Immigration Visa Attorney Blog

Despite recent news, the US continues as a fertile grounds for foreign investors. Unemployment rates are relatively low in many US Cities including Columbus, Ohio and Washington, DC, where our firm maintains offices. There are several available visa alternatives for foreign investors seeking temporary employment in the United States. This article focuses on three viable investor options including Intracompany Transferee (L-1), Treaty Trader (E-1) and Treaty Investor (E-2).

The L-1 visa category is a temporary visa for Intracompany Transferees. It allows companies abroad to establish a presence in the United States by transferring a worker with a qualifying employment position, i.e., an "executive" or "manager" (an L-1A) or a worker with "specialized skill" (an L-1B), to a qualifying business such as a U.S. affiliate, parent, or subsidiary entity on a temporary work basis. The employee must have worked for the foreign company for one continuous year out of the preceding three years. Larger multi-national corporations who frequently transfer employees may seek a "Blanket L-1" which allows it to transfer executives rather quickly. Finally, executives and mangers may seek permanent residency (a "green card") under requirements which mirror those under L-1.

The qualifying employment positions necessary for the L-1 visa are narrowly defined terms under Federal law that must be rigidly followed when applying for this category. Generally, "mangers" and "executives" are higher-level employees who have significant managerial, supervisory and policy making authority. A person with "specialized knowledge" is a vital employee with unique knowledge of the company product or service that does not meet the definition of an executive or manager. It is not necessary for the employee to have held the same position abroad as the intended job in the U.S., as long as the employee was a manger, executive or worker with specialized knowledge and continues to be one of those qualifying positions in the U.S. company. L-1B workers can remain in the U.S. up to five years, while L-1A executives and managers are allowed to stay for up to seven years.

It is also necessary to prove there is a "qualifying business relationship" between the foreign and U.S. companies which means that the relationship is either one of parent/subsidiary or affiliate. Key corporate documents will therefore be necessary components of the application. Federal Regulations allow a new parent, subsidiary, branch or affiliate office in the U.S. to employ a manager or executive under a "new office" petition which will only be approved for one year. Thereafter it may be extended upon proof that the business is active and operating and requires an executive or manager.

Continue reading "Nonimmigrant Visa Solutions for Foreign Investors" »

As an H1B attorney, I have observed a recent alarming increase in the frequency of Requests for Evidence (RFE) issued against H1b petitions filed by smaller Information Technology firms. There is no geographical pattern for the location of such IT consultants as I observed this flurry of record RFEs coming against our clients based in Columbus, Ohio, Washington, DC, or anywhere for that matter. The RFEs are extremely lengthy and require the submission of voluminous documentation, some of which has nothing with the regulatory requirements for Specialty Occupation (H1B). For instance, some of the RFEs demand the submission of zoning permits, floor plans of the premises occupied by the company, tax records, a list of all H visas submitted, and more; but the most concerning request usually proof that the petitioner is an employer, not an "agent."

Although an "agent" technically may petition for an H-1B worker, once the Service believes that the employer is acting as an agent, it imposes extremely taxing documentary requirements on the petitioner that go above and beyond the normal kinds of paperwork that evidence most employment relationships. Once USCIS believes the employer is acting as an agent, its demands for evidence can become impossible to fulfill and may trap the employer in an impossible spiral in which all of its petitions become suspect in the eyes of the Service. Once an employer has fallen into such a trap, it may prove nearly impossible to get out of and result in disastrous consequences for the employer's business.

In essence the petitioner is placed on the defensive to invoke the IRS of whether there exists and employer employee relationship since the H1B employees may work at a "worksite" other than the petitioner's offices. USCIS charges such petitioners as a "staffing agencies" and requires a detailed itinerary of activities of the H1b beneficiary.

Continue reading "USCIS Increasing RFEs Against H1b Petitions Filed by Small IT Companies" »

As immigration lawyer, I am presented with these questions frequently: what are the circumstances that would justify extending an H-1b visa beyond the maximum period allowed by statute? Or how can I extend my H1b visa beyond six years?

Congress dealt with this issue by passing legislation in 2000. The USCIS subsequently published several "guidance memoranda" in which it created criteria for extending H-1B visas beyond 6 years. In order to understand these criteria, I have created all the scenarios which will cause USCIS to either approve or deny an extension beyond the 6 year limit.

