New H-1B Legislation Makes the Program More Restrictive

January 31st, 2017

Representative Zoe Lafgren of California introduced the ‘High-Skilled Integrity and Fairness Act of 2017’ to drastically reform the H-1B visa program, which is the predominant work visa for professionals in the US. This legislation does the following:

1. Prioritizes the allocation of H-1B visa numbers (which are capped) of companies willing to pay 200 percent of a wage calculated by a survey;
2. Eliminates the category of lowest pay;
3. Requires employers to first offer a vacant position to equally or better qualified American workers before seeking an H-1B or L-1B;
4. Raises the salary level at which H-1B dependent employers are exempt from the non-displacement and recruitment attestations requirements to greater than $130,000 (more than double the current $60,000 minimum salary for exemption);
5. Removes the ‘per country’ cap for employment-based immigrant visas so that foreign workers worldwide are treated more fairly;
6. Sets aside 20 percent of H-1B visas for small and start-up employers (50 or fewer employees); and
7. Creates a new path for F-1 students to obtain legal permanent residency.

This legislation will only make it more difficult for companies to grow and thrive by not increasing the overall H-1B visa quota and creating these additional requirements. Smaller companies may need to hire more entry-level workers in industries where there is a dearth of qualified US workers and assigning priority to the higher paid workers will obstruct these companies ability to attract knowledgeable and skilled workers. Small companies are the backbone of our economy and ultimately create more jobs for Americans.

Also, the current H-1B regulations already require H-1B dependent and non-exempt employers to conduct recruitment to ascertain the market for US workers. It is not necessary to convert the H-1B program into a full-scale PERM labor certification case, which requires employers to conduct recruitment in order to sponsor their foreign employees for legal permanent residency.

Trump Issues Executive Order on Immigration & National Security

January 28th, 2017

President Trump’s most recent executive order, ‘Protecting the Nation from Terrorist Attacks by Foreign Nationals,’ impacts immigration in its quest to abate terrorist attacks. In particular it does the following:

• Imposes a 90-day entry ban into the US on foreign nationals from seven countries with high Muslim populations linked to concerns over terrorism, which are Iraq, Iran, Syria, Sudan, Somalia, Libya and Yemen (excluding those foreign nationals traveling on diploma visas, NATO visas and C-2 visas for travel to the UN and allowing an exception to the bar on a case-by-case basis);

• Bars Syrian refugees indefinitely;

• Places a 120-day moratorium on refugees from around the world and directs officials to determine additional screening procedures to ensure that they don’t pose a threat to security and the welfare of the US:

• Slashes the total number of refugees from 110,000 to 50,000; and

• Suspends the visa interview waiver program so that all individuals seeking a nonimmigrant visa must undergo an in-person interview (with limited statutory exceptions).

Trump’s order also establishes a “religious” test for refugees by granting Christians and minority religions priority over Muslims. This is based on Trump’s assumption that Muslims come to the US relatively easily compared to Christians, for whom he claims it is nearly impossible. However, according to the Pew Research Center, almost as many Christians (37,521) were admitted as Muslims (38,901) in the 2016 fiscal year.

It should be noted that most of the 19 hijackers on the planes that crashed into the World Trade Center on September 11th were from Saudi Arabia. The rest were from the United Arab Emirates, Egypt, and Lebanon, none of which were included in the 90-day ban. Critics have noted the political reasons and Trumps’ personal reasons for not covering such countries, which do not relate to our national security.

The world’s critics have noted that the door is being slammed on innocent people and harming the world’s most vulnerable people. We should be making policy decisions based on reason and compassion and not fear. Also, it is noted that Trump’s misguided, harmful and rash decision will backfire and only make us less safe. Such draconian policies bolster the US’ enemies by offering a propaganda boost to terrorists and the policies have major diplomatic repercussions and exacerbate the already-low perceptions of Americans globally. Overall, Trump’s policies will alienate Muslims worldwide even more.

