate when a beneficiary of an approved H-1b petition is applying for his/her visa). I recommend that one avoid this type of job offer. In my experience such a job offer is usually associated with IT contracting type companies (willing to offer an H-1b position to an individual domestically or abroad but expecting that once on board pursuant to an H-1b approval he/she will find an IT 'project').

In fact, under the rules, one cannot be 'benched' even for a short period; the employee must be paid a salary which is consistent with the LCA filed with the U.S. Dept. of Labor and which is posted on the company premises.

Finally, it should be remembered that the duties and responsibilities offered must be described in such detail that the USCIS is convinced that the position involves a "specialty occupation", which is immigration/legal speak for a professional level job. Almost always this will be a job that requires a specialized bachelor's degree, or higher, or the foreign equivalent, even for entry level. Specialty occupations include: teacher, engineer, accountant, scientist, financial analyst, lawyer, MD, graphic artist, historian, and many others.

The term "Prevailing wage" is also a term of art. Generally, the lawyer involved makes certain the wage offered meets this requirement by utilizing the OES (a DOL salary survey for all occupations). And unlike a green card situation, an employer can hire and petition for the professional employee of their choice!

More on H-1b, and alternatives, shortly.

What's likely to happen immigration-wise in 2008?

2008-01-03T11:53:00.000-08:00

It is clear to this blogger, and most other experts in the field, that comprehensive immigration reform will not happen this year, certainly not until the election year 'poli-bickering' is over.

However, the idea of some reform, in piecemeal form, is not unlikely. Here are some thoughts:

1. The public still demands the focus to be on enforcement. So I don't foresee that this political need, or cover, will diminish in the near term at all. I predict we will continue to hear anti-immigration soundbites certainly until the November 2008Presidential Election.

2. If the Congress feels that the public is otherwise distracted by the inflammed and xenophobic rhetoric, then they may get on with actually making progress on immigration, including a/ creating some sort of guest worker/low skill program; and, b/ adding more visas to the H1b category (for higher skilled workers). The nurse shortage should also be addressed.

3. Regarding any sort of amnesty for those illegally here, I don't see that happening. I cross my fingers that Congress will deal with the undocumented, but don't hold your breadth.

4/ I think "our" representatives will concentrate more on a silly border fence, and even more importantly, and seriously, on creating a workable "employer verification system" mandated by earlier immigration legislation. This system, of course, would not work without a true national identity or smart card issued to everyone, including US citizens - and I wonder whether this is palatable with the American public.

5/ As things stand now, employers hiring anyone must utilize the I-9 form with serious penalities imposed for any discrimination. This provision was put in the law as being necessary to avoid employers only asking for documents from those that "don't look American". For the new system to work the employer must be able to verify everyone's document instantly. This means not only must we all be in the computer system, but that the system actually works....hmmm?

Back to ground zero - no immigration progress? Maybe.

In conclusion:

The best way to deal with this mess is to understand that we are all tracked anyway, so let's get on with it! I personally don't have a problem with a national identity or smart card myself and I think the public is changing too. In fact, the new U.S. passport is a smart card.

As stated, anyone with a U.S. passport, or who leaves and enters the country is.....tracked! Use a credit card, buy a airline ticket, groceries, or gas? Tracked. Does the U.S. government have a secret database? No one really knows. You get the picture. Privacy IS really a thing of the past.

Let's not even go there...you guessed it - the web!

An Incredible Article by Intel's Craig Barrett - Repost.

2007-12-28T09:44:00.000-08:00

Dear Readers,

Below I wanted to repost an Article written by Craig Barrett, Chairman of Intel Corp, published in the Washington Post. I couldn't have said it better.

The direct link is: http://tinyurl.com/3cammo

Read below:

Best,

p

_________________________________

By Craig Barrett
Sunday, December 23, 2007; B07

The European Union took a step recently that the U.S. Congress can't seem to muster the courage to take. By proposing a simple change in immigration policy, E.U. politicians served notice that they are serious about competing with the United States and Asia to attract the world's top talent to live, work and innovate in Europe. With Congress gridlocked on immigration, it's clear that the next Silicon Valley will not be in the United States.

European politicians face many of the same political pressures surrounding immigration as their U.S. counterparts, and they, too, are not immune to those pressures. Nationalist and anti-immigrant factions in several Western European countries have made political gains in recent elections and are widely viewed as mainstream. Despite the hot-button nature of immigration issues, though, E.U. politicians advanced the "Blue Card" proposal in late October.

The plan is designed to attract highly educated workers by creating a temporary but renewable two-year visa. A streamlined application process would allow qualified prospective workers to navigate the system and start working in high-need jobs within one to three months.

This contrasts starkly with the byzantine system in place in the United States, which increasingly threatens America's long-term competitiveness.

The United States relies primarily on two programs to augment its workforce with highly educated, highly skilled foreign professionals. The H-1B visa is a three-year temporary visa that can be renewed once. The employment-based (EB) green card is the program for permanent residency. Both programs serve the needs of U.S. employers seeking to fill job vacancies in highly skilled professions. Extreme shortages of visas in both these programs are well documented.

H-1B visas, which are capped at 85,000 per year, are now gone in one day, with the "winners" determined by lottery.

The EB green card program has an annual allotment of 140,000 visas; these are allocated equally across all countries around the world, regardless of population. The inflexible country quotas mean that professionals from countries such as China and India are almost always at a disadvantage, finding themselves stuck in a system -- often for five to 10 years -- in which they cannot seek promotions and raises. Spouses and children count against the quota, which has not been raised since 1990. And even though they count against the quota of foreign workers allowed to come here, spouses are inexplicably forbidden to work, no matter their level of education and skill.

The U.S. system forces thousands of valuable foreign-born professionals -- including badly needed researchers, scientists, teachers and engineers -- into legal and professional limbo for years. Not surprisingly, many are considering opportunities in competitor nations -- even those who have lived in the United States for years and have graduated from American universities.

To be competitive in the global economy, U.S. companies depend on specialized talent coming out of U.S. graduate schools. These scientists and engineers are often foreign-born, as more than half of U.S. engineering master's students and PhD recipients are international students. Yet America shuts the door on many of these highly educated graduates, forcing them to look abroad for opportunities -- and our competitors are capitalizing on our failed policies.

E.U. leaders recognize that the top minds coming out of universities in the United States and other countries can help to reinvigorate European industry and enable it to create the next wave of businesses that drive innovation and economic growth.

While its Blue Card proposal still requires approval by member countries, Europe has sent a message. It intends to aggressively pursue the professional talent necessary to compete on the global stage. The United States, on the other hand, seems intent on driving away the very same talent the European Union is rolling out the red carpet to welcome.

The writer is chairman of Intel Corp., which employs about 2,000 employees with H-1B visas among its 86,000 workers worldwide.

© 2007 The Washington Post Company

The Presidential Candidates: Why they don’t care about Immigration?

2007-12-19T14:01:00.000-08:00

Dear Readers,

This is a simple and straightforward question. And the answer is quite simple. No. Why?

First and foremost, non-citizens don’t vote. Although President Bush sought the Hispanic vote for the Republican party by pushing comprehensive immigration reform, he didn’t come to grips with or understand the ability of ‘anti-immigrant’ advocates and radio/tv personalities to mobilize people to want the deportation of 20 million illegals. They also appealed to the “we must shut down our borders immediately” types. Except for Nativists such as Patrick Buchanan who want a “pure” America, few are against legal immigration - but most voters in the country are willing to wait to deal with our broken system until the problem of illegal immigration has been handled; of course, few seem to understand that the solution of illegal immigration inevitably involves and is tied to “comprehensive reform”, that is, taking away the incentive to come here illegally.

All that said, why are our politicians against even talking about immigration? The answer is simple. I’ve been practicing immigration law, mostly on the employment-based side, for over 25 years. Our economy and this anti-immigration wave of rhetoric are tied together. When good, immigration is off the table, when we are in a recession, or the economic realities are perceived in trouble by citizens, then “here it goes again”. Nothing really changes. Each time we are in a down cycle, recession or not, we look for a scapegoat. Immigrants are that scapegoat. Many years back it was the Jews who emigrated from Eastern Europe, the Italians, the Irish during that same time period. Ellis Island and all that. Now it is the low skilled Mexicans crossing the border in search of jobs, as well as the Indian and Chinese H-1b Engineers needed here in Silicon Valley. Besides the refrain “They are taking our jobs!”, I now hear “Terrorists”. It is McCarthyism all over again.

Again, how does this answer the question? You got it! Yes, immigrants, legal and illegal, don’t vote. Politicians have one major job, and that is to get re-elected (and they think of that all the time). And that is why you hear virtually nothing about immigration from them. They don’t want to lose. Period.

Death of Petitioner: What is the effect?

2007-12-18T21:54:00.000-08:00

Dear Readers,

The below case, although not a precedent decision - that is, the USCIS does not have to follow it in all jurisdictions (but probably will!), is still important.

The Court in its wisdom showed compassion on an immigrant beneficiary and also exhibited 'common sense', a rare commodity. The USCIS is not known for showing compassion or having common sense. Such behaviors must be imposed on them, like was done here.

The real point is that maybe the USCIS in the near future, via 'memo', from Michael Aytes or another memo-issuing 'head', will change it's policy to summarily deny such petitions and require lawyers like this one do our best to ask for "humanitarian consideration".

Well, we must wait and see...

_______________________________
Paul M. Heller, Esq. (Founder/Principal)

Heller Immigration Law Group, LLP
2479 E. Bayshore Rd., Suite 709
Palo Alto, CA 94303
__________________________

Massachusetts District Court Holds Widow Remains “Immediate Relative”
Cite as "AILA InfoNet Doc. No. 07121762 (posted Dec. 17, 2007)"

This case presents a question of first impression in the First Circuit -- does a properly filed "immediate relative" visa petition lapse upon the death of the immediate relative during the processing period? This case arises out of USCIS’ denial of an "immediate relative" visa petition upon an application for adjustment of status where the petitioner's husband died while the application was pending. The District Court of Massachusetts agreed with the Ninth Circuit’s interpretation of INA Sec. 201(b)(2)(A)(I) in Freeman v. Gonzales holding that an I-130 beneficiary remains an “immediate relative” after death of petitioning spouse and they remanded the case to the USCIS for further proceedings in accordance with their decision. Neang v. Chertoff (Mass. Dist. Ct. Dec. 12, 2007)

King for a Day: An Immigration Solution

2007-12-16T21:16:00.000-08:00

Let's say I became King. What would my immigration policy be?

First, I would not shut down the border, build a fence, nor stop issuing visas to students, tourists, investors, or others. I would likely increase technology and personnel.

More importantly, I would instantly fund, then finish or develop an employer verification and ID system.

Next, I would advise everyone in the country, legal and illegal, permanent residents - "green card holders" and non-immigrants alike, that they have 3 months to sign up for the new ID/verification system and smart card. For US citizens who do not have a new 'smart' passport, or a new smart driver's license, they too must obtain a new ID/verification card - but we might give them a longer time to do so.

Why would anyone 'sign up' and be issued one of these cards? Well, if one is a legal resident or non-immigrant, they'd have no choice - lose their status or be removed. For illegals, this would be their "last chance" to not be removed (in the next phase). Those that do come forward, would not be rewarded with a 'green card', but would be eligible for a smart driver's license, the ability to obtain employment, and have 10 years to find a way to lawfully become a permanent resident and then U.S. citizen, that is, "get in line". Of course, to be eligible for the progam, they must not have been convicted of a serious, or in my mind, any crime, and must agree to learn English. That is, they must have generally behaved themselves. In extraordinary cases where bona fide spouses might be separated, and/or there are U.S. children involved (in an intact family) waivers should be possible for minor past criminal activity. Aggravated or multiple felons, sexual predators, or violent criminals, however, should not under any circumstance be granted waivers.

The concept above is not amensty, it is about cleaning up the present mess, and even more importantly identifying those that will not or cannot sign up and those that enter after a 'sign up' period (for which there will be a huge 'outreach' to make certain everyone in the country is aware of this last opportunity). Of course, those that do not identify themselves will obviously be those that cannot.

Phase two will involve the issuing of IDs, documenting the millions who have behaved (but did indeed enter illegally for work, or did fall into an undocumented status - but otherwise have been good residents), deploying the employer verification system, and identifying and removing everyone else.

This last part of phase two, enforcement, will utilize not only the resources and reach of the Federal government, but local governments too. The computer and verification systems deployed with employers will also be tied into local police, state, city and other administrative entities (IRS, banks, SSA, Highway Patrol, etc.) as well.

I envision those entering the US as non-immigrants in the future (with the intent to depart) to check in at kiosks with their smart ID and then do so periodically so that they can continue their lawful status, that is, be a foreign student or visitor. If these temporary visitors do not 'check in', they would have their status automaticaly cancelled, and they would be subject to removal.

OK, what about those who do 'get in' (across the border, or do not check in), which is inevitable, and end up in the underground economy or just disappear here?

First, we'll also be constructing a new and better immigration system that will make sense and be realistic to the needs of our economy and business interests. To this end, we'll need a "guest worker program", which will help stem the tide of illegal entry. There is no question that cheap labor is necessary in a successful economy such as ours. For those that don't use the system, or overstay, or enter illegally, or don't go home when they should, they'll more easily be caught and removed - for example, being picked up by local police or the highway patrol. Yes, fewer people will be able to remain "under the radar".

Oh yes, our future lies in innovation, new industries and technologies, so why not make it easy for the world's "best and brightest" to come here (and stay).

Worried about 'Big brother'? It is already here if you have a credit card, buy gas, etc. Should there be oversight to prevent abuses? Of course.

Well, that's my plan. Love to hear about yours.

IMMIGRATION DEBATE: A DYSFUNCTIONAL FAMILY MEMBER..

2007-12-09T12:16:00.000-08:00

I want to spend a few minutes writing about the state of the converstion about immigration in this country, and why, essentially, the debate is non-existent.

As most people know, immigration is a political 'hot potato'. For those that don't
understand this term, it is a child's game where no one wants to hold the "hot" potato very long or they'll get burned, and therefore does his/her best to hand it off to someone else. Few politicians, and I don't know any, want to talk about this issue - either legal or illegal immigration.

Well, what now?

Is it likely that anyone will actually take hold of the hot potato and run with it? Can it be politically clever or smart to do so? I believe it can. Let me explain.

I think it can be brought up if talked about in the right way, in a rational way.

Recently, I wrote a question and sent in a video for the CNN Youtube debate. It wasn't picked - granted I turned it in at the last second, but I thought maybe it had a chance anyway. It was clearly a difficult, pointed, and provocative question that no journalist would ever have the fireballs to ask, but this format cleverly gave cover to such aquestion.

My question was..

Why don't you, and all your fellow Republican candidates, digitally fingerprint and take photo IDs of everyone in the country, legal and illegal, who are not U.S. citizens, issue a smart card/ID to them, thus allowing us to separate and isolate the "good" from the "bad" - and the go after the bad, first? That is, if we immediately create immediately on such a program, only the good would be entired to come forward, leaving the bad naked, exposed, and more easily focused on (and deport). With our limited resources, what would be the harm in approaching this problem in an intelligent way, I asked?

If my question were chosen and asked, I dreamed, it would expose the silliness, the uselessness of the present debate, both in Republican and Democratic circles, and we could actually move on as country to a solution.

I thought 'The Question', if directly asked of them, would shock the politicians into actually thinking, and force a national debate. It would leave behind the idiotic rhetoric, the pure demogaguery that fills our airways and broadcasts now.

Since I could foresee it coming, my video asked the Republican debaters,
specifically, not to talk about Amnesty, because I wasn't speaking to that, nor do I support it.

Anyway, that question was just the tip of the immigration iceburg, so there's much more to say later.

_______________________________
Paul M. Heller, Esq. (Founder/Principal)

Heller Immigration Law Group, LLP
2479 E. Bayshore Rd., Suite 709
Palo Alto, CA 94303

A Silicon Valley-based law firm specializing in employment-based immigration, for corporations seeking fixed monthly retainer fee arrangements.

Toll-Free: 1/800 863-4448; Local: 1/650 424-1900; Int'l: 1/650 424-1900; Fax: 1/415 276-9099

Email: heller@hilglaw.com; www.hilglaw.com (formerly: greencard1.com)

Heller Blog: blog.hilglaw.com

YM: paulhilg

Barack Obama: Hillary & Bill Clinton, Oprah Winfrey....

2007-12-09T10:04:00.000-08:00

Thinking about Barack Obama and the Clintons today, here are my thoughts. First, Hillary Clinton, as well as the former President look old, very old. I think about Communist China, and an election in the future, after democracy takes hold. A former official, a leader, runs for office, maybe several, but there are also some new people on the scene, much younger, inspirational, lighter. Who would get elected? Who would electrify the crowd, the masses? No one in the scenario questions that the new person would sweep the elections. People, whether in this future vision of China, or here now, know that we are 'tired' of the old guard, and want a change. Anyone but.... Looking at it with this perspective, even venerable and beloved Bill Clinton looks old and tired. And Hillary Clinton is no Bill Clinton! Both are desperate, trying to hold on to a past long gone - Bill, with a weight loss that is long to late, Hillary, with her desperation tactics. "So long Bill, so long Hillary, we love you!"

