New Naturalization Certificate Designed to Enhance Security

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

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/

The Arizona Law: A Solution

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...

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?

GAY MARRIAGE AND IMMIGRATION

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.

Most Recent Immigration Thoughts...

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.

America in Trouble: Immigrant Saviors...

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.

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

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.

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

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!

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!

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!

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?

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....

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

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......

IMMIGRATION DEBATE: A DYSFUNCTIONAL FAMILY MEMBER..

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

Are you LinkedIn?

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.

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

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

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

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