Immigration Visa Attorney Blog

Nine years ago Jose Padilla, a Honduran-born Vietnam veteran who had lived in the United States legally for four decades, asked his attorney if pleading guilty to a drug charge would impact his immigration status. The lawyer told Padilla it would not.

The lawyer was wrong.

Padilla pleaded guilty to a felony drug charge and received a five year sentence. It meant he would almost certainly be deported after serving his time. Padilla said later he only agreed to the deal because of his lawyer's assurance he would not be deported and appealed the decision based on his sixth amendment right to competent representation.

On March 31 the Supreme Court decided by a 7 to 2 margin that attorneys must advise non-citizen clients when there is a possibility they can be deported.

Writing on behalf of five members of the majority Justice John Paul Stevens said that "It is our responsibility under the Constitution to ensure that no criminal defendant - whether a citizen or not - is left to the mercies of incompetent counsel."

"Deportation is an integral part," Stevens added, "indeed, sometimes the most important part - of the penalty that may be imposed on noncitizen defendants who plead guilty to specific crimes."

While Padilla's is an extreme case (he was arrested with 1,000 pounds of marijuana in his truck) the ramifications will be felt across the country.
Immigrants facing very minor legal issues could see the benefits of the court's decision. Padilla's lawyer for the Supreme Court case noted that that with 13 million legal immigrants living in the United States it is self-evident that tens of thousands will be impacted by this decision.

You don't have to look far to find cases where proper counsel would have helped legal citizens.

Continue reading "Right To Immigration Advice Is Protected Says The Supreme Court" »

The September Visa Bulletin marks the end of the fiscal year (FY10), which usually coincides with the aggressive advancement of priority dates for EB2 and EB3 visas categories. The EB2 is current for all countries of chargeability with the exception of India and China. For the third month in a row, the U.S. Department of State has advanced the EB2 visas for Indian nationals, one the largest groups immigrating to the U.S. The EB2 China and EB3 All Chargeability Areas except those listed have also advanced. This is said to be due to the dwindling number of visa requests in underutilized categories due to low demand. It is expected that the advancement of cutoff dates that were seen in the last few months will retrogress substantially with the release of the November or December Visa Bulletin 2010 at the beginning of FY11.
The limit for employment-based preference immigrants for FY10 is 150,657. The limit for family-sponsored preference immigrants for FY10 is 226,000. The limit for individual countries is 7% of the total number of employment-based preference and family-sponsored preference limits, or 26,366, while the dependent area limit is 2% of the total numbers, or 7,533.
EB1 visas, Employment-Based First Preference visas, are issued by the United States Citizenship and Immigration Services (USCIS) to certain managers and executives, researchers and professors and those who have shown extraordinary ability in business, science, athletics, art or education. EB2 visas, also known as Employment-Based Second Preference visas, are issued to foreign professionals with a masters degree or higher or those who have exceptional ability in business- or science-related fields who have been offered a position from a U.S. company. EB3 visas, or Employment-Based Third Preference visas, are issued to foreign professional workers who have a bachelors degree or higher, skilled workers who have been offered positions by U.S. companies that require at least two years of training, as well as to unskilled workers who have been offered positions by U.S. companies that require less than two years of training. EB4 visas are issued to religious workers who have been active members of a religious denomination that has a nonprofit religious organization in the United States for at least the past two years. EB5 visas are issued to those who plan to immigrate to the U.S. to create employment for U.S. citizens through development and investing. Family-based preference visas also enable the spouses and children, and sometimes the siblings, of the employed person to come to the U.S. as well. Children and spouses of preference immigrants are given the same status, as well as the same order of consideration, as the family member who has applied for the employment-based visa.