Others note that Muslims’ perceptions of the US are already cynical and that they regard Americans as hypocritical since Americans claim that the US is the land of freedom, democracy and diversity but subject Muslims to extreme forms of vetting and overall discrimination in the immigration process. Under this line of reasoning, Trump’s stringent executive order will not provoke more people into becoming terrorists but just set the record straight on America’s actual stance.

Finally, it should be emphasized that Trump’s ban on Muslim immigration places in jeopardy the resettlement of interpreters from Iraq and Afghanistan who have helped US forces since 2001. They have been promised resettlement in the US and the Obama Administration continued the program granting special visas to them. The ban on their entry into the US may discourage potential future interpreters who risk their lives for us.

Trump’s Anti-Immigration Executive Orders

January 25th, 2017

It is getting increasingly difficult to tolerate the constant deluge of news about Trump’s anti-immigration policies, actions and attitudes. Just today, he issued two executive orders affecting immigration. The one on border security and immigrant enforcement includes building a wall along our border with Mexico. The second focuses on public safety in the interior of the US. Enforcement of US laws and removal of criminal aliens sounds reasonable, but that is only so if they are executed with fairness and justice and not based on fear-mongering and xenophobia.

Also, it is important to evaluate our immigration laws to determine if they are even wise, logical and fair. For example, the lack of sufficient numbers and types of nonimmigrant visas that allow foreigners to work in the US is woeful and only harms the US economy and creates a shadow one, impedes the prosecution of crimes (since undocumented workers are afraid to report them) and exploits workers. If we simply allowed for more foreigners to work in the US based on sponsorship by employers then we would drastically reduce the problem of undocumented workers in the US and generate enormous gains for our economy and public safety.

Finally, egregious stereotyping of Muslims or those from “hostile” countries is inimical to our strong values of an open, tolerant, compassionate and diverse society. It makes me heartsick to think of all of those Syrian refugees who have lost everything and suffered extreme trauma who will be turned away just because of their nationality. We already employ extensive vetting processes. It is true that no system may be completely foolproof but that is no excuse for eradicating the system altogether. Life is a careful balancing act and always involves risks and in this case the need of these refugees and the reputation of our country as the standard-bearer of democracy and the land of immigrants far outweighs the disadvantages of an outright ban on welcoming refugees.

How Can I Get a Green Card Based on Marriage?

January 22nd, 2017

A foreign national can obtain legal permanent residency (a “green card”) based on marriage either by adjusting (changing) status in the US or obtaining an immigrant visa at a US consulate abroad. Either route requires a showing of a genuine marriage and admissibility and adjusting status in the US requires additional evidence regarding how the person entered the US. These cases involve many complicated areas of US immigration law and are not as easy as filing forms found online. The discussion below will summarize the main points of this process and why it is critical to obtain legal representation.

A foreign national may only adjust status in the US if he or she entered legally, which means with inspection either with a visa or without a visa under special exemptions allowed by US law, including the ESTA visa waiver program and Treaty NAFTA. Also, the foreign national could not have entered the US with a nonimmigrant visa but with the intent to remain in the US to obtain legal permanent residency (or immigrant status). This is because most nonimmigrant visas do NOT allow for immediate immigrant intent. The exceptions to this nonimmigrant or temporary intent requirement are the L-1 and H-1B visas, which allow the foreign national to enter the US with the intent to obtain legal permanent residency. The other exception to the legal entry requirement is if one was the beneficiary of an immigrant visa petition or labor certification filed before or on April 1, 2001, and was physically present in the US on December 20, 2000. This exception is known as section 245i and an attorney should be consulted regarding this route, since it involves a highly advanced review of the foreign national’s immigration history and how it satisfies this highly esoteric area of the law.