_______________________________
Paul M. Heller, Esq. (Founder/Principal)

Heller Immigration Law Group, LLP
2479 E. Bayshore Rd., Suite 709
Palo Alto, CA 94303

A Silicon Valley-based law firm specializing in employment-based immigration, for corporations seeking fixed monthly retainer fee arrangements.

Toll-Free: 1/800 863-4448; Local/Int'l: 1/650 424-1900; Fax: 1/415 276-9099

Email: heller@hilglaw.com; www.greencard1.com

Heller Blog: blog.hilglaw.com

YM: paulhilg

Are you LinkedIn?

2007-10-23T16:17:00.001-07:00

Dear readers,

If you haven't heard of it already, LinkedIn is a wonderful networking site for business professionals. I've found it very useful for building business relationships and would be happy to link to you.

P

_______________________________
Paul M. Heller, Esq. (Founder/Principal)

Heller Immigration Law Group, LLP
2479 E. Bayshore Rd., Suite 709
Palo Alto, CA 94303

A Silicon Valley-based law firm specializing in employment-based immigration, for corporations seeking fixed monthly retainer fee arrangements.

Toll-Free: 1/800 863-4448; Local: 1/650 424-1900; Int'l: 1/650 424-1900; Fax: 1/415 276-9099

Email: heller@hilglaw.com; www.hilglaw.com (formerly: greencard1.com)

Heller Blog: blog.hilglaw.com

YM: paulhilg

THE TRUTH ABOUT H-1B VISAS: THE UNTOLD STORY.

2007-10-22T16:19:00.001-07:00

In the October 18, 2007 issue of the Palo Alto Daily News, an editorial opinion piece by Tom Elias presented so many misstatements that I felt compelled to address the issue.

First and foremost, I need to answer the question, what is an H-1b visa? We also need to define the term “specialty occupation“. All such cases filed by employers (large or small) must, by statute, involve a truly professional position. It does not involve “factory workers, low-level draftsman and the like” as Mr. Elias stated. Rather, “specialty occupations” refer to positions which require, at minimum, a specialized Bachelor’s degree or higher. The USCIS defines an H-1b job as one that requires the “the theoretical and practical application of a body of highly specialized knowledge“. The degree of specialization required in the law to qualify for an H-1b visa is such that not even a CEO, Prime Minister, nor a President of the United States, would generally qualify. These individual may need to be highly educated, or talented, but a specific academic degree, or any degree, is not required for successful entry into these fields. By contrast, positions such as CFO, Accountant, Software Engineer, Market Research Analyst, Chemist, Research Scientist, MD, Teacher, Lawyer, would all qualify as H-1b positions.

I do not want to argue that abuse hasn’t’ entered the system, nor that the program itself does not have flaws. However, Mr. Elias makes broad assertions and claims of ‘abuse’. He does not cite facts, but reveals as his source in his column an “unnamed” organization who, he says, has “uncovered” a document which purports to expose “the truth”. This brings to mind McCarthyism of the 1950s, using the tools of scare tactics and ½ truths. In fact, the H-1B program tries to balance the global economic realities, and U.S. companies’ needs, with a strong effort to protect American jobs and wage scale. The Labor Condition Attestation (LCA), required to be submitted by the employer in all H-1b cases, requires that the hiring company offer, at minimum, compensation that meets the “prevailing wage” - using the U.S. Department of Labor’s own wage surveys. Go to: http://www.bls.gov/oes/2000/oes_alph.htm. Employers must also attest in the H-1b petition that they have not laid off similar workers, nor will they, and that they have made a “good faith” effort to find equally or more qualified U.S. workers. My personal experience tells me, with the high USCIS filing fees, legal fees involved, and the need to often ‘premium process’ these cases at an additional $1000 per applicant, U.S. employers do not use the H-1b program unless they truly have a need for these highly-skilled professionals.

In conclusion, to compete in the global marketplace, a reality now for all our U.S. companies, business needs to recruit and find the best and most qualified talent they can, whether American or foreign born nationals. In this time in our history, we cannot close our national gate, nor should we discourage international talent from competing with Americans for jobs. Nor should we limit our companies to only the U.S. market, anymore than we should limit Americans to only U.S. manufactured goods. Of course, unfair competition is unfair, and that is why it makes sense to require a company who employs an H-1b worker to pay, at minimum, the “prevailing wage”. But requiring American companies to hire anything but the best and most talented (whether native born or foreign) just doesn’t make sense. At the same time, there is no argument here that we must also immediately focus on and fix our broken educational system, and do our best as a nation to motivate our young people -- to enter science and technology programs. But until we do, we cannot tie the hands of U.S. business. We must not restrict, but increase the H-1b Program so that we can continue to attract, and then try to keep here, a highly specialized and skilled workforce. In the end, doing so will ultimately benefit every American.

_______________________________
Paul M. Heller, Esq. (Founder/Principal)

Heller Immigration Law Group, LLP
2479 E. Bayshore Rd., Suite 709
Palo Alto, CA 94303

A Silicon Valley-based law firm specializing in employment-based immigration, for corporations seeking fixed monthly retainer fee arrangements.

Toll-Free: 1/800 863-4448; Local: 1/650 424-1900; Int'l: 1/650 424-1900; Fax: 1/415 276-9099

Email: heller@hilglaw.com; www.hilglaw.com (formerly: greencard1.com)

Heller Blog: blog.hilglaw.com

YM: paulhilg

The Social Security ‘Name Checks’; The New McCarthyism

2007-09-05T13:29:00.000-07:00

A few days ago a Federal Judge here in San Francisco issued a temporary restraining order (TRO) preventing the USCIS (DHS) from informing companies of the names of employees whose social security card doesn't 'match'. Under the program the employee must somehow explain any discrepancy or be fired.

On the surface this seems reasonable and fully understandable given that there is a huge demand and flow into the hands of 'illegals' of phony documents. However, this seems to fly in the face of an employer's present obligation under current law. That is, as long as the I-9 is completed and submitted with certain documents, the employer can subject themselves to stiff fines, and even criminal penalties - if they attempt to scrutinize the individual or documents further. This was Congress' way of preventing discrimination because one 'looks foreign'. Obviously, if one looks American (whatever that means!), the employer is less likely to question or be suspicious of the documents submitted to support the I-9.

Now let's get back to the Federal Judge's decision (which is only temporary, awaiting a further Hearing in October).

The one fact that struck me when I read the attempted Appeal is that a large percentage of 'mistakes' are just that—honest mistakes (and can easily be corrected). The fear is that this new requirement is just a tactic to scare away those workers that indeed did use fraudulent documents to get a job here in this country.

I don't think that the TRO will stand. But I do fear discrimination.

MY SOLUTION:

Instead of issuing these 'demand letters', allowing prospective and existing employers "off the hook" from the strong anti-discrimination provisions of the present law, why not put in place a comprehensive system that allows an employer to truly verify each and every worker's right to work? Until that system is in place, leave well enough alone. It should not be up to employers to enforce the law, nor should employees fear their employers! If the IRS or Social Security Administration have clerical or other issues with a card holder, then so be it. Let the two of them deal with it.

I coined a phrase years ago, "The New McCarthyism"; many of you don't remember Joe McCarthy, or don't know who he was. He was a U.S. Senator who made a name for himself by "red baiting", calling anyone he chose to focus on "Communists", everyone fearing that he'd look at them. To avoid the spotlight, people started turning in their friends, not hiring people under suspicion, and the like. He finally attacked the U.S. Army and that was too much. The final nail..."Have you no shame, Senator".

I'm waiting for someone to stand up to what is happening in this country, in this period of "The New McCarthyism", and say "Have you no shame...". Wake up Congress, wake up people...

P

______________________________________
Paul M. Heller, Esq. (Owner/Principal)

New Silicon Valley Office:
Heller Immigration Law Group, LLP
2479 E. Bayshore Rd., Suite 709
Palo Alto, CA 94303

Tel: 1.650.424.1900 x11; Fax: 1.650.276.9099

Email: heller@hilglaw.com; www.hilglaw.com (formerly: greencard1.com)

Heller Blog: blog.hilglaw.com

YM: paulhilg

Employment Based Green Card in 3 Stages

2007-08-22T14:23:00.000-07:00

STAGE 1: Labor Certification (Department of Labor)
Start

Employee, with manager's assistance, forwards to HILG information necessary to begin the case.
Work-up

Employee's information and documents are reviewed and organized.
Attorney performs legal analysis and develops case strategy.
First draft of job notice is sent to employee and manager for approval.
HILG exchanges drafts and consults with the employee and Human Resources Department, and manager until the Human Resources and Manager approves a final job notice.
Preparation

Once the job notice is approved,

Obtain job/wage classification from SWA (State Workforce Agency) (4-8 weeks).
Obtain evaluation of academic degree (if necessary).
Once prevailing wage is received, initiate internal company posting and obtain confirmation (3 weeks).
Employer conducts recruitment (30 days must expire after the required requirement before the application can be filed)
Employer provides recruitment results to HILG
HILG assembles recruitment documentation package to be maintained according to PERM.
Help employee draft and obtain reference letters.
Prepare final form for employee and company.
Prepare company's recruitment letter.· Final check of all documents and letters.
Labor certification application form is filed with DOL.
DOL (Department of Labor)

DOL reviews and adjudicates the labor certification
If approved, DOL returns the application to be signed by the employer and the employee

STAGE 2: Company I-140 Petition (CIS)
Preparation

Once the labor certification is approved, HILG will:

Prepare forms for company.
Assist in preparing the company's employment letter.
Obtain final forms and letter signed by company.
Final check of all documents, forms, and letters.
I-140 application is filed with CIS.
CIS

CIS examines position requirements, determines if applicant meets all requirements, and assigns applicant a preference category.
I-140 application is adjudicated by CIS.

STAGE 3: Employee I-485 Adjustment of Status Application (CIS)
Advance

If not eligible to file with the I-140, HILG tracks priority dates of cases subject to quota.
Preparation

Once an employee has a current priority date, HILG will:

Provide final advice to employee to gather required documents and medical exam.
Prepare final forms for employee and company.
Get final forms signed by employee.
Assemble package with all documentation.
Final check of all documents, forms, and letters.
File I-485 and requests for advance parole and employment authorization documents.
Advance Parole (AP - travel permission)

AP (advance parole) approved and received.
Employee and dependents can now travel outside the US
Employment Authorization Document (EAD)

EADs approved and received for employee and dependents.
Employee's dependents are now authorized to work in the United States
I-485 approved

Employee and dependents are now permanent residents.

_______________________________
Paul M. Heller, Esq. (Founder/Principal)

Heller Immigration Law Group, LLP
2479 E. Bayshore Rd., Suite 709
Palo Alto, CA 94303

A Silicon Valley-based law firm specializing in employment-based immigration, for corporations seeking fixed monthly retainer fee arrangements.

Toll-Free: 1/800 863-4448; Local: 1/650 424-1900; Int'l: 1/650 424-1900; Fax: 1/415 276-9099

Email: heller@hilglaw.com; www.hilglaw.com (formerly: greencard1.com)

Heller Blog: blog.hilglaw.com

YM: paulhilg

What To Do When Your Visa Application Is Denied

2007-08-10T10:15:00.000-07:00

http://www.hilglaw.com/articles/articles29.htm

Please Take A Look At Our Website At http://www.hilglaw.com

People who are applying for non-immigrant (temporary) visas such as a visitor's visa (B1 or B2) or student visa (F1), as well as those applying for permanent immigration, can be found ineligible for a visa based on a variety grounds. For example, the U.S. Consulate may not issue a temporary visa to a single person who does not have a good job or other strong ties to his or her home country on the basis of the notorious section'214(b)'. In other words, the U.S. official reviewing one's application believes that you have not met your legal burden of showing him/her that you will indeed return home after the temporary visit to the United States.

In a case of a s.214(b) refusal, one can simply make a new application with new or better information and supporting documentation showing the likelihood and certainty that the visit is truly temporary. Unfortunately, the dice are cast against 'proving' a negative. A more ominous situation, however, arises when a visa refusal is based on other grounds of excludability such as prior misconduct or other misrepresentation made to the U.S. Consulate and/or Immigration Inspectors at a port of entry. These situations require the filing of a more formal waiver application.

Although the BCIS and Consular Officers have broad discretionary power to grant waivers for people previously found inadmissible, these waivers are not easily obtained, especially when the grounds for excludability are based on prior criminal convictions (including even minor drug offenses), prostitution, public charge concerns, previous deportation and exclusion, material misrepresentation or fraud, and alien smuggling, to mention just a few. One may be surprised to learn from the above list of grounds of ineligibility, that the U.S. government takes what may seem to be even minor misconduct very seriously. Abusing the U.S. system such as attending the public schools, receiving or attempting to receive public benefits, lying to border inspectors about one's intention in the U.S., attempting to change one's visa status too soon after an entry, slight overstaying, and bringing one's children into the U.S. so that they can later change status (which can be interpreted now as 'alien smuggling'), I have found is often done without a serious thought about later consequences.

If your visa application has been denied based on a prior misconduct other than s.214(b), you must first present your request for a waiver in person to a U.S. Consular Officer. The Consular Officer then decides whether to recommend the waiver issuance to BCIS, and BCIS ultimately makes the decision to either approve or deny the waiver. The Consul cannot issue a visa unless the BCIS acts favorably on the waiver request. The processing of waiver applications is not a 'high priority' with the BCIS and may take more than several months.

Please note that when considering a waiver application, the BCIS will consider three factors: the risk of harm to society if the applicant is admitted; the seriousness of the applicant's prior violations or convictions, if any; and the reason for wishing to enter the United States. In addition, the BCIS will look at the passage of time since the ground of inadmissibility occurred. This is called the period of rehabilitation, and the more time that has passed since the incident took place, the more likely BCIS will make a favorable determination.

We are frequently asked what the minimum time is that one should wait before applying for a waiver. There is no definite guideline. A three-year rule of thumb is frequently raised, but each case must be comprehensively reviewed.

Once again, a s.214(b) refusal should not be confused with a Denial, above; it is simply a determination by a Consular Official, based upon facts and documents presented (at a specific point in time), that the officer does not believe the applicant has met one's burden to show that he/she will return home after a temporary visit to the U.S.; it also is an indication the applicant did not meet his/her burden of showing sufficient and strong 'ties' to his/her home country. The applicant may reapply at anytime.

In summary, the best policy is, of course, knowing the law, and burdens to overcome, before applying for a visa, and avoiding any misconduct (in prior trips or visits to the U.S. Consulate or on entry to the U.S.). Ignorance of law is not a defense. One must realize that as a temporary visitor to another country, it is wise to live by the legal boundaries imposed and be careful not to violate the rules. However, if one has already found themselves ineligible for a visa, and for a variety of reasons wishes to reapply, either as a non-immigrant (visitor or student, or in another category), or as an immigrant, professional and qualified legal help must be sought to review one's situation and, if applicable, make a waiver application.

Remember, you can always email us at Heller@hilglaw.com, or call us toll free at (800) 863-4448. We offer consultation free of charge!

_______________________________
Paul M. Heller, Esq. (Founder/Principal)

Heller Immigration Law Group, LLP
2479 E. Bayshore Rd., Suite 709
Palo Alto, CA 94303

A Silicon Valley-based law firm specializing in employment-based immigration, for corporations seeking fixed monthly retainer fee arrangements.

Toll-Free: 1/800 863-4448; Local: 1/650 424-1900; Int'l: 1/650 424-1900; Fax: 1/415 276-9099

Email: heller@hilglaw.com; www.hilglaw.com (formerly: greencard1.com)

Heller Blog: blog.hilglaw.com

YM: paulhilg

Good News, Bad News For Those Dealing With The USCIS

2007-07-24T11:44:00.000-07:00

Dear Blog readers:

Here is the ‘latest’ from the USCIS FAQ (causing even more havoc!).

The good news…

I-485/EB adjustments filed up to and including August 17, 2007 will be allowed to be filed with the pre-July 30 (old) rate of $325 + $70 biometric fee

The bad news..

Those attempting to file an EB Adjustment where no prior PERM/LC or I-140 case was approved, and/or an I-140 petition was at least filed (establishing a priority date prior to August), may not file their case after July 30, 2007 – it will be rejected. The reason: no current ‘priority date’ since all categories are unavailable according to the August Visa Bulletin!

This leaves one week to put together a ‘concurrent’ I-140/EB (EB1 or EB2/NIW) Adjustment filing, which, essentially, is not possible.