Continue reading "Priority Date Improvement: Expected " »

The Department of State has recently confirmed the commencement of its independent verification of information contained in visa applications. Sam Shihab & Associates also confirms that some of its clients have been contacted by the Kentucky Consular Center (KCC) via contractors by telephone as part of the process. However, some of our clients complained that the questions asked were quite intrusive and were not related to the visa applications. For example, some of the questions were about company profit margins. The initial announcement of the program was on November 17, 2007 when the Department of State (DOS) and the Kentucky Consular Center (KCC) said that NIV petitions would be reviewed through a program that focused on information verification. Consular officers began to track petition information through the use of the Petition Information Management Service (PIMS) as well as the Consular Consolidated Database (CCD). The KCC audit on NIV petitions was structured to verify information and correct mistakes in the visa petition applications. One specific aspect of the audit authorized consular officers to make an unannounced phone call to the petitioner in order to obtain and verify the information that was provided to the USCIS when the visa petition was submitted. They claim that the outcome of the audit is critical in order to accurately process and further the status of visa petitions.

Along with the announcement, KCC approved fifteen contractors to individually contact petitioners. Through the embassies, KCC is responsible for reviewing the visa petitions that are obtained from the U.S. Citizenship and Immigration Services (USCIS). After the initial review process, the contractors verify and obtain the necessary information. Then, any corrections or additional steps are taken in order to advance and finalize the petition. The idea is that contractors specifically review and gather information on the petitioner as well as the beneficiary. In the past, DOS found that visa petitions were lacking important information when KCC received them from USCIS. The contractor was supposed to focus on the company website, the contact information, and the physical location of the company's office in order to ensure the validity and existence of the petitioner. The contractor also performed random phone calls to petitioners in order to gather information about the beneficiaries.

Continue reading "H-1B Visa Attorney on Audit by DOS: Verification or Intrusion?" »

This is the conclusion to a three blog series that detailed a lawsuit which was filed in the District of Columbia Federal court challenging the new H-1B Neufeld Memo. The first three blogs discussed the complaint that was filed in court, the motion for preliminary injunction that was filed by the Plaintiffs, and the response by Homeland Security. On June 8, 2010 five specialty businesses filed a lawsuit against the United States Citizenship and Immigration Services (USCIS) in response to the Neufeld Memo. The court analyzed the points that were made by both the Plaintiffs and the Defendants. This blog will focus on the final outcome of the case which for the dismissal of the case and finding in favor of USCIS.

Upon receiving and reviewing the details of the case, the court proposed to consolidate the hearing though a determination on merits based on the Federal Rule of Civil Procedure. On July 7, 2010 both parties submitted a joint agreement based on the courts consolidation proposal. At the Motions Hearing on August 5, 2010 both parties presented their arguments. A detailed review of both parties' arguments can be found in the previous blogs. The main focus of the court was to determine whether or not the Plaintiffs had a substantial likelihood of success in their claims. The court's final classification of the Neufeld Memo, whether it is a general policy or a legislative rule, impacted the outcome of the case.

Continue reading "H-1B Attorney on Broadgate et al. v. USCIS: Case Dismissed" »

If the employer has a drug and criminal background screening policy that they place in the PERM Labor Certification advertisement, they must also include this requirement in the PERM Labor Certification application form ETA 9089, BALCA ruled. If this is not done, the Certifying Officer (CO) will conclude that the foreign national is being offered more favorable working conditions than otherwise offered to American workers and the application will be denied. It is critical that accurate information is included in the PERM application that matches the advertisement. Strict regulations are in place in order to protect the integrity of the work force as well as the advertising and hiring process. An example of this issue is a PERM Labor Certification that was filed by Noll Pallet & Lumber Company (NPLC).

On December 15, 2006 NPLC filed an Application for Permanent Employment Certification on behalf of a foreign national who was selected for a production worker position. On March 1, 2007 the CO at the U.S. Department of Labor issued an Audit Notification. The CO requested that NPLC submit more detailed recruitment documentation. NPLC provided the additional documents on March 20, 2007. On June 25, 2007 the CO denied certification because the newspaper advertisements for the position offered terms and conditions that were less favorable than those offered to the foreign national. The CO further explained that the advertisement called for criminal and background checks as well as a drug test. These specifications were not listed on the application. On July 23, 2007 NPLC requested a reconsideration stating that they had amended the issues cited by the CO. A letter of reconsideration was issued by the CO on November 5, 2008. The CO stated that the initial issue had not been corrected. As a result, the certification was denied.