If a person is not eligible to adjust status in the US, then he or she must attend an interview for the immigrant visa abroad. If approved, an immigrant visa stamp is placed in the person’s passport and then they will receive the alien registration card after entry into the US. As discussed below, if a foreign national is inadmissible then he or she would needs a waiver to enter the US.

To show a real marriage, USCIS will request proof of a valid marriage, including valid divorce decrees or death certificates is applicable, since polygamy (marriage to more than one person) is not allowed. Evidence of a real marriage includes birth certificates of children together; jointly filed tax returns; jointly owned property or a lease in both names; joint utility bills; insurance, such as life, health and auto; medical and school records; declarations from friends and family, photos.

One must be admissible to be able to obtain legal permanent residency. Grounds of inadmissibility include certain overstays in the US for at least six months (but only if one departed after such overstay), crimes, prostitution, bigamy, terrorism, fraud for an immigration benefit, persecution of others, abduction and a host of other acts considered dangerous or unacceptable to the US. Some of these grounds of inadmissibility may be “waived,” which means that the US government can admit one despite such activity if the foreign national meets the standards for the waiver for that particular ground of inadmissibility. For example, if one lied in the past to obtain an immigration benefit (such as obtaining a B-2 visitor visa), then a waiver would require that the foreign national has a spouse or parent who is a US citizen or legal permanent resident and that qualifying relative would suffer extreme hardship if the foreign national could not enter the US or obtain legal permanent residency in the US through adjustment of status.

Another important aspect of obtaining legal permanent residency through a spouse is the financial contract that the US citizen spouse sponsor must sign with the US government. This affidavit of support (Form I-864 or I-864A) requires the US sponsor to show that he or she has sufficient income or assets for his household size and his or her tax returns for the last three years if required to do so. If the US citizen sponsor does not satisfy these rules, then a co-sponsor will also be required to file an affidavit of support contract with the US government. This financial contract is valid for 10 years or until the foreign national becomes a US citizen, departs the US permanently or dies. Divorce does not terminate the sponsor’s obligations. These obligations include that the US citizen sponsor support the foreign national at 125% of the federal poverty guidelines if the foreign national cannot support himself and that the sponsor repay the US federal, state or local government for means-tested welfare benefits used by the foreign national if the government seeks reimbursement. Also, there are other rules associated with the affidavit of support that are little known and quite problematic, especially regarding self-employed sponsors.

Determining a foreign national’s eligibility for legal permanent residency and whether the sponsor meets the affidavit of support requirements requires advanced knowledge of USCIS’s byzantine immigration laws. Some may try filing themselves thinking that it is as easy as completing and submitting forms to USCIS, but this is foolhardy. In fact, some applicants may find themselves in removal proceedings if the application is denied.

Another reason that it is critical that an immigration attorney assist in the case concerns one’s right to work and travel during this process. An applicant for adjustment of status may abandon such application and be stuck outside the US to consular process abroad if he or she does not follow the rules for foreign travel during this period. Also, if it is a foreign national’s intent to work in the US legally as soon as possible, then it is imperative that the application be filed correctly to avoid any delays.

US Final Rule on Parole for International Start-Up Entrepreneurs

January 16th, 2017

USCIS has issued its final rule regarding exercise of its parole authority on a case-by-case basis regarding entrepreneurs of start-up entities who can prove through evidence of substantial and demonstrated potential for rapid business growth and job creation that they would provide a significant benefit to the US. The rule is effective July 17, 2017.

The potential of such a significant benefit to the US could be demonstrated by the receipt of substantial capital investment from US investors with track records of successful investments or being in receipt of significant grants or awards from certain Federal, State or local government agencies. Also, the applicant must show that he or she has a substantial interest in the start-up entity, will play an active and central role in its operations and would substantially advance the entity’s ability to engage in research and development and create new jobs in the US.

Parole can be issued for up to 30 months (that can be extended for an additional 30 months) for the applicant to oversee and grow his or her start-up entity in the US.