Best,

Here’s the FAQ:

Frequently Asked Questions1

Employment-Based Adjustment Applications Filed by Aliens Whose Priority Dates are Current under Department of State July Visa Bulletin No. 107

Q1: Will USCIS reject a concurrently filed EB I-140/I-485 case if it is lacking a required Labor Certification?

A1. USCIS will not accept an I-140 based on a required labor certification application if the approved labor certification application is not submitted in connection with the filing. USCIS will not accept a concurrently filed Form I-485 if the required Form I-140 is rejected for lack of an approved labor certification application.

Q2: Will USCIS reject an application for missing or incorrect filing fees?

A2: Yes, in accordance with standard procedure and applicable regulations, USCIS will reject any filings submitted with incorrect filing fees.

Q3: Will USCIS reject an application for a missing signature?

A3. Yes, in accordance with standard procedure and applicable regulations, USCIS will reject any filings that do not contain required signatures.

Q4: Will a concurrently filed I-140/I-485 be rejected if filed with an incorrect I-140 or I-1485 fee?

A4. USCIS will reject any filings submitted with the incorrect filing fees.

Q5: Where should employment-based adjustment applications be filed?

A5. Forms I-485 may be filed at either the Nebraska Service Center or the Texas Service Center in accordance with the Direct Filing Update issued June 21, 2007.

Q6: What happens if an application is filed at the wrong Service Center?

A6. Forms I-485 should be filed at either the Texas or Nebraska Service Centers. However, through August 17, 2007 only, employment-based adjustment applications filed at the California and Vermont Service Centers will not be rejected and will be relocated to the appropriate Service Center. Filing at the wrong location could result in processing delays.

Q7: Which fees apply to I-765 and I-131 applications associated with AOS applications filed on or after July 30th under the July Bulletin?

A7. The fee of $180 for Forms I-765 and the fee of $170 for Form I-131 will remain in effect for those aliens eligible to file an employment-based adjustment of status application pursuant to July Visa Bulletin No. 107. These fees will remain in effect for all such applications filed between July 17 – August 17, 2007.

Q8: What is the correct fee for concurrently filed I-140s filed between July 30 and August 17?

A8. The new fee applies to Forms I-140, whether or not concurrently filed with an employment-based adjustment application, that are filed on or after July 30, 2007. That fee is $475.

Q9: Will customers eligible to file adjustment applications under July Visa Bulletin No. 107 have the option to pay the NEW filings fees in connection with adjustment applications filed on or after July 30, 2007 and on or before August 17, 2007?

A9. No, customers will not have the option of paying the new filing fees for adjustment applications. USCIS has determined that aliens in employment-based categories filing applications pursuant to July Visa Bulletin No. 107 should be subject to the pre-July 30, 2007 fees as that fee schedule would have applied had aliens been allowed to file throughout the month of July.

Q10: Will USCIS accept employment-based adjustment of status applications under July Visa Bulletin No. 107 if the priority date is August 1, 2007 or later?

A10. No.

Q11: Will USCIS accept adjustment applications under July Visa Bulletin No. 107 if the priority date is before July 31, 2007, but the certification is granted after August 1, 2007?

A11. Yes, USCIS will accept such cases provided they are submitted by August 17, 2007.

Q12: Will USCIS accept concurrently filed I-140s/I-485s filed after July 31 when a labor certification is not required (i.e. priority date is established on or after August 1)?

A12. USCIS will accept properly filed Forms I-140 filed on behalf of aliens with a priority date on or after August 1, 2007; however, pursuant to August Visa Bulletin No. 109, USCIS will reject any concurrently filed adjustment of status applications filed by aliens with a priority on or after August 1, 2007.

Q13: Can applications be filed without a required medical examination report?

A13. Yes. Consistent with its current regulations and practice, USCIS will accept adjustment of applications filed pursuant to Visa Bulletin No. 107 without a completed medical examination. In such cases, USCIS will issue a request for evidence.

Q14: USCIS’ July 17, 2007 press release stated that USCIS would accept applications filed not later than August 17, 2007. Does this mean applications delivered on August 17, 2007 will be accepted but those arriving August 18, 2007 will be rejected?

A14. Yes

Q15: How long will aliens have to wait for their employment-based applications to be adjudicated?

A15. Applicants should monitor the State Department’s visa bulletin to determine whether a visa number is available based upon their individual priority dates. There are annual statutory limitations, thus some aliens may have to wait a significant period of time, perhaps years, before visa numbers become available.

Applications for interim benefits (employment authorization and advance parole) will be processed prior to final adjudication of the adjustment application and in accordance with USCIS standard procedures.

Q16: When will premium processing of Forms I-140 be reinstated?

A16. Premium processing of Forms I-140 has been suspended until further notice. USCIS will publish any updates on the availability of premium processing for Forms I-140 on its website.

Q17: How will USCIS interpret the language of AC21 Sec 104(c) (for three-year H-1B extensions) during a period in which AOS applications could be filed?

A17. USCIS interprets AC21 §104(c) as only applicable when an alien, who is the beneficiary of an approved I-140 petition, is eligible to be granted lawful permanent resident status but for application of the per country limitations. Any petitioner seeking an H-1B extension on behalf of a beneficiary pursuant to AC21 §104(c) must thus establish that at the time of filing for such extension, the alien is not eligible to be granted lawful permanent resident status on account of the per country immigrant visa limitations.

Q18: Will there be any delays in processing applications received as a result of the July 17 notice reopening the filing period for employment-based adjustment applications under the July Visa Bulletin?

A18. Depending on the volume of applications received, there may be some delay in the issuance of receipt notices. Processing times will be updated on the USCIS web site.

Q19: What procedures should be followed when filing an I-485 application based on a pending I-140, when the petitioner has not received a copy of the I-140 receipt notice?

A19. Applicants filing a Form I-485 that does not contain a copy of an I-797 receipt notice for a previously filed Form I-140 are advised to put a brightly colored sheet of paper on top of the filing with the following notice and information:

please continue to check our Immigration blog at our new site at www.blog.hilglaw.com, Our Immigration Blog!

_______________________________
Paul M. Heller, Esq. (Founder/Principal)

Heller Immigration Law Group, LLP
2479 E. Bayshore Rd., Suite 709
Palo Alto, CA 94303

A Silicon Valley-based law firm specializing in employment-based immigration, for corporations seeking fixed monthly retainer fee arrangements.

Toll-Free: 1/800 863-4448; Local: 1/650 424-1900; Int'l: 1/650 424-1900; Fax: 1/415 276-9099

Email: heller@hilglaw.com; www.hilglaw.com (formerly: greencard1.com)

Heller Blog: blog.hilglaw.com

YM: paulhilg

VISA BULLETIN FIASCO III - THE TRUE STORY!

2007-07-24T09:55:00.000-07:00

When I last wrote, I wanted to offer the suggestion that the USCIS (aka Immigration), should make it a statutory policy to continue allowing adjustment of status for anyone here legally. This policy should be extended to include those here in family-based categories as well as those in employment-based categories.

This way, everyone who would eventually be eligible for a green card can formally begin the process. Even though the process would still take years, it would at least allow people to obtain work authorization for themselves and their dependents, be fingerprinted, start the process of security/background checks, and, if eligible, be able to travel outside of the United States under a document called 'advance parole’.

This, of course, is fantasy, but it does make sense.

Consider, are we more secure as a nation by having people here who are not documented the way they should be? Does it make sense to hold people in limbo for years simply because of a Visa Bulletin that doesn't list them as 'current'? Why force people to come up ways to maintain a status just for the ridiculous reason that, years later, when their number does come up, they can adjust?

Why not put them in the process sooner as opposed to later? How does it hurt us?

I’m not talking about ‘illegals’, just folks that are lawfully waiting in line-usually under some contrived “non-immigrant status. Why not start the process of adjustment in anticipation? The system is broken anyway--a fact that is no longer controversial—therefore it makes no sense to use this broken system to determine when a person can begin to be documented.

The same argument applies to those who are married to American citizens, have children born here, but who entered the country illegally and for that reason alone, aren't eligible for adjustment of status.

Previously, there was a law to address that very situation: INA 245(i) allowed those technical violators who would otherwise be eligible to adjust as “immediate relatives”, to pay a penalty fee of $1000 to forgive their illegal entry concurrent with their application to adjust status.

This is much more logical than the irrational distinction Congress makes between those who are here illegally by virtue of overstaying their visas (usually from Europe or Asia), and those who are here illegally by virtue of entering illegally. Under INA 245(A), the former is eligible to adjust to legal status following a marriage to a US Citizen, while the latter, even following a marriage to a US citizen and raising children, are ineligible to adjust because they crossed the border illegally. There is no meaningful difference, and it’s irrational to punish one group and not the other.

This is not to say that everyone should be given amnesty. The real issue should be to identify those that can be put into the system now, even if they aren't immediately eligible for permanent residence, and those that have no basis at all for being here, or even being here in the future.

To end this rant, does it make sense that one can fall in love with a permanent resident alien (green card holder), and yet the system requires that they have to wait up to 3-5 years for 'status', any kind of status?

One must remember, we are talking about husbands and wives not being able to live together, even though a visa petition has been filed and approved. There is no 'status' that allow them to do so under the present system.

The same holds true for beneficiaries of approved PERM/labor certification applications filed by an employer on behalf of an employee they wish to hire. These individuals too, cannot work for the prospective employer until they obtain work authorization through adjustment of status (above); however, most are not eligible to immediately adjust because they must often wait years to do so (under the current system).

If they do not hold H-1b status with the sponsoring employer, they are out of luck.

Of course, I could go on and on, and will in upcoming blogs, but for now I would like to hear your comments (and maybe suggestions).

Alternatively, you can just email me: heller@hilglaw.com

More tomorrow, or early next week; thank you.

Best,

Paul.

_______________________________
Paul M. Heller, Esq. (Founder/Principal)

Heller Immigration Law Group, LLP
2479 E. Bayshore Rd., Suite 709
Palo Alto, CA 94303

A Silicon Valley-based law firm specializing in employment-based immigration, for corporations seeking fixed monthly retainer fee arrangements.

Toll-Free: 1/800 863-4448; Local: 1/650 424-1900; Int'l: 1/650 424-1900; Fax: 1/415 276-9099

Email: heller@hilglaw.com; www.hilglaw.com (formerly: greencard1.com)

Heller Blog: blog.hilglaw.com

YM: paulhilg

VISA BULLETIN FIASCO II, What's Wrong With USCIS?

2007-07-19T12:58:00.000-07:00

Clients have been asking me "what is going on with this 'everybody' can adjust thing?" My answer is that the USCIS is 'broken', meaning that it is a confused governmental agency, with no real funding, i.e., money, but more importantly, no direction or will to act with focus.

There is a 'history' here, a story to tell. Years ago, I'd say about 20 years back, the former INS pretty much told politicians and Congress what was needed in terms of changes that needed be made to the immigration law, and Congress went ahead and gave them what they needed (including funding); the INS proposed regulations, and, even technical corrections (when they needed to), and they were summarily adopted and implemented. Today, the attitude of the USCIS is, "We will not take the lead", "you go first"; we will not act as the experts we are, "you tell us". Therefore, no one is willing to act, or if Congress acts, as they have several times in the past, we end up with ridiculous 'political', often draconian solutions, and the INS/USCIS justs says "ok". Everyone is afraid. Congress won't, and now politically "can't" act - so things are frozen and we are stuck with a broken system that was never meant to work in a totally different environment, under a completely different economy, and labor situation. Of course, the last time we produced engineers, and even scientists, was in the 1950s. Nor can we fulfill the needs of Silicon Valley - Congress woke up for awhile, when they increased the quota for H-1bs, but that is long past.

People, including those in Congress, don't understand that even our 'preference system' was designed with far fewer people wanting to come here. The 'lines' that we have all come to see and experience, the "wait", was never meant to be. Can you imagine anyone telling a PR who marries someone overseas, or for that matter, even someone here, that they must wait 3-5 years to bring their spouse to the country to join them, or allow them to maintain a legal status here? It's absurd and never meant to be - but is a direct result of a broken system that no one is willing to fix.

But here is the point of this 'blog'; what is happening (by accident) now, under the recently 'revised' visa bulletin, that is, allowing everyone, from every country, regardless of the wait, or line, on the employment-based side, to adjust their status (if otherwise eligible), makes alot of sense - and should be continued long past August 17, 2007.

I'd like my readers to comment on this - to see if you know where I am going.

Or just email me: heller@hilglaw.com.

More tomorrow, or early next week; thank you.

Best,
Paul

Immigration Law Blog: What the USCIS Adjustments Mean, July 17th Visa Bulletin Update

2007-07-18T09:34:00.000-07:00

Immigration Law Blog: What the USCIS Adjustments Mean, July 17th Visa Bulletin Update

What the USCIS Adjustments Mean, July 17th Visa Bulletin Update

2007-07-17T15:41:00.000-07:00

http://hilglaw.com/contactus.htm

Please Email us

Dear Readers,

As many of you know, the USCIS issued July Visa Bulletin (#107) on June 12, which made current all employment-based visa numbers, thereby allowing people in those categories to apply for adjustment of status and obtain permanent residency. The USCIS then announced on July 2, 2007—the first day that July Visa Bulletin #107 was to go into effect—that it was reversing its position to make unavailable all employment-based visa numbers. The effect was that all those who thought their number had become current, were ineligible to apply for adjustment of status.

Today the USCIS once again reversed themselves and posted a memo making all those originally eligible under the July Visa Bulletin (#107) to adjust their status between July 17 – August 17, 2007. The effect is that all those originally eligible to adjust their status under the July Visa Bulletin issued June 12, are once again eligible to adjust their status.

On the employment-based side, this means hat everyone who has a PERM approval can currently file their I-140/I-485 petition/application (along with dependent children and spouses). This application is also filed with form I-765 allowed for work authorization and, if eligible, filed with form I-131 for ‘advance parole,’ which allows applicants to travel in and out of the country while their I-485 application is pending.

Also important for many is the ‘portability’ rule in AC21, which allows employees to port (switch) to another job with another company 180 days after the filing of their I-485 application.

Whether you are a company requesting HILG to begin the process of filing I-485 applications or concurrent I-140/I-485 petition/applications on behalf of employees , or an employee who wishes us to file on their behalf (pre or post I-140 approval), please do not hesitate to contact us below. Thank You.

__________

http://hilglaw.com/contactus.htm

Please Email us

___________________

Paul M. Heller, Esq. (Owner/Principal)

New Silicon Valley Office:

Heller Immigration Law Group, LLP

2479 E. Bayshore Rd., Suite 709

Palo Alto, CA 94303

Tel: 1.650.424.1900 x11; Fax: 1.415.276.9099

Email: heller@hilglaw.com; www.hilglaw.com (formerly: greencard1.com)

THE BULLETIN:

Office of Communications

www.uscis.gov

July 17, 2007

Contact: Office of Communications

202-272-1200

USCIS Update: Adjustment of Status Applications, I-485 Adjustment

2007-07-17T15:30:00.000-07:00

USCIS Update
USCIS Announces Revised Processing Procedures for
Adjustment of Status Applications

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced that,
beginning immediately, it will accept employment-based applications to adjust status (Form I-
485) filed by aliens whose priority dates are current under the July Visa Bulletin, No. 107.
USCIS will accept applications filed not later than August 17, 2007.

On July 2, 2007, USCIS announced that it would not accept any additional employment-based
applications to adjust status. USCIS made that announcement after receiving an update from the Department of State that it would not authorize any additional employment-based visa numbers for this fiscal year. After consulting with USCIS, the Department of State has advised that Bulletin #107 (dated June 12) should be relied upon as the current July Visa Bulletin for
purposes of determining employment visa number availability, and that Visa Bulletin #108
(dated July 2) has been withdrawn.

“The public reaction to the July 2 announcement made it clear that the federal government’s
management of this process needs further review,” said Emilio Gonzalez, USCIS Director. “I
am committed to working with Congress and the State Department to implement a more efficient
system in line with public expectations.”

USCIS’s announcement today allows anyone who was eligible to apply under Visa Bulletin No.
107 a full month’s time to do so. Applications already properly filed with USCIS will also be
accepted. The current fee schedule will apply to all applications filed under Visa Bulletin No. 107
through August 17, 2007. (The new fee schedule that becomes effective on July 30, 2007, will
apply to all other applications filed on or after July 30, 2007).
-USCIS

Please Contact: heller@hilglaw.com
We have staff waiting to help you with your I-485 adjustment needs.

US business lobby seeks liberal H1b visa regime to bring in brightest

2007-07-17T11:41:00.000-07:00

Check out this very interesting article about H1B Visas, from the Hindustan Times.

Don't forget to check back for more Immigration News Updates!

Best,
Paul

My Take On Immigration And USCIS

2007-07-16T12:58:00.001-07:00

Hilglaw.com
As the ‘Immigration Doctor’, I am asked to speculate about immigration issues, comprehensive immigration reform (and whether I think it will ever happen), and just give my opinion on the current state of affairs.

