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Monday, November 30, 2009

The Maze of AOS

     When a foreigner is in the U.S., she becomes a legal permanent resident through adjustment of status (AOS), whether the petitioner is a family member or an employer.  The details of AOS are such that it reminds me of a maze.  Start:  must be in legal status.  Twist:  unless foreigner is "245(i) grandfathered" (more on this another day) or another exception applies.  Continue:  must never have worked in the U.S. without authorization.  Twist:  unless the case is based on employment and the foreigner did not work without authorization for more than 180 days in the aggregate since last entry. 

     Continue:  the visa number must be available.  Twist:  the visa number may have been available but has now retrogressed so that it has become unavailable.  Continue:  visa numbers are always available for immediate relatives, including children, of U.S. citizens.  Twist:  Visa numbers are not available for married children -- by definition including a person under 21 years old -- of U.S. citizens.  Surprise:  only a competent immigration professional can guide someone out.

Wednesday, November 25, 2009

Blame My (Immediate) Relatives

     How fitting that just before the Thanksgiving holiday my studies begin on the topic of legal permanent residency based on family relationships.  There are two parts to every case: the petition by the family member who is in the United States and the application for residency (or an immigrant visa) by the person who wishes to become a legal permanent resident.  In addition, there are two types of family relationships in Immigration-speak:  immediate relatives and others.  Immediate relatives can apply for residency as soon as the family members file a petition.  These include the parent, spouse, and child (under age 21) of a U.S. citizen.
     Everyone else who is eligible to become a permanent resident based on a family relationship must wait until there are enough visa numbers available.  There are several "preference categories" determined by law and country.  A European child of a legal permanent resident might wait five years to become a permanent resident.  Surprise:  a Philippine sibling of a U.S. citizen would wait about 22 years. 

Tuesday, November 24, 2009

$500K for residency

     Although the intricacies of labor certification are so detailed that I could study the subject each night from now until the Board Certification exam in March 2010, common sense dictates that I continue with other immigration law subjects.
     A seldom used path for obtaining legal permanent residency ["LPR"] is the Employment Creation category, known as EB-5.  It is for investors who will create at least ten U.S. jobs by investing in a new commercial enterprise.  There is burdensome minimum investment requirement of $1 million.  This amount is reduced to $500,000 if the investment is in a rural area or an area of high unemployment.
     Besides the amount of the investment, a major drawback to this LPR category is that investors are only given conditional permanent resident status for two years.  After that, the Citizenship and Immigration Service reviews the investment.  More information is available from the CIS website.
     Surprise:  the management and job creation can be direct or indirect, making this a perfect category for retirees from abroad who want to remain in the U.S. while pursuing other pursuits.

Monday, November 23, 2009

Why is the Dept. of Labor unhappy?

     "Do your homework."
     "I can't."
     "Just try your best."
     "But," arms folded while looking at scratched notepaper, "I just can'tttttttt."
     "But you're not trying!"
     In a nutshell, that's the fruitless conversation between the Dept. of Labor ["DOL"] and employers who petition foreigners through the labor certification process.  The employers -- after advertising for qualified candidates -- state they cannot find U.S. workers and the DOL responds with great disbelief.
     This disbelief is shocking considering that the DOL specifies what the job offer must say (the requirements must be "normal" for the job) and how much the employer must pay (the prevailing wage).  At the end of the recruitment process, the DOL cannot accept that the employer denied U.S. workers correctly.  More and more often, the DOL audits the employer for documentary proof of recruitment results.  An audit is a years-long process.  While this insane conversation goes on, the job remains unfilled.  And a foreigner who could be working, buying a house and paying taxes to the U.S. economy waits ... and waits.

Friday, November 20, 2009

Recruitment by Employer for LC

     In order to obtain labor certification ("LC"), which is often needed to petition a foreign worker for residency, the employer must conduct minimum recruitment.   If the position is a professional one, the employer must post ads in two Sunday editions of a newspaper of general circulation as well as place the job offer in a state-wide job bank.
     The employer must also place the ad using three of the following ten methods:  employee referral program, employer's web site, job web site, radio/TV ads, on-campus recruiting, job fairs, trade/professional organizations, private employment firms, campus placement offices, and local/ethnic newspapers.
     The employer can petition for the foreigner only if she does not find a minimally-qualified U.S. worker through these recruitment methods.  If the Dept. of Labor doubts the authenticity of the recruitment efforts, it will conduct an audit before approving the LC. 
     Audit.  Oooh, that's a scary word.  More on that tomorrow.