The greatest benefit of this rule is that it is not dependent on the existence of a treaty between the US and the applicant’s country of citizenship, like the E-2 treaty investor visa. Foreign nationals from India and China (mainland) have been excluded from the E-2 program because of the absence of such a treaty.

Obama Administration Ending “Wet Foot, Dry Foot” Cuban Policy

January 16th, 2017

The Obama administration is ending the “wet foot, dry foot” policy in place that automatically grants legal permanent residency to Cubans who arrive in the United States by land without visas and returns those intercepted at sea. The Obama administration is also ending a policy to immediately deport Cubans apprehended at ports of entry or at a U.S. land border, mainly the one with Mexico. Furthermore, the administration is eliminating the favorable policy towards Cuban medical professionals, known as the Cuban Medical Professional Parole Program, pursuant to which Cuban medical professionals stationed in international missions could defect and get expedited visas to the US.

President Clinton’s administration instituted the wet-foot/dry-foot policy in the mid-1990s to deal with the Cuban rafter crisis. Before the agreement, amid widespread economic and political unrest in Cuba, approximately 35,000 Cubans fled the communist regime to the US in makeshift boats and rafts

The major change in policy is a result of the President Obama’s attempt to normalize diplomatic relations between the US and Cuba and terminate the decades-old trade embargo that the US has in place against Cuba.

The 1966 Cuban Adjustment Act, from which the “wet foot, dry foot” policy originally derives, remains in place, although Obama administration officials are calling for its repeal by Congress. Cubans who reach US soil will still be allowed to apply for asylum or other humanitarian relief, but they will not be given preferential treatment.

To carry out the new policy, the Cuban government agreed to take back 2,746 Cubans who were excludable rom the US after the 1980 Mariel boatlift as well as some others who came to the US at the same time and committed crimes. That leaves the vast majority of the longstanding deportation Cuban cases pending, although the Cuban government agreed to review the decisions on a case-by-case basis.

What Are My Alternatives If I Don’t Get an H-1B Visa Number?

January 8th, 2017

If a foreign national is not lucky enough to receive a number under the H-1B visa cap lottery, then there are other nonimmigrant visa alternatives for working in the US. The most popular ones are the L-1 intra-company transferee, E-1 or E-2 treaty trader or investor (this article will focus on the E-2) or O-1 extraordinary ability alien.

L-1 visas are available to persons who have worked abroad for one continuously year within the preceding three years in an executive, managerial, or specialized knowledge capacity for a firm or corporation or other legal entity, or an affiliate or subsidiary thereof, and who are being transferred temporarily to the United States to work in an executive or managerial (L-1A), or specialized knowledge capacity (L-1B) for the same employer or a subsidiary or affiliate thereof. The L-1B has a maximum period of stay of five years, compared to the L-1A of seven years.

A petitioner can demonstrate “specialized knowledge” by establishing either one of two statutory criteria. Under the statute, a beneficiary is deemed to have specialized knowledge if he or she has: (1) a “special” knowledge of the company product and its application in international markets; or (2) an “advanced” level of knowledge of the processes and procedures of the company. INA 214(c)(2)(B).

The foreign employee may also be eligible for L-1A classification if he or she has served as a manager, functional manager or executives. The term “managerial capacity” means an assignment within an organization in which the employee primarily:

1. Manages the organization, or a department, subdivision, function or component of the organization;
2. Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
3. Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or employees are directly supervised; or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
4. Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. (A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.)

“Managerial capacity” involves not only managing other people, but also managing an essential function. In order to demonstrate that the beneficiary is managing a function (“functional manager”), it must be shown that the beneficiary:

1. Manages an essential function within the organization, or a department or subdivision of the organization;
2. Functions at a senior level within the organizational hierarchy or with respect to the function managed; and
3. Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

“Executive capacity” means an assignment within an organization in which the employee primarily:
1. Directs the management of the organization or a major component or function of the organization;
2. Establishes the goals and policies of the organization, component, or function;
3. Exercises wide latitude in discretionary decision making; and
4. Receives only general supervision or direction from high level executives, the board of directors, or stockholders of the organization.

