Most Recent Immigration Thoughts...

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

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

Of course, it shouldn't be.

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

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

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

LINKEDIN QUESTION: NEVER EXPECTED SUCH A RESPONSE!

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

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

Below is my response to one such email:

_________________________


Hi John,

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

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

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

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

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

Best,


p


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

Heller Immigration Law Group, LLP

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

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

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

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

Blackberry/Cell: 1/650 799-0123

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

YM: paulhilg; GoogleTalk: hilglaw

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!

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

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)

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

The Best and Worst Clients: A Lawyer's Perspective

mThis article may be the most important one among all the pieces I have written so far. In this article, I’d like to tell the readers a secret - what kind of client will receive the best service from his/her lawyer and therefore most likely secure a successful outcome? Although all lawyers have different personalities and working styles, there are general guidelines to being a good client as there are rules of thumb for being a good lawyer. In a modern society, everyone is likely to require legal services at least once, if not, more. I hope this article will help the readers to become a better client and receive better service at no additional cost.

Although lawyers are engaged in providing professional services in exchange for monetary compensation, they are also human beings, and they will, as in any human relationship, work harder for people and cases they care about. I am a lawyer and have been a client of other lawyers as well. I understand both perspectives. A client, after working with his/her lawyer, may feel lucky to have found such a competent lawyer and may other times feel it was a disastrous decision to retain that lawyer and wishes to replace him/her. The same goes for the lawyer. A lawyer may find one client a pleasure to represent and another a nightmare.

Choosing the right lawyer and deciding to represent a client both take good judgment. The first thing to look for is the lawyer’s specialty. Ask for referrals and try to locate lawyers in the specialization you want, visit his/her website, look up the business listings, etc. Second, try to find a lawyer that is not only experienced but also one that is responsive and easy to work with by talking to them on the phone if you are able. Lawyers, who are not available to talk to you initially, generally will not have a lot of time for you even after you retain them. More often that not, this unavailability is more style than substance. Often times, through the first few phone conversations, even without a face-to-face consultation, one can learn if the lawyer is competent to deal with your situation, talks to you substantively, and if s/he seems trustworthy as a person. We all have the ability to perceive something about another, a second sense. Also, remember, as you are screening for a good lawyer, the lawyer may be screening you. Lawyers do not have to take all the cases, and good lawyers are even more selective about what cases they take on given their limited time.

Once you have chosen a lawyer for your case, and he/she has chosen you, keep an open and honest dialogue and keep your lawyer informed of all the changes in your situation. Discuss all your concerns as early as possible, and follow instructions promptly. Don’t give your lawyer the impression that just because you paid him/her you are entitled then to simply lay your problems at the feet of the lawyer and he/she is now responsible to solve your case without your help. Remember that your lawyer is there to guide you and help lead you to the resolution of the matter; do not assume and expect that the lawyer will create and generate required documents and evidence for you. The client is responsible for providing all the facts and materials so that his/her lawyers can have the best and most accurate picture of the circumstances and then represent the client to their best ability.

Clients that are difficult to represent and seem to complicate their situation even more include those who wait too long before seeking professional help; those who reveal facts selectively; and those who fight against the lawyer’s advice. In all these cases, the clients themselves are likely to damage their own case more than what has already happened. In doing so, they will not only cause a delay in problem resolution but also lose respect from their lawyer.

I find that good clients work with the lawyer and help resolve even the most difficult cases successfully, and relatively painlessly, and that bad clients make the most straightforward cases difficult to complete. Once a mutually respectful relationship has been established, your lawyer will try to go out of his/her way to help you. I personally lose sleep over my clients’ cases and sometimes even dream of a perfect solution. Each and every time I obtain a successful resolution of a client’s matter, I feel the greatest reward for my career. I have experienced many lawyer-client relationships evolving into very pleasant and mutually beneficial professional relationships. I hope all the readers will learn to choose a good lawyer, be a good client, and obtain a successful outcome by establishing a positive and trusting relationship with their lawyers.

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

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