USCIS Announces 2 YR Renewal Pollicy!

Office of Communications
USCIS Update
June 12, 2008

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

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

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

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

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

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

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

– USCIS –





Office of Communications
Frequently Asked Questions
June 12, 2008

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

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

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

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

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

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

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

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

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

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

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

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....

H-1B Cases - Get Ready Now

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Back to ground zero - no immigration progress? Maybe.

In conclusion:

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

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

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

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

Good News, Bad News For Those Dealing With The USCIS

Dear Blog readers:

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

The good news…

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

The bad news..

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

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

Best,

P

Here’s the FAQ:

Frequently Asked Questions1

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A10. No.

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

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

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

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

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

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

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

A14. Yes

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

Heller Blog: blog.hilglaw.com

YM: paulhilg

VISA BULLETIN FIASCO III - THE TRUE STORY!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More tomorrow, or early next week; thank you.

Best,

Paul.

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

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

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

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

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

Heller Blog: blog.hilglaw.com

YM: paulhilg

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

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

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

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

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

Best,
Paul

My Take On Immigration And USCIS

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

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

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

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

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

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

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

Best,
Paul

My Take On Immigration And USCIS

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

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

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

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

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

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

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

Best,
Paul

Change Of Employment

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


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

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

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

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

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

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

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

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

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

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

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

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

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

Succesful Immigration: Make A Business Plan

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

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

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

1. Research

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

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

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

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

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

2. Honesty with oneself

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

3. Guts to take the risk

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

In conclusion, I’ve always advised my clients to think before they jump start the immigration process. My honest and sincere advice has been that immigration is a platform on which one folds one’s life plan. Obviously, one should have a rock solid platform, however, without a clear idea of what to build on the platform, it will remain useless. As an immigration lawyer and a member of the community, my interest exceeds getting my clients simple greencards or a visa; I hope to see that hard work and investment in one’s business plan indeed has sowed a seed which will bloom beautifully.


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

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

Small Business Immigration

http://www.hilglaw.com/articles/articles15.htm


One of the most commonly used visas for the new immigrant communities is the E-2 (non-immigrant) investor visa category. Nationals of countries, which have a treaty of commerce and navigation with the U.S., are allowed to live and work here so that they can successfully manage and direct a 'substantial' investment. The true rationale behind this visa status is that free trade and investment will result in economic benefits for both the U.S. and the treaty nation. Often not truly understood, however, is the notion that the investment should result in job opportunities for the local population and the investment itself cannot be the sole means of support for the investing individual (and/or family).

Although all E visas were created under the same principle, larger companies prefer to use E-1 whereas small and medium-sized companies utilize E-2. When companies, which have substantial international trade, use E-1 or E-2 to transfer their employees to the U.S. operation, the transfer to permanent resident status for these visa holders can be processed fairly quickly, if desired later. I will discuss such cases in a future article. In this article, I would like to explain the small business economy driven on the wheel of E-2 visa.

From my experience with the new immigrant communities, I observed that a typical foreign E-2 investor would purchase a grocery, dry cleaners, or gas station for family business. While some families have a successful E-2 business and thus enjoy a stable status, other families suddenly lose their business for reasons beyond their control (e.g., lease dispute with the landlord, economic downturn, natural disaster, etc.) and realize they no longer have a legal status in the U.S.

E-2 investor visa status allows the visa holder to make business investment and work for that business operation in the U.S. For entrepreneurial foreigners, this seems to be a perfect visa status as it allows them to open up their own small and medium-sized businesses.

In order to receive an E-2 visa, the investor must have a clear business plan and make substantial and irrevocable investment with a goal to eventually create some employment. The investor must also intend to return to home country once the investment is over. There is no minimum amount for such investment. Rather, it depends on the type of the business operation. Some businesses will require a large initial investment in the infrastructure and others will require less. However, the investment should be sufficient to ensure the successful operation of the enterprise and, as stated above, not be merely a means of supporting the individual entrepreneur and his/her family

With E-2 visas, one can stay in the U.S. as long as one's investment continues. Once the invested business closes down, the authorized stay is over, and E-2 visa holder and the dependent family must leave the U.S. or change to anther status.

The advantages of E-2 include an opportunity for the principal investor to own and manage a U.S. business with a relatively small amount of investment and subsequent opportunity for the family members to study and/or work in the U.S, if qualified to do so under another visa category (such as H-1B). Also, family members, as owners, can work in their own business entity. In this regard, E-2 visa holder and his/her family enjoy similar privileges as U.S. permanent residents or citizens.

Nonetheless, E-2 is a temporary 'non-immigrant' status and does not give any long-term stability. The privileges I mentioned above are tied to the business. Even if the business continues, when minor children reach 21, they are not considered dependent members any more and must change to another status, such as F-1.

E-2 should also be separated from investment immigration. In general, investment immigration requires at minimum $1 million investment and the creation of 10 new jobs. Because of these stringent requirements, investment immigration category is one of the most underused categories, and there are usually better ways of going about immigration.

