Immigration Visa Attorney Blog

With the national dialogue on immigration so focused on economic protectionism -- keeping out foreign workers and preventing economic opportunities from being shipped overseas -- many people forget about immigration law and policy that encourages new foreign investment into the United States. The Department of Homeland Security (DHS), through the United States Citizenship and Immigration Services (USCIS), facilitates investment of capital and resources in the United States through nonimmigrant visas and immigration preferences available to individuals who are prepared to make a significant investment here.

Sam Shihab & Associates supports DHS and USCIS in encouraging people from all over the world to invest their time and money in the United States, especially here in Central Ohio. Our community appreciates foreign investment and immigration as well as the social diversity that come with it--especially as we slowly recover from the recession.

There are three primary ways in which U.S. immigration law encourages investment in the United States: The E Visa, The L Visa and the EB-5 Immigration Preference. Here's a quick rundown of each.

E Visa -- E Visas are nonimmigrant visas available to owners and key employees of businesses that engage in significant and substantial investment in the United States. In order to be eligible for an E visa the business must also be owned by citizens of a country that have signed special trade treaties with the United States. For a list of countries that have signed such treaties, see HERE.

E-1 visas are available to businesses from treaty countries that engage in significant and substantial amounts of trade with the United States. Trade is considered significant when more than 50% of the company's trade is between the United States and its home country. Trade is substantial when there is large volume and steady flow of it; a single transaction, no matter how large or time consuming will not create eligibility for an E-Visa.

Continue reading "Columbus, OH Attorney Overview: Investment Visas" »

We here at the firm would like to express our hope that all the fathers out there have an enjoyable and relaxing weekend.

Here is an update for our readers on an immigration story we highlighted back in January. The case takes place in California but the issues related to student visas and the college system are worth examining here in a central Ohio community very strongly centered around higher education.

Last month Susan Xiao-Ping Su was arrested by federal prosecutors on charges including visa fraud, money laundering, wire fraud and alien harboring. Su, 41, was arrested in Pleasanton, California on May 2 after being indicted April 28 on 33 separate counts.

(You can find our detailed post on Tri-Valley HERE.)

Su's indictment says that over a two-year period she used the country's visa program to defraud the Department of Homeland Security out of millions of dollars. Su would submit fraudulent documents, the indictment says, for student visas in exchange for payment Tri-Valley referred to as "tuition and fees."

U.S. Attorney Melinda Haag said in a statement that Su's indictment alleges she "took advantage of others' eagerness to come to the United States."

Students were admitted to the unaccredited Tri-Valley so they could remain in the country on student visas without requiring them to attend class. In 2009 Tri-Valley had two international students enrolled on visas. In the fall of 2010 that number became more than 1,100.

95 percent of Tri-Valley's students were from India. The school was primarily an online university, with its students living throughout the country. Tri-Valley filed documents alleging more than half of the school's 1,500 international students were living in the same apartment. Prosecutors referred to the school as a "sham university" in a separate civil suit filed in January.

In the civil suit the university was said to be engaged in a pyramid scheme, whereby those already enrolled at the school could collect 20 percent of the tuition for new students they recommended.

Continue reading "Tri-Valley President Arrested on Fraud Charges" »

Given the current economic climate, much of the national conversation is about ways to add additional capital and create job opportunities. Central Ohio is one of many communities in need of such economic stimulus. Which is why taking a look at this particular visa seems particularly relevant.

EB-5 is an employment-based preference category that was created by the Immigration Act of 1990. It is a green card issued to foreign nationals who invest capital in "a new commercial enterprise" which the U.S. government feels will help its economy and create at least ten full-time jobs.

The EB-5 classification is not for everyone. The minimum investment needed to qualify is $1 million, or $500,000 if the investment is directed towards a "targeted employment area."

Along with the job creation listed above, the visa holder must be a hands-on part of the venture if they wish to invest in a new business enterprise. At minimum they must be a member of a board or one of the company's corporate officers. There is a category for troubled business, those which have incurred a significant net loss for the last 1-2 years. This category requires no new job creation, only the preservation of the current employees for at least two years.

