The USCIS recently announced that it has received a sufficient number of petitions to meet the annual cap of 65,000 H-1Bs. This leaves many employers and prospective employees without the chance to apply for an H-1B visa until April 2012, for a position that won't start until October 1, 2012.
In the meantime there are still several employment-based visa options that shouldn't be overlooked. If the company has foreign ownership or foreign branch offices, an E-2 or L-1 visa might be an option. If the employee is from Canada or Mexico and their job meets certain criteria, the TN is a good choice. And if the employee has outstanding qualifications in the sciences, business, the arts, as an athlete or a performer, then an O-1 or P-1 is worth looking into.
If H-1B turns out to be the only visa category that will work, then it's also worthwhile to plan ahead and make sure that the cap doesn't pass you by yet again next year.
Wednesday, November 30, 2011
Monday, September 19, 2011
Patience is a Virtue by Vi Nanthaveth, Attorney
Last week brought a victory for us and if I’ve learned anything from this experience, it is that good things do come to those who wait…patiently.
The victory I am referring to is a waiver case that I inherited back in 2008. Like many of my waiver cases, this one required a lot of repair. My client is married to a U.S. Citizen. In 2002, he filed to adjust his status through his wife. Had he been approved, he would have received a green card. What he was unaware of was that he was not eligible to file for adjustment. As a result of this improper filing, he was removed from the United States and was told to apply at a U.S. Consulate in his home country. Since he had accrued unlawful presence in the U.S., this meant that he was subject to a 10 year bar and his only option was to file an I-601 waiver. He soon realized that filing a waiver was not a simple process. Unfortunately, he was denied and this resulted in many years of separation between him and his wife.
When his wife asked for my help, the couple had already been separated for six years. The only way they could see each other was for her to visit him. It was such a tragic story, but it was one that I hear quite often. After assessing the situation, I realized that there was hope for this family, but it was not going to be easy. I had to prove that his wife was experiencing extreme hardship and I had to start from ground zero.
For six months, I worked with his wife to gather documents. When I had finally gathered sufficient proof, I requested another interview for my client and then he turned in the waiver packet that I had prepared for him. Then the trouble began. First, the consulate delayed scheduling his interview. We had to ask Congressman McCaul’s office to get involved. After almost a year, he finally received his interview and turned in his waiver packet. I later got a notice that the consulate never received my written argument, which was included with the waiver. (This was basically their way of saying they lost it.) The worst news came when they finally sent us a denial notice for the waiver. What?! I had never lost a waiver case before (knock on wood). As baffled as I was, I had to come up with a game plan for my distraught client.
The game plan: file an appeal. The Service erred in its decision and I was ready to make my argument. After filing the appeal, it only took the Service two weeks to realize that they had made a mistake and overturn their previous decision. Finally, a break! After 8 years of living apart, my client will soon reunite with not only his wife but also their daughter. This is truly a happy ending.
The victory I am referring to is a waiver case that I inherited back in 2008. Like many of my waiver cases, this one required a lot of repair. My client is married to a U.S. Citizen. In 2002, he filed to adjust his status through his wife. Had he been approved, he would have received a green card. What he was unaware of was that he was not eligible to file for adjustment. As a result of this improper filing, he was removed from the United States and was told to apply at a U.S. Consulate in his home country. Since he had accrued unlawful presence in the U.S., this meant that he was subject to a 10 year bar and his only option was to file an I-601 waiver. He soon realized that filing a waiver was not a simple process. Unfortunately, he was denied and this resulted in many years of separation between him and his wife.
When his wife asked for my help, the couple had already been separated for six years. The only way they could see each other was for her to visit him. It was such a tragic story, but it was one that I hear quite often. After assessing the situation, I realized that there was hope for this family, but it was not going to be easy. I had to prove that his wife was experiencing extreme hardship and I had to start from ground zero.
For six months, I worked with his wife to gather documents. When I had finally gathered sufficient proof, I requested another interview for my client and then he turned in the waiver packet that I had prepared for him. Then the trouble began. First, the consulate delayed scheduling his interview. We had to ask Congressman McCaul’s office to get involved. After almost a year, he finally received his interview and turned in his waiver packet. I later got a notice that the consulate never received my written argument, which was included with the waiver. (This was basically their way of saying they lost it.) The worst news came when they finally sent us a denial notice for the waiver. What?! I had never lost a waiver case before (knock on wood). As baffled as I was, I had to come up with a game plan for my distraught client.