First off, no, there is not likely to be the kind of reform that those here illegally, or even legally, want or expect. And, yes, the system is completely and unequivocally broken. It has been now for close to 10 years.

People don’t realize that the USCIS, formerly INS, is cashed strapped. Congress doesn’t give USCIS any monies or funding, per se, and it is the one bureaucracy that deals exclusively with non-citizens (so it has ‘last priority’). Of course, what is ironic is that now that we are in a “War on Terror” and the Immigration Service (now called CIS) ostensibly comes under the Department of Homeland Security, one would think that it would have a strong priority for our Government. But it doesn’t.

This fact has been used by the “right wing”, and even the “left” to slam the current Administration’s efforts to pass comprehensive reform as Amnesty for those that have broken our laws and, of course, and allow in “potential terrorists” that will be truly legalized and infiltrate our country even further and do us harm.

There is some truth to these assertions, and I am certainly not against real enforcement and border security. But damning and confusing those who are attracted here by jobs, who other than breaking ‘status’ laws, or entered illegally - but otherwise have obeyed themselves, with terrorists, is crazy (and is causing us to lose focus).

The job of Homeland Security, and other Security Agencies, including the CIA/FBI, etc, is to truly protect our nation, and to watch for, and kill/arrest/deport terrorists, and those that would harm us; to say the least, it is serious business (and none of the above should not be mixed together).

OK, enough said for now; more on this tomorrow.

Best,
Paul

My Take On Immigration And USCIS

2007-07-16T12:58:00.000-07:00

As the ‘Immigration Doctor’, I am asked to speculate about immigration issues, comprehensive immigration reform (and whether I think it will ever happen), and just give my opinion on the current state of affairs.

First off, no, there is not likely to be the kind of reform that those here illegally, or even legally, want or expect. And, yes, the system is completely and unequivocally broken. It has been now for close to 10 years.

People don’t realize that the USCIS, formerly INS, is cashed strapped. Congress doesn’t give USCIS any monies or funding, per se, and it is the one bureaucracy that deals exclusively with non-citizens (so it has ‘last priority’). Of course, what is ironic is that now that we are in a “War on Terror” and the Immigration Service (now called CIS) ostensibly comes under the Department of Homeland Security, one would think that it would have a strong priority for our Government. But it doesn’t.

This fact has been used by the “right wing”, and even the “left” to slam the current Administration’s efforts to pass comprehensive reform as Amnesty for those that have broken our laws and, of course, and allow in “potential terrorists” that will be truly legalized and infiltrate our country even further and do us harm.

There is some truth to these assertions, and I am certainly not against real enforcement and border security. But damning and confusing those who are attracted here by jobs, who other than breaking ‘status’ laws, or entered illegally - but otherwise have obeyed themselves, with terrorists, is crazy (and is causing us to lose focus).

The job of Homeland Security, and other Security Agencies, including the CIA/FBI, etc, is to truly protect our nation, and to watch for, and kill/arrest/deport terrorists, and those that would harm us; to say the least, it is serious business (and none of the above should not be mixed together).

OK, enough said for now; more on this tomorrow.

Best,
Paul

5 Secrets About The F-1 Students Visa

2007-07-11T11:23:00.000-07:00

http://www.hilglaw.com/articles/articles23.htm

The following article was originally published in the Beijing Youth Daily (March 14, 2000), following U.S. Consul General David Hopper's speech at Peking University. This article can also be found at the U.S. Consulate's website. His speech addressed the five secrets of obtaining a U.S. student visa. We reproduce this article because it is of interest to HILG clients wishing to study in the U.S.
"Five Secrets of Applying for a U.S. Student Visa"

Last Tuesday afternoon Consul General David Hopper, the head of visa operations at the American Embassy, came to Peking University with three other visa officers to explain the "secrets" of applying for a US student visa, and were welcomed by the students. They will go to Qinghua and People's University in the near future.

In the past, visa officers have seemed rather mysterious and cold. They hold the power to grant or deny you a visa -- they say yes and you get a visa, they say no and you are rejected. There is nothing you can do about it; separated from them by a glass window, you cannot make busy officials stop and listen to your explanation. This time the Americans came out from behind their glass wall to talk to students face to face, and the officials' friendliness was immediately apparent.

What questions do visa officers have in mind when they face a student applying for a visa? Here is the gist of what Mr.Hopper explained:

1. Are you a genuine student, headed to the US for the purpose of studying? Some applicants use fake documents, or have no real intention of attending college in America -- the whole project is just a ruse to get to the US. The officers look closely at I-20 forms, diplomas and school records for evidence of fraud.

2. Can you pay for your studies? Some applicants have full scholarships, but many are self-supporting, in whole or in part, so the visa officer must make sure the money is available.

3. Are you really going to America to study and only to study, not to work? (The problem here is work after graduation, not part-time campus jobs while the student is in an academic program.) Do you intend to leave the US when you have your degree? Of course this is quite difficult to prove to the visa officer, and correspondingly difficult for the visa officer to judge. But the visa officer cannot simply ignore U.S. visa law, which states that if you give a person a student visa, you must be convinced that he intends to leave the US when his studies are finished.

How do we assure ourselves that the applicant has such an "intention"? First of all, we listen to what you say. The visa officer will try to move you away from prepared speeches. We need to know what your answers are, not what someone else advised you to say. What is your career plan? Why are you going to America? What do you plan to study there? What plans do you have for after graduation?

We know how difficult it is for a student to have a clear idea of what he means to do after receiving his US diploma. If you are not sure, just tell us you are not sure. The admission will give greater credibility to your other answers. We are not looking for certainty, but for evidence that you've given serious thought to the matter: Do you have a plan or ambition of some sort? Is it believable in the Chinese context? If you tell us that you mean to study a subject that appears of no use in China, then what are we to think? But if you can explain how what you learn will be useful in China in the years to come, that will help you to qualify for a visa.

Another thing we look at is your current situation in China. What family do you have here -- and abroad? What do your parents do for a living? Do they occupy positions in government, industry, commerce or education from which they can assist you when you return from America?

We are also interested in your family's financial situation. If your family can afford to send you to the U.S. to study and are doing well in China, we are likely to believe that you too will prosper after you come back. On the other hand, if your family has no money and you are borrowing thousands of dollars to finance your U.S. education, it will be more difficult to persuade us that you intend to come right back to China after finishing your studies. Where are you going to get the money to repay those loans?

There is no one thing that determines whether we grant a visa or not. We consider all the factors in coming to what we hope is a sound decision. We don't claim that our decisions are perfect. We work fast because we have to: interview time is necessarily short. But we always try to make the best decision we can.

If you are denied a visa, please listen carefully to what the visa officer tells you. For example, if he says, "I'm not sure of your finances," then the next time you come, bring new information that shows where your money is from. If the officer says, "I'm sorry but I'm not convinced that you intend to come back," think about your plan again and figure out how to explain it more clearly and persuasively; then reapply. If you come back a second time and say similar things, you will probably get the same response.

(March 21, 2000) On 7th March, U.S. Consul General David Hopper and three other officials from the visa section of the American Embassy met with students at Peking University. One of the officials presented " Five Secrets" for getting a student visa:

Secret One:

Get free, accurate information on applying for a student visa. Visit the U.S. Embassy web site(www.usembassy-china.org.cn). There is no charge for using these resources. Why pay to get the same information from other sources?

Secret Two:

Be thoroughly prepared. Make sure you bring:
* Your I-20 form (or IAP-66 form)
* Your diploma (s)
* Your standarized test score reports (TOEFL, GRE, GMAT, LSAT, etc.)
* All letters and e-mail from the school, especially those that discuss scholarships, assistantships, fellowships and other forms of financial aid
* Evidence of funding for your studies (bank documents, etc.)
* Your business cards (if you have a job)
* Any other documents that you think might be important

Secret Three:

Answer that questions that are asked. Don't give the visa officer a prepared speech! Here's an example of what to avoid: Visa officer: Hi, how are you today?
Applicant: I'm going to study chemical engineering at X University.
VO: X University? I've been to the campus many times.
Applicant: I will surely return to China and find a good job with a major multinational company.
VO: ( Recognizing the disconnection and robotic tone ) So tell me, what color is the sky?
Applicant: I was given a teaching assistantship because the school believes my test scores and credentials are excellent.
These people are not communicating, and the applicant is not advancing his cause!

Secret Four:

Tell the truth. If the visa officer thinks you're lying, you won't get a visa.

Secret Five:

Come back to China. We mean that in two ways:
1) Come back to see your family and maintain your ties to China. Keep up your friendships and professional contacts here. Students returning on vacation don't even need to come in for an interview; they can simply use the drop-box service offered at many CITIC Bank locations.
2) Come back to China after you graduate. Use those advanced skills and theories that you learn in the US to make China a better place. Study in France had a great impact on the lives of leaders like Zhou Enlai and Deng Xiaoping. Will study in the US have a similar impact on the lives of China's future leaders?

After the speech by the visa officer, the four officials asked the students for any questions they had. Unprepared for the switch to question-and-answer format, the students were slow to come up with questions. Consul General Hopper interjected, with a touch of humor, "All questions are welcome. If you ask a question we don't like, we won't remember you and refuse you a visa because of it, so really -- don't worry." The students laughed and began to open up.

One question was "Do we need to wear formal clothes to the interview?" Answer: No. Another student said he'd been in the U.S. for a month, so he wondered if he could use the drop-box. The answer was in the negative, because he'd gone to America on a different type of visa.

After getting through all the questions, Mr. Hopper pointed out that people seeking student visas should apply no earlier than 90 days before the date when they must report to their new university in the U.S. Visa rules do not allow officers to issue visas more than 90 days before the start of the academic program the applicant is enrolling in.

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.

Questions or comments, visit our site at hilglaw.com or email us at comments@hilglaw.com

Immigration Information for Foreign Physicians

2007-07-06T14:56:00.000-07:00

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http://www.hilglaw.com/articles/articles20.htm

Aren't U.S. immigration laws ironic? These laws seem to apply more stringent standards on highly esteemed professions with clear shortages. The medical profession stands as a visible example of such shortages. For example, a recent issue of Business Week reports that the U.S. has fewer physicians per dollar of gross domestic product than most countries in the Organization for Economic Cooperation & Development. The January/February 2002 issue of Health Affairs, a policy journal, predicts that the nation will face a shortage of 50,000 physicians by 2010.

Before they are free to live and practice medicine in the U.S., foreign physicians experience frustration over the complex immigration process. This situation affects a surprising number of people and medical facilities-the American Medical Association's current statistics show that international medical graduates (IMGs) now comprise more than 20% of physicians working in the U.S. Future increases in the number of IMGs practicing medicine illustrate one possible way of stemming an increasingly significant shortage of physicians in the U.S. An overview of obtaining proper work authorization for IMGs shows how nonimmigrant and immigrant options available to foreign medical doctors makes it possible for individuals in this situation to live and practice medicine in the U.S.
Requirements

All physicians (IMGs as well as U.S. citizens) must overcome basic hurdles in order to practice medicine in the U.S. In addition to their degree from a foreign medical school, IMGs must pass Parts 1 & 2 of the U.S. Medical Licensing Exam (http://www.usmle.org/). They must also pass an English-language proficiency test and obtain certification from the Educational Commission on Foreign Medical Graduates (http://www.ecfmg.org/), which establishes knowledge equivalent to that gained at a U.S. medical school.
J-1

Many IMGs come to the U.S. to train in J-1 status under the sponsorship of the Educational Commission for Foreign Medical Graduates (ECFMG) or other academic institutions. Duration of this program is limited to 7 years, and participation in such a program subjects the alien to a two-year home country physical presence requirement under INA s.212(E). Unless foreign physicians are willing to return to their home country for two years, they must obtain a waiver of the two-year home residency requirement.

Unfortunately, obtaining a J-1 waiver often has its own restrictions. Foreign medical graduates are specifically precluded by statute from applying for a waiver based solely on a 'no objection' statement. However, they may apply for a waiver based on exceptional hardship, persecution, or through the support of an interested government agency. For more information on these waivers, please visit the J-1 waiver section at our website.

For the majority of the J-1 foreign medical graduates, finding an interested government agency may be the only option. Over 1,000 IMGs are sponsored for J-1 waivers each year, but obtaining a waiver of the foreign residency requirement through this means has become increasingly difficult. An interested government agency must determine that the alien's continued stay in the U.S. is in the national interest. To obtain waivers for J-1 visa holders, the sponsoring employer must be located in a federally designated Health Professional Shortage Area ('HPSAs,' bphc.hrsa.gov/databases/newhpsa/newhpsa.cfm) or Medically Underserved Areas ('MUAs' bphc.hrsa.gov/databases/newmua), and the physician must practice primary care or psychiatry.

Several federal agencies currently sponsor IMGs for waivers, albeit in a limited manner. These include the Appalachian Regional Commission (www.arc.gov), which covers 13 Appalachian states; the Department of Health and Human Services (www.hhs.gov) in research positions; and the Veterans Administration (www.vacareers.com) in its facilities. The Department of Agriculture (USDA) used to sponsor IMGs for J-1 waivers but ceased doing so this year in response to security concerns.

Lastly, a J-1 physician may apply for a waiver using the "Conrad 20" program, named after its author, Senator Kent Conrad of North Dakota. Under this program, participating states may sponsor up to 20 IMGs for J-1 waivers each year. Over 40 states participate in the program, with Texas and California standing as notable exceptions. The participating physician must pledge to provide service for not less than 3 years in a facility located in HPSAs or MUAs, but not all states require that they practice primary care or psychiatry.
H-1B visas

The H-1B category provides an alternative to the J-1 for U.S. employers who wish to employ IMGs. The H-1B category is preferable because it is less restrictive to both employers and physicians:

The employer does not have to be located in federally designated areas Physicians are not limited to specific practice areas Physicians are not subject to the 2-year home residency requirement. In order to attend U.S. residency programs on H-1Bs, the alien must: 1) be a graduate of a U.S. medical school and have licensure as required for the type of employment by the statue of intended employment; or 2) be an IMG who has completed all three parts of USMLE or passed both parts of the Federation Licensing Exam (FLEX) and obtained ECFMG English-language certification and licensure.
E-2 visas

When the foreign physician wishes to be self-employed, the E-2 visa category offers itself as an option for exploration. A physician from a country that has a bilateral commercial treaty with the U.S. may qualify as an E-2 principal investor for the purpose of setting up his/her own medical practice in the U.S. In addition to possessing a license to practice medicine in the state of intended employment, a foreign physician seeking E-2 treaty investor status must make a substantial, non-marginal investment. He or she also takes responsibility for the development and overall direction of the investment.
Canadian physicians

As a surprise to many, Canadian-educated physicians are not considered IMGs. They may obtain medical licenses in most U.S. states and obtain green cards based on their Canadian training and exams. However, they cannot obtain H-1B visas unless they have completed a U.S. qualifYing exam, such as USMLE, NBME, or FLEX. Canadian physicians who have completed a U.S. exam can obtain H-1B visas and work in the U.S. in a matter of months. Those who have not taken a U.S. exam may have to wait a longer time until they obtain a green card and are legally authorized to work.
Permanent residence ("green card")

Foreign physicians seeking to become lawful permanent residents have several options. One prominent option is the National Interest Waiver, a convenient option for those physicians already working in health professional shortage areas. Another option is applying under other preference categories.

The National Interest Waiver (NIW) is a waiver from the job offer and labor certification requirement when work by the alien serves the "national interest." Until late 1998, cases involving a physician serving or situated in HPSA, MUA, or a state-designated area experiencing underservice of health care, were clearly approvable as National Interest cases. However, by late 1998, the BCIS began denying NIW cases of physicians in shortage area cases under this category, on the interpretation that the physician's work only provided local benefit and was not national in scope. Such narrow interpretation caused concerns over providing adequate health care coverage, so the U.S. Congress passed a law in 1999 that carved out an exception for physicians in these circumstances and restored NIW benefits to physicians in shortage areas.

Under the interim regulations, BCIS will grant NIWs to physicians who serve at least five years in medically underserved areas. To obtain a NIW for a foreign physician, the following requirements must be met:

Physician must agree to work full-time in a health shortage area as designated by the Secretary of Health and Human Services or at a VA facility;
Determination by a federal agency or state public health department that the work is in the public interest; and Physician must work full-time for an aggregate of 5 years (waivers filed before November 1st, 1998 are approved with evidence of full-time work for 3 years instead of 5).
One advantage of the NIW is that Adjustment of Status applications can be filed concurrently with NIW petitions (or, for those who began as J-1s, immediately after completion of their three years of service pursuant to a commitment under the Conrad Amendment) prior to the completion of the fifth year. This means that the dependent spouse may also obtain an Employment Authorization Document.

