Wednesday, August 31, 2011

PBS News Hour: Alabama's Immigration Law: Radical or Within Reason?

nextgov.com: Say Goodbye to Traditional Immigration Processing Forms

By Aliya Sternstein
8/29/2011
In preparation for a long-delayed transition to online processing of immigration applications, the Homeland Security Department has released new rules for describing forms and filing procedures in official policies.
The 43-page federal notice published Monday instructs the U.S. Citizenship and Immigration Services, a unit of DHS, to stop typing on documents the traditional numbers and titles for various benefit claims, such as "Application for Naturalization, form N-400." Instead, to accommodate the new computerized Transformation system, USCIS policies and rules will carry more generic phrases, such as "the form designated by USCIS."
The linguistic changes will be necessary once Transformation becomes functional. The program currently is about a decade behind schedule. The new rules take effect shortly after Thanksgiving, on Nov. 28. Agency officials have said the first digitized form, one for visitors requesting extensions to stay in the country, should be ready by the end of the year.
Under Monday's rules, the term "Service," which had been synonymous with USCIS, will now refer, more generally, to DHS immigration services at various agencies, including USCIS, Customs and Border Protection, and Immigration and Customs Enforcement. The definition of 'Service in forthcoming rules "is amended to provide flexibility," the guidelines state.
Going forward, rules will not specify requirements, locations or procedures for processing, but instead convey handling instructions in more ambiguous ways because such provisions are subject to change during Transformation, officials added.
Link to article via nextgov.com

Tuesday, August 23, 2011

San Francisco Immigration Lawyer Q & A: Working for Multiple Employers in H-1B status Simultaneously

Question: I am a salaried employee working for Employer A on an H-1B. I currently have offers from 2 different Clients and I wanted to ask if it's legally allowed for me to work for both of these Clients being on H-1B? My employer is fine with it; however he wants me to send him an email stating that I'd like to work for the second Client to gain better experience and better salary compensation. Before I send them an email I wanted to make sure that by doing this, I'm not by any means jeopardizing my status. I'd appreciate if you can answer my above question. Thanks!

Answer: Yes, an H-1B can work (part-time or full-time) for more than one employer, but each must file a petition. See Letter, Bednarz, Chief, NIV Adjudications, CO 214h-C (June 29, 1994), reprinted in 71 No. 27 Interpreter Releases 936, 952 (July 18, 1994); Letter, Gorsky, Acting Chief Advisory Opinions Division, DOS (Apr. 13, 1998), reprinted in 75 No. 17 Interpreter Releases 631, 648 (May 4, 1998).

Further, when H-1B switches to a second company for several months and returns to initial company, the second company needs to file an H-1B but the first company need not file a petition upon the H-1B’s return as the first petition remains valid. See Letter, LaFleur, Chief, Business and Trade Branch, Benefits Division, INS, HQ 70/6.2.8 (Apr. 29, 1996), reprinted in 73 No. 22 Interpreter Releases 764, 774–75 (June 3, 1996); Letter, Hernandez, Director, Business and Trade Services, INS (Apr. 24, 2002), published on AILA InfoNet at Doc. No. 02051432.

Also note there is no set number of hours that beneficiary must work for each employer. Letter, Brown, Acting Chief, Business and Trade Services, Benefits Division, INS, HQ 70/ 6.2.8 (July 18, 1997), reprinted in 74 No. 30 Interpreter Releases 1219, 1232–33 (Aug. 11, 1997).

Please let me know if I may be of further assistance and Good Luck!

Michael Ryvin, Partner
Ryvin Wallace Group
1-415-765-0679
michael@ryvinlaw.com

San Francisco Immigration Lawyer Q & A: Traveling with Company A visa stamp and Company B approval notice

Question: I have been working with Company B since June 2009. Current I-797 for Company B expires in June 2012. Current H-1B visa stamp in passport is for Company A, and expires on September 7, 2011. I wish to take a quick trip to India this Friday and return on September 5, 2011. I do not have time to renew the H-1B visa stamp during this trip. If I arrive as per schedule, is there still risk that the immigration officer might not let me enter the US or only stamp my I-94 with validity till Sep 7th 2011? Also, current I-94 is valid till Dec 18th 2011. It was not stamped with I-797's expiry date of June 2012 because my passport was expiring on Dec 18th 2011; however, my renewed passport is now valid for another 10 years.