For most foreign nationals the million dollar price tag may be a bit steep, making the "targeted" option a better one. The U.S. Citizenship and Immigration Services (USCIS) defines the targeted areas as "a rural area or an area that has experienced high unemployment of at least 150 percent of the national average." With the average national rate sitting near 9 percent, that would mean areas with at least 13.5 percent unemployment.

If an investor would like a more hand's-off investment they may want to look into the EB-5's Regional Center Pilot Program. The same financial commitment is involved, but the investor need only contribute to a regional center connected to promoting "economic growth, improved regional productivity, job creation, and increased domestic capital investment."

Continue reading "Columbus, OH Attorney Overview: The EB-5 Category" »

As with any government program, the H-1B visa system is not immune to instances of fraud or near-fraud. While such cases are not the rule when it comes to H-1B it's important those who interact with the United States be aware of what kind of malfeasance is being looked at by the U.S. Citizenship and Immigration Services (USCIS). Our neighbors here in central Ohio need make sure they keep abreast of what could be out out there.

The controversial organization WikiLeaks - a database dedicated to releasing private
and/or classified information - has recently published cables dealing with fraud within the H-1B application process. The cables consist primarily of anecdotal information related to the nations of Iceland, Libya and Mexico.

In April of 2009 a cable from the U.S. Embassy in Mexico said the nation had a "persistent" problem related to fraud with both H-1B and L-1. This seems to provide background for a 2008 USCIS report that found 20 percent of H-1B visas either had technical issues or were affected by fraud.

The fraud issue with Mexico seems to be almost exclusively foreign nationals looking for a way to immigrate into the U.S. Most common within that fraud is the practice of submitting falsified pay receipts to the USCIS. Additionally, applicants from Mexico exaggerate or overstate their employment background, education or the nature of their responsibilities related to future jobs.

The U.S. Embassy in Libya reported in 2009 that an H-1B applicant paid a large
sum of money online for obviously fake documents. The cable released by WikiLeaks said the applicant "believed this to be the process to obtain a work visa in the United
States."

Reports from the Reykjavik embassy were that some attorneys had attempted to bring H-1B and L-1 applicants in from other countries so they could apply in Iceland. The reason being that Iceland provided "the expectation of fast and easy issuance."

Continue reading "Columbus, OH Attorney: International Fraud and H-1B" »

It is important to keep in mind the range of options available within the United States immigration system. Employers in search of qualified professionals may not have to look far from our borders to fill their needs. Certain Canadian and Mexican citizens are eligible for TN visas if they have employment in the U.S. With that in mind here is a refresher for the TN nonimmigrant program. Anyone with questions about this or other related issues should feel free to contact our office here in Dublin.

The TN classification came out of the North American Free Trade Agreement
(NAFTA), which created a unique relationship between the United States, Canada and Mexico. Part of that process was to allow certain professionals who are citizens of one country to enter territories of the others to accept employment.

There are several employment or work related visas are available, such as - L-1, B-1, E-1. Another is TN, which applies to citizens from Canada and Mexico who wish to enter the U.S. They must have a pre-arranged position with a U.S. employer and be qualified for a NAFTA-approved profession.

NAFTA lists more than 60 positions as being eligible for TN. Professions such as
Engineer, Pharmacist, Computer Systems Analyst, University Professor and Veterinarian are among those that qualify. NAFTA also outlines the education/experience requirements for each profession.

The TN application for Canadian professionals can initially be completed at a port-of-entry. Proof of citizenship must be provided, along with establishing qualifications for the profession as well as giving a description for the profession. A letter from the prospective employer, diplomas and transcripts will be needed. The visas are granted for up to three years.

Mexican professionals must apply at a U.S. embassy or consulate within
Mexico. They are not required to file a petition with the USCIS but they are required
to obtain a visa to enter the U.S. as a TN nonimmigrant. Once the Mexican professional has been approved for the TN visa they are able to apply for admission at a port-of-entry.