Although E-2 visas rarely lead to a greencard since the investment itself is not large enough nor create the requisite 10 new jobs, if desired later, obtaining permanent residency may be possible with creative and thoughtful strategies, depending on many other factors including job skills.

For the above reasons, it is always wise to speak to a qualified immigration attorney to go over and strategize before utilizing this visa category since in the long term it may be a perilous decision. One must ask, what is the goal to be achieved? Is it simply to do business in the U.S., to make money, or obtain permanent resident status for you and/or one's family members? A hasty decision can not only lead to an unnecessary complication in one's life but also complicate one's future immigration goals.

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

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

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Changing Status From B-2 Visitor

http://hilglaw.com/articles/articles9.htm

One of the most frustrating phone calls I receive as an immigration attorney is: "I'm here on B-2 with my family and want to stay here. How do I change my status?" 90% of such callers actually come to the U.S. with the full intent to stay a very long time. There is nothing wrong with such action per se except such a trip often unknowingly creates a legally perilous situation for the individual and his/her family.
Here is why:
About the children…

Some parents come to the U.S. without any clear long-term plan. Out of concern and ambition for their children's education, they impatiently bring the entire family across the ocean before working out a clear map, which will in the immediate future allow them to support the family and to maintain a legal status. The children are often put in the public education system immediately and thus automatically become violators of their immigration status (if and when it is discovered). In most states, public schools do not inquire about children's or their parent's legal status, and therefore just take them in. This can lead the foreign parents to believe it is alright to do so and also gives them and their children a false sense of security.. Temporary visitors, including children brought with visiting parents, are not authorized to attend any school, let alone a public school that is paid for and supported by U.S. taxpayers. Such records will remain and may make it very difficult for the parents or for the children later on to get a legal status and get a more appropriate visa. Thus, such a hasty decision to bring children to the U.S. even with good intentions and to put them in a public school can actually create many more problems than it solves.
Observation on the families…

Many of these families are often mistakenly and naively encouraged by other family members and/or more remote relatives who reside in the U.S to move here. As a member of an immigrant community, I observe and worry that such an event often later can create a rift in an otherwise close family relationship. Families in the U.S. often naively believe subsistence in the U.S. is better than struggling in the foreign land and do not distinguish between legal and what inevitably turns out to become illegal status since rarely is their planning involved. However, staying illegally in the U.S. has become increasingly more difficult. Visitors, even those who have maintained legal status, cannot get a driver's license, have a difficult time obtaining credit cards, and there is zero possibility of receiving a legal permit to work. If they come into contact with the law, and in today's post 9/11 environment, even minimally, they can find themselves immediately detained by immigration at a detention center and swiftly removed. Out of loneliness, out of the difficulty to find trustworthy employees for their business, and oftentimes truly out of genuine concern for overseas family members, American relatives too often make invitations without much thought to the consequences involved. When each other's expectation is not met, family members, who in the beginning were very hopeful of a new future together, may end up blaming each other and an unhappy family relationship can result from it.
Changing status…

Because most immigration routes take a long time, at least a year and sometimes many more years, the visitors, who were allowed in for 6 months or now often less time, must quickly find a way to temporarily maintain their status. A longer temporary status can be gained through employment, becoming a student, or investing in a business.

Almost without exception, a temporary work status called H-1B requires a specialized bachelor's degree or higher and a job offer from a U.S. employer who is willing to pay the 'prevailing wage'-meaning at or above a U.S. wage. This avenue normally does not suit most of the people who are here as B-1 or B-2 visitors as a real job search in the professions takes time, and the language barrier often makes it more difficult. The difficulty is compounded because if one begins a job search too soon after arriving it may make changing status impossible later on. However, if one parent does secure a qualifying job offer, the entire family, called dependants, can gain legal status and therefore the family can remain together. (For detailed information on H-1B and other temporary work status, please refer to my previous article.)

If one or both parents do decide staying here to study makes sense, and they can afford to do so since neither would be authorized to work, getting an I-20 from a qualifying school is not difficult. Private schools need foreign students' tuition to operate. However, INS is very suspicious of people who try to change their status from a visitor to a student a visitor and Congress has already proposed a law that would disallow visitors from changing their status to that of a student. Even under existing law, visitors who wish to change status must convince INS that their original intent on entering the country was to visit only and only after they came into the U.S did their intention change. This is a very tough requirement to meet especially when an entire family is involved. And even if INS grants the change of status, many U.S. Consulates will make their own determination if and when the individual and/or his or her family members go back home for vacation or a needed visit. I see many individuals who have successfully changed their status but, because of poor planning and execution, are afraid to leave the U.S. for the fear that they will not be able get the student visa and return back here

Finally, there is the investment/E-2 visa. This is a great option if the potential investor has the money to invest and will truly manage the enterprise. However, even then, much planning and timing is required so that one's family can live and travel freely and be here without fear. In this regard, more often than not I will recommend the individual return home to obtain this visa. I also tell clients to take the opportunity while in the U.S. to do market research and properly select a business that they are interested in. Again, they must be prepared to return home to apply for the visa and not to change status in the U.S. because too often such applications may cause them problems when they do want to return and obtain a visa at the U.S. Consulate. Investors who have followed our instructions have had a great success getting a visa abroad and securing their status and in turn their future. I cannot stress enough that changing status while here as a visitor makes getting the visa later on much more difficult because the Consulates are likely to suspect a hidden agenda at the time of entry as visitor.

