Immigration Visa Attorney Blog

No doubt in recent days some of our readers here in Columbus have been watching South Carolina as it hosted an important primary as part of the 2012 presidential election process. The state is also the site of one of the more important debates with regard to immigration.

Last month Federal District Court judge Richard M. Gergel decided to block some of the most debated portions of South Carolina's controversial immigration law. The pieces of the law Gergel chose to strike down require the state's law enforcement to check immigration status of any person about which they have "reasonable suspicion" could be in the country illegally.

South Carolina's law, modeled after similar legislation in Arizona, took effect earlier this month. South Carolina's law had been challenged by the A.C.L.U. and Southern Poverty Law Center.

Gergel decided to uphold several other contentious portions of the bill, including one that requires immigrants to always keep their citizenship documentation on their person and another dealing with transporting or harboring undocumented immigrants.

Continue reading "On the South Carolina immigration debate" »

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? " »

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.

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." »

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" »

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" »

A decision made this month by the Board of Alien Labor Certification Appeals (BALCA) highlights how the continually changing world of internet technology influences the way visa law is interpreted. Our neighbors here in central Ohio need to be aware of the minute details certifying officers (CO) evaluate as they examine visa petitions.

In October of 2007 an employer had its application for a Permanent Employment Certification for the position of "Dentist" audited. The employer was instructed to provide information related to recruitment.

The CO issued a denial of the certification request in March of 2009, on the grounds the employer failed to identify itself on a job search website. The employer requested a review but was denied again in November for the same reason.

According to the CO, the employer was in violation because "the information initially presented to interested individuals via the Search results would only show the employer's name as listed with (the job search site), the position title, location and the date posted." In this case the results on the search page listed the employer as "confidential."

The employer believed that even though its name was not listed on the search pages, when a potential applicant clicked on the hyper link for the full job description he or she would be able to view the employer's name and street address. The employer did not feel as if the advertisement was "blind," as prospective employees would see the required information upon clicking the entire job listing. The CO did not agree and the case was forwarded to BALCA in November of 2009.

Continue reading "Columbus Immigration Attorney Review: BALCA Clarifies Website Policy" »

The saga of Tri Valley University and founder Susan Su is an eye-opener to one way the immigration and educational systems can be exploited and how students can be caught in the middle. We hope folks here in Columbus take a close look at the case.

In January the United States government seized property owned by Susan Su, director of Tri Valley University (TVU), due to allegations related to fraud and other illegal activity. In forfeiture proceedings where typically the properties are the named defendants, the U.S.government asserts that the properties were acquired with illegal funds. The government asked the court to turn over the property due to misuse of visas and permits, mail fraud, wire fraud and money laundering. Court documents outline the alleged offenses which occurred during an elaborate defrauding scheme between 2008 and 2010.

In April of 2008, Susan Su created TVU, an entity that supposedly offered online college classes. The government's complaint explains that while the private learning institution was seeking accreditation from the Department of Homeland Security (DHS), students were already being recruited and tuition was being paid. In reality the existence of the university was purely for fraudulent purposes.

The focus of TVU was to gain foreign immigrant students by securing F-1 visas. TVU was developed as an illegal institution that allowed foreign nationals to immigrate to the United States and be considered "students" as long as $2,700 "semester" fees were paid. DHS's explanation for not identifying the scheme is that the current immigration system is inadequate for tracking the educational status of foreign nationals. The reason DHS offers for not catching the scheme exonerates the students, who appear to be the true victims of DHS's failures and the school's alleged fraud.

The complaint asserts the first offense committed by TVU and Su was a willing misuse of the visa program. Throughout the accreditation process TVU completed federal documents using inaccurate information in order to circumvent Homeland Security. To receive accreditation by the DHS, TVU had to submit a Form I-17 petition. Su and her staff misled the government by claiming they were operating a legitimate school.

The second offense that occurred was mail fraud. In addition to filling out federal documents, TVU had to supply DHS with three articulation statements from major universities asserting credits earned at TVU would be transferable to larger learning institutions. Mail fraud occurred when TVU sent the fraudulent documents and statements to DHS through the U.S. Postal Service.

