AC21 Portability and You: Moving Around after 180 Days

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:


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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)

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􀂃 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)

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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)

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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)

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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)

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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)

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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.”
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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.

"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.

An Immigraton Solution: Continued...

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.

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

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?

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?

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)

5 Secrets About The F-1 Students Visa

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

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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

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

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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

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.

read more | digg story

Visa Officer Dispels Rumor

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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

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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