Continue reading "PERM Labor Certification - Properly Drafting The Job Advertisement" »

Generally in response to a Department of Labor PERM Labor Certification audit, the employer must provide specific documents that show that the proper recruitment steps were followed. If certain supporting documentation is missing, the Certifying Officer (CO) may deny certification, unless the attorney can show that the recruitment steps were actually followed and not including the supporting documentation was an inadvertence. An example of this kind of review is a PERM Labor Certification filed by Clearstream Banking (Clearstream).

Clearstream filed an Application for Permanent Employment on behalf of a foreign national who was selected for an account manager position. In the application, it stated that the job was advertised with the company's employee referral program from July 26 to September 30, 2006. Having a referral program which pays an incentive for employees to refer potential candidates to the employer is one of the permitted recruitment steps in a PERM Labor Certification. However, the availability of the program must be posted and made known to the employees. On December 14, 2006 the CO issued an audit requesting additional recruitment documentation. Clearstream sent the documents on January 10, 2007. On January 30, 2007 the CO denied certification because Clearstream failed to provide documentation about the use of the employee referral program during recruitment. On February 22, 2007 Clearstream requested that the CO review the denial. The attorney for Clearstream openly acknowledged that the specific document highlighting the referral program had been unintentionally left out of the documentation that was sent in response to the audit. However, the attorney emphasized that the omission of the one document should not reflect negatively on the validity of Clearstream's recruitment practices. The recruitment process had been completed and recorded according to strict regulation standards. Although the document explaining the employee referral program was not supplied to CO, there were other documents that supported the validity of the program. The recruitment report states that the employees were made aware of the program as well as the incentives associated with the position. The report was also signed by the Senior Manager and notarized. The attorney explained that the recruitment report should account for the documentation needed to assess the recruitment program. The CO issued a letter of reconsideration on October 2, 2008. The CO concluded that Clearstream had failed to provide the necessary documentation that was requested in the audit. The CO explained that there was not sufficient documentation including employee notices or information about the available incentives. As a result, the certification was denied.

Continue reading "PERM Labor Certification - BALCA Reversing Denial Focusing on Substance over Form" »

If the newspaper advertisement being used for a PERM Labor Certification contains language that certain requirements are "preferred," the certifying office (CO) officer will properly assume that "employer preferences are actually job requirements." Unless these requirements are included in the PERM application, the CO will properly deny the application. An example of this issue is a PERM Labor Certification filed by Eastern Tennessee State University (ETSU).

On August 21, 2007 ETSU filed an Application for Permanent Employment on behalf of a foreign national who was chosen for an assistant professor position. The CO issued an Audit Notification on November 19, 2007 and requested additional recruitment information. The CO specifically wanted copies of the job advertisements and other documentation that described the position. ETSU provided all of the necessary documentation. On August 28, 2009 the CO denied certification because of inconsistencies within the supplied documents. The CO stated that the Notice of Filing, job order, and job advertisements all contained job requirements that exceed those listed on the application. It was also noted that four minimally qualified American candidates were rejected during the hiring process. As a result, the CO concluded that ETSU did not conduct competitive or thorough job recruitment. ETSU filed a request for review on September 16, 2009. In the request, ETSU stated that the various recruitment documents did not include additional requirements. Instead, they explained that the extra skills listed were merely preferences. ETSU mentioned that the four American candidates were rejected because they were not fluent enough in Spanish. The CO forwarded the request for review to BALCA. Once ETSU responded with the intent of proceeding with the appeal, the CO sent a letter to BALCA that outlined the reasons that certification was denied.

Continue reading "PERM Labor Certification Advertisement Improperly Drafted Leads to Denial" »

When the employer is unable to provide adequate documentation of its internet advertisement due to internal company error, the Certifying Officer (CO) can properly deny an application for Labor Certification. One such example is a PERM Labor Certification filed by Trans Atlantic Systems, Inc.