Answer: The Officer should grant you entry in H-1B status valid to the expiry date noted on your Company B I-94, June 2012. The expiry date on the visa stamp [9/7/2011] refers to the last day you may use that visa stamp to enter the US. However, it’s not uncommon for CBP to issue an I-94 valid only to the visa validity date, so don’t walk away from the counter until you have inspected your I-94 to make sure that a mistake was not made. I would also bring evidence of your current employment with B, including paystubs and/or an employment verification letter.

Please let me know if I may be of further assistance.

Michael Ryvin, Partner
Ryvin Wallace Group
1-415-765-0679
michael@ryvinlaw.com

Monday, August 22, 2011

San Francisco Immigration Lawyer Q & A: Leaving the US while Advance Parole Application [I-131] is Pending

Question: I was granted asylum status 3 years ago. Based on that, I filed I-485 [application for adjustment of status] with an I-131 form for advance parole. On 08/23/11 my current Advance Parole will expire. I already filed for a new Advance Parole and did the biometrics [fingerprints] two month ago – but my new AP is still pending. I am supposed to leave the country in a week.

Is it possible for my husband to mail the AP letter after he receives it? Or do I have to pick it up in person? Is it going to affect our I-485 applications if I leave before getting the AP letter? Please, help!

Answer: I would wait for the AP. The general rule is if you travel before the advance parole document is issued, the I-485 application will be deemed abandoned. See Form I-131 Instructions, Page 4, Section 3 [Advance Parole Document], Part E, which states: If you travel before the advance parole document is issued, your application will be considered abandoned, if: (1) you depart the United States; or (2) the person. Seeking advance parole attempts to enter the United States before a decision is made on the application.

See link: http://www.uscis.gov/files/form/i-131instr.pdf

There are some exceptions for certain individuals in H, L, K or V status AND restrictions for asylees [I believe focused on traveling to the country of claimed persecution].

Please let me know if I may be of further assistance.

Best regards,

Michael Ryvin, Partner
Ryvin Wallace Group
1-415-765-0679
michael@ryvinlaw.com

San Francisco Immigration Lawyer Q & A: Meeting the Physical Presence requirements for Naturalization while Traveling Overseas

Question: My green card (Employment based) was approved in September 2010, and since then I have not travelled outside US. But after 4 months from now, I have a need to be in India for 8-10 months to oversee medical treatment of my aged parents. I am planning to apply for re-entry permit and once my permit comes through, I will travel to India. Now my questions are:

1) If I return to US after 10 months of departure with a valid re-entry permit, will the counter for 5 years towards naturalization be re-set? Means, will I lose 1.5 years of stay in US and my 5 years will count from the day I return to US after 10 months?

2) If I don’t lose this 1.5 years, will that be an issue at the time of citizenship?

3) What documents are required at the time of interview for citizenship?

Answer: No, you will not have to start counting the five years from zero after you return. You just won’t be able to count that time towards the physical presence requirement (2.5 out of 5 years).

Also, there is the N-470, Application to Preserve Residence for Naturalization Purposes. Notably, the purpose of your trip may disqualify from eligibility; and if you do not have any other extended trips planned, it might not be relevant - in other words, despite your proposed trip, your eligibility for Naturalization will not be delayed. Still, it is still worth reviewing the requirements in my opinion.

Information about N-470 requirements with links to form and instructions here

Your eight-ten month trip should not be a problem. The issues are (1) avoiding abandonment of your green card; and filing a re-entry permit is generally viewed as strong evidence that you do NOT intend to abandon your permanent residence; and (2) meeting the physical presence requirement for naturalization [2.5 out of 5 years in the US].

Information about Natz can be found here

Here is a link to a USCIS checklist/eligibility worksheet:

http://www.uscis.gov/files/article/attachments.pdf

Please let me know if I may be of further assistance.