If the employment is not situated in one of the designated shortage areas or the physician wishes to avoid the 5-year obligation, other immigrant options exist. Alternative options include:

Self-petition under the Alien of Extraordinary Ability category. This category can be used by physicians who are internationally renowned, as indicated by meeting three of ten evidentiary criteria An employer's petition for outstanding professors and researchers in the medical discipline. An immigrant petition based on pre-approved labor certification, which requires proper licensure for the state of intended employment.
As this overview reveals, physicians must contend with rather complex immigration rules and regulations before they can legally practice in the U.S. Again, many limitations are imposed on the foreign physicians, although several exemptions are available for individuals in these circumstances. In tandem, these limitations and exemptions create a labyrinth that make careful and advanced planning a must for medical professionals dealing with the complexities of immigration law.

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.

Questions or comments, visit our site at hilglaw.com or email us at comments@hilglaw.com

20 Loopholes in the Senate Immigration Bill

2007-07-06T14:44:00.001-07:00

20 Worst Loopholes in the Senate Immigration Bill - From Senator Jeff Sessions

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Senators Release List Of Top L-1 Visa Employers -- H-1B Visa -- Information

2007-07-06T14:34:00.003-07:00

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The Senate released the list of the top L-1 visa users.

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Companies to Bypass U.S. Immigration Law

2007-07-06T14:25:00.001-07:00

The crack down on immigration, the government’s purposely slow pace of approving new immigrants and their bias against Muslim countries is forcing some companies to bypass the process all together. As corporations begin to find loop holes in the immigration policies the system will cease to work properly.

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Visa Officer Dispels Rumor

2007-07-05T10:02:00.000-07:00

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http://www.hilglaw.com/articles/articles8.htm

The following article was originally published in the Beijing Youth Daily (June 8, 2000), following Mr. Charles Bennett's telephonic answers to public queries on F-1 visa. This article can also be found at the U.S. Consulate's website. Mr. Bennett, who is a chief of the visa section at the U.S. Embassy in Beijing, clarifies prevailing misunderstanding about the F-1 visa process, they call the "Four Myths". Although Mr. Bennett is addressing the Chinese public, we find these questions and answers have wide application to other foreign nationals. We reproduce this article because it is of interest to HILG clients wishing to study in the U.S.
"U.S. Visa Officers Dispel Rumors"

(8 June 2000) On 2 June Mr. Charles Bennett, chief of the visa section at the American Embassy in Beijing, went to the Beijing Telegraph Building to answer telephone queries from the public. He was accompanied by visa officers James Heller and William Duff, together they answered several dozen questions over a system that allowed up to 400 callers to listen in.

Mr. Bennett began by saying "There are certain matters people do not have accurate information about concerning the American Embassy and visas. We call these misconceptions the Four Myths.

The first myth is that we don't issue visas to Chinese students . I can tell you categorically that this is not true. The proof is that last year alone we issued over 8,000 visas to Chinese students to go to study in American universities and colleges. I would also like to point out that according to statistics from various sources there are now more Chinese studying in the U.S. than students from any other country; over 50,000 Chinese students are currently enrolled in U.S. universities.

The second myth is that we have a quota for Chinese students-that we can only issue a certain number of student visas, either every day, or every month or every year. This is also false. We issue a student visa to any student we think is qualified . We have no quotas, and anybody can apply; if we find that you are qualified, we will issue you a visa. It's that simple. And there is no maximum number of visas that we can issue per day, month or year.

The third myth is that we have special law or policy regarding visas for Chinese students . This also is not true. There is one U.S. law concerning student visas - a law passed by Congress - and that law applies just as much to students from France, from Russia or from Mexico as to students from China.

The fourth myth is that how many visas we issue depends on the current state of the political relations between the U.S. and China. This is absolutely not true. Issuance of visas depends on the law passed by Congress, making the decisions of visa officers completely outside the realm of politics. Even if the political relationship between our two nations is not doing so well, or if, as now, it is comparatively relaxed, the policy remains the same. Whether or not we issue somebody a visa depends not on politics, but rather on that individual applicant's qualifications."
Below are some of the more interesting questions asked by callers, with the answers that the visa officials gave:

Q: I have been refused a visa once. Will this influence my next application?

A: No, it won't. At the Embassy we have a rule that when you reapply, the officer who turned you down cannot see you again. You must be interviewed by another officer. We think this is fair. We visa officers are human beings, not computers, and sometimes we do make mistakes. So we guarantee that we will give your application a fresh look-as Americans say, we'll give you "an impartial hearing".
We have another rule:

If you've been turned down once, you must reapply on Thursday.

Q: My husband is in the US now, and I want to apply for an F-2 visa. I've heard that I have to present wedding pictures and other group photos as part of the application process. Unfortunately I don't have any. What should I do?

A: The purpose of asking to see your wedding pictures is to confirm that you are truly married. Some Chinese applicants have cheated us in the past with bogus marriages. If you don't have any group photo, you can bring letters or e-mails between you and your husband, or anything else that demonstrates the genuineness of your relationship.

Q: My money is not coming from my parents but from a relative. Can I get a visa?

A: You should tell the truth when you come in for your interview. What is your relation to your sponsor? You will need to explain what your plans are. If you tell us that somebody is going to give you all that money, you can be sure that we will ask how you intend to pay it back.You had better be prepared to explain how you are going to return to China and make money!

Q: I want to pursue an MBA at Indiana University, but last year I was turned down for a visa three times. I was rejected again last week. Could you tell me honestly what my chances are of getting a visa next time?

A: It's very hard for us here in the studio to tell you exactly why we couldn't issue you a visa - we don't have your application in front of us. I can tell you, however, that the vast majority of people who fail to get a student visa from us are unsuccessful because we are not convinced that they have solid reasons to come back to China after finishing their education. Everybody has a different way of answering our questions, but you must be prepared to explain to the consular officer in detail how you are going to use what you learn in the U.S. here in China. We know that with an MBA you can get a good job in the U.S. . You have to persuade us that you intend to come back to China and use your new expertise here in China. This is a critical question.

Q: My visa application was rejected last month. I've been told I should wait three months before reapplying. Is that true?

A: According to our rules, you can apply three times in one year, but the period between any two times depends on you. If you were turned down today, Friday, then you can apply again on this coming Thursday. But if , for example, you were turned down on 3 March, 5 April and 2 June, you cannot apply again until 2 June of next year.

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.

Questions or comments, visit our site at hilglaw.com or email us at comments@hilglaw.com

Criminal Convictions

2007-06-22T11:12:00.000-07:00

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Today, I will address an issue that is somewhat unusual but seems to affect many more people than we imagine. As many of the readers know, my and our firm's specialty is employment-based and business-related immigration law. However, I am also called upon to consult and, in the course of their case, represent highly respected non-U.S. citizens with past criminal charges and even convictions. Almost universally, their involvement with the criminal justice system is a result of bad luck and/or unfortunate incidents and even a misunderstanding. Often these individuals were poorly represented and not fully made aware or cognizant of the draconian immigration consequences. I felt it was an important enough issue to write and warn my readers about.

In most immigration and visa petitions and applications, the party must reveal if he/she has been arrested or convicted. This question can have severe immigration consequences since the immigration law enacted in 1996 (IIRIRA), included virtually every crime as a ground of deportability (being removed from the U.S.) and or inadmissibility (not being allowed to enter the U.S.). To name a few, crime of violence, theft or burglary, fraud or tax evasion, commercial bribery, counterfeiting, or forgery, attempt or conspiracy to commit any of these, domestic violence, and any crime involving moral turpitude are included. For example, one DUI (driving under the influence) will not bring immigration consequences but repeated offenses will; and any drug-related offense and sex-offenses will have serious consequences.

Non-U.S. Citizens, who get arrested and/or convicted in the U.S., can suffer three kinds of problems. They may not qualify for naturalization; they may get detained and deported even after they have served their sentence; and when they travel abroad, they may not be allowed back in. Similarly, non-U.S. Citizens, who have an arrest and/or conviction record abroad, may not be able to obtain a visa at the U.S. consulate or may get refused at the port of entry, depending on the nature of the crime.

In an extreme example, a B-2 visitor, who was accused of stealing $600 and was put in immigration detention for over 6 months waiting for a trial, which eventually determined his innocence. In a similar fashion, a misunderstanding over a spousal argument can result in the arrest of a spouse and conviction for domestic violence. The arrest itself can cause severe problems for the immigration practitioner trying to represent the client.

When someone is arrested, regardless whether he committed a real crime or the whole thing was a misunderstanding, a public defender or private defense attorney not familiar with the severity of these acts on immigration may suggest that one works out a deal with the prosecutor and therefore advise the client to plead 'no contest', or plead guilty to a lesser offense to settle the case instead of fighting the Charge. Although immigration consequences are often mentioned by the defense counsel and even the judge, too often neither the criminal lawyer him/herself nor the client clearly understands how severe the consequences are and how likely they will follow.

From immigration's perspective, an "arrest record" alone can establish the person's bad moral character (depending on what was written in the police report.) and lead to deportability. Pleading no contest and working out a deal is considered the same as a guilty conviction. Therefore, whereas an immigration lawyer would advise the client to fight for innocence or to at least negotiate a deal that will minimize immigration consequences, a criminal lawyer, unfamiliar with immigration laws, may opt out for a settlement that has greater immigration consequences. For example, pleading guilty or no contest to any felony that could result in a sentence of one year or more is a ground of deportability even if no sentence was actually imposed. If one pleads guilty or no contest to any crime involving moral turpitude and more than 6 months incarceration was imposed, this conviction is likely to lead to removal proceedings. Even if your arrest was a mistake or a misunderstanding and you were even later released the arrest itself will often lead to serious immigration consequences.

It is bad enough to be arrested and or convicted of a crime - especially, if you have never had legal trouble before and were caught in an unfortunate chain of events. How do you prevent facing additional immigration consequences? If you are a non-U.S. Citizen and get arrested for any reason, first and foremost one should engage criminal defense counsel (never a public defender) and ask specific questions about immigration consequences to any strategy or plea other than "not guilty". If they cannot authoritatively answer your questions, as they should, seek a new and more qualified attorney. If a conviction has already occurred or is in your background, seek a qualified immigration lawyer.

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.

Questions or comments, visit our site at hilglaw.com or email us at comments@hilglaw.com

Change Of Employment

2007-06-21T12:46:00.000-07:00

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http://www.hilglaw.com/articles/articles16.htm

Most employment-based immigrant petitioners and beneficiaries are aware that under certain conditions, alien beneficiaries may change jobs even before they obtain permanent residence. These conditions are delineated in the newly published law, AC21 S.106(c). Under this law, which is popularly phrased as the ‘180 day rule’, an alien beneficiary who has an approved labor certification or I-140 employment-based immigrant petition may change jobs if the I-485 application has been filed and pending for 180 days and the new job is in the same or similar occupational classification as the job for which the certification or approval was originally made.

This appears deceptively simple but still leaves certain questions unanswered, at least until the BCIS publishes their own guidelines.

1. If the alien changes employment, what procedures does he or she have to follow?

No specific rules have been promulgated. However, several BCIS officials have expressed that it is expected that the applicant notify the Service of such change in intent. Without such notice, if the BCIS Adjudicator has reasons to believe that the applicant’s intent has changed (for example, a prolonged I-485 processing time, an economic downturn, a massive lay-off in the specific industry, etc.), an RFE may be issued, requesting the petitioner to verify the job’s terms and conditions. In order to avoid further delay and/or possibility of complication with future immigration process, it probably is a better practice to submit such notice affirmatively.

2. Does the original sponsoring employer have any obligation to notify such change?

Neither the original sponsoring employer nor the new employer have a duty to notify the BCIS in the case when the alien change jobs under the AC21. Sometimes employers, however, wish to notify BCIS for various reasons. Employers feel they need to keep the record clean and straight. Other employers simply fear that somehow there will be consequences if the changes go unreported. A simple notice of change of intent after the I-140 approval will not have any consequences to the pending I-485 application as long as the alien has secured a same or similar job position after 180 days, as discussed above.

What is unfortunate, however, is that some petitioners attempt to take away any future immigrant benefits from the former employees by requesting to revoke their I-140 petition even after the I-140 approval and 180 days past the I-485 filing.

3. What happens if I-140 revocation has been requested?

BCIS has yet to come to a solid conclusion in this matter. Some BCIS officials have stated that an I-485 that has been pending for 180 days or more can gain approval under AC21, even if the employer requests the BCIS to revoke the approved I-140. However, in practice, it appears that in certain instances, some BCIS centers denied I-485s based on the revocation of the I-140 petition, even though the I-140 revocation occurred after 180 days have passed. Naturally, these decisions have been appealed and are waiting for the final verdict.

As common sense dictates, the spirit of AC 21, when reasonably interpreted, is to allow the alien beneficiary flexibility and freedom. With the growing backlog at the BCIS, the alien beneficiaries in the past have been virtual slaves to the immigration process. They oftentimes lose their right to permanent residence in the very final stage of the long grueling process, especially when the economy turns sour; they are also unable to take upon better opportunities or effectively negotiate with the employer for the fear that they might lose their opportunity for immigration. In recognition of such hardship aliens face in the prolonged immigration process, the Congress enacted AC 21 to give the individuals the ability to obtain approval of an I-485 and permanent residence based on a job offer from a new employer. The former employer should not be able to stop the alien from exercising this right, however minimal it is, in the very last stage of the process.

Fortunately, most employers do not tend to revoke the I-140 petition and remain helpful to the former employees. In an unfortunate case where the original sponsoring employer decides to revoke the I-140 approval, however, the beneficiary’s best defense is affirmatively notifying BCIS of the change of employment with thorough documents.

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.

Questions or comments, visit our site at hilglaw.com or email us at comments@hilglaw.com

Succesful Immigration: Make A Business Plan

2007-06-21T10:00:00.000-07:00

http://hilglaw.com/articles/articles14.htm

Last week, I had an opportunity to listen to a well-known business executive who leads a venture capital company. In the post-dotcom era, both individual and institutional investors have become much more careful. As a result, venture capital companies are now much more selective; it is no longer a sparkling idea that succeeds, but a comprehensive and real business plan that will survive the scrutiny of investors.

It was his emphasis on planning, research, and honesty with realistic goals that made me think immigration is just like the planning and embarking on a new venture.

1. Research

I often get inquiries from aspiring immigrants if our firm can suggest a good business, set it up in their best interest, and guarantee its success. It is revealing and very unfortunate when a prospective client wishes our firm and wants me to play the role of life counselor and business advisor; what I really feel is that these individuals and their families are not ready to immigrate at all. They have not done their homework yet, i.e., create in their own mind a successful and researched roadmap. In fact, more often than not, such people have not even thought anything through.

To borrow an overused phrase, “life is like a marathon.” One runs the course oneself. I hope that everyone who wishes to immigrate understands immigration is a procedural step towards a clear goal in life. One should not even approach the issue of immigration until a plan for life in the U.S. is clearly set out; only then can the immigration process truly begin, be itself planned and strategized, and eventually be successful. after immigration has been thought out.

The real goal behind immigration could be running a successful business, family-oriented life style, higher education and/or better employment, etc. In this regard, the plan for immigration invariably involves figuring out how one will support oneself and family members. Whether it is a branch office for the Korean operation or a local dry cleaners or finding a dream job, thorough preparation is key to success.

Obviously, help and advice from professionals, family members, friends, headhunters, etc. are extremely useful. However, there is a fine line between knowing when to use these resources and how to use such help and lazy complacency and/or reliance on others (as a substitute for personal responsibility. Again, there is a fine line between diligent research, meticulous self-study, and stubborn failure to utilize appropriate professional help. There is also simply blind faith.

As stated, research of how you might work out your plans and increase the probably of success once you immigrate is key. Only you can do this. If one fails, one should not blame others.

2. Honesty with oneself

Once preliminary research has been completed about why one is emigrating, one should start outlining a detailed roadmap, almost a business plan. At this time, honesty with oneself will help the roadmap to become realistic. The plan should not be based on overly optimistic estimation or reliance on factors beyond one’s control. After an honest evaluation, if the plan does not seem realistic, it should be reconsidered.

3. Guts to take the risk

Even with thorough research and honest evaluation and the right preparation, some unknowns and risks will still exist. However, such preparation will significantly reduce risks. It takes guts to make a decision, and a decision should be made when it feels comfortable. One danger about perfectionism is paralysis out of fear for failure. That is another trap to be avoided.

In conclusion, I’ve always advised my clients to think before they jump start the immigration process. My honest and sincere advice has been that immigration is a platform on which one folds one’s life plan. Obviously, one should have a rock solid platform, however, without a clear idea of what to build on the platform, it will remain useless. As an immigration lawyer and a member of the community, my interest exceeds getting my clients simple greencards or a visa; I hope to see that hard work and investment in one’s business plan indeed has sowed a seed which will bloom beautifully.

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.