Our firm has been very successful in helping visitors to maintain a legal status by exploring the visitors' options and guiding them to the best possible path. However, sometimes there may not be an ideal option presented to us because too many missteps have already been made. We also see that some inquirers who did not follow our direction and later on call us after their status has expired or their application has been rejected. Through this article, I wish to advise visitors who are already in the U.S. not to rush into anything without consulting a qualified immigration attorney. And to those who are thinking about coming here, I strongly advise not to relocate family or sell assets until an appropriate legal course of action and strategy has been determined and proper arrangements have been made.
The information contained in article is provided for general information only and should not serve as a substitute for legal advice.

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

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

Obtaining Quality Immigration Representation

"The Quality of Chinese Food in San Francisco"

As I was having a lunch at a jam-packed Chinese restaurant near work in the Financial District of San Francisco, a Chinese man sitting beside me ordered a dish that looked unusually delicious. So I asked him what the name of the dish was. Instead of telling me the name, he gave me a long answer that it could be much better, and the quality of Chinese food had been going down hill in California for the last two decades. Although a pleasant person, he seemed very unhappy about the lack of good food and told me his family goes up to Vancouver, Canada for real Chinese food because they pursue quality and a not cheap substitute. After commiserating with him, my colleague, a long-time practitioner and a well-known lawyer, and I lamented on the quality of legal representation. Just like the Chinese food in San Francisco, the overall quality of legal representation, including that of immigration practitioners, has deteriorated. I believe it is so because the mass-produced lawyers do not seem to have as high ethics or standard of care the profession used to exhibit. What is worse, the public seems to settle for a lower quality substitute and, in doing so, unknowingly risks the future.

Should I Represent Myself?

Although it is sometimes possible to represent oneself in simple U.S. immigration matters, even in such cases, I advise professional representation. The field of U.S. immigration law is quite complex and it changes frequently. In fact, it is so specialized; I have to confess that in my career, I see inexperienced lawyers, uncaring lawyers, and unspecialized general counsels make basic and fundamental mistakes that affect someone's life in a grave way.

An immigration case often involves at minimum three government agencies: the Bureau of Citizenship and Immigration Services, the Department of State, the Department of Labor, and others. Unfortunately, some agents at these agencies believe that their main task is to keep foreigners out of the United States; educating the applicants on immigration process is certainly not part of their responsibilities.

Unless a lawyer, let alone an individual, deals with immigration matters regularly, it is highly doubtful that he or she will be able to complete the process without encountering problems. Immigration law is not always intuitively understandable and even minor errors in processing or in the interpretation of the law may result in serious consequences. It is unfortunate that immigration lawyers are often hired only after people attempted to file petitions themselves or use a wrong substitute but failed for a variety of reasons. Not only legal fees often end up being higher in such cases, but what a waste of valuable life time?

Should I hire an immigration consultant?


Immigration consultants have helped individuals who cannot afford lawyers; some have also gladly carried out the legwork, such as waiting for a visa at the embassy, many of us wish to avoid doing ourselves. However, I see a great danger when immigration consultants attempt to give legal advice or prepare an immigration case without the supervision of an experienced lawyer. Although some immigration consultants have years of experience, it must be noted that no training or experience is required to become immigration consultants and their inexperienced activities are not regulated.

How do I choose a lawyer?

As anybody who had to look for an attorney to represent himself or herself would realize, choosing a right lawyer or doctor with respect to any specialized matter is extremely hard. The attorney-client relationship involves sometimes very personal and complicated matters, and it lasts for a long time. It is one of those life's few intimate relationships that can significantly affect both parties. For this reason, one will have to find a lawyer who has expertise on the matter and whose personality is easy to work with in order to achieve the best result.

A qualified and reputable immigration lawyer, for example, will explain and explore all the available options and assist the client in making the right choices. He/she will also deal with the case more effectively and efficiently, minimizing any potential risk of harassment and delays.

As an economics major in undergrad, I calculate all my life activities in terms of 'opportunity cost'. I do not shy away from hiring valuable help, which allows me time to focus on more productive activities and improve my life style. A qualified immigration lawyer will reduce serious life anxieties and ultimately save the client a lot of time and money by helping him/her to get on with life.

Life is too short to be wasted on bad Chinese food or worrying about a poorly handled immigration case.



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

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

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