Continue reading "Columbus, OH Immigration Attorney Reviews the TN Visa" »

This is a recent Department of Labor appeal we would like those in the local community to take a look at. The case involves the way in which experience is defined as it pertains to time on the job vs. time spent in school.

In April of 2009 a Certifying Officer (CO) denied an employer's request for
Permanent Employer Certification (PERM) for the position of Product Manager on two separate grounds. One reason was that the alien did not meet the minimum experience for the position under the Code of Federal Regulations (CFR).

Under CFR the minimum qualification for the position is a "Bachelor's Degree in Merchandising and five years experience in the field or equivalent combination of education and experience." It was that piece of regulation the CO cited when making the denial.

In a request for reconsideration on May 1, 2009, the Employer argued that the alien had "one year of university credit" and had been on the job for 14 ½ years. The Employer felt the year of education and job experience was enough to equal 17 years of overall experience.

On February 18 of 2010 the CO denied certification. The CO pointed to a 1994 policy guideline on certification issues which a bachelor's degree is equivalent to two years of experience. That would mean a Bachelor's degree and five years of experience would be equal to seven years in the work place, not 17.

That meant the Employer's formula was not "substantially equivalent" to the primary requirements of the job.

Continue reading "Columbus, OH Attorney: BALCA Looks at Work Experience" »

As readers of this blog are aware, we're of the opinion the H-1B program is a flawed system. (Read our recent four-part analysis of H-1B HERE, HERE, HERE and HERE.) Last week a key member of the United States House of Representatives offered one way to attack the situation.

During a March 31 hearing before the House Subcommittee on Immigration Policy and Enforcement Rep. Lamar Smith (R-Texas) brought up the possibility of limiting the number of professions which qualify for H-1B status. The thinking for Smith, the chairman of the House Judiciary Committee, was that giving more visas to technology businesses might be the best option in the current political climate.

Smith's suggestion seems to stem from a feeling that increasing the number of H-1B visas from its current 85,000 annual cap may not be realistic.

Recent congresses have been unwilling to address small portions of the immigration issues before comprehensive immigration reform has taken place. At this point it is not known what the current Congress would support.

So while roughly half of the H-1B visas are used for tech positions such as computer programmers and IT specialists, the rest are used in industries related to fields like fashion and photography. Smith's feeling is that given the potential job-creation benefits associated with tech fields, they may be more important to the country's economy.

"There is nothing wrong with these occupations," Smith said, adding "but I'm not sure that (they) are as crucial to our success in the global economy as are computer scientists."

If other occupations are no longer eligible for H-1B, then more visas would be available for the tech industry. Focusing on scientists and engineers, Smith argued, could be a solution to the program.

Continue reading "Columbus, OH Attorney: Congressman Suggests Change to H-1B Program" »

The United Stated Immigration Services (USCIS) will begin accepting
application for the H-1B visa Friday, April 1. Those applications cover any
employment with a starting date on or after October 1. Our office in Columbus,
Ohio can offer assistance in H-1B-related filing.

The H-1B program is applied to nonimmigrant aliens who want to work in specialty fields. The Department of Labor defines specialty as "one that requires the application of a body of highly specialized knowledge and the attainment of at least a bachelor's degree or its equivalent."

The program has a cap of 85,000, with 20,000 of the visas going to those with U.S. masters' degrees (or higher). The USCIC will accept applications until they have received enough cap-eligible petitions.

A more thorough overview of the H-1B program can be found HERE.

The USCIS monitors the petitions received and notifies the public when the numerical limit has been met. For FY2011 the regular cap number was reached January 26, 2011.

As we mentioned a few weeks ago, this USCIS is considering a change to the H-1B process involving an advance electronic registration. As early as FY2013, employers may be able to register petitions prior to the start of the petition filing period. The idea would be to cut down on administrative costs, as employers would be able to limit filings to those selected petitions.

The government estimates the program could save more than $23 million over the next decade. The USCIS is still seeking feedback for the proposal and those interested in comment can find information HERE.

