Immigration Visa Attorney Blog

Most of our readers are aware a criminal conviction has the potential to render a foreign national ineligible for a visa or for lawful admission to the United States. Our friends here in the Columbus, Ohio and Troy, Michigan communities have no doubt been told a criminal conviction could be a deal-breaker for their immigration plans.

But there is an exception to that rule we would like to talk about here. It is called the Petty Offense Exception.

What is the law regarding criminal conviction? Any foreign national who is convicted of, or admits to having committed, a crime of moral turpitude is considered inadmissible.

It is important to keep in mind that for these purposes there is no difference between admission of guilt and conviction. If a foreign national admits to committing a crime the Department of Homeland Security will treat this exactly the same way it would a criminal conviction. Awareness of the rule and legal counsel can be particularly critical in this situation.

What is moral turpitude? Moral turpitude is a legal concept used in the U.S. In criminal law. It refers to any conduct that is considered by the community to be contrary to its standards of justice. Examples are robbery, rape and solicitation by prostitution.

Continue reading "FAQ: The Petty Offense Exception" »

We've discussed the EB-5 visa in this blog on a number of occasions. Since we've recently been receiving calls in our Columbus and Troy, Michigan offices about the investor program we thought it made sense to revisit it again.

First, a refresher about EB-5 for those not familiar with the program: The EB-5 investor visa is an immigration preference, meaning those who qualify are eligible to stay in the United States permanently.

The EB-5 is available to those who invest at last $1 million in a U.S. business that employs at least ten citizens or otherwise authorized workers. The investment amount comes down to $500,000 if the investment is made in a "targeted employment area," which refers to certain economically depressed regions.

Another component of EB-5 is the Regional Center Pilot Program. This is a more hands-off option, allowing the investor to contribute to a center already dedicated to the promotion of economic growth and job creation. The same financial commitment is present, but the requirements in terms of job creation are not in play.

In recent years a bill has been making its way through Congress that would introduce a branch from the EB-5 program. The "Startup Visa Act"
is a law introduced with bipartisan support that would create a new EB-6 category.

Continue reading "Could an off-shoot to EB-5 be on the way?" »

A few years back this blog touched on a few of the specifics connected with extending an H-1B visa beyond six years. Given how many of our clients here in the Columbus, Ohio community work closely with the visa we thought another look at this aspect would be helpful.

What is the history of 7th year H-1B extension?

Prior to 2000, if a foreign national here on an H-1B visa could not reach I-485 (permanent resident) status within six year they were required to leave the U.S. What would often happen is that delays in the permanent residence application process meant H-1B visa holders would reach the end of their six years before completion. Since the situation meant employers often lost the investment they had made in skilled employees, Congress elected to introduce AC21.

What is AC21?

In 2000 Congress passed the "American Competitiveness in the Twenty-First Century Act," or AC21. Among other things, AC21 allowed for H-1B workers to begin working for a new employer upon filing the petition instead of waiting for approval. It also provided the ability to extend the H-1B visa beyond six years if an ongoing PERM Labor Certification began at least 365 days prior to the end of the sixth year.

Continue reading "FAQ: H-1B Extensions Beyond Six Years (Part I) " »

One of the hottest immigration topics over the past few weeks is the administration's announcement that it plans to change how it treats the hundreds of thousands of deportation cases currently in the system. For good reason this has stirred controversy from both sides of the political isle as people try to make sense of what the policy will mean.

And though we realize most of our readers are not involved with an active deportation case, it's important to look at the change as it may impact the speed of the federal system as a whole. How the government elects to allocate resources could have an affect on the entire immigration system.

First, some quick background: On Aug. 18 the administration announced it would be reviewing the deportation cases already within the system -- more than 300,000 in total -- with the goal of prioritizing those involving felony cases. The idea being that with limited financial and legal resources the most efficient way to attack the backlog problem is to target those situations most likely to pose a threat to the community.

Continue reading "The administration changes course on deportation: What does it mean? " »

Recently, the Department of State (DOS) has been delaying or denying the issuance of new H-1B visa stamps to H-1B non-immigrants due to questions regarding the existence of the required employer-employee relationship.These delays and denials run contrary to the established H-1B practices and requirements set forth in the law.

Sam Shihab & Associates, LLC will continue to assist its clients in resolving visa-stamp-related issues in the consulate. We believe, though, that these delays and denials are part of a greater war on the H-1B program. Keep reading for our analysis.