Best regards,
Michael Ryvin, Partner
Ryvin Wallace Group
1-415-765-0679
michael@ryvinlaw.com

Saturday, August 20, 2011

Wednesday, August 17, 2011

San Francisco Immigration Lawyer Q & A: F-1 Student Visa Denials and Subsequent B-1/2 Visa Applications

Question: I came to the US in August 2007 and completed my Masters in Electrical Engineering in December 2009. Then I got enrolled in an MBA program in January 2010. In the meantime my F-1 visa got expired and I went to India to get a new F-1 visa. I was not eligible for re-stamping because my visa had already expired more than 1 year ago. New Delhi US embassy rejected it twice, saying that I could be a potential immigrant. Now I want to go for third attempt. My question is if my visa is denied this time, can I apply for a B-1/2 visitor visa immediately? In case I don't get an F-1 visa, I want to come back to US to take care of my belongings.

Answer: Nothing stopping you from applying for a visitor visa after the 3rd denial, but you should be aware of two things: First, I think the Consulate would require you to schedule another appointment for a later date, and fill out a new DS-160 visa application. Second, I am afraid the issue of intent will follow you. In other words, a visitor visa also requires temporary intent, and the perception of you being a potential immigrant could also serve as grounds for a denial of your B-1/2 visa application.

Probably your best chance at the B-1/2 is to be very specific about your itinerary and exactly what you intend to do, to "take care of your belongings", with supporting evidence, where applicable. Honestly, after 3 prior refusals, including at least one on the grounds of intent, I would think the chances of your being issued the B are slim.

Going forward, looks like you will have options available to you for temporary work status and beyond, so don't hesitate to contact me if wish to strategize.

Michael Ryvin, Partner
Ryvin Wallace Group
1-415-765-0679
michael@ryvinlaw.com

Tuesday, August 16, 2011

San Francisco Immigration Lawyer Q & A: Upgrading a green card case from EB-3 to EB-2 and shaving years off green card wait time

Question: I have 13 years of teaching experience, before moving to the US. My employer filed my Labor Certification (PERM) application and I-140 under the EB3 category with a priority date in 2009. Now, I am planning to port from EB3 to EB2. Is this possible with the same employer? My previous lawyer did not include my 11 years of experience. He just put my 2 years of experience in China. Also, what would happen to my eldest daughter, who will turn 21 in a couple of years, if I just wait for my 2009 priority date to become current?

Answer: Your current employer may indeed file a new PERM with EB-2 requirements, but not only do you have to be qualified, the position offered must also qualify. Filing a second labor certification with the same employer might be appropriate in several situations. A change to a different occupation classification as defined by the Department of Labor is one event that would require filing a second labor certification. In addition, a second labor certification might be justified when (1) the first labor certification was an EB3; (2) you qualified for EB2 at the time you began working in the current occupation; (3) your manager approves EB2 requirements; and (4) you experienced an objective change in the terms of employment such that EB2 qualifications are now required for the job. The objective change may consist of a promotion or a new work assignment that requires higher qualifications. Finally, as long as each I-140 would be accurate at the time of filing. You are entitled to the earliest priority date under the regulation 8 CFR 204.5(e).

For more information, here is a link to my blog post from February 2011, including an explanation of the requirements, frequently asked questions, and a questionnaire to help you get started:
http://ryvinimmigrationblog.blogspot.com/2011/02/reducing-green-card-wait-times-by-years_12.html

With respect to your second question, the answer might fall under the Child Status Protection Act, and I don't have enough information, nor do I have enough experience in this area of immigration law to give you a quick answer. Sorry about that.

Best of luck and let me know if my firm may be of further assistance to you.

Michael Ryvin, Partner
Ryvin Wallace Group
1-415-765-0679
michael@ryvinlaw.com

San Francisco Immigration Lawyer Q & A: Is my Labor Certification (PERM) based Green Card Application location specific?

Question: My I-140 was approved in May 2006, and my I-485 is still pending since July 2007. I have been working with Company A since 2003, and in January 2011 I moved from Indiana where I lived since 2003, to California. I still work for Company A in same position and with same salary. Do I have to move back to Indiana to get my green card or can I stay in California?

Answer: Yes, a labor certification (PERM) application IS location specific.  But, based on your fact pattern, it sounds like you are eligible to port your I-140 to the California position under AC-21 section 106 (c). If so, you are not required to return to Indiana.