• Brief History

Prior to the enactment of The American Competitiveness in the Twenty First Century Act of 2000 (AC21) foreign nationals present in the US on H-1B visas, and who could not reach the point of I-485 in the permanent residence process, simply had to pack their bags and go home at the conclusion of the six (6) year term. The labor certification process (which forms the basis for the majority of permanent residence applications) had been riddled with protracted and overlapping administrative processes that took years. Such delays often caused aliens on H-1b visas to reach the maximum six (6) year limit and depart the United States prior to completing their permanent residence process. For those lucky ones whose employers were willing to continue the permanent residence process despite their departure, they were able to return back to the US after an interruption caused by the aforementioned six (6) year limitation.

The departure of these H-1B visa holders after six years of service working in their field in the US, created in my opinion, a lost opportunities for the foreign nationals, the employers and for the US at large. Many employers forfeited the services of highly trained and skilled employees as well as their investment in visa sponsorship, extensions and in applying for the permanent residence processes.

Congress realized this problem and in 2000 it introduced AC21 which sought to allow H-1B employees to extend their status beyond the maximum allowable six (6) year limit, if they reached certain stages in their permanent residence application processes.

• Permanent Residence Process

The most popular method of applying for employment based permanent residence is through labor certification, now called PERM. A PERM application is filed electronically before the US Department of Labor (USDOL) and it is intended to assure that the permanent employment of a foreign national does not displace equally qualified US workers. Once this process is complete, the employer must then file an immigrant petition for alien worker (I-140). Currently, employees are able to concurrently file an application for permanent residence (i-485) along with the I-140 petition. The I-485 application is the last step in the permanent residence process and its approval results in the issuance of permanent residence, also known as green card, to the foreign national.

Congress also created a quota system which assures that America continues to be a cross section of people from all nationalities. Hence, it instituted a "per country" limitation system to assure that nationals from one country do not become proportionally more populous in the US than others. This per country quota system favors foreign nationals who have higher academic or professional achievements coming from the same country. For instance, currently nationals of India have a significant backlog in the permanent residence process due to the proportionally higher number of Indian nationals who have applied for immigration when compared with other nationals. Within that specific Indian per country limitation system, those whose permanent employment requires the attainment of higher educational or professional achievements will receive their permanent residence status sooner. This is what is referred to as the employment based immigration preference system also known as EB-1, EB-2, and EB-3.

The Visa Bulletin, issued monthly by the US Department of State, publishes the dates that allow certain applicants to move forward with their permanent residence process based on the start date of their immigration process, also known as the priority date.

• H-1B Visa Time Recapture:

One of the most common ways to extend H visa beyond what might seem as a six year limitation is to recapture time the foreign national spent outside the US. So long as absence was not for brief vacations, the law allows the foreign national to precisely spend six (6) years in the US on H-1B visa. Hence, if an alien took a leave of absence for an extended period of time, he or she could request that such time be "recaptured" and the alien could request that his H-1b visa status be extended for those missed days. Another manner in which the alien could recapture lost time is through applying for an extension of the H visa to recover time between the initial issuance of the H-1b visa while the alien was outside the US, and the time that he or she enters the US on H status. For instance, if the H-1b visa approval was issued for a start date of October 1, 2003, but the alien, due to visa processing or other reasons, first enters the US on February 1, 2004, the alien is entitled to request a 4 month extension to be tacked on beyond September 30, 2009.

• Extension Beyond Six (6) Years When Labor Certification is Filed

1. PERM Application Pending For More Than One Year: If an alien has a pending PERM application which had been filed by his employer 365 days or more prior to the alien reaching 6 years on H-1B visa, then the alien is entitled to successive one year extensions. This is true even if the employer who filed the original PERM application is not the same employer who now seeks to extend the H-1B visa beyond six years.

a. Example: Employer "A" files a PERM application for Joe Alien who at the time of the application has already been in H-1B status for 4 years and 9 months. Six months after the filing of the PERM application, Joe Alien transfers his H-1B visa to Employer "B." One passes after the filing of the PERM application and it remains pending. Employer "B" now uses the fact that there is still a pending PERM application which Employer "A" filed for Joe Alien to request extension of Joe Alien's H-1B visa status for another year to continue to work for Employer "B." Under this scenario, the USCIS will approve this extension beyond six years even though It was Employer "A" who originally filed the labor application and Employer "B" filed the extension.