As we all know, the United States economy is hurting and jobs are in short supply. Thus, the idea of H-1B non-immigrant workers is very unpopular with many Americans. This unpopularity has caused a policy shift in the H-1B program. The United States Government, through the DOS and USCIS, is attempting to reduce H-1B approvals by increasing the evidentiary threshold to obtain visa stamps and petition approvals.

Much of the increased USCIS scrutiny was manifested in the January 08, 2010 Neufeld Memorandum. The Neufeld memo caused quite an uproar in that it appeared to increase scrutiny on H-1B IT contractors by increasing the amount of documentation needed to prove the existence of the employer-employee relationship required for non-immigrants. (Read some of our previous discussion of it HERE.)

Continue reading "Heightened H-1B Scrutiny Spreads to the Consulates (Part I)" »

Last month the United States Citizenship and Immigration Services (USCIS) director Alejandro Mayorkas and Secretary of Homeland Security Janet Napolitano unveiled changes to policy and operation the federal government hopes will increase foreign investments and help spur job creation. The moves have been praised in many circles as step in the right direction.

Although the government still hasn't addressed lingering issues with the current system it's worth making note of what to expect with these changes. It's very possible our friends in the Ohio and Michigan area could be impacted.

Though no law has been changed, a few significant differences will come in the operation of three categories -- H-1B, EB-5 and EB-2.

With H-1B, USCIS has updated its FAQs with the clarification that a "beneficiary who is the sole owner of the petitioning company may establish a valid employer-employee relationship for the purposes of qualifying for an H-1B visa."

Continue reading "Will the USCIS Job Growth Visa Initiative Make a Difference? " »

Sometimes family members get left out of the immigration process. Costs, logistics, family obligations and other inconveniences can prevent a family member from coming to the United States.

There's no need to worry, though, United States Immigration officials have anticipated this situation. We'd like our friends here in Columbus to make sure they're aware of a potentially helpful tool.

Following to join allows a spouse or child of a principal immigrant to immediately obtain a visa to immigrate to the United States any time after the principal immigrant becomes a lawful permanent resident of the United States. There are, though, some major limitations of following to join.

Following to join is only available to immigrants in categories that give derivative status to spouses and children. Such categories include family-preference immigrants and employment-based immigrants. Further, following to join only applies to preexisting spouses and children. Spouses and children added after an immigrant becomes a permanent resident cannot follow to join. Finally, children can "age out" of eligibility to follow to join.

In spite of the above limitations following to join is far more versatile than one might think. A family member that is following to join doesn't have to literally follow the principal immigrant to the United States. Spouses and children that are inside the United States as nonimmigrants can "follow to join" and adjust status through a principal immigrant, even if they precede the principal immigrant in entrance into the United States.

Considering its limitations, following to join is not for everybody. That being said, following to join is still a valuable and important part of the immigration toolbox. Using following to join to immediately obtain an immigrant visa for a spouse or child is an excellent way to avoid the long waits that can be associated with family based immigrant petitions.

Late last month the United States Citizenship and Immigration Services released the most recent count for its H-1B visa. These numbers represent what the USCIS has received since the the FY2012 schedule began in April.

As of July 22 there have been 21,600 regular petitions accepted by the USCIS out of a total cap of 65,000. That is an increase of 1,000 from the previous week's total.

The Master's Exemption category has had 13,300 petitions accepted out of hits total cap number of 20,000. On July 15 the USCIS reported 12,800 petitions were accepted for this advanced degrees category.

These numbers are somewhat low, perhaps reflecting the economy's sluggish recovery. The positive is that it means there is still ample opportunity to qualify for a visa that begins in October of this year.

A Form-129 needs to be completed in the most complete manner possible for an applicant to have his or her best chance for the petition to be approved. Because of the emphasis the process places on accuracy we recommend seeking experienced counsel for help working through the forms.

Here is some of the most recent information regarding the controversy surrounding Indian IT giant Infosys. The actions of a large company based overseas may not initially seem relevant to the average employer or worker here in Columbus, but the way Infosys may or may not have manipulated the U.S. immigration systems could certainly have ramifications at home.

In May an attorney employed by Infosys named Jack Palmer Jr. filed a civil suit alleging his superiors at the company tried to get him to circumvent U.S. regulations regarding visas. Additionally, Palmer claimed that when he informed his employer of illegal activity it did nothing to correct the problem.