This I-140 portability provision allows an approved or pending I-140 immigration petition filed on behalf of a foreign national [under EB-1-2, EB-1-3; EB-2; EB-3] categories to remain valid if (1) the foreign national's adjustment of status application has been filed and remained un-adjudicated for 180 days or more; and (2) the foreign national changes job or employers and the new job is in the same or similar occupational classification.

Further, there is a December 27, 2005 Aytes memo which indicates that an I-140 beneficiary may benefit from I-140 portability when seeking employment in a geographic area [whether city, country or state] different from the one in which the employment described in the relevant labor certification [PERM] application or immigrant petition was to take place.

Alternatively, if you determine you are not eligible to port under AC-21, then your employer may either confirm their intention to employ you in Indiana upon issuance of the green card; or start a new California based PERM application on your behalf.

Please let me know if I may be of further assistance.

Michael Ryvin, Partner
Ryvin Wallace Group
1-415-765-0679
michael@ryvinlaw.com

Monday, August 15, 2011

AILA Liaison Practice Pointer: VSC: Preferred Order of Documents for Submission of Form I-129 Petitions

The Vermont Service Center has confirmed to AILA Liaison that its preferred order of Form I-129 petition and supporting documents at the time of submission is as follows:

1. Fee(s) - staple to first page
2. I-907 Request for Premium Processing Service (if filing as Premium Processing)
3. Form G-28
4. Form I-129 petition pages 1- 6 (and 7 if submitted)
5. Classification or Free Trade Supplement page
6. H-1B Data Collection and Filing Fee Exemption Supplement, if applicable
7. Form I-129 Addendums/Attachments
8. Labor Condition Application or application for temporary labor certification, if applicable
9. SEVIS form, if applicable
10. I-94 copies, passport pages, I-797 approval notices
11. Attorney letter
12. Company letter
13. Documents related to the beneficiary's qualifications
14. Other supporting documents
15. I-129 Duplicate Copy and supporting documentation

By submitting the documents in the preferred order, practitioners may help facilitate faster administrative processing of cases through the VSC intake process.

Sunday, August 14, 2011

USCIS Q & A re: National Interest Waivers for Entrepreneurs

Link to USCIS Q & A covering National Interest Waivers for Entrepreneurs

Here is the relevant text:

NATIONAL INTEREST WAIVER

Q11. Is there a “national interest waiver” (NIW)? And if so, what is it? Can an entrepreneur qualify for a NIW?
A11. Yes. A NIW exempts the petitioner from the normal requirement of a job offer, and thus from obtaining a labor certification from the U.S. Department of Labor. Entrepreneurs, if they qualify, can obtain a waiver of the job offer requirement if it is in the national interest.


Q12. If an entrepreneur wants to file for a NIW, does he or she still have to be a member of the profession holding an advanced degree or an individual of exceptional ability?
A12. Yes. The entrepreneur must first demonstrate that he or she is either a member of the profession holding an advanced degree or an individual of exceptional ability.


Q13. If an entrepreneur wants to file for a NIW must he or she have an actual employer in the United States?
A13. No. Pursuant to INA 203(b)(2)(B), an entrepreneur does not need to have an actual job offer from a U.S. employer if he or she qualifies for a NIW. In other words, an entrepreneur may be able to petition for him or herself and fill the role of both the petitioner and beneficiary. The law provides that the Secretary of the Department of Homeland Security may, if he or she deems it to be in the national interest, waive the requirements that an individual’s services in the sciences, arts, professions, or business be sought by an employer in the United States.

Q14. Is there a definition of “national interest”?
A14. The term “national interest” is not defined in the statute or the regulations, and Congress did not specifically define the phrase in the relevant legislative history. However, USCIS issued a precedent decision concerning NIWs, Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT).
While NYSDOT does not involve an entrepreneur, the decision contemplates that entrepreneurial or self-employed beneficiaries may qualify for the NIW under limited circumstances. Footnote 5 in the decision states:
"The Service acknowledges that there are certain occupations wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for a labor certification…[T]he petitioner still must demonstrate that the self-employed alien will serve the national interest to a substantially greater degree than do others in the same field."
NYSDOT lays out a three pronged test for NIW applicants to qualify for a waiver of the job offer requirement.