Thursday, November 19, 2009

Labor Certification

     In two preference categories (see previous post), an employer must obtain a labor certification ("LC") to petition a foreign worker.  So, what is an LC?
     One of the definitions of socialism is that the community controls and owns production.  If that is true, then LC is little more than a socialist method of determining who works on behalf of a company.  Under a capitalist system, an employer (demand) hires from the world-wide pool of employees (supply).  In the LC world, the Department of Labor -- through a lengthy process that involves recruiting in different media -- determines whether there are any U.S. workers who are capable of performing the job.  If there are, the employer CANNOT petition the foreigner.
     LC has been called the Alice-in-Wonderland portion of immigration law because everything is not as it should be.  In the real world, an employer wants to hire the person with the best qualifications.  In the LC world, the employer must make the job available to someone who can satisfy the minimum requirements.  So, if an employer needs an in-house accountant and wants to petition for a Venezuelan with 20 years of experience, then the Dept. of Labor denies the case.  An accountant -- the DOL will argue -- only needs college, graduate school and a CPA license, but probably does not need work experience.  Surprise:  the employer must carefully determine every single job duty or risk denial.

Wednesday, November 18, 2009

Residency based on a Job

     The United States welcomes foreigners depending on their education and experience.  Those with the most expertise become legal permanent residents faster.  The first three preference categories, as they are known, for employment-based residency are as follows:
     EB-1.  Priority Worker.  A foreigner with extraordinary ability in sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation.  Surprise: she will NOT be approved in this classification just because a foreigner received an extraordinary ability O visa.
     EB-2. Members of the professions holding advanced degrees or their equivalent, or who because of their exceptional ability in the sciences, arts or business will substantially benefit the national economy, cultural or educational interests, or wlefare of the U.S. and whose services are sought by a U.S. employer.  Surprise: there are several barriers for a foreign physician to become a legal permanent resident although she has an advanced degree.
     EB-3.  Professionals, skilled workers and other workers.  This preference category includes foreigners with the equivalent of a bachelor's degree or two years of experience/training.  The "other worker" subset is for foreigners with less than 2 years of experience/training.  Surprise:  the backlog for residency from this category is so long that it behooves the foreigner to find ANY OTHER WAY to become a resident.
     Categories EB-2 and EB-3 may require a labor certification.  I will discuss that fun snake-like subject in the blogs to come.

Monday, November 16, 2009

Do I need to get my passport stamped?

     Traveling for pleasure is delightful.  Traveling as an obligation is a headache.  When a client asks me if they must leave the U.S. -- their families, their jobs, their ToDos -- to obtain a visa in their passports, I want to tell them to stay.  However, the choice is not completely mine to make.  So, I explain it like this:
     The Department of State (DOS, the U.S. embassies and consulates abroad) gives an invitation to the grand party that is our country.  That's basically what a visa is:  an invitation to the ball. 
     Now, sometimes a foreigner enters with one invitation (tourist) and changes status in the U.S. to another (maybe becomes a temporary worker).  Once you enter the party (the United States) a foreigner does not NEED to get another invitation. So long as the Citizenship and Immigration Service (CIS) allows the foreigner to remain legally in the U.S., she may do so.  Party.
     BUT, if the foreigner leaves the party, then yes, she must get another invitation abroad if she wishes to re-enter it in this new status. This is what is known as consular processing for a visa (with DOS) versus changing status with CIS.

Friday, November 13, 2009

I don't WANNA ... foreign spouses of US citizens

     Last night, I did not want to study for my upcoming certification exam.  Nope.  Let the book rot on the table.  My kitten and I wanted to scan photos like this one of me during a trip to the Jimmy Carter Center in Atlanta.  Maybe if I pretend with sufficient desire I won't even notice the test day coming at me like an unstoppable cyclone.
     My willing suspension of disbelief reminded me of K-3 visas, which are for foreign spouses of U.S. citizens.  They sometimes suffer from a variation of this drag-your-feet disease:  "I don't wanna give the government more proof than my marriage certificate."  Consular posts want proof that the marriage is valid.  The foreigner wants the K-3 visa so she can enter, live in and work in the U.S. legally.  What she sometimes doesn't want to do is gather the evidence that proves the marriage is valid (the photos, the insurance, the wills, the boarding passes of travels, the joint credit cards and joint bank accounts, just as examples).
     As I convince these foreigners of the absolute need for the evidence, I tell them the two phrases I told myself last night as I went to study.  The only two phrases that lead to a successful outcome:  I get that.  Now, let's do it.