The result of Palmer coming forward is that federal prosecutors are currently assembling a case against Infosys. So far Infosys has not publicly responded to the charges, though it denied Palmer's claims in court filings. Late last month the company filed a motion compelling arbitration in the case, the result of which would be to have the case heard behind closed doors.

In his suit Palmer alleges that Infosys wanted him to help them "creatively" navigate around restrictions put in place to make acquiring H-1B visas more time-consuming. According to Palmer Infosys made the decision to use B-1 visas - easier to obtain but used primarily for shorter visits - to game the system.

Infosys, Palmer says, asked him to write letters on behalf of the workers to be used in the B-1 application process. In those letters he was to state the employees were only visiting for short periods of time, when the truth was they had full-time employment waiting in the U.S.

Palmer refused to write the letters, after which he says he was told he was "not being 'a team player.'"

Continue reading "Columbus, OH Attorney Updates the Infosys Investigation" »

The U.S. Open golf tournament took place last month at Congressional Country Club just outside of Washington D.C. It is considered among the most prestigious tournaments in the world. This year it also had a connection to the world of immigration.

While we don't imagine many among our readership are members of the PGA tour, we thought those here in the local community would appreciate a story about the hurdles everyone has to jump through.

Robert Rock, a professional golfer from England, qualified for the tournament two weeks prior to the event, which began play on June 16. But traveling to Bethesda, MD for the event meant Rock would have to acquire a visa.

And though he started the process on May 30, a driving-under-the-influence offense committed as a teenager would delay the proceedings for 34-year old Rock and create one of the tournament's more interesting sub-plots.

After winning the Italian Open on June 12 (the first victory of his career), Rock found he was not approved to travel and couldn't fly from Turin to the U.S. So instead he flew back to London. In England he met with U.S. immigration officials, approximately 72-hours before his tee time at the Open.

Rock's visa was finally approved at about 4pm on Wednesday, meaning he had approximately 22 hours to get himself to the states or lose his place in the field. The golfer was complimentary of the U.S., saying afterwards he thought "(The US Embassy) rushed it through as fast as realistically you can do . . . they did a great job for me."

Continue reading "Professional Golfer Faced Visa Struggles to Play American Tournament" »

Recently the U.S. Citizenship and Immigration Services (USCIS) rolled out a new program it hopes will help improve delivery of some documents related to the immigration process. Obviously this could prove to be a significant upgrade for anybody in the local community who deals with the department in an official and time-sensitive capacity.

In a May 2 memo the USCIS said it had put in place what it calls a "Secure Mail Initiative" (SMI). The SMI will take advantage of the Priority Mail with delivery confirmation option within the U.S. Postal Services (USPS).

The USCIS has essentially partnered with the USPS in an effort to allow customers the ability to keep on top of the status of paperwork critical to travel and employment authorization.

Permanent Resident cards (green cards), Employment Authorization (EADs) and Advance Parole can all now be tracked through the SMI. Obviously timely receipt of green cards and EADs will be very important to some of our readers.

The USCIS highlighted two key benefits in its memo:

-Tracking the status of documents with USPS tracking information.

-Increases in the speed documents are received by the USCIS. The memo said that "on average, documents sent through USPS Priority Mail should arrive two to four business days sooner than with first-class mail."

A signature is not required for SMI delivery, so it will still be possible for a piece of mail to be lost - only the delivery of the package or envelope is recorded. But given that the USPS keeps a record of each delivery, the USPS's customer service can be utilized for inquiries.

The USCIS said that customers who receive an approval notice (Form I-797) should contact its Customer Service Center and request tracking information for their particular documents.They will then be given their most recent delivery status and a tracking number. Their document can then be monitored on the USPS's website, usps.com.

Continue reading "USCIS Unveils 'Secure Mail' Initiative" »

Readers of this blog are aware Shihab & Associates supports reforming immigration, specifically lifting the cap on visa programs like H-1B. We feel the United States and its economy will benefit in numerous ways from the addition of more of these kinds of skilled workers.

A component of the visa debate that seems to get less discussion has to do with the families the workers bring to the U.S. To that end, the nonprofit National Foundation for American Policy (NFAP) released a policy brief last month entitled: "The Impact of the Children of Immigrants on Scientific Achievement in America."