Q15. What are the three prongs laid out in the NYSDOT decision?
A15.

1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.

2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope.

3. The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant.
Stated another way, the petitioner, whether the U.S. employer or the NIW applicant, must establish that the entrepreneur will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

Q16. How does the first prong of NYSDOT relate to entrepreneurs?
A16. Under the first prong of the NYSDOT test, the entrepreneur must seek employment in an area that has substantial intrinsic merit. It is important for the entrepreneur to focus on the proposed employment rather than the entrepreneur’s qualifications. In NYSDOT, the beneficiary was a structural engineer working on highway bridges. This activity was found to have substantial intrinsic merit.

Q17. How does the second prong of NYSDOT relate to entrepreneurs?
A17. The second prong of the NYSDOT test requires that the entrepreneur demonstrate that the proposed benefit to be provided will be national in scope. For example, the entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation. Or, as another example, the entrepreneur might be able to establish that the jobs created locally will have a positive national impact. As described below, and as the law contemplates, USCIS will give due consideration to entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field.

Q18. How does the third prong of NYSDOT relate to entrepreneurs?
A18. NYSDOT’s third prong is best understood in light of the labor certification process and the assumed benefit that it provides to the United States. An individual seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process. NYSDOT’s third prong requires that the entrepreneur “present a significant benefit to the field of endeavor.” The field should be the same as that identified in prong one of the analysis and the entrepreneur must document how the entrepreneurial enterprise will benefit that field.

NYSDOT states:
“In all cases, while the national interest waiver hinges on prospective national benefit, it clearly must be established that the beneficiary’s past record justifies projections of future benefit to the national interest. The petitioner’s subjective assurance that the beneficiary will, in the future, serve the national interest cannot suffice to establish prospective national benefit if the beneficiary has few or no demonstrable achievements.”
The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an NIW. For example, the entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

Michael Ryvin, Partner
Ryvin Wallace Group
1-415-765-0679
michael@ryvinlaw.com

USCIS Director Alejandro Mayorkas Blog Post: Encouraging Entrepreneurs and High Skilled Workers to Bolster the U.S. Economy and Spur Job Growth

Below please find a link to a blog post from the USCIS Director Alejandro Mayorkas, and some relevant excerpts, which discuss this current administration’s efforts to attract and retain high-skill entrepreneurs.

http://blog.uscis.gov/2011/08/encouraging-entrepreneurs-and-high.html

As part of the Administration’s comprehensive effort to attract and retain high-skill entrepreneurs, USCIS announced today [8/2/2011] that it will:
• Clarify that immigrant entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States;
Expand the Premium Processing Service to immigrant petitions for multinational executives and managers;
• Clarify when a sole employee-entrepreneur can establish a valid employer-employee relationship for the purposes of qualifying for an H-1B non-immigrant visa;

• Implement fundamental enhancements to streamline the EB-5 process based directly on stakeholder feedback;
• Launch new engagement opportunities to seek input and feedback on how to address the unique circumstances of entrepreneurs, new businesses and startup companies.
Of course, these efforts are more than welcome. But, I am approaching the same with a healthy degree of skepticism, considering USCIS continues to make questionable [am being polite here] decisions on visa matters involving highly-skilled foreign nationals with legitimate U.S. job offers. 

Michael Ryvin, Partner
Ryvin Wallace Group
1-415-765-0679
michael@ryvinlaw.com

San Francisco Immigration Lawyer Q & A: Extending H-1Bs beyond six years by filing labor certification (PERM) applications 365 days prior to reaching the 6 year H-1B limit

Question: My current H-1B visa expires in 1/16/2013. My Company laid off employees this month in my category and so cannot file my PERM before Mar-Apr 2012. I need to know whether I will fall in the "365 days" for H-1B Visa extension when I apply for PERM by Mar-April 2012?? Since I first entered the US in H-1B status in March 2007, I approximately 1.5 years in F-1 and F-2 status. Does this period count towards H-1B 6years clock?