Questions or comments, visit our site at hilglaw.com or email us at comments@hilglaw.com

Small Business Immigration

2007-06-20T12:57:00.000-07:00

http://www.hilglaw.com/articles/articles15.htm

One of the most commonly used visas for the new immigrant communities is the E-2 (non-immigrant) investor visa category. Nationals of countries, which have a treaty of commerce and navigation with the U.S., are allowed to live and work here so that they can successfully manage and direct a 'substantial' investment. The true rationale behind this visa status is that free trade and investment will result in economic benefits for both the U.S. and the treaty nation. Often not truly understood, however, is the notion that the investment should result in job opportunities for the local population and the investment itself cannot be the sole means of support for the investing individual (and/or family).

Although all E visas were created under the same principle, larger companies prefer to use E-1 whereas small and medium-sized companies utilize E-2. When companies, which have substantial international trade, use E-1 or E-2 to transfer their employees to the U.S. operation, the transfer to permanent resident status for these visa holders can be processed fairly quickly, if desired later. I will discuss such cases in a future article. In this article, I would like to explain the small business economy driven on the wheel of E-2 visa.

From my experience with the new immigrant communities, I observed that a typical foreign E-2 investor would purchase a grocery, dry cleaners, or gas station for family business. While some families have a successful E-2 business and thus enjoy a stable status, other families suddenly lose their business for reasons beyond their control (e.g., lease dispute with the landlord, economic downturn, natural disaster, etc.) and realize they no longer have a legal status in the U.S.

E-2 investor visa status allows the visa holder to make business investment and work for that business operation in the U.S. For entrepreneurial foreigners, this seems to be a perfect visa status as it allows them to open up their own small and medium-sized businesses.

In order to receive an E-2 visa, the investor must have a clear business plan and make substantial and irrevocable investment with a goal to eventually create some employment. The investor must also intend to return to home country once the investment is over. There is no minimum amount for such investment. Rather, it depends on the type of the business operation. Some businesses will require a large initial investment in the infrastructure and others will require less. However, the investment should be sufficient to ensure the successful operation of the enterprise and, as stated above, not be merely a means of supporting the individual entrepreneur and his/her family

With E-2 visas, one can stay in the U.S. as long as one's investment continues. Once the invested business closes down, the authorized stay is over, and E-2 visa holder and the dependent family must leave the U.S. or change to anther status.

The advantages of E-2 include an opportunity for the principal investor to own and manage a U.S. business with a relatively small amount of investment and subsequent opportunity for the family members to study and/or work in the U.S, if qualified to do so under another visa category (such as H-1B). Also, family members, as owners, can work in their own business entity. In this regard, E-2 visa holder and his/her family enjoy similar privileges as U.S. permanent residents or citizens.

Nonetheless, E-2 is a temporary 'non-immigrant' status and does not give any long-term stability. The privileges I mentioned above are tied to the business. Even if the business continues, when minor children reach 21, they are not considered dependent members any more and must change to another status, such as F-1.

E-2 should also be separated from investment immigration. In general, investment immigration requires at minimum $1 million investment and the creation of 10 new jobs. Because of these stringent requirements, investment immigration category is one of the most underused categories, and there are usually better ways of going about immigration.

Although E-2 visas rarely lead to a greencard since the investment itself is not large enough nor create the requisite 10 new jobs, if desired later, obtaining permanent residency may be possible with creative and thoughtful strategies, depending on many other factors including job skills.

For the above reasons, it is always wise to speak to a qualified immigration attorney to go over and strategize before utilizing this visa category since in the long term it may be a perilous decision. One must ask, what is the goal to be achieved? Is it simply to do business in the U.S., to make money, or obtain permanent resident status for you and/or one's family members? A hasty decision can not only lead to an unnecessary complication in one's life but also complicate one's future immigration goals.

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.

Questions or comments, visit our site at hilglaw.com or email us at comments@hilglaw.com

Technocrati

2007-06-20T12:49:00.001-07:00

Technorati Profile

Changing Status From B-2 Visitor

2007-06-18T13:20:00.000-07:00

http://hilglaw.com/articles/articles9.htm

One of the most frustrating phone calls I receive as an immigration attorney is: "I'm here on B-2 with my family and want to stay here. How do I change my status?" 90% of such callers actually come to the U.S. with the full intent to stay a very long time. There is nothing wrong with such action per se except such a trip often unknowingly creates a legally perilous situation for the individual and his/her family.
Here is why:
About the children…

Some parents come to the U.S. without any clear long-term plan. Out of concern and ambition for their children's education, they impatiently bring the entire family across the ocean before working out a clear map, which will in the immediate future allow them to support the family and to maintain a legal status. The children are often put in the public education system immediately and thus automatically become violators of their immigration status (if and when it is discovered). In most states, public schools do not inquire about children's or their parent's legal status, and therefore just take them in. This can lead the foreign parents to believe it is alright to do so and also gives them and their children a false sense of security.. Temporary visitors, including children brought with visiting parents, are not authorized to attend any school, let alone a public school that is paid for and supported by U.S. taxpayers. Such records will remain and may make it very difficult for the parents or for the children later on to get a legal status and get a more appropriate visa. Thus, such a hasty decision to bring children to the U.S. even with good intentions and to put them in a public school can actually create many more problems than it solves.
Observation on the families…

Many of these families are often mistakenly and naively encouraged by other family members and/or more remote relatives who reside in the U.S to move here. As a member of an immigrant community, I observe and worry that such an event often later can create a rift in an otherwise close family relationship. Families in the U.S. often naively believe subsistence in the U.S. is better than struggling in the foreign land and do not distinguish between legal and what inevitably turns out to become illegal status since rarely is their planning involved. However, staying illegally in the U.S. has become increasingly more difficult. Visitors, even those who have maintained legal status, cannot get a driver's license, have a difficult time obtaining credit cards, and there is zero possibility of receiving a legal permit to work. If they come into contact with the law, and in today's post 9/11 environment, even minimally, they can find themselves immediately detained by immigration at a detention center and swiftly removed. Out of loneliness, out of the difficulty to find trustworthy employees for their business, and oftentimes truly out of genuine concern for overseas family members, American relatives too often make invitations without much thought to the consequences involved. When each other's expectation is not met, family members, who in the beginning were very hopeful of a new future together, may end up blaming each other and an unhappy family relationship can result from it.
Changing status…

Because most immigration routes take a long time, at least a year and sometimes many more years, the visitors, who were allowed in for 6 months or now often less time, must quickly find a way to temporarily maintain their status. A longer temporary status can be gained through employment, becoming a student, or investing in a business.

Almost without exception, a temporary work status called H-1B requires a specialized bachelor's degree or higher and a job offer from a U.S. employer who is willing to pay the 'prevailing wage'-meaning at or above a U.S. wage. This avenue normally does not suit most of the people who are here as B-1 or B-2 visitors as a real job search in the professions takes time, and the language barrier often makes it more difficult. The difficulty is compounded because if one begins a job search too soon after arriving it may make changing status impossible later on. However, if one parent does secure a qualifying job offer, the entire family, called dependants, can gain legal status and therefore the family can remain together. (For detailed information on H-1B and other temporary work status, please refer to my previous article.)

If one or both parents do decide staying here to study makes sense, and they can afford to do so since neither would be authorized to work, getting an I-20 from a qualifying school is not difficult. Private schools need foreign students' tuition to operate. However, INS is very suspicious of people who try to change their status from a visitor to a student a visitor and Congress has already proposed a law that would disallow visitors from changing their status to that of a student. Even under existing law, visitors who wish to change status must convince INS that their original intent on entering the country was to visit only and only after they came into the U.S did their intention change. This is a very tough requirement to meet especially when an entire family is involved. And even if INS grants the change of status, many U.S. Consulates will make their own determination if and when the individual and/or his or her family members go back home for vacation or a needed visit. I see many individuals who have successfully changed their status but, because of poor planning and execution, are afraid to leave the U.S. for the fear that they will not be able get the student visa and return back here

Finally, there is the investment/E-2 visa. This is a great option if the potential investor has the money to invest and will truly manage the enterprise. However, even then, much planning and timing is required so that one's family can live and travel freely and be here without fear. In this regard, more often than not I will recommend the individual return home to obtain this visa. I also tell clients to take the opportunity while in the U.S. to do market research and properly select a business that they are interested in. Again, they must be prepared to return home to apply for the visa and not to change status in the U.S. because too often such applications may cause them problems when they do want to return and obtain a visa at the U.S. Consulate. Investors who have followed our instructions have had a great success getting a visa abroad and securing their status and in turn their future. I cannot stress enough that changing status while here as a visitor makes getting the visa later on much more difficult because the Consulates are likely to suspect a hidden agenda at the time of entry as visitor.

Our firm has been very successful in helping visitors to maintain a legal status by exploring the visitors' options and guiding them to the best possible path. However, sometimes there may not be an ideal option presented to us because too many missteps have already been made. We also see that some inquirers who did not follow our direction and later on call us after their status has expired or their application has been rejected. Through this article, I wish to advise visitors who are already in the U.S. not to rush into anything without consulting a qualified immigration attorney. And to those who are thinking about coming here, I strongly advise not to relocate family or sell assets until an appropriate legal course of action and strategy has been determined and proper arrangements have been made.
The information contained in article is provided for general information only and should not serve as a substitute for legal advice.

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.

Questions or comments, visit our site at hilglaw.com or email us at comments@hilglaw.com

Obtaining Quality Immigration Representation

2007-06-18T13:15:00.000-07:00

"The Quality of Chinese Food in San Francisco"

As I was having a lunch at a jam-packed Chinese restaurant near work in the Financial District of San Francisco, a Chinese man sitting beside me ordered a dish that looked unusually delicious. So I asked him what the name of the dish was. Instead of telling me the name, he gave me a long answer that it could be much better, and the quality of Chinese food had been going down hill in California for the last two decades. Although a pleasant person, he seemed very unhappy about the lack of good food and told me his family goes up to Vancouver, Canada for real Chinese food because they pursue quality and a not cheap substitute. After commiserating with him, my colleague, a long-time practitioner and a well-known lawyer, and I lamented on the quality of legal representation. Just like the Chinese food in San Francisco, the overall quality of legal representation, including that of immigration practitioners, has deteriorated. I believe it is so because the mass-produced lawyers do not seem to have as high ethics or standard of care the profession used to exhibit. What is worse, the public seems to settle for a lower quality substitute and, in doing so, unknowingly risks the future.

Should I Represent Myself?

Although it is sometimes possible to represent oneself in simple U.S. immigration matters, even in such cases, I advise professional representation. The field of U.S. immigration law is quite complex and it changes frequently. In fact, it is so specialized; I have to confess that in my career, I see inexperienced lawyers, uncaring lawyers, and unspecialized general counsels make basic and fundamental mistakes that affect someone's life in a grave way.

An immigration case often involves at minimum three government agencies: the Bureau of Citizenship and Immigration Services, the Department of State, the Department of Labor, and others. Unfortunately, some agents at these agencies believe that their main task is to keep foreigners out of the United States; educating the applicants on immigration process is certainly not part of their responsibilities.

Unless a lawyer, let alone an individual, deals with immigration matters regularly, it is highly doubtful that he or she will be able to complete the process without encountering problems. Immigration law is not always intuitively understandable and even minor errors in processing or in the interpretation of the law may result in serious consequences. It is unfortunate that immigration lawyers are often hired only after people attempted to file petitions themselves or use a wrong substitute but failed for a variety of reasons. Not only legal fees often end up being higher in such cases, but what a waste of valuable life time?

Should I hire an immigration consultant?

Immigration consultants have helped individuals who cannot afford lawyers; some have also gladly carried out the legwork, such as waiting for a visa at the embassy, many of us wish to avoid doing ourselves. However, I see a great danger when immigration consultants attempt to give legal advice or prepare an immigration case without the supervision of an experienced lawyer. Although some immigration consultants have years of experience, it must be noted that no training or experience is required to become immigration consultants and their inexperienced activities are not regulated.

How do I choose a lawyer?

As anybody who had to look for an attorney to represent himself or herself would realize, choosing a right lawyer or doctor with respect to any specialized matter is extremely hard. The attorney-client relationship involves sometimes very personal and complicated matters, and it lasts for a long time. It is one of those life's few intimate relationships that can significantly affect both parties. For this reason, one will have to find a lawyer who has expertise on the matter and whose personality is easy to work with in order to achieve the best result.

A qualified and reputable immigration lawyer, for example, will explain and explore all the available options and assist the client in making the right choices. He/she will also deal with the case more effectively and efficiently, minimizing any potential risk of harassment and delays.

As an economics major in undergrad, I calculate all my life activities in terms of 'opportunity cost'. I do not shy away from hiring valuable help, which allows me time to focus on more productive activities and improve my life style. A qualified immigration lawyer will reduce serious life anxieties and ultimately save the client a lot of time and money by helping him/her to get on with life.

Life is too short to be wasted on bad Chinese food or worrying about a poorly handled immigration case.

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.

Questions or comments, visit our site at hilglaw.com or email us at comments@hilglaw.com

How To Maintain A Permanent Resident Status

2007-06-16T13:44:00.001-07:00

Hilglaw

Many aliens are under the mistaken belief that once they acquire lawful permanent residence, they can return to their home and employment in their home country, and they can maintain their permanent resident status by visiting the United States only briefly each year. Similarly, many other aliens blindedly believe by simply applying for a reentry permit, they can stay abroad for an extended period of time and still maintain their status. Such aliens will call lawyers to ask for an instant service for reentry permit, but, more often than not, they do not inquire about their bigger goal, i.e., maintaining a lawful permanent resident status, and the lawyer may neglect to go into much detail. Well, here is the bad news. Simply using your Form I-551 (i.e. green card) each year for visits to the United States does not entitle you to retain your lawful resident status. Nor would the use of Reentry Permit guarantee readmission to the United States.

When lawful permanent residents depart from the United States, returning residents are not entitled to a right to return. Although it sounds strange, when they seek to reenter the United States, they are actually applying for admission as special immigrants (i.e., immigrants, lawfully admitted for permanent residence, who are returning from a temporary visit abroad.) Thus, the returning resident must show his or her intention to remain a lawful permanent resident in the United States and his or her absence abroad was temporary. Then, how do you prove your intention to remain a lawful permanent residence and what does the term "temporary'' mean?
In order to determine subjective intent, various elements may be examined. First, the alien should normally have a definite reason for proceeding abroad temporarily. Second, the visit abroad should be expected to terminate within a relatively short and fixed period. However, if unforeseen circumstances cause an unavoidable delay in returning, the trip would still be considered temporary as long as the alien continues to intend to return as soon as his original purpose was completed. Third, the alien must intend to return to the U.S. as a place of employment or business or as an actual home. This requisite intention must have existed from the time of departure throughout the course of the visit. Finally, the location of alien's ties such as family, job, or property, may also be considered in determining the alien's intent.In addition to the above issue, returning residents must present a valid unexpired immigrant visa or other valid entry document at the time of application for admission. A returning resident's Form I-551 (i.e. green card) is a sufficient entry document for absences of one year or less. However, after an absence of more than one year, the returning resident must be in possession of a reentry permit or an immigrant visa issued by a U.S. consulate located abroad.

Reentry Permits

A departing alien who plans on being absence for a significant period of time may apply for a reentry permit. By applying for a reentry permit before the departure, the returning resident will be relieved of having to apply for a returning resident visa at a U.S. consulate abroad. Thus, reentry permits serve as a valid entry document after absences of more than one year and may be helpful in providing evidence of the alien's intent. However, reentry permits are simply an entry document. The returning resident will still have to establish, among other things, that he or she has been lawfully admitted to the United States for permanent residence; and that such residence has not been abandoned. Also, in almost all cases, please note that an absence of more than one year will break the period of continuous residence required to become a citizen, even if a reentry permit is issued.

Reentry permits are valid for not more than two years from the date of issuance and are not extended. The applicant must be in the United States at the time the application is filed.
I hope this article explains that maintaining a lawful permanent residence is not as simple as what the common assumptions make it seem like. Again, frequent trips back to the U.S. or even the use of Reentry Permit will not guarantee readmission to the United States. Given the above, I strongly advise those readers, who have plans to stay abroad for a prolonged period of time or have yet to establish real ties in the U.S., to have a consultation with a qualified immigration lawyer before you depart from the U.S. and eliminate any lingering doubts about your status.

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.

Questions or comments, visit our site at hilglaw.com or email us at comments@hilglaw.com

How To Maintain A Permanent Resident Status

2007-06-16T13:44:00.000-07:00

Many aliens are under the mistaken belief that once they acquire lawful permanent residence, they can return to their home and employment in their home country, and they can maintain their permanent resident status by visiting the United States only briefly each year. Similarly, many other aliens blindedly believe by simply applying for a reentry permit, they can stay abroad for an extended period of time and still maintain their status. Such aliens will call lawyers to ask for an instant service for reentry permit, but, more often than not, they do not inquire about their bigger goal, i.e., maintaining a lawful permanent resident status, and the lawyer may neglect to go into much detail. Well, here is the bad news. Simply using your Form I-551 (i.e. green card) each year for visits to the United States does not entitle you to retain your lawful resident status. Nor would the use of Reentry Permit guarantee readmission to the United States.