On July 16, 2007 TAS filed an Application for Permanent Employment Certification on behalf of a foreign national that they selected for a professional programmer position. On September 11, 2007 the CO issued an Audit Notification. Among other issues, CO asserted that TAS had not provided enough documentation to show that the experience requirements found in the job advertisement were considered appropriate business necessity. TAS complied and provided more documentation which included copies of job requirements, the recruitment report, the Notice of Filing, evidence of the employee referral program, and the newspaper advertisements for the position. On November 29, 2007 the CO denied the certification because TAS had not provided documentation of its internet advertisement. TAS submitted a request for review on December 13, 2007 stating that the recruitment report should be accepted as sufficient evidence to prove that the company had met the application requirements. TAS explained that there was no record of the requested internet advertisement due to an internal error within the company. On appeal to BALCA, TAS submitted the recruitment report in place of the required documentation of the internet job advertisements and made the same argument that its report should be sufficient evidence of the internet advertisement. The CO filed an appellate brief which explained that a lack of specific documentation in this case was a valid reason for denying certification.

Continue reading "PERM Labor Certification Filing Requires Strict Regulatory Compliance" »

A proposed bill that would significantly raise H-1B and L1 visa application fees for companies with more than 50 percent of their work force on H-1B or L1 status with more than 50 employees was passed in the Senate Friday, August 6, and the House Tuesday, August 10. H1B visas are used for professionals coming to the United States to work for U.S. employers. L1 visas are intra-company transfer visas, for employees of companies that operate in the U.S. and abroad. USCIS wasted no time and announced on Aug 19th that new applications must immediately pay the fee or explain why the fee is inapplicable. This law raise the application fee for visas for skilled workers by at least $2,000. The H-1B visa will be raised to $2,320 from $320, and the L1 visa will be raised to $2,570 from $320. The fees will apply to companies who use visas for more than 50 percent of its employees. The additional $600 million that will be generated by the fee hike will be used to construct operating bases and deploy surveillance drones in efforts to secure the U.S.-Mexico border. The bill passed by the House was slightly different than that of the Senate, It was back to the Senate for approval and has been signed into law by President Obama.

Continue reading "Visa Application Fee Hike: Punitive or Functional? " »

As of August 20, there were approximately 33,900 filed cap eligible petitions for the H-1B regular cap, and approximately 12,600 cap eligible petitions for the H-1B Master's exemption.

The United States Citizenship and Immigration Services (USCIS) issues H-1B visas to employers to enable them to hire foreign employees to work in specialty occupations. All individuals who are issued an H-1B visas must possess a Bachelor's degree or higher. The cap limit for regular H-1B visas is 65,000. The USCIC issues an additional 20,000 H-1B visas to individuals with a Master's degree or higher under the advanced degree exemption.
Applicants could begin submitting petitions since April 1. Petitions will be accepted until limitations have been reached. Once the cap limit has been reached, applicants must wait for the next fiscal year to apply for the H-1B visas

This is the third of a three blog series reviewing a lawsuit that was filed with the District of Columbia Federal court challenging the Neufeld Memo. The first and second blogs focused on the Plaintiffs' complaint and the request for a preliminary injunction. This blog will detail Homeland Security's response to the lawsuit as well as responding to the claims asserted by the Plaintiffs. On June 8, 2010 five specialty businesses filled a lawsuit against the United States Citizenship and Immigration Services (USCIS). The Defendants were given until June 25, 2010 to respond in opposition to the Plaintiff's request for a preliminary injunction. The Defendants (USCIS and Homeland Security) structured their argument focusing on the technical aspect of the law suit.