Thursday, November 12, 2009

The Skydiving Fiancee - K-1

     If the visas available for studying remind me of kayaking the murky waters of the Everglades, the visa for fiancees reminds me of skydiving.  Once out of safety, you better land in the right spot; once the foreigner leaves her home country, she better marry her spouse within 90 days after entry.
     There is no extension of the stay.  So, no "I'll move the date back a bit and save money for a larger wedding."  There is no changing status.  So, no "I'm not sure we should marry immediately.  Maybe I'll become a student instead and we can just continue dating for a while."  And NO backing out of the marriage.  If the foreigner doesn't land in the right spot in front of the marrying official, she has to leave the U.S.
     Some persons have discovered this last fact the hard way.  They don't marry, don't leave, and then are prohibited from adjusting their status to residents.  Hey, come to think of it, the K-1 visa is not as safe as skydiving.  In skydiving, there is a second parachute in case the first one does not work out.

Wednesday, November 11, 2009

The Swamp of Studies

    When reviewing all the visas available to foreigners who wish to receive instruction in the U.S., I am reminded of my kayak trip in the Everglades.  It started out clearly enough:  blue sky, green trees and sawgrass, water beneath.  As I paddled deeper in, however, everything became murky.  At one point, the vegetation surrounded me above (interlocking tree limbs), around (confused with the green of the alligators), and beneath (more tree roots underneath the kayak than water).
     Visas for studying and instruction are almost as disconcerting.  The easier ones are for pure academic (F visa) and vocational (M visa) education.  However, there are also visas for students on exchange visitor programs (J visa) and temporary employees who receive instruction (H-3 visa).  Furthermore, the Q visa involves working, training and demonstrating the culture of the foreigner's home country.  It is important to fit the foreign peg into the right visa hole because employment authorization, length of time to stay in the U.S., and limitations on remaining in the U.S., all depend on the visa category chosen.
     Did I mention the snakes in the swamp?

Tuesday, November 10, 2009

Can a janitor get a RELIGIOUS visa?

  The answer, quite simply, is yes.  The job of janitor is an example of classic, non-religious work, which I use to demonstrate that this visa can apply to many persons.  R visas are reserved for ministers, or persons who work in a religious occupation or vocation.  However, a janitor (again, just an example) can obtain an R visa in one of two ways.
   First, for a religious-occupation-type R visa, the question is not what work experience the foreigner has or even what work the foreigner does today.  The question will be, in determining whether to approve the case, what WILL BE the work of the foreigner in the U.S.  If the work in the future of someone who is a janitor today will be traditionally religious -- such as a religious instructor or counselor -- the R visa is approved.
   The R visa would also be approved for a vocation-type visa if the foreigner has made a lifelong commitment to the religion, such as the taking of vows.  In that case, the foreigner could be coming into the U.S. to work as a janitor -- perhaps in a house of worship or a religion-based hospital.  In such a case, the emphasis will not be on the future job, but rather on the applicant's status in the religious organization.

Monday, November 9, 2009

P visa - for Group Performers and Athletes

     In my efforts to study for the BIG immigration exam in March 2010, I am grateful for the P visa.  Not only does the P visa follow the O visa alphabetically, but also the requirements for obtaining a P visa seem to logically follow the requirements for obtaining an O visa.  Easy to remember.
     An O visa requires extraordinary ability of a specific person, such as a perfomer, artist or athlete.  The P-1 visa, on the other hand, is for a member of an entertainment group which has existed for at least one year;  the group must have international recognition, not the individual performer.  In fact, where the entertainer is coming to the U.S. under a reciprocal exchange program (P-2) or for a culturally unique program (P-3), the "international recognition" requirement is waived completely. 
     P visas are also available to athletes, whether professional or amateur, performing individually or as part of a group or team.  Again, the standard is lower than for the O visa.  Either the athlete is internationally recognized -- meaning recognized in at least 2 foreign countries -- or the event where she will be competing/performing is internationally recognized.