The brief focused on the Intel Science Talent Search, a 69-year old research competition that allows high school seniors to present original scientific research. Each year a small group of students are chosen as finalists, with the top-three awarded prizes totaling more than $225,000.

NFAP found that "while only 12 percent of the U.S. population is foreign-born, 70 percent of the finalists in the 2011 (Intel competition) were the children of immigrants." Additionally, 60 percent of the 40 finalists were children of parents who entered the country on H-1B visas, despite former H-1B holders making up less than one percent of the country's population.

China was the country of origin for 16 of the finalists, with ten hailing from India, one from Iran and one from South Korea. The information came from a series of interviews and follow-up interviews conducted by NFAP.

Continue reading "Study Shows Children of Immigrants Among America's Brightest." »

Sam Shihab & Associates would like to wish everyone a happy and safe 4th of July holiday.

This is another interesting decision handed down recently by the Board of Alien Labor Certification Appeals (BALCA). In May the Department of Labor's appeals arm handled a case which spoke to the importance of clearly providing evidence for why local recruitment efforts came up short. For our friends in and around Columbus it is yet another instance of why expert counsel is so critical in the employment certification process.

In September of 2007 a company filed an Application for Alien Employment Certification for a position titled "Software Engineer." According to the Employer, the position required a Master's degree in Computer Science and either two years experience in the specific job offered or a "suitable combination of education, training, or experience."

Later that year a Certifying Officer (CO) issued an audit that requested all recruitment documentation, including a report required by the Code of Federal Regulations (C.F.R.). The response from the Employer stated that two candidates were evaluated for the position. But based on the resumes submitted, their experience with respect to key web-related software "indicated a serious gap in the skill sets required to meet the goals and objectives of the company."

In September of 2009 the Employer's request was denied by the CO on five separate grounds. The CO felt the recruitment report made only a "generalized statement" about the U.S. workers not meeting the position's minimum requirements. A failure to include an "unaltered" copy of the notice of filing, wage determination and web advertisement was listed, as were three cases where the Employer's paperwork was inconsistent or lacking a requisite piece of information.

In October the Employer requested reconsideration. With that request the Employer attached an amended report explaining its rejections of the two U.S. candidates, as well as information clearing up the issues with its paperwork.

And while in June of 2010 the CO found the information regarding wage determination and job order to be acceptable, they still did not find the recruitment report met C.F.R. standards. The CO stated it did not even consider the amended recruitment report.

Continue reading "BALCA: Local Recruiting and Labor Certification" »

Congratulations! Your I-130 petition has been approved! You worked hard, put together a good petition, and now your loved one can immigrate to the United States, perhaps joining you here in central Ohio, worry free. Right? Not always. Even after the United States Citizenship and Immigration Service (USCIS) has approved your I-130 petition, they can issue a Notice of Intent to Revoke (NOIR) and turn your world upside-down.

A NOIR is, essentially, a failsafe that allows USCIS to deny your I-130 petition after it has been approved. If, after your I-130 petition has been approved, USCIS discovers that it made a mistake in approving it, or discovers new information that shows you aren't entitled to approval, it issues a NOIR.

An NOIR letter should explain to the petitioner exactly why the I-130 is being revoked, setting forth the law and facts that, according to USCIS, show that the petitioner is not entitled to their approved I-130 petition. It should also inform the petitioner that they have a right to respond to the NOIR and explain why their NOIR should not be revoked.

So, you've gotten a NOIR in the mail. What can you do?

1. Respond--A NOIR will not go away. If you don't respond to it, USCIS will revoke your I-130 petition.

2. Act Fast--A NOIR should state a time period (often 30 days) in which you are permitted to respond to the NOIR. However you decide to respond to the NOIR, make sure you do so within the allotted time period.

3. Inspect the Record--You have the right to inspect USCIS's record relating to the I-130 that USCIS intends to revoke. Inspecting USCIS's record can help you find holes in the NOIR and allow you to make better factual and legal arguments in response.

4. Submit Evidence in Support of Your Arguments--Your response to the NOIR is your only opportunity to present evidence to USCIS. Don't waste it. You may be able to clear up USCIS's misunderstanding of the facts by providing them with better information.

Continue reading "Columbus, OH Attorney: Notice of Intent to Revoke: Know Your Rights!" »