If the foreign employee is coming to the United States as a manager or executive to open or to be employed in a new office in the United States (in active operation for less than one year), it must be demonstrated that:

1. Sufficient physical premises to house the new office have been secured;
2. The beneficiary has been employed for one continuous year in the three year period preceding the filing of the petition in an executive or managerial capacity and that the proposed employment involved executive or managerial authority over the new operation; and
3. The intended United States operation, within one year of the approval of the petition, will support an executive or managerial position as defined above.

An alien is classifiable as a nonimmigrant treaty investor (E-2) if the following is demonstrated:

1. A requisite treaty exists between the United States and the country of which the treaty enterprise is a “national” (there is no treaty between the US and India);
2. There is at least 50% ownership of the investing enterprise by nationals of the treaty country;
3. There is citizenship in the treaty country by the principal investors and enterprise employees seeking admission through the treaty enterprise;
4. The alien has invested or is actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States, as distinct from a relatively small amount of capital in a marginal enterprise solely for the purpose of earning a living;
5. The alien is playing an essential role with the company, either as the investor who will develop and direct the enterprise, or as a qualified manager or highly trained and qualified employee; and
6. The alien intends to depart from the United States upon the termination of E-2 status.

Requirements (4) and (5), regarding the investment itself, are the most challenging aspect of the treaty investor visa petition. More specifically, it must be shown that:

1. The investor has made an irrevocable commitment of funds that represents an actual, active investment;
2. The investment is substantial, taking into account only those financial transactions in which the investor’s own resources are at risk;
3. The investment is not marginal in nature, that is, one that will only support the investor and his family; in most cases, it should create job opportunities for U.S. workers; and
4. The investor will develop and direct the investment.

The main differences between the L-1 and E-2 are that the E-2 does not require that the foreign national worked at least one year abroad for the qualifying company and that the L-1 does not require a significant investment nor a specific treaty so that a foreign national from any country can qualify. The most significant difference regarding legal permanent residency is that the L-1A has an immigrant counterpart in the EB-1C multinational petition, which means that the L-1A may qualify for faster-track legal permanent residency, bypassing the PERM labor certification process. No such special immigrant visa petition pertains to the E-2. The foreign national would have to invest $500,000 or $1 million in order to qualify under the EB-5 investor immigrant visa program, which has considerably greater requirements than the E-2 (although it is not restricted to treaty countries).

In some instances, the foreign national may qualify for both the L-1 and the E-2 (or E-1), in which case it is critical to consult with an attorney to review the other aspects of these nonimmigrant visas and the foreign national’s ultimate desire to obtain legal permanent residency in the US.

In order to obtain O-1 status extraordinary ability status, one must demonstrate extraordinary ability in the field of science, education, business, the arts or athletics. Extraordinary ability in the field of science, education, business, or athletics means a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor. An alien of extraordinary ability in the fields of science, education, business, or athletics must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise by providing evidence of:

(A) Evidence that the alien has been nominated for, or has been the recipient of, significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award; or

(B) At least three of the following forms of documentation:

(1) Evidence that the alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements;

(2) Evidence that the alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;

(3) Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials;

(4) Evidence that the alien has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;

(5) Evidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author’s authority, expertise, and knowledge of the alien’s achievements; or

(6) Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence; or

If these criteria do not readily apply to the foreign national’s occupation, comparable evidence may be submitted.

The O-1 nonimmigrant visa has an immigrant visa counterpart in the EB-1A extraordinary ability visa. The requirements are almost identical, although there are some differences, especially in the standards for the alien in the field of the arts. For the O-1, extraordinary ability in the field of arts means distinction, which is a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts. This is easier to prove than the EB-1A sustained acclaim and top echelon requirements.