Friday, November 6, 2009

You're ExtraOrdinary, MarvelOus

     Not as infrequently as you might think, a foreigner will come to my office asking -- directly -- for an O visa.  With a side of employment authorization, please.  The thing is that O visas are reserved for persons with EXTRAORDINARY ability in the sciences, arts, education, business or athletics.  Did you see the word EXTRAORDINARY?  Persons with a history of EXTRAORDINARY achievement in motion pictures or television can also obtain O visas to work in the U.S. in their area of expertise.
     Nevertheless, when a foreigner insists, absolutely gets down on the floor and throws a temper tantrum, about how they know they qualify as EXTRAORDINARY ability aliens, I pose a simple question:  can you get an advisory opinion from an association of your peers that says so?  In other words, I ask (with a sly smile) are your colleagues in the U.S. willing to say you are EXTRAORDINARY?
    Sometimes, the silence is so profound you can almost hear the office mascot -- a stray cat named Lady Liberty -- meowing outside.  If the answer is yes, however, O visa it is.

Thursday, November 5, 2009

E - The "Substantial" Visa

     Once upon a time, in places far away, men (and perhaps two or three women) lived by trading the goods from their home country with another country.  Others lived in countries where they had not been born or raised, but invested in companies in an adopted homeland.  Over the years, the countries developed specific international agreements, known as treaties, so these men (and women) could live and work abroad.
     Today, treaty traders and investors can enter the U.S. on E-1 and E-2 visas respectively, and remain for an indefinite period of time.  The requirements are numerous, including the following:
*  that the trade between the U.S. and the foreign country be substantial OR
*  that the amount of funds invested is substantial.
   Substantial is an obscure and funny term, open to wide interpretation by the consular officers who decide whether to grant the visa.  Word to the wise:  if interested in joining the long tradition of traders and investors, retain an immigration professional.

Wednesday, November 4, 2009

The Seven Types of H Visas

     The H category of visa is perhaps best known for the H-1B, which is available to foreign professionals and certain fashion models.  However, there are six other visas in this category.  The H-1B1 is for fast track H-1Bs, known as such because they are reserved for nationals of Chile and Singapore.  The U.S. entered into Fast Track Trade legislation with both these countries.
     The H-1C is for professional nurses working in health professional shortage areas.  Of course a nurse with a bachelor's degree may also apply for an H-1B in any city if she can prove that the minimum requirement for the position is a bachelor's degree. The H-2A is available for temporary agricultural workers and the H-2B is for other workers provided that U.S. citizens or legal permanent residents are unavailable.  The H-3 category is available for trainees who cannot obtain such training in their home country.  Finally, accompanying family members -- meaning spouse and children -- of persons with any H visa obtain an H-4.
     This is just one of the visas I must know for the Board Certification exam.  Again, wish me luck.

Tuesday, November 3, 2009

H-1B Professionals - Still Available

   Foreign students have the determination to obtain a bachelor's degree or higher, the perseverance to look for employment in a tough economy, and are willing to do the hard work needed to start their professional careers.  Unfortunately, many have not found a company that needs their skills now, much less petition a foreigner for an H-1B visa.  If the foreign student is in the United States, time in F-1 status may be running out.  Without a change of status, she will need to return to her home country.
   Along comes the H-1B visa, which is available to foreign professionals who wish to start their own companies, even if initially only on a part-time basis.  There are only 65,000 of these available and normally they run out immediately.  However, as of October 25, 2009, only 52,800 petitions had been filed.  See CIS web site.  Word to the wise:  if you are a foreign student, run -- don't walk -- to your nearest immigration attorney.

Monday, November 2, 2009

Transferees - Not Even Transferred

   When a foreign business owner or executive seeks to expand her company into the U.S. market, I recommend the L visa.  The foreigner must be employed continuously abroad for 1 of the past 3 years by a parent, branch, affiliate or subsidiary of a U.S. company.  She may also be coming to the U.S. to open a new office.  The work itself must be in a managerial or executive capacity or one that involves specialized knowledge.  Of course, all these terms "managerial," "executive" and "specialized knowledge" are subject to wide interpretations.  Immigration, after all, does not accept at face value that a foreigner qualifies.  As an attorney, I make the argument -- and have a strong record of winning it.
     The truly curious thing about L visas, however, is that foreigners who have been living in the United States for many years may qualify to change their status to transferee. If the person has been working for the foreign company for one year, but has been physically in the U.S. (perhaps training at the subsidiary), the one year is not interrupted.  In addition, if the foreigner has been in the U.S. with another status in excess of 3 years, the 1 in 3 year requirement can still be met.  Word to the wise:  if you worked for a company abroad that has -- or is willing to open -- a U.S. office, investigate this option.

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