Answer: As you know, an H-1B worker may extend his or her status in one-year increments beyond the 6-year limitation if a labor certification has been filed at least 365 days prior to reaching the six year limit. Also, an H-1B worker may extend his or her H-1B status in three-year increments beyond the 6-year limitation if he/she is the beneficiary of an approved first, second, or third preference employment-based (I-140) petition, but subject to per country limitations (in other words, I-140 approved, but due to per country limitations, is unable to file for or obtain his or her immigrant visa).

When conducting related analysis, it is critical to have the actual documents to accurately establish the foreign workers six year max date [also referred to as a Final Nonimmigrant Visa or FNIV date]. As you know, any time during this six year period which is spent outside of the US or in another temporary status, may be “re-captured” or essentially, added to the six year limit.

In your situation, based on your representations, it sounds like you should be in good shape to meet the 365 day deadline [commonly referred to as the “AC-21 deadline”] IF the company files a PERM for you on by March/April 2012.

Here is how the analysis works. If your first began H-1B status was March 2007, your six year limit is March 2013. However, if you spend 1.5 years either outside of the US or in F-1 status, you can file another I-129 asking USCIS to re-capture the 1.5 years, effectively extending your six year limit to August 2014.

So, if your FNIV date is August 2014, then you need to get a labor certification (PERM) application filed no later than August 2013 – in order to establish eligibility to seek one-year extension of H-1B status beyond the six year limit.

Notably, once the PERM is approved, you immediately file an I-140, which can be expedited. With an approved I-140, assuming you are not current [subject to per country limitations] you may seek three-year extension of your H-1B status for as long as your green card case is pending.

Critical steps for you are to get your immigration timeline in place with supporting evidence to make sure you can document the time spent in another status or outside the US, to ensure that your request to re-capture time [extending your FNIV date to 8/2014 or thereabouts] is approved.

Then of course, you should also work with the new company’s immigration counsel to move forward on your labor certification application asap.

Good luck and please let me know if I may be of further assistance.

Michael Ryvin, Partner
Ryvin Wallace Group
1-415-765-0679
michael@ryvinlaw.com

San Francisco Immigration Lawyer: USCIS Denial Overturned by AAO on Appeal in L-1 New Office Extension Case

Below please find a copy of a January 2011 AAO [Administrative Appeals Office] decision which overturns a denial issued by USCIS in an L-1 “New Office” extension case.

L-1 “New Office” petitions are commonly used when an established foreign company wants to expand in the United States and send a manager/executive or specialized knowledge employee to work for the NEW U.S. entity.

New Office L-1s are granted for one year by showing, among other things, physical premises in the U.S. and the financial viability of the U.S. entity.

One of the hidden pitfalls of the New Office L-1 is securing an extension of L-1 status for the transferee. Commonly, the USCIS will determine the U.S. enterprise is not sufficiently developed to establish the transferee will continue to be employed in a qualifying capacity [manager/executive/specialized knowledge].

The decision below, which includes my highlights and handwritten notes, offers an excellent discussion of the issues surrounding the New Offices L-1 extensions.

AAO New Office L-1A Decision_1-2011


Michael Ryvin, Partner
Ryvin Wallace Group
1-415-765-0679
michael@ryvinlaw.com

Tuesday, August 9, 2011

WSJ: U.S. to Assist Immigrant Job Creators

Wall Street Journal
By Miriam Jordan
August 2, 2011
As part of the new initiatives, foreign entrepreneurs will be eligible for a so-called EB-2 immigrant visa without a specific job offer, as long as they demonstrate that their business endeavors will be in the U.S. national interest.
The government is also seeking to bolster use by foreign entrepreneurs of H-1Bs, which are temporary work visas for foreign workers in a specialty occupation.
The H-1B program has been a mainstay of software companies and other businesses that seek foreign nationals to fill certain jobs, and an employer-employee relationship has generally been a prerequisite for qualifying.

As part of the new measures, a sole entrepreneur can qualify for an H-1B if the individual’s employment is decided by a corporate board or shareholders of the start-up company.

Mr. Mayorkas will also unveil enhancements to the EB-5 investor program, which enables foreign investors and their families to qualify for green cards if they invest at least $500,000 in a U.S. project that generates at least 10 jobs.