Continue reading "Immigration Attorney Examines Tri Valley University Case" »

This is the final post in a four-part blog series reviewing the current H-1B visa program. (Parts I-III can be found HERE, HERE and HERE.) The intent of this series is to locate weaknesses within the program in order to work towards finding viable solutions. We hope our neighbors here in the Columbus, Ohio, community find these posts helpful as they interact with the program going forward.

The United States Government Accountability Office (GAO) released the entire review of H-1B in January of 2011. The GAO interviewed 34 companies in specialized industries that rely on the visas for their foreign employees. Upon reviewing the program as well as discussing specific issues with the individual companies, the GAO produced formal recommendations for the Department of State, Department of Labor, Department of Homeland Security, and the Department of Justice. A copy of the review was sent to each department. A series of responses were sent to the GAO and included at the end of the report.

The Department of Justice approved of the GAO's suggestion that it create a website that would track H-1B petitions as well as companies that hire H-1B workers. The department mentioned that work is already underway to combine the Homeland Security and Department of State data systems. The statement said that combining the systems would provide direct information about the number of visas that are approved under the yearly cap.

However, the Department of Justice thought that while combining the systems would be helpful, it did not believe the measure would produce substantial improvement. The department explained that the Department of State's data system does not account for workers who are in the United States and want to change their status. Also, the information that is collected will not be available in time to assist in determining the yearly cap. The only area of the review that the Department of Justice did not support was one the GAO made directly to Congress and the USCIS about changing the requirements for LCA reviews.

Continue reading "Columbus, OH, Attorney Reviews the H-1B Program: Part IV" »

This is the third post in four-part blog series that will review the current H-1B visa program. (Part I can be found HERE and Part II HERE.) In Columbus there are numerous businesses and employees impacted by what has become a flawed process and we hope this analysis will help shed light on some of the problems.

Following a detailed overview of the program, the United States Government Accountability Office (GAO) proposed a series of modifications based on their review as well as the feedback it received from 34 companies that were interviewed. The intent of the modifications would be to streamline the visa application process and strengthen the structure and organization of the entire program. The state of the current H-1B program is hurting the specialty industry workforce in the United States in addition to hindering immigration.

The GAO listed two suggestions for improvement by the Department of Homeland Security. First, the data system must be updated so that Homeland Security can track the number of visa petitions every year. The GAO mentions that if the USCIS linked its digital records system with that of the Department of States, Homeland Security would have constant access to the critical information.

Second, the USCIS should explore options to simplify the H-1B Visa application process without hurting the integrity of the program. Based on suggestions from the 34 companies, the GAO mentions a series of options for streamlining the application process. Allowing a company to rank applications based on necessity would help to ensure that important workers are accepted first. Also, distributing visa applications quarterly would give employers the opportunity to seek H1-B workers throughout the year. Finally, GAO emphasizes that Homeland Security should consider an honor system that takes a company's track record and reliability into account in order to shorten the application process.

In regards to the Secretary of Labor, the GAO states that the Labor Condition Application (LCA) posting requirement must be enforced according to the specific standards that are in place. The review explains that the Employment and Training Administration could develop a public website where each company would post its intent to hire H-1B Visa workers. The posting would have to include the employment category as well as the location of the business. In addition to meeting the posting requirement, the public website would allow data to be recorded and analyzed in order to track companies' compliance with the visa program's rules. The GAO explains that the Employment and Training Administration would give the Department of Labor access to the website in order to monitor company activities and enforce rules when necessary.

The GAO explains that suggestions have been made in the past with the intent of improving the H-1B visa program. In a previous report the GAO suggested that the application process needed to be streamlined, particularly the requirement for employers to submit the LCA to the Department of Labor. The GAO explained that the USCIS conducts an LCA review, so the requirement of submitting it to Labor only prolonged the entire process. Congress listened to the GAO and combined the Department of Homeland Security with the USCIS, but the application process as a whole was not amended or streamlined.