When lawful permanent residents depart from the United States, returning residents are not entitled to a right to return. Although it sounds strange, when they seek to reenter the United States, they are actually applying for admission as special immigrants (i.e., immigrants, lawfully admitted for permanent residence, who are returning from a temporary visit abroad.) Thus, the returning resident must show his or her intention to remain a lawful permanent resident in the United States and his or her absence abroad was temporary. Then, how do you prove your intention to remain a lawful permanent residence and what does the term "temporary'' mean?
In order to determine subjective intent, various elements may be examined. First, the alien should normally have a definite reason for proceeding abroad temporarily. Second, the visit abroad should be expected to terminate within a relatively short and fixed period. However, if unforeseen circumstances cause an unavoidable delay in returning, the trip would still be considered temporary as long as the alien continues to intend to return as soon as his original purpose was completed. Third, the alien must intend to return to the U.S. as a place of employment or business or as an actual home. This requisite intention must have existed from the time of departure throughout the course of the visit. Finally, the location of alien's ties such as family, job, or property, may also be considered in determining the alien's intent.In addition to the above issue, returning residents must present a valid unexpired immigrant visa or other valid entry document at the time of application for admission. A returning resident's Form I-551 (i.e. green card) is a sufficient entry document for absences of one year or less. However, after an absence of more than one year, the returning resident must be in possession of a reentry permit or an immigrant visa issued by a U.S. consulate located abroad.

Reentry Permits

A departing alien who plans on being absence for a significant period of time may apply for a reentry permit. By applying for a reentry permit before the departure, the returning resident will be relieved of having to apply for a returning resident visa at a U.S. consulate abroad. Thus, reentry permits serve as a valid entry document after absences of more than one year and may be helpful in providing evidence of the alien's intent. However, reentry permits are simply an entry document. The returning resident will still have to establish, among other things, that he or she has been lawfully admitted to the United States for permanent residence; and that such residence has not been abandoned. Also, in almost all cases, please note that an absence of more than one year will break the period of continuous residence required to become a citizen, even if a reentry permit is issued.

Reentry permits are valid for not more than two years from the date of issuance and are not extended. The applicant must be in the United States at the time the application is filed.
I hope this article explains that maintaining a lawful permanent residence is not as simple as what the common assumptions make it seem like. Again, frequent trips back to the U.S. or even the use of Reentry Permit will not guarantee readmission to the United States. Given the above, I strongly advise those readers, who have plans to stay abroad for a prolonged period of time or have yet to establish real ties in the U.S., to have a consultation with a qualified immigration lawyer before you depart from the U.S. and eliminate any lingering doubts about your status.

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.

One Immigrant's Lesson For Life

2007-06-16T13:43:00.001-07:00

This client had come to the United States 12 years ago for a family visit. His mother, who was a permanent resident at the time, filed an immigrant petition for him hoping to live together with her son. Not knowing how long it was going to take, he first started studying English and helped with the family’s business to get familiarized with the new country and to prepare for his new life. After 10 years of waiting, his mother passed away from a long illness. His visa was still not available. Without a legal status or a work authorization, his life had been on hold with only limited freedom and means to pursue his life goals. He thought about giving up many times and returning to his home country. However, his home country was no longer a home to him. Even with the limited lifestyle, he had pursued life goals in the United States and had formed close relationship with people in this country. His mentor and spiritual advisers prayed for him and encouraged him not to give up his life goals. For this, he had to find a way to obtain a full legal status and came to us.

He did not have a potential employer or organization to sponsor him as of yet; in order to be accepted where he wished to be, he needed additional education, but he did not have the work authorization or status to support it. If his other sibling filed another petition for him now, it would take well over a decade. Although his mother’s petition was approved a long time ago, and his visa was going to be soon available, his sponsor, his mother, had already died. What options did he have?

In family sponsored immigrant petitions, the law was originally written in such a way that if the petitioner died before the immigration process was completed, the approved petition was automatically revoked unless there were humanitarian reasons for not doing so; even then, the law required the original sponsor to sign an affidavit of support.

Nowadays, family sponsored immigrant petitions, other than those involving immediate relatives, take such a long time that in some unfortunate cases, the petitioner dies before a visa becomes available for the beneficiary, rendering some heart-wrenching situations. These situations were finally brought to the attention of the lawmakers a couple of years ago. A young mother of two little children in San Francisco died of cancer before her Chinese mother’s immigrant visa became available. Her last dying wish was that her mother be allowed to stay in America to take care of her grandchildren, and the husband, the father of the two young children, said he would continue to support his mother-in-law. However, the law at the time did not allow that.

This family’s heart-breaking situation finally caught the lawmakers’ attention, which resulted in the Family Sponsor Act of 2001. The new amendment now allows an alternative sponsor if the original sponsor has died and if there are humanitarian reasons not to revoke the approved petition. Eligible alternative sponsors include the spouse, parent, mother-in-law, father-in-law, brother, sister, son, daughter, son-in-law, daughter-in-law of the beneficiary. As in the case of other sponsors, the sponsor must meet all of the requirements for a sponsor and maintain an annual income equal to at least 125 percent of the Federal Poverty Guidelines.
After learning about our client’s life in this aftermath of the new amendment, we felt strongly that there were humanitarian reasons why the Immigration Services should allow him to obtain green card based on a substitute sponsor’s affidavit of support.
Although truly experienced attorneys can assess the individual situation and articulate humanitarian reasons to come to a successful resolution in many cases, what is at the heart of these matters is what kind of life the individual has led. In our client’s case, it was his sincerity, his honesty, and his steadfastness that had gathered many supporters to his cause. It is impossible to live a life without leaving traces of fingerprints. My client’s trace of life convinced the immigration, even in its worst time, that he should be allowed to stay and become a permanent resident in the United States.

After 12 years of wait, he is anxious to fully expand his wings. After the approval, his comment to me was, “I learned not to ever give up. Thank you!”

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.

One Immigrant's Lesson For Life

2007-06-16T13:43:00.000-07:00

In my work as an immigration attorney, I meet and speak with countless people on any given day. Oftentimes, I get to know them very intimately. Very fortunately, I happen to like the vast majority of my clients and thus naturally begin to care about them and enjoy the positive relationship we create together. Among these memorable people who come to me for my advice but end up enriching my life, one client shared with me a lesson for life this week.

This client had come to the United States 12 years ago for a family visit. His mother, who was a permanent resident at the time, filed an immigrant petition for him hoping to live together with her son. Not knowing how long it was going to take, he first started studying English and helped with the family’s business to get familiarized with the new country and to prepare for his new life. After 10 years of waiting, his mother passed away from a long illness. His visa was still not available. Without a legal status or a work authorization, his life had been on hold with only limited freedom and means to pursue his life goals. He thought about giving up many times and returning to his home country. However, his home country was no longer a home to him. Even with the limited lifestyle, he had pursued life goals in the United States and had formed close relationship with people in this country. His mentor and spiritual advisers prayed for him and encouraged him not to give up his life goals. For this, he had to find a way to obtain a full legal status and came to us.

He did not have a potential employer or organization to sponsor him as of yet; in order to be accepted where he wished to be, he needed additional education, but he did not have the work authorization or status to support it. If his other sibling filed another petition for him now, it would take well over a decade. Although his mother’s petition was approved a long time ago, and his visa was going to be soon available, his sponsor, his mother, had already died. What options did he have?

In family sponsored immigrant petitions, the law was originally written in such a way that if the petitioner died before the immigration process was completed, the approved petition was automatically revoked unless there were humanitarian reasons for not doing so; even then, the law required the original sponsor to sign an affidavit of support.

Nowadays, family sponsored immigrant petitions, other than those involving immediate relatives, take such a long time that in some unfortunate cases, the petitioner dies before a visa becomes available for the beneficiary, rendering some heart-wrenching situations. These situations were finally brought to the attention of the lawmakers a couple of years ago. A young mother of two little children in San Francisco died of cancer before her Chinese mother’s immigrant visa became available. Her last dying wish was that her mother be allowed to stay in America to take care of her grandchildren, and the husband, the father of the two young children, said he would continue to support his mother-in-law. However, the law at the time did not allow that.

This family’s heart-breaking situation finally caught the lawmakers’ attention, which resulted in the Family Sponsor Act of 2001. The new amendment now allows an alternative sponsor if the original sponsor has died and if there are humanitarian reasons not to revoke the approved petition. Eligible alternative sponsors include the spouse, parent, mother-in-law, father-in-law, brother, sister, son, daughter, son-in-law, daughter-in-law of the beneficiary. As in the case of other sponsors, the sponsor must meet all of the requirements for a sponsor and maintain an annual income equal to at least 125 percent of the Federal Poverty Guidelines.
After learning about our client’s life in this aftermath of the new amendment, we felt strongly that there were humanitarian reasons why the Immigration Services should allow him to obtain green card based on a substitute sponsor’s affidavit of support.
Although truly experienced attorneys can assess the individual situation and articulate humanitarian reasons to come to a successful resolution in many cases, what is at the heart of these matters is what kind of life the individual has led. In our client’s case, it was his sincerity, his honesty, and his steadfastness that had gathered many supporters to his cause. It is impossible to live a life without leaving traces of fingerprints. My client’s trace of life convinced the immigration, even in its worst time, that he should be allowed to stay and become a permanent resident in the United States.

After 12 years of wait, he is anxious to fully expand his wings. After the approval, his comment to me was, “I learned not to ever give up. Thank you!”

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.

Questions or comments, visit our site at hilglaw.com or email us at comments@hilglaw.com

Visa Story: Consular Processing

2007-06-16T13:40:00.001-07:00

1. When do I need to apply for a non-immigrant visa?
Visa stamps are for travel to the U.S. According to the purpose of the travel, one must have the appropriate visa. For example, if one is coming to the U.S. for short-term travel, a visitor’s visa or a visa waiver will do (in countries where such a short term visa is unnecessary); if one is coming to study in the U.S., one must use a student’s visa; if one is coming to engage in a gainful employment, then one must receive a suitably work-authorized visa; etc.

2. Applying for Visa after Change of Status
Many people who have changed their status with the INS after a previous entry (e.g., from B-2 to F-1, F-1 to H-1B, etc.) show great concern about getting a visa for their new status and next U.S. entry (after leaving the country for the first time). Is it true that Consulate Officers do not issue a visa to people who have changed their status while in the U.S.? It depends.
What did you say when you first applied for that visa under which you came to the U.S.? The consulate official will look up that record and read the file. And there will be notes! If you said you were going to visit a family member and, during your first trip, found an employer and changed status, the Consulate Officer would probably wonder if you had an intent to work in the U.S. when you applied for a visitor’s visa. However, if you had been using the visitor’s visa for years, coming and going many times and during one’s last trips an employer approached you, or an unforeseen opportunity arose, the Consulate Officer might be less suspicious.
Also, even on an ‘old’ visa, it is important to remember that when you present your visa to the Inspector at the border, you are again promising you will stay within the boundaries of the visa’s conditions. If you enter using the visitor’s visa and applied for a work-authorized visa within a few weeks, Consulate Officers as well as the BCIS will assume that you were dishonest with the Inspector. However, if you happen to change your mind during a rather long trip, and later in the trip, it is less likely that you had it planned a scheme to change status all along.
Did the succession of events take a natural course? When someone enters the U.S. under F-1, completes over several years the planned course of study, and then after graduation finds a job to gain more experience, there is no doubt that the visa applicant had an intent to be a full-time student when he/she entered on the F-1, and such change to H-1B later becomes much more acceptable, both to INS and later to the U.S. Consulate.
For these reasons, any experienced and qualified immigration lawyer will fully explore and question you about your visa/U.S. entry history and, only then, advise you accordingly. Before deciding to change status, have a thorough discussion with your attorney to see if it might be more preferable to return to one’s home country and return to the U.S. with a visa instead of changing status and then feeling that it is too risky to leave. That is no way to live, feeling like a prisoner even if in the U.S.

3. Be Prepared, Be Truthful!
When applying for a visa at the U.S. Consulate, first try to get the most updated information by visiting the Consulate’s website. Then, fill out the application forms carefully and thoroughly. Uncompleted or partially completed forms will raise a red flag to the visa officer immediately. They are trained to presume the applicants are lying and omissions look to them like an attempt not to tell the truth. You are hiding something! Make sure to attach all the required documents and know your case. When we prepare our clients, we demand that they fully understand what has been stated in their visa petitions (already approved by BCIS) and in their change of status applications as well. If we are presenting their E-2 (Investor) case, they are given a complete copy of their package and we want them to read it as if studying for a test. If an interview is required, one must listen to the question and answer truthfully. Do not make the common mistake of “not answering the question” or repeating rehearsed answers. Do not lie on the application. Visa fraud, or the making of a material misrepresentation at the U.S. Consulate or at entry is a ground for deportation/inadmissibility and more often than not has no waivers.

4. S.214 (b) Denial
Commonly s.214(b) is used as a ground for NIV denial because the applicant fails to establish strong ties to the home country and therefore it is unlikely in the mind of the official that one will return. What applicants do not understand, however, is s.214(b) is more often invoked because the applicant does not meet the standards of the visa category. For example, an applicant for a F-1 visa that has very low grades in his/her transcript will not be taken seriously for his/her intent to pursue further education in the U.S. Likewise, if an applicant for a religious worker visa does not have the membership, experience, and personal history to carry out the proposed duties in the U.S., his/her intent is more likely to be challenged.

5. How do I use a visa?
Finally, now that you have a visa in your passport, how do you use it properly? Although most people understand that a valid passport and a visa stamp in it are required for travel to the U.S., few people know when they need a visa or what its terms and limitations are. Nationals from certain visa-waiver countries such as Canada, Japan, Australia, most European countries, etc., are often used to traveling to the U.S. without having to obtain a visitor’s visa. These individuals in many ways are just as likely to be naive about the necessity and conditions of their entry.
When a foreign national enters the U.S. and presents a ‘visa’ to the inspector, he/she is making a certain presentation. In particular, the entrant is promising to behave within the boundaries of the visa and not to abuse it. In the case of a national from a visa-waive country, if he/she enters the U.S. without another visa, he/she is coming in only for a temporary visitor’s purpose and not to work or reside in the U.S.

What if you have several visas in your passport? You must use the visa that is most appropriate for the purpose of your entry. For example, a foreigner may have a visitor’s visa as well as an H-1B visa, and both visas are valid for the next few more years. When the foreigner is entering the U.S. for his/her H-1B employment, he/she must use the H-1B visa so that the inspector at the border will assign an appropriate status to the entrant. If his/her H-1B employment has been completed, and the entrant is only entering for a short visit, the entrant must use his/her B-1/B-2 visa.

Once in a while, a permanent resident, who has been abroad for an extended period of time, might contemplate re-entering the U.S. as a visitor. This is an act that practically renounces his/her permanent residence. A permanent resident should always be able to show his/her intent to make the U.S. his/her permanent home.
In conclusion, keep a clean history, make certain you apply for the appropriate visa category, and if you have a long-term goal, consult a qualified immigration attorney. Remember that proper visa usage is extremely important for any future changes of plans – whether it is to continue education, to gain work experience, to later marry someone you love in the U.S.

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.

Visa Story: Consular Processing

2007-06-16T13:40:00.000-07:00

Do you wish to apply for a visitor, student, or other visa to enter the U.S. but feel worried that the U.S. Consulate in your home country will not issue you a visa? Have you changed your status in the U.S. and need to travel overseas but do not have the visa to return to the U.S.? Do your friends tell you that nearly all visa applications are denied after change of status or that it is impossible to obtain a visa at your specific consulate? Do you wonder how you might strengthen your visa application? As a practitioner, we see two extreme attitudes in people when it comes to consular processing. Some people are unnecessarily afraid of applying for visa at a U.S. Consulate and try to avoid applying for visa at all cost, including being and feeling trapped in their own country and/or lying on the visa application forms, if they choose to apply. In contrast, there are visa applicants that are too casual about the process and as a result apply for a visa without taking the due care in preparing the application or reading it carefully. Too often, these individuals carelessly omit important information and don’t realize that this can cause problems for them later on. In this article, I hope to dispel some of the worries described above and help visa applicants to get prepared better for better and more successful consular processing.

1. When do I need to apply for a non-immigrant visa?
Visa stamps are for travel to the U.S. According to the purpose of the travel, one must have the appropriate visa. For example, if one is coming to the U.S. for short-term travel, a visitor’s visa or a visa waiver will do (in countries where such a short term visa is unnecessary); if one is coming to study in the U.S., one must use a student’s visa; if one is coming to engage in a gainful employment, then one must receive a suitably work-authorized visa; etc.