His agency is also seeking to speed up the approval process by hiring additional adjudicators to evaluate applications and enabling petitioners to make their case before an expert panel should their application require further evidence or be denied.

The moves come as demand for H-1B visas has fallen. As of July 22, USCIS had received approximately 21,600 H-1B petitions out of 65,000 available for the 2012 fiscal year. The agency had received approximately 26,000 such applications for the same period last year.
Link

San Francisco Immigration Lawyer Q & A: San Francisco Port-of-Entry and Overstays

Q: I am on an H1B visa and my wife is on H4. We came to the US in the year 2007. My I-129 and I-94 was extended in September 2009, however due to lack of information we did not apply for my wife’s I-94 extension. She went back to India on June 19, 2010, having overstayed her I-94 by 270 days. She finally got her H-4 visa stamp from the Delhi Consulate last week. We made a full disclosure about her overstay on the visa application [DS-160] to Delhi Consulate. My question is can CBP at the San Francisco Port-of-Entry refuse her entry due to her earlier overstay? If yes, can we do something about in advance?

MR: Excellent work securing the visa after the overstay! Unless CBP finds that your visa application was fraudulent, for example, that you did not disclose the overstay to the US Consulate, I see no reason for CBP to refuse entry. Your wife might expect to be pulled into secondary inspection however, and answer questions about her immigration history and visa application. I might help for her to carry copies of her visa application with supporting documentation to present, if necessary. There is not much else one can do in advance. In some cases, I might call CBP [contact information for CBP at the SF International Airport provided below] to ask them what their policy is. But again, in your case, unless there was fraud, or she is otherwise not eligible to enter as an H-4 [for example if you were no longer working in H-1B] CBP should not have a problem honoring the valid visa stamp.

Link to SF International Airport CBP: http://www.cbp.gov/xp/cgov/toolbox/contacts/ports/ca/2801.xml

Best of luck!
Michael Ryvin, Partner
Ryvin Wallace Group
1-415-765-0679
michael@ryvinlaw.com

San Francisco Immigration Lawyer Q & A: Labor Certification Application/PERM based green card cases and U.S. labor market tests

Q: My employer wants to file a Labor Certification “PERM” based green card application for me. What are the regulations regarding advertising the position?

MR: A labor certification application is commonly referred to as “PERM” application and is submitted electronically to the U.S. Department of Labor after the U.S. employer [sponsor] performs a good faith test of the U.S. labor market. The PERM based green card process consists of three Stages:

Stage 1: Labor certification application, ie, PERM – to Department of Labor.
Stage 2: I-140 Petition for Immigrant Worker – to the Immigration Service (US CIS).
Stage 3: Clearance for US lawful permanent residence, ie, the green card, through “adjustment of status” performed on US soil or “immigrant visa processing” performed at a US consulate abroad.

The employer must test the U.S. labor market for the position offered to the foreign national, to see if there is a U.S. worker – instead of the foreign national - qualified and available for the job. After testing the market, if there is no such worker, then the foreign national proceeds with the stages of the process. If a qualified and available U.S. worker is found, the green card process stops. Yet, the employer is not required to hire the U.S. worker who might turn up during recruitment. It just signals that the market contains qualified US workers who should be offered the job first. It does not prevent trying for the green card again.


San Francisco Immigration Lawyer Q & A: Can my employer sponsor me for a green card while I am in F-1 OPT status?

Q: I am in F-1 OPT [optional practical training] status and my employer wants to apply for green card. I graduated with a Master of Science in December 2010 and started my OPT in February 2011. Currently I am working for a leading IT company on a contract basis from March 2011 - present. I am planning to apply for an H-1B visa for April 2012 quota. For now, my employer wants start green card process while I am in F-1OPT status. My questions:

1. Am I eligible to start green card when I am in OPT status?

MR: Yes, the employment based green card process can start while you are in F-1 [student] status. Notably, your green card case is based on a prospective offer of employment. In other words, you need only be employed in the prospective position “upon issuance of the green card” – which means when your I-485 [adjustment of status] application is approved. Depending on the nature of your case, this might not occur for years.