The GAO report also mentions the important observations of the various companies that were interviewed during the review process. It was noted that inconsistencies exist between processing centers around the country. Companies explained that some processing centers were more efficient than others. Also, the reasons for visa application denial were not always logical or clear. The GAO explains that the inefficiency of the processing centers as well as the reasons for denial must be analyzed and corrected accordingly in order to restore the integrity and dependability of the H-1B Visa program.

Continue reading "Columbus, OH, Attorney Reviews the H-1B Program: Part III" »

This is the second post in a four-part series analyzing the current state of the H-1B visa program. We hope the blogs will help our neighbors in Ohio and Michigan understand better the H-1B program as it now stands.

In January the United States Government Accountability Office (GAO) released a detailed review of the H-1B visa program. The intent of the review was to create awareness of weaknesses and inconsistencies within the program. The findings clearly state that there are risks and liabilities within the framework of the H-1B program.

In order to strengthen immigration within the United States, as well as the workforce in specialty industries, Homeland Security must address the issues that surfaced in the GAO's review. Some of the greatest risks are associated with the determination of the petition cap each year, petition acceptance inconsistencies, a lack of regulating companies that are violating the system, and the weakness of the entire Homeland Security data collection system.

The designated yearly cap has a detrimental and limiting effect on the current H-1B visa program. The GAO review highlights that determining the precise cap should be balanced with the state of the economy. However, the precise numbers of visa petitions that are accepted in addition to the number that are denied has never been documented accurately. As a result, analyzing how to improve the system and set a reasonable cap is challenging.

From 2005 to 2009 Homeland Security set the cap at 65,000 regular requests and 20,000 master requests each year. Due to the strengthening economy, the cap was reached very quickly in 2008 and 2009. Petitions can be submitted for the fiscal year beginning on April 1. During prosperous years the cap was reached within a number of days. Once the cap is reached employers stop sending in petition requests because Homeland Security will no longer review them.

GAO's review of the H-1B program stressed that one of the primary weaknesses within the system is the lack of documentation that exists throughout all levels of the program. Over the years, Homeland Security has never developed any way to measure demand for H-1B visas. The number of petitions that are rejected or submitted after the cap has been reached has never been recorded or studied in order make future adjustments and improvements to the program.

Continue reading "Columbus, OH, Attorney Reviews the H-1B Program: Part II" »

This is the first post in a four-part series analyzing the current state of the H-1B visa program. We hope the blogs will help interested parties here in Ohio gain a better understanding of the H-1B program as it now stands.

In January of 2011 the United States Government Accountability Office (GAO) released a complete overview and observation of the H-1B visa program. The intent of the review was to locate weaknesses and issues in order to modify and advance the effectiveness of H-1B.

Foreign workers in specialized industries play a vital role within the United States workforce. Due to restrictions within the current H-1B program the productivity and success of large and small companies is being directly impacted. The employment and immigration of specialty workers is also suffering because of the system currently in place.

Throughout the review process the GAO interviewed 34 companies impacted by the H-1B Visa program. Homeland Security creates a cap every year that dictates how many visa petitions are available. Once the cap is reached, no more petitions are granted for that year. Large and small companies incur certain financial and productivity costs as a result of the current program. The review concluded that the magnitude of the costs and overall impact varies depending on the size and age of each company.

All of the companies must pay designated Homeland Security filing fees in addition to any legal fees that accumulate during the H1-B Visa petition process. The GAO noted that for 26 of the interviewed firms the combined total of fees per petition ranged from $2,320 to $7,500.

Even following the petition process and paying the necessary fees does not guarantee a company its Visa petition will be granted. And companies experience significant financial losses due to rejected visa petitions. In addition to the filing and legal fees, they must also pay the administrative costs associated with filing H-1B Visa petitions. There is no way for the companies to know which petitions will be granted. As a result, the ability to plan projects as well as designate work is impacted significantly. The process of finding alternate recruitment methods in addition to hiring other employees on short notice increases the financial burden. In order to find qualified employees and meet specific deadlines the companies are forced to accumulate additional costs associated with higher salaries and a more demanding workforce.

Continue reading "Columbus, OH, Attorney Reviews the H-1B Program: Part I" »