2. Applying for Visa after Change of Status
Many people who have changed their status with the INS after a previous entry (e.g., from B-2 to F-1, F-1 to H-1B, etc.) show great concern about getting a visa for their new status and next U.S. entry (after leaving the country for the first time). Is it true that Consulate Officers do not issue a visa to people who have changed their status while in the U.S.? It depends.
What did you say when you first applied for that visa under which you came to the U.S.? The consulate official will look up that record and read the file. And there will be notes! If you said you were going to visit a family member and, during your first trip, found an employer and changed status, the Consulate Officer would probably wonder if you had an intent to work in the U.S. when you applied for a visitor’s visa. However, if you had been using the visitor’s visa for years, coming and going many times and during one’s last trips an employer approached you, or an unforeseen opportunity arose, the Consulate Officer might be less suspicious.
Also, even on an ‘old’ visa, it is important to remember that when you present your visa to the Inspector at the border, you are again promising you will stay within the boundaries of the visa’s conditions. If you enter using the visitor’s visa and applied for a work-authorized visa within a few weeks, Consulate Officers as well as the BCIS will assume that you were dishonest with the Inspector. However, if you happen to change your mind during a rather long trip, and later in the trip, it is less likely that you had it planned a scheme to change status all along.
Did the succession of events take a natural course? When someone enters the U.S. under F-1, completes over several years the planned course of study, and then after graduation finds a job to gain more experience, there is no doubt that the visa applicant had an intent to be a full-time student when he/she entered on the F-1, and such change to H-1B later becomes much more acceptable, both to INS and later to the U.S. Consulate.
For these reasons, any experienced and qualified immigration lawyer will fully explore and question you about your visa/U.S. entry history and, only then, advise you accordingly. Before deciding to change status, have a thorough discussion with your attorney to see if it might be more preferable to return to one’s home country and return to the U.S. with a visa instead of changing status and then feeling that it is too risky to leave. That is no way to live, feeling like a prisoner even if in the U.S.

3. Be Prepared, Be Truthful!
When applying for a visa at the U.S. Consulate, first try to get the most updated information by visiting the Consulate’s website. Then, fill out the application forms carefully and thoroughly. Uncompleted or partially completed forms will raise a red flag to the visa officer immediately. They are trained to presume the applicants are lying and omissions look to them like an attempt not to tell the truth. You are hiding something! Make sure to attach all the required documents and know your case. When we prepare our clients, we demand that they fully understand what has been stated in their visa petitions (already approved by BCIS) and in their change of status applications as well. If we are presenting their E-2 (Investor) case, they are given a complete copy of their package and we want them to read it as if studying for a test. If an interview is required, one must listen to the question and answer truthfully. Do not make the common mistake of “not answering the question” or repeating rehearsed answers. Do not lie on the application. Visa fraud, or the making of a material misrepresentation at the U.S. Consulate or at entry is a ground for deportation/inadmissibility and more often than not has no waivers.

4. S.214 (b) Denial
Commonly s.214(b) is used as a ground for NIV denial because the applicant fails to establish strong ties to the home country and therefore it is unlikely in the mind of the official that one will return. What applicants do not understand, however, is s.214(b) is more often invoked because the applicant does not meet the standards of the visa category. For example, an applicant for a F-1 visa that has very low grades in his/her transcript will not be taken seriously for his/her intent to pursue further education in the U.S. Likewise, if an applicant for a religious worker visa does not have the membership, experience, and personal history to carry out the proposed duties in the U.S., his/her intent is more likely to be challenged.

5. How do I use a visa?
Finally, now that you have a visa in your passport, how do you use it properly? Although most people understand that a valid passport and a visa stamp in it are required for travel to the U.S., few people know when they need a visa or what its terms and limitations are. Nationals from certain visa-waiver countries such as Canada, Japan, Australia, most European countries, etc., are often used to traveling to the U.S. without having to obtain a visitor’s visa. These individuals in many ways are just as likely to be naive about the necessity and conditions of their entry.
When a foreign national enters the U.S. and presents a ‘visa’ to the inspector, he/she is making a certain presentation. In particular, the entrant is promising to behave within the boundaries of the visa and not to abuse it. In the case of a national from a visa-waive country, if he/she enters the U.S. without another visa, he/she is coming in only for a temporary visitor’s purpose and not to work or reside in the U.S.

What if you have several visas in your passport? You must use the visa that is most appropriate for the purpose of your entry. For example, a foreigner may have a visitor’s visa as well as an H-1B visa, and both visas are valid for the next few more years. When the foreigner is entering the U.S. for his/her H-1B employment, he/she must use the H-1B visa so that the inspector at the border will assign an appropriate status to the entrant. If his/her H-1B employment has been completed, and the entrant is only entering for a short visit, the entrant must use his/her B-1/B-2 visa.

Once in a while, a permanent resident, who has been abroad for an extended period of time, might contemplate re-entering the U.S. as a visitor. This is an act that practically renounces his/her permanent residence. A permanent resident should always be able to show his/her intent to make the U.S. his/her permanent home.
In conclusion, keep a clean history, make certain you apply for the appropriate visa category, and if you have a long-term goal, consult a qualified immigration attorney. Remember that proper visa usage is extremely important for any future changes of plans – whether it is to continue education, to gain work experience, to later marry someone you love in the U.S.

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.

Questions or comments, visit our site at hilglaw.com or email us at comments@hilglaw.com

Acquisition of U.S Citizenship by Naturalization

2007-06-16T13:37:00.001-07:00

U.S. Citizenship may be acquired by operation of law (i.e., birth in the U.S. or birth abroad to U.S. citizens or nationals) or by naturalization. In this article, I will explain the latter. However, if you have any doubt about the possibility of deriving your U.S. citizenship from one of your parents who is U.S. citizen, or the possibility of your child's U.S. citizenship, you should contact a qualified immigration lawyer to know for sure.

To acquire U.S. citizenship by naturalization, the applicant must first be a lawfully admitted permanent resident. He/she may ask, "Why do I want to become a U.S. citizen?" and "What is the difference between the rights of one with a 'green card' and those of a U.S. citizen?". Finally, and often most importantly is "If I apply for naturalization, do I lose my own citizenship?"
Although it is ultimately a personal choice, several factors may sway one to become a U.S. citizen. First, there are many ways one can lose permanent resident status and be excluded or deported from the U.S., especially with '9/11', whereas a U.S. citizen will always remain a citizen regardless of his/her conduct. For example, long absences from the U.S. can be interpreted at the border as abandonment of permanent residency, and many, even minor, criminal convictions can trigger removal. As explained in the previous column, maintaining a permanent resident status should not be taken lightly, and, in fact, is not easy.

Secondly, acquiring U.S. citizenship often may prove to be useful in the future, i.e., if one later decides to marry or bring other family members, most often parents. The visa waiting line for permanent residents' spouse and other family members is so long that it is often faster to wait for the petitioning permanent resident to obtain citizenship.

Third, in times of emergency, U.S. citizens are more likely to receive protection from the U.S. government than permanent residents are. This may be a concern to some individuals who are adventurous or committed to international issues and travel to remote or potentially dangerous places. Lately, we heard about Chinese scholars, who are permanent resident of the U.S., being detained by the Chinese government under the suspicion of espionage while they were conducting academic research. In reality, once one gains a permanent resident status in another country, one's allegiance to the home country may be already in doubt from the perspective of the home country. This can potentially create a limbo status in which one does not belong to any country and cannot expect assistance or protection. The above point brings the issue of dual citizenship. A person may be a citizen of more than one country. Dual citizenship situations arise because there is no single international norm on the acquisition of citizenship. Some countries follow the jus soli principle while others adhere to the jus sanguinis rule. Dual citizenship situations arise under several circumstances, including: by birth in the U.S. to parents who are nationals of a country that bases its citizenship on parentage; by birth in a foreign country that follows jus soli to at least one U.S. citizen parent; by naturalization of a U.S. citizen in a foreign state, provided the U.S. citizen is not found to harbor the intent to relinquish U.S. citizenship; by naturalization in the U.S. of a foreign national where the foreign country does not recognize any expatriation, etc.

Dual citizenship is not explicitly allowed or disallowed in the U.S., and yet it is not favored under law because the oath of allegiance to one country may conflict with one's allegiance to another country.

Although U.S. law does not require a dual national to elect one nationality over another, and therefore effectively allows dual citizenship, some countries take a position that the oath of allegiance to the U.S. expatriates the person from his/her citizenship, which disallows dual citizenship. In such situation, one must consider the practical reality that the acquisition of U.S. citizenship can be viewed as an evidence of lack of loyalty to the mother country and may have negative influence on his/her career if he/she wishes to return to home country.
If you have considered all the above issues and wish to apply for U.S. citizenship by finding out if you are eligible for it, please read the rest of the article that will discuss the requirements and regulations regarding naturalization.

Now if you have read my caveat, considered all the preliminary issues, and wish to become a U.S. citizen by naturalization, you need to find out the requirements and your eligibility for naturalization.
You may apply for naturalization if you are at least 18 years of age, are a lawfully admitted and continuous permanent resident, and have satisfied the 5-year/30-month (or 3-year/18 month) residency requirements. You must also be a person of good moral character. While the first requirement is self-explanatory, the last three requirements are not as clear. If you have any doubt, you should discuss in detail your eligibility with a qualified immigration lawyer before beginning the N-400 application.

In addition to the above basic requirements, one must show the examiner your knowledge of the history and government. There are other important considerations, that are less known to the public. For example, if you received your green card based on employment (no matter how long ago), you may be required to show that you worked for your sponsor after the grant of permanent residency (green card). As an immigration lawyer, I see many applicants come to us in panic after they were asked at the naturalization interview for such evidence. Similarly, if your green card was based on a marriage to a U.S. citizen and you are no longer married to the same spouse, the circumstances must be explained.
Further, the BCIS now increasingly inquires into the applicant's prior conduct and moral character past the five-year statutory period. If you have had any brush with the law, either in the U.S. or abroad, throughout your life, you must discuss it with your attorney and be prepared to produce all records and criminal dispositions.

Special Situations

In some special situations, you may be able to get naturalized without meeting the basic requirements described above. If you are married to a U.S. citizen and your spouse is employed abroad by qualified U.S. business entities such as the U.S. Government, research institution, qualifying U.S. firm or corporation, or certain other personnel performing duties abroad, you may preserve your residency by notifying the BCIS beforehand. If you must leave the U.S. for one of the stated reasons and wish to qualify for naturalization within the statutory period, again, please call an experience immigration lawyer to discuss your situation.
Finally, there has been a new development regarding minor children of U.S. citizens. According to the new law, if at least one of the parents becomes naturalized, his/her minor children derive their U.S. citizenship from their parent's without making a separate application.

Good Moral Character

Generally, an applicant must show that he or she has been a person of good moral character for the statutory period (typically five years or three years if married to a U.S. citizen or one year for Armed Forces expedite) prior to filing for naturalization. The Service is not limited to the statutory period in determining whether an applicant has established good moral character. An applicant is permanently barred from naturalization if he or she has ever been convicted of murder. An applicant is also permanently barred from naturalization if he or she has been convicted of an aggravated felony as defined in section 101(a)(43) of the Act on or after November 29, 1990. A person also cannot be found to be a person of good moral character if during the last five years he or she:
Has committed and been convicted of one or more crimes involving moral turpitude
Has committed and been convicted of 2 or more offenses for which the total sentence imposed was 5 years or more
Has committed and been convicted of any controlled substance law, except for a single offense of simple possession of 30 grams or less of marijuana
Has been confined to a penal institution during the statutory period, as a result of a conviction, for an aggregate period of 180 days or more
Has committed and been convicted of two or more gambling offenses
Is or has earned his or her principal income from illegal gambling
Is or has been involved in prostitution or commercialized vice
Is or has been involved in smuggling illegal aliens into the United States
Is or has been a habitual drunkard
Is practicing or has practiced polygamy
Has willfully failed or refused to support dependents
Has given false testimony, under oath, in order to receive a benefit under the Immigration and Nationality Act.

An applicant must disclose all relevant facts to the Service, including his or her entire criminal history, regardless of whether the criminal history disqualifies the applicant under the enumerated provisions.
Language Applicants for naturalization must be able to read, write, speak, and understand words in ordinary usage in the English language. Applicants exempt from this requirement are those who on the date of filing:
Have been residing in the United States subsequent to a lawful admission for permanent residence for periods totaling 15 years or more and are over 55 years of age;
Have been residing in the United States subsequent to a lawful admission for permanent residence for periods totaling 20 years or more and are over 50 years of age; or
Have a medically determinable physical or mental impairment, where the impairment affects the applicant's ability to learn English.

United States Government and History KnowledgeAn applicant for naturalization must demonstrate a knowledge and understanding of the fundamentals of the history and of the principles and form of government of the United States. Applicants exempt from this requirement are those who, on the date of filing, have a medically determinable physical or mental impairment, where the impairment affects the applicant's ability to learn U.S. History and Government.

Applicants who have been residing in the U.S. subsequent to a lawful admission for permanent residence for at least 20 years and are over the age of 65 will be afforded special consideration in satisfying this requirement.
Oath of Allegiance To become a citizen, one must take the oath of allegiance. By doing so, an applicant swears to:
support the Constitution and obey the laws of the U.S. ;
renounce any foreign allegiance and/or foreign title; and
bear arms for the Armed Forces of the U.S. or perform services for the government of the U.S. when required .
In certain instances, where the applicant establishes that he or she is opposed to any type of service in armed forces based on religious teaching or belief, USCIS will permit these applicants to take a modified oath.
These are general guidelines only. If you wish to discuss your eligibility, please e-mail a brief description of your situation to heller@hilglaw.com.

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.

Questions or comments, visit our site at hilglaw.com or email us at comments@hilglaw.com

The Best and Worst Clients: A Lawyer's Perspective

2007-06-16T13:32:00.000-07:00

mThis article may be the most important one among all the pieces I have written so far. In this article, I’d like to tell the readers a secret - what kind of client will receive the best service from his/her lawyer and therefore most likely secure a successful outcome? Although all lawyers have different personalities and working styles, there are general guidelines to being a good client as there are rules of thumb for being a good lawyer. In a modern society, everyone is likely to require legal services at least once, if not, more. I hope this article will help the readers to become a better client and receive better service at no additional cost.

Although lawyers are engaged in providing professional services in exchange for monetary compensation, they are also human beings, and they will, as in any human relationship, work harder for people and cases they care about. I am a lawyer and have been a client of other lawyers as well. I understand both perspectives. A client, after working with his/her lawyer, may feel lucky to have found such a competent lawyer and may other times feel it was a disastrous decision to retain that lawyer and wishes to replace him/her. The same goes for the lawyer. A lawyer may find one client a pleasure to represent and another a nightmare.

Choosing the right lawyer and deciding to represent a client both take good judgment. The first thing to look for is the lawyer’s specialty. Ask for referrals and try to locate lawyers in the specialization you want, visit his/her website, look up the business listings, etc. Second, try to find a lawyer that is not only experienced but also one that is responsive and easy to work with by talking to them on the phone if you are able. Lawyers, who are not available to talk to you initially, generally will not have a lot of time for you even after you retain them. More often that not, this unavailability is more style than substance. Often times, through the first few phone conversations, even without a face-to-face consultation, one can learn if the lawyer is competent to deal with your situation, talks to you substantively, and if s/he seems trustworthy as a person. We all have the ability to perceive something about another, a second sense. Also, remember, as you are screening for a good lawyer, the lawyer may be screening you. Lawyers do not have to take all the cases, and good lawyers are even more selective about what cases they take on given their limited time.

Once you have chosen a lawyer for your case, and he/she has chosen you, keep an open and honest dialogue and keep your lawyer informed of all the changes in your situation. Discuss all your concerns as early as possible, and follow instructions promptly. Don’t give your lawyer the impression that just because you paid him/her you are entitled then to simply lay your problems at the feet of the lawyer and he/she is now responsible to solve your case without your help. Remember that your lawyer is there to guide you and help lead you to the resolution of the matter; do not assume and expect that the lawyer will create and generate required documents and evidence for you. The client is responsible for providing all the facts and materials so that his/her lawyers can have the best and most accurate picture of the circumstances and then represent the client to their best ability.

Clients that are difficult to represent and seem to complicate their situation even more include those who wait too long before seeking professional help; those who reveal facts selectively; and those who fight against the lawyer’s advice. In all these cases, the clients themselves are likely to damage their own case more than what has already happened. In doing so, they will not only cause a delay in problem resolution but also lose respect from their lawyer.

I find that good clients work with the lawyer and help resolve even the most difficult cases successfully, and relatively painlessly, and that bad clients make the most straightforward cases difficult to complete. Once a mutually respectful relationship has been established, your lawyer will try to go out of his/her way to help you. I personally lose sleep over my clients’ cases and sometimes even dream of a perfect solution. Each and every time I obtain a successful resolution of a client’s matter, I feel the greatest reward for my career. I have experienced many lawyer-client relationships evolving into very pleasant and mutually beneficial professional relationships. I hope all the readers will learn to choose a good lawyer, be a good client, and obtain a successful outcome by establishing a positive and trusting relationship with their lawyers.

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.

Questions or comments, visit our site at hilglaw.com or email us at comments@hilglaw.com