2. If eligible, will I be considered as potential immigrant because I am applying in OPT (without H1) and will it spoil my future visa processing?

MR: Yes, you would be considered a potential immigrant, which is why companies often have a policy of changing F-1s and TNs [another temporary intent visa classification] to H-1Bs BEFORE starting the green card process. However, this change is not required for eligibility to start a green card case, and you need to consider in what context the issue of intent becomes relevant.

Primarily, immigrant intent might harm you if you are seeking an extension of your F-1 status, or if you are seeking entry to the US in F-1 status. In either of these scenarios USCIS/CBP might refuse the extension/entry based on determination you have immigrant intent [and therefore do not meet the temporary intent requirement for being a student].

Assuming you are not seeking an extension or plan to travel and return in F status, you should have no trouble avoiding either of this potential pitfalls. NOTE: Once you secure H-1B status on October 1, 2011, the next time you leave the US you will likely need to secure an H-1B visa stamp at a US consulate abroad. The H-1B does not require temporary intent, so a pending green card matter should not have a negative impact on your H-1B visa stamp application.

The other common scenario where immigrant intent might harm an F-1 is when the F-1 files a green card application shortly after entering the US in F-1 status. This might lead to a presumption of fraud. Specifically, that the F-1 never intended to study in the US; rather, just wanted to enter for the purpose of filing a green card application inside the US.

Assuming you started F-1 status year(s) ago, attended and finished school, this presumption should not apply to you.

3. If not eligible then what is the edibility criteria and when to start the process?

MR: As discussed above, you are eligible to start. To be clear, someone does not have to be in H-1B status to start a green card case. This is just the most common scenario. Eligibility criteria for employment based green card can be reviewed here: http://www.ryvinlaw.com/services/employment-based-green-cards/

4. Can you please brief me about the green card process for my situation.

MR: I would need to see your resume to review your best available green card options. You should also note that for most green card categories, both you and position offered must qualify. For example, with a Master’s degree, you have the qualifications for EB-2, but if the job offered does not require someone with a Master’s degree [or equivalent] then you cannot file in the EB-2 category.

***

Please let me know if you require clarification. Sounds like you have some good options ahead of you and I wish you the best of luck!

Sincerely,

Michael Ryvin, Partner
Rvyin Wallace Group
michael@ryvinlaw.com
1-415-765-0679

Tony and Janina To Be Reunited!

Last year, I posted a video trailer for Janina’s American Wedding, a feature length documentary that gets to the heart of the broken, red tape ridden U.S. immigration system. After 18 years in America, Tony and Janina Wasilewski’s family is torn apart when Janina is deported back to Poland, taking their 6 year old son Brian with her. Set on the backdrop of the Chicago political scene, and featuring Illinois Congressman Luis Gutierrez at the heart of the immigration reform movement, this film follows the Wasilewski’s 3-year struggle to be reunited, as their Senator Barack Obama rises to the Presidency. With a fresh perspective on the immigration conversation, this film tells the untold human rights story of Post-9/11, that every undocumented immigrant in America faces today, with the power to open the conversation for change.


"Tony & Janina's American Wedding" Trailer from Ruth Leitman on Vimeo.

Recently, The New York Times reported that Janina is on her way home!

http://www.nytimes.com/2011/08/08/us/08return.html
A Polish woman will step off an airplane in Chicago on Monday afternoon with a legal visa in her hand, coming back to live in the United States four years after her deportation sundered her family, in a rare case of the return of an immigrant who was expelled.

The woman, Janina Wasilewski, was deported in 2007 after living for 18 years in the Chicago suburbs. Several applications she had filed to become a legal resident became hopelessly tangled in the immigration courts and were finally denied. She left behind her husband, Tony, also a Polish immigrant, but with his agreement she took their son, Brian, an American citizen, who was 6.

The Wasilewski family became one of the nation’s most visible examples of the impact of deportation, just as the pace of removals has accelerated under the Obama administration, to nearly 800,000 over the last two years. Images of the scene when Mrs. Wasilewski left from O’Hare Airport in June 2007 were circulated widely, with her husband gripping her and their son and weeping as he begged them not to cry.