Continue reading "Reminder: FY2012 H-1B Cap Season Begins Today" »

Here's another recent Department of Labor appeal case for those in the community to take a look at. This one involves analysis of how exactly we define experience when it comes to time on the job vs. time in school.

In April of 2009 a Certifying Officer (CO) denied an employer's request for Permanent Employer Certification (PERM) for the position of Product Manager on two separate grounds. One reason was the alien did not meet the minimum experience for the position under the Code of Federal Regulations (CFR).

Under CFR the minimum qualification for the position is a "Bachelor's Degree in Merchandising and five years experience in the field or equivalent combination of education and experience." It was that piece of regulation the CO cited when making the denial.

In a request for reconsideration on May 1, 2009, the employer argued that the alien had "one year of university credit" and had been on the job for 14 ½ years. The employer felt the year of education and job experience was enough to equal 17 years of overall experience.

On February 18 of 2010 the CO denied certification. The CO pointed to a 1994 policy guideline on certification in which a bachelor's degree is listed as equivalent to two years of experience. That would mean a Bachelor's degree and five years of experience would be equal to seven years in the work place, not 17.

That meant the employer's formula was not "substantially equivalent" to the primary requirements of the job.

The case was turned over to a judge with the Board of Alien Labor Certification Appeals. After outlining the way the PERM process is supposed to function - "exacting" rather than drawn-out - the judge would ultimately find for the CO.

Continue reading "Columbus, OH Attorney: BALCA Looks at Work Experience" »

We wanted to direct folks here in central Ohio to a recent announcement made by the Department of Labor with respect to its H-2B program. The Department of Labor is proposing a change to the program which would impact both employers and workers.

Last week the Department of Labor sent out a release announcing a proposed revision to the H-2B temporary nonagricultural worker program. According to the announcement, the proposal would "ensure U.S. works receive the same level of protection and benefits as temporary foreign workers (for H-2B) . . . and to provide better access for employers with legitimate labor needs."

The highlight of the changes would be a new registration program. The Department of Labor is hoping this will allow employers to conduct market tests for new labor closer to the point at which they have a need. It would also remove contractors as users of the program.

Other proposed changes to the program include: a national H-2B registry for all postings; requiring documentation from employers as to their U.S. employee recruitments efforts; new transparency measures related to agency agreements and foreign recruiters; the reinstatement of state workforce agencies (SWA) as experts in local labor conditions and recruitment patterns; and lengthening the amount of time during which American workers are required to be recruited.

In the statement Secretary of Labor Hilda Solis said: "As our economy continues to recover, it is important for U.S. workers to receive access to all jobs, and that the H-2B program is used as it was intended. At the same time, workers employed through the H-2B program must be treated fairly."

The H-2B program is in place so that foreign nationals can come to the United States to fill nonagricultural jobs and requires a Form I-129, Petition for Nonimmigrant Worker.

To qualify for H-2B classification an employer must establish the need for the worker is temporary, regardless of the position itself. Such positions are usually seasonal, for peak-load or a one-time occurrence. Employers also must demonstrate no U.S. workers are willing and qualified for the position and that the employment will not negatively impact salary and conditions of other U.S. workers.

The Department of Labor will be accepting written comments on the proposal until May 17. Those interested can use www.regulations.gov or send written correspondence to the DOL's Office of Policy Development and Research, Employment and Training Administration: 200 Constitution Avenue NW., Room N-5641, Washington, DC 20210.

The entire proposal can be viewed in the March 18 edition of the Federal Register.

A judge for the Board of Alien Labor Certification Appeals recently ruled on an interesting case related to the burden employers face trying to prove the hardship related to training a new employee.

The case is a good one for our friends here in Columbus to take a look at, especially with regard to the intricacies related to federal code. It is yet another instance where experienced representation must be present when maneuvering the permanent labor certification (PERM) process.

In late 2006 a company sought PERM certification for a position entitled "Propagation Supervisor." In May of 2009 an audit was requested by the Certifying Officer (CO) who requested the employer's State Workforce Agency job order along with several other materials.