The game plan: file an appeal. The Service erred in its decision and I was ready to make my argument. After filing the appeal, it only took the Service two weeks to realize that they had made a mistake and overturn their previous decision. Finally, a break! After 8 years of living apart, my client will soon reunite with not only his wife but also their daughter. This is truly a happy ending.
Wednesday, August 31, 2011
Not quite amnesty, but there is hope. No tanto una amnestia, pero hay esperanza.
(This blog entry will appear in English and Spanish)
The Obama administration recently announced that DHS will begin reviewing current deportation cases, dismissing some, and allowing those individuals to apply for a work permit. This could be cause for celebration, but it’s still too early to tell. The most important thing to remember is that this is not a general amnesty and not everyone will qualify. For the time being, here is what you should know about the new policy:
1. The policy will allow DHS to review and administratively close current deportation or removal cases.
2. The policy applies to “low priority” cases where the respondent has no criminal history and has strong ties to the community such as U.S. Citizen or Permanent Resident family members.
3. “High priority” cases, where the respondent has criminal convictions or has re-entered the U.S. after previous deportation will still be prosecuted.
4. So far, there has been no instruction on how people may apply for a work permit once their case has been dismissed.
5. There is no guarantee that a work permit will be granted.
6. If a case is administratively closed, that individual will not receive legal status and the case could still be re-opened in the future.
7. The announcement on August 18th was only a preliminary announcement and we don’t know yet how the policy will be implemented.
Again, unless you are in removal or deportation proceedings in an immigration court right now, this policy will not apply to you. It is not advisable to turn yourself in to immigration authorities because there is no guarantee that your case will be dismissed and it’s still unclear how the administration will grant work permits to people whose case is dismissed. There is hope, however, in a limited number of cases. If you have questions about your individual case, you should seek the advice of a licensed attorney with experience in immigration law.
El gobierno del Presidente Obama anunció recientemente que el Departamento de Seguridad Nacional (DHS, en ingles) iniciará la revisión de casos de deportación actualmente activos, exonerando a algunos, y permitirá que las personas soliciten un permiso de trabajo. Esto podría ser motivo de celebración, pero todavía es muy temprano para decirlo. Lo más importante a recordar es que esto no es una amnistía general y no todos califican. Por el momento, esto es lo que debe saber sobre esta nueva política:
1. La política le permitirá al DHS revisar y cerrar administrativamente algunos casos de deportación actualmente activos.
2. La política se aplica a los casos de "baja prioridad" en el que el demandado no tiene antecedentes penales y tiene fuertes lazos con la comunidad, como por ejemplo miembros de su familia que sean ciudadanos o residentes permanentes de los EE.UU.
3. Los casos de "alta prioridad", en EL que el demandado tiene condenas penales o ha vuelto a entrar a los EE.UU. después de una previa deportación seguirán siendo procesados.
4. Hasta el momento, no hay ninguna guía o instrucción sobre cómo las personas pueden solicitar un permiso de trabajo una vez que su caso ha sido exonerado.
5. Aunque habrá la posibilidad de aplicar para un permiso de trabajo, no hay garantía de que un permiso de trabajo sea concedido.
6. Si el caso se exoneró, el demandado no va a recibir el estatus legal ni ningún tipo de visa y el caso podría ser reabierto en el futuro.
7. El anuncio el 18 de agosto fue sólo un anuncio preliminar y no sabemos todavía cómo la política se llevará a cabo.
Una vez más, a menos que usted actualmente esté en proceso de expulsión o deportación en una corte de inmigración, esta política no se aplica a usted. No es recomendable que se entregue uno a las autoridades de inmigración porque no hay garantía de que su caso será exonerado. Aún no está claro cómo el gobierno va a conceder permisos de trabajo a la persona cuyo caso se cierra. Hay esperanza, sin embargo, en un número limitado de casos. Si usted tiene preguntas sobre su caso en particular, debe buscar el consejo de un abogado licenciado y con experiencia en leyes de inmigración.
Friday, August 12, 2011
From Levi Strauss to Liz Claiborne
What do Sergey Brin (Co-Founder of Google), Liz Claiborne, Andrew Grove (Co-Founder of Intel), and Levi Strauss all have in common? (Find the answer from Forbes magazine here). If you already knew that they were all successful entrepreneurs who were also immigrants to the United States, then you might also understand why the U.S. Department of Homeland Security (DHS) recently highlighted the importance of encouraging immigrant entrepreneurs to come to or stay in the United States. Congress has failed to pass legislation that create a special entrepreneurs category of visas, and so DHS is pointing out existing avenues that may help entrepreneurs to stay in the U.S., with or without a sponsoring employer. You can read the press release here.