In their opposition, the Defendants highlight the specific points that they would like the court to consider when deciding whether or not to grant the preliminary injunction. First, they asked the court to consider the Plaintiffs likelihood of success in their claims. The Defendants argue that it is impossible for the Plaintiffs to show a substantial likelihood of success due to the nature of the challenge. The Plaintiffs argue that the policy change that appeared in the Neufeld Memo was not subject to the comment and rulemaking requirements of the Administrative Procedure Act (APA). The Defendants contest that the changes that occurred were simply a set of flexible guidelines that were intended to assist agency workers as they assess H-1B applications. As a result, the APA standards do not even apply to the Neufeld Memo. Second, the Plaintiff asked the court to take into account whether the Plaintiffs will suffer irreversible injury if the preliminary injunction is not granted. The Plaintiffs alleged harm alleged is speculative. For this reason, the inability to prove that irreversible harm means that this case is not urgent and does not warrant a preliminary injunction. Third, they asked the court to examine if the injunction will have a negative impact on USCIS. The Defendants state that the intent of the Neufeld Memo was to formulate a guide or reference for the agency when H-1B visa applications are being reviewed. In the past, there had been confusion in defining and interpreting the employer-employee relationship. The Defendants believe that issuing a preliminary injunction would stall the need to clarify and further refine the process of interpretation. Finally, they asked the court to consider if granting an injunction will further public interest. The Defendants assert that issuing a preliminary injunction will harm public interest because the public will be deprived of useful and clear information regarding the USCIS regulation. Without the Neufeld Memo, the public will not know what guidelines the USCIS uses for issuing H-1B visas, they state.

Continue reading "H-1B Attorney on Broadgate et al. v. USCIS: Response by Homeland Security" »

This is the second of a three blog series reviewing a lawsuit that was filed with the District of Columbia Federal court challenging the H-1B Neufeld Memo. In the first blog we discussed the complaint filed in court. This blog will detail the Application for Preliminary Injunction filed by the plaintiffs. On June 8, 2010 five specialty businesses (Plaintiffs) filed a lawsuit against the United States Citizenship and Immigration Services (USCIS) for the harmful effects that the Neufeld Memo has had on not only their business, but also on their foreign employees who are required to obtain H-1B visas. The intent of the lawsuit is to request a preliminary and then possibly a permanent injunction that would stop the USCIS from further implementing the Neufeld Memo.

The Plaintiffs are requesting that the court orders an injunction due to the serious and lasting consequences that the Neufeld Memo has had on the small business sector. A court ordered injunction would be preliminary at first, but if certain adjustments are not made then the injunction would be permanent. In the motion filed with the court, the Plaintiffs asserted that the court could easily issue the injunction because the changes in the policy, through the Neufeld Memo, were made without following standard rule making procedures. The Neufeld Memo specifically went against the Regulatory Flexibility Act (RFA) which requires that changes to federal regulations must be weighed against the needs and abilities of the small business sector. The Plaintiffs stressed, in the motion filed before the court that, if an analysis had been performed, it would have been obvious that the policy changes needed further consideration due to the importance of H-1B visas to small specialty businesses nationwide. As a result of the Neufeld Memo, it is estimated that the economic impact on the small business sector is $100 million per annum. The Plaintiffs asserted that without an injunction, the H-1B petitions will continue to be denied and they will be unable to sustain their businesses.

Continue reading "Columbus Immigration Attorney on Broadgate et al. v. USCIS: The Injunction" »

The controversy surrounding the 14th Amendment, which specifies that all children born in the United States are automatically U.S. citizens, continues. The discussion in the last 10 years is rooted in the debate over illegal immigration from Mexico and border security. Those who have initiated the movement claim that a large number of illegal immigrants come to the United States specifically to have a child, or a so-called "anchor baby," so that the parents would be able to remain in the United States due to being the parents of an American citizen. Proponents of overturning the 14th Amendment state that anchor babies often qualify for government assistance, which makes it more difficult to deport their illegal parents. However, there is no evidence to support the claim that deportation of parents of anchor babies is any more difficult than the deportation of other illegal immigrants.

Those that argue for a change in current laws claim that there are a large number of children born to illegal immigrants within United States borders each year. They point to 2008 data that shows that one out of every 12 children born in the United States were born to illegal immigrants, according to a study by Pew Hispanic Center, a nonpartisan research organization. This translates into approximately 340,000 babies who were given automatic U.S. citizenship out of the 4.3 million babies born in the U.S. that year. While the debate continues, we must consider what this may mean for the United States if the 14th Amendment is indeed overturned.