A few months later the CO informed the employer the request was not being certified "in part because the documentation submitted by the employee . . . was insufficient to demonstrate that a U.S. worker could not be trained to qualify for the position."

In September of 2009 the employer's representative filed a motion for the application to be reconsidered. The argument was that, among other factors, the growth of the business and illness suffered by the employer prevented the employer from training a U.S. worker for the position.

The CO denied this appeal in January of 2010 and forwarded it to BALCA. A brief prepared by the Employer's council argued enough evidence had been provided to show an inability to train a U.S. worker.

The pertinent piece of the Code of Federal Regulations (656.17) states that the Department of Labor must evaluate the "training and experience possessed by the alien beneficiary at the time of hiring" and make sure more isn't being required of U.S. applicants. The exception comes when "the employer can demonstrate that it is no longer feasible to train a worker to qualify for the position."

To that end, the employer's council mentioned that the CO needed to take into consideration "the change in business conditions" that made it impossible to train a U.S. worker. That change makes it different, the employer argued, than determining whether a new worker can be trained.

Continue reading "BALCA Rules on Training New Workers" »

During our recent four-part series on the current state of H-1B visas, we touched on a few areas where the program needs evaluation and reform. We hope businesses and other interested parties here in central Ohio took a look at the posts (which can be found HERE, HERE, HERE and HERE) in order to familiarize themselves with the current state of affairs.

It seems possible that discussions this week in Washington D.C. are a step on the path to improving some of those H-1B issues we wrote about.

TechNet, a lobbying group that works on behalf of the tech industry, sent a large contingent to meet with representatives of both Congress and President Obama. Their goal was for to lobby lawmakers on a number of issues including reform of the country's visa program.

The contingent from TechNet included more than 50 representatives, including the CEO of Cisco and high-ranking officials from NASDAQ OMX and the New York Stock Exchange. They are to meet with representatives from both parties.

TechNet President and CEO Rey Ramsey said to win the future America must invest in "future discoveries that will create good paying jobs for more of our people."

"To reach that goal," Ramsey said, "we must make the smart policy choices on . . . high skilled immigration."

Continue reading "CEOs of Tech Companies Speak with Federal Legislators about H-1B" »

Tom Brokaw recently filed a report for the network's "America at the Crossroads" series on the subject of America potentially losing job creators to the limitations of programs like H-1B:

Visit msnbc.com for breaking news, world news, and news about the economy

Interested parties here in the Columbus, Ohio community should be aware that the United States Citizenship and Immigration Services (USCIS) will soon start accepting cap-subject H-1B petitions. The first day of its 2012 Fiscal Year is April 1, 2011.

Petitions will be accepted by the USCIS until the cap number of 65,000 is reached. 20,000 additional visas are available for foreign nationals with a Master's degree or higher from an American educational institution.

H-1B is a temporary nonimmigrant visa for specialty occupations. The visa allows foreign nationals with specialized knowledge and education in fields such as Information Technology, education and accounting to work in the United States for up to six year.

Applying for an H-1B visa consists of completing a Form-129 (Petition for a Nonimmigrant Worker) as well as any applicable supplementary documents. Applicants must include a Labor Certification Application (Form ETA 9035) from the Department of Labor and supply evidence or documents supporting the petition. That evidence usually relates to the beneficiary's eduction and how the position qualifies as a "specialty occupation. There is also a filing fee which ranges from $320 to $2,320.

A full overview of the program can be found HERE.

Accompanying the beginning of this year's H-1B process is a proposal for a electronic registration system the USCIS unveiled Thursday in an attempt to reduce costs. Starting next year employers could have the ability to register a petition electronically with the USCIS. Prior to the beginning of the filing period the USCIS would select the number of visas it expects will take it to the cap number. At that point applicants would only need to file petitions for the selected registrations.

Continue reading "'12 H-IB Cap Year Starts April 1, New Electronic Registration System Proposed" »