Continue reading "H1B Attorney Untangles the Convoluted Rules of H-1B Extensions Beyond Six Years (7th Year H1B Extensions): " »

One of the most concerning moments in my practice as an immigration attorney, or as some call me: H1b lawyer, is when my client falls out of compliance without even knowing it. Because employment in general is a fluid matter, I mean by that employees come and go continuously; a company which employs foreign nationals could become an H-1b Dependent Employer and not even know it. Failing to comply with the regulations if an employer becomes H1b dependent could could be cost the payment of penalties if the US Department of Labor ever audits the employer.

Our firm services employers nationwide, however, they usually meet with me in one of my offices located in Columbus, Ohio, Cleveland, Ohio, and Southfield, Michigan or in the nation's capital, Washington, DC. I am on a constant communication with my clients to assure that they continue in compliance with the regulatory directives when it comes to the employment of foreign workers. It is important for an employer who regularly employs foreign nationals to keep open communication channels with a competent immigration lawyer. This communications relative to the hiring, terminating and the resignation of the foreign national on H-1b visas.

The immigration attorney could predict when an employer becomes H1B dependent which then requires him to undertake additional measures to protect the employer. For instance, the regulations at 8 CFR §214.2(h)(11)(i) require the employer to "immediately notify the Service of any changes in the terms and conditions of employment of an H-1B employee." such changtes include when an H-1b visa employee resigns or is otherwise terminated. By having such an open relationship with an H1b lawyer, the attorney should be keeping a running tally of the number of H1b workers present on the employer's payroll at any given time. Why is this important? It is because the ratio of an employer's H1b employees can cause to unwittingly take on additional legal obligations.

• How Does An Employer Become H-1B Dependent?

Most of the time, the determination is rather simple and arithmetic:

- 25 or fewer full-time equivalent (FTE) employees, including 8 or more H-1Bs;

- 26-50 FTE employees, including 13 or more H-1Bs; and

- 51 or more FTE employees, including at least 15% H-1Bs.

Continue reading "H1B Dependent Employers Must Maintain Relationship with Immigration Lawyer " »

As an immigration attorney, I view my job as a partnership arrangement with my clients. Each non-immigrant visa that I process, be it an H-1B visa or otherwise, or a green card for that purpose, is truly a joint venture between myself and my client that I am servicing. Since we are coming up on the 2009 H-1B visa cap season, I believe that I should focus on describing the best possible partnership I, or any H-1B lawyer in our firm, could have with the employer and the employee; a partnership that would yield the best result for all parties concerned. In our Columbus, Ohio office, (the same goes for our Cleveland, Ohio, Washington, D.C, or Michigan offices) our clients utilize our online immigration case management system that we designed called, VisaTurbo to inform us about new H-1B visa cases. In other words, employers do not have to call our office to let us know that they need to process a dozen new H-1B visas, rather, they go into their secured accounts and add all of the necessary information about the identity of the prospective international employees that they would like join their company on H-1B visas.

From that point, the partnership begins. VisaTurbo sends the immigration attorney in our office an automated e-mail letting him/her know that a dozen of employees have been added for H-1B visa processing. The H-1B attorney assigned to the particular employer immediately contacts the prospective employees to provide them with their passwords to enter VisaTurbo and input all of the information that the H-1B visa attorney needs to get the H-1B Visa processed as quickly and as efficiently as possible. Here are the steps that the employee must carefully undertake in order for the H-1B visa attorney obtains the desired result:

1. Input Information in the "Profile": The prospective employee is asked to populate the fields in the several tabs including: personal, contacts, visa stamping history, I-94, entry/exit dates, passport, education and employment biographic information. Please bear in mind the partnership approach our office deals with these types of visas: be precise, be complete, be efficient, and include as much information as possible. I always tell my clients "give me more information; don't give me less." Also please remember that the USCIS is interested in learning about your background and how you qualify for the H-1b position. Hence, this is the time for you to be as detailed as possible and provide as much descriptive profile as possible.

There is another reason why you should be as detailed about your background, if you had held H-1b visa or status within the last 6 years, you may not need to apply towards the 2009 H-1B visa cap and you could qualify for H-1B visa portability. Another example: if you had obtained your Master's Degree from the US, you are eligible for the 20,000 visas set aside and hence will have higher chances to be selected in the 2010 H-1B visa quota. There are countless reasons as to why you should be descriptive, deliberate, accurate and informative. Now you can begin to see what I mean by partnership: I need your information to put together the best case for you, you need me to represent you before the US Department of Labor and US Citizenship and Immigration Service.

Continue reading "How Do I Help My H1B Attorney Get Me the Best Result?" »