According to the study, as of 2009, more than 75 percent of illegal immigrants in the United States were Latinos. As the law stands now, if the parents of U.S. citizens are found to be in this country illegally, the parents would still be deported to their country of origin. Would the risk of deportation for the entire family actually stifle the high number of unauthorized immigrants who enter the country each year? Possibly. As the law stands now, children of illegal immigrants who were given automatic citizenship have the opportunity to act as a sponsor for family members for entry into the U.S. at the age of 21. If the opportunity of future sponsorship did not exist, some argue that having children in the U.S. would be less attractive. But is this approach Constitutional?

There is no study that shows, however, that changing the 14th Amendment will in fact alter the future data of US born children to foreign born parents. The truth is most parents would like their children born in the US, a country that at the core of its success is the fair and equal treatment of all persons. The concept of having classes of individuals born in the US but in fact are not US citizens flies in the face of many of the basic values we hold so dear to our hearts as Americans.

Currently the majority of Americans oppose changing the 14th Amendment, as 56 percent of Americans are against changing citizenship provisions, according to the Pew Research Center.

This is one of three blog series which will provide an insight into a lawsuit which was filed in the District of Columbia Federal court challenging the new H-1B Neufeld Memo which had an impact on H-1b applications in the US including Columbus, Ohio and Troy Michigan. On January 8, 2010 the United States Citizenship and Immigration Services (USCIS) issued a memorandum known as the Neufeld Memo which sets a new standard in determining employer-employee relationship when adjudicating newly filed H-1B petitions. In the complaint, the plaintiffs argue that change in policy amounts to a change in the law without congressional mandate or following proper rulemaking procedure and has had an immediate and harmful effect on the small businesses in the United States that hire foreign professionals on H-1B visa. The plaintiffs comprise of five companies have decided to challenge the memorandum in a federal district court. The companies include three software development firms and two not-for-profit trade associations (Plaintiffs). The lawsuit was filed in June 8, 2010.

In the complaint, Plaintiffs explained that for nearly half a decade, staffing companies and small businesses in the United States have been hiring temporary and long-term employees for specialty positions on H-1B visas. Before granting a visa, the USCIS assesses whether or not there is an employer-employee relationship. An employer must have the ability to hire, fire, pay, and supervise the H-1B employee. In many instances the employment situation regarding these visas does tend to be different because the process normally involves three parties. There is the business seeking the skills of the employee, the foreign professional seeking employment, and a staffing firm that is also involved in the process as the actual employer of the H-1B foreign national. Due to the nature of these working relations, the employees are often hired as employees to the staffing company and is being contracted out to provide services often in the area of Information Technology. This specific multi party relationship created the loophole that triggered USCIS improper change in the law.

Continue reading "H-1B Immigration Attorney on Broadgate et al. v. USCIS: The Complaint" »

On June 28, 2010 the Supreme Court granted the petition for certiorari (for review) in a case that questions the legality of the proposed Legal Arizona Workers Act. Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009), cert. granted sub nom. Chamber of Commerce v. Candelaria, (June 28, 2009) (No. 09-115) . The case directly challenges the Arizona state law that intends to prohibit employers from intentionally hiring unauthorized immigrants and mandates how employers should verify employees. The petition that was sent to the Supreme Court states that the Arizona law is preempted by federal law. In other words, the court will answer the question if Arizona law is stepping into an area that is reserved for the federal government not for the individual States. What the Supreme Court will answer is can each state creates its own system of penalties and verification to immigration violations or this area is reserved for the federal government.

The Petition for the Writ of Certiorari requested that the Supreme Court reexamine the actions and findings of the lower courts. The district court and the Ninth Circuit both ruled that the Arizona statute was not preempt by federal law in two specific areas. Both courts concluded that the statute fell within the savings clause of the preemptive provision in the Immigration Reform and Control Act (IRCA). They also ruled that Congress did not specify that states could not require employers to participate in the electronic verification system for checking the status of immigrants. The petition's main focus is that federal immigration laws preempt the proposed state laws.

Continue reading "Supreme Court to Analyze the Legality of the Legal Arizona Workers Act " »