How can you take advantage of these existing laws? Well, if you have an employer ready to sponsor you, there are a couple of categories that may fit your situation for either a temporary work visa, or for permanent residence. If you’re interested in becoming part-owner in a company, you may be able to structure the company in a way that allows you to be both owner and beneficiary of a work visa or permanent residency. If you want to start your own wholly-owned business and can show that you’re a highly-qualified individual, with a proven track record, who wants to create jobs for U.S. workers, then you may qualify for a National Interest Waiver. If you currently own and operate a business outside the U.S. and want to open a branch or subsidiary here in the U.S., a fast-track adjudication of your residency application as a multinational executive may soon benefit you. The good news is that there are several options available. Whether you’re an aspiring fashion mogul, like Liz Claiborne, or a technical genius like Sergey Brin, the U.S. awaits your talents.
Tuesday, February 8, 2011
Guidance for former Tri Valley Students
Yesterday colleges across the country received further guidance on how to admit and possibly re-instate former Tri Valley University students. The National Association of Foreign Student Advisers has published some pointers on their website:
http://www.nafsa.org/resourcelibrary/default.aspx?id=24805
If you have any questions regarding your options, please don't hesitate to contact our office.
http://www.nafsa.org/resourcelibrary/default.aspx?id=24805
If you have any questions regarding your options, please don't hesitate to contact our office.
Thursday, February 3, 2011
Tri-Valley Univeristy Student's ICE Interview
Tri Valley University billed itself as a “Christian Higher Education Institution aiming to offer rigorous and excellent quality academic programs…” However, in May 2010, the Department of Homeland Security began investigating the school as a fraudulent institution. In January, 2011, the school was shut down by Immigration and Customs Enforcement, leaving its estimated 1,600 students in limbo. Their SEVIS records have been frozen, meaning that they now cannot transfer to another school, even if they wanted to. Some students have been issued a Notice to Appear (NTA) in immigration court, some have been detained, others have had radio monitoring devices placed on their ankles. Students are searching for answers and many are posting on immigration message boards and sharing a lot of information, and unfortunately, some misinformation.
Yesterday, I met with one of TVU's former students in my office for a consultation. We discussed several options for him, including contacting ICE directly to find out whether they were going to interview him or serve him with an NTA. He had transferred to TVU from another school before his Optional Practical Training had expired, and enrolled in a PhD program with TVU. He was offered Curricular Practical Training (CPT) in order to accept employment while enrolled in online courses with TVU. In the meantime, his employer had filed a petition for an H-1B and change of status for him (using a different attorney), which is still pending. He told me he would weigh his options, which including leaving the country and waiting for news on his H-1B, staying and hoping the change of status would be approved, and contacting ICE regardless of whether he stayed or left.
This morning, I received a phone call from this individual with the surprising news that two men identified as DHS agents were at his apartment. He requested that I come immediately. I asked to be put on the phone with one of the agents, who identified himself, told me he was there to interview my client about TVU and said he would wait until I arrived at my client’s apartment before he be began the interview. I assured him I would be there in 15 minutes and rushed over.
When I arrived at the apartment, I introduced myself to the two agents and they showed me their DHS badges. They joked that they didn’t know attorneys made house calls.
When we were all settled, one of the agents took up his interview questions with my client. He explained that he had already asked a few questions and repeated them for me. The agent seemed to follow a script of questions on a printed sheet of paper. He was very courteous and his line of questions were focused mainly on how the university operated, with whom my client had spoken before and after enrolling and what they had told him, what the campus was like when he visited, what his coursework was like, whether he had lived in California, and how much money he had paid for tuition. The only documentation the agents were interested in seeing, aside from my client's passport, visa and I-94, was any proof of the tuition payments he had made. My client agreed to email all the electronic receipts that he had and he explained that TVU had not sent receipts for all of the payments. The agent said that he would let him know if he needed anything else, but for now, that was all the documentation he wanted. The agent provided my client and me with his business card and contact information in case we had any follow up questions or thought of any other information that might be important to the investigation.
We had a few questions for the agents, which they were very willing to answer. My client wanted to know whether he should contact ICE (Immigration and Customs Enforcement) and the agents explained that they were part of ICE, and that it’s ICE that is conducting these investigations. They clarified for him that the Department of Homeland Security is the larger government organization, and that ICE, CIS and CBP are the agencies underneath it.
I wanted to know whether they were coordinating or sharing information with CIS in cases like my client’s where someone has a request for Change of Status pending. The agent said that as far as he knows, there is no coordination, but that if anyone at CIS had a question about my client’s case, he would be happy to let them know what he had learned during the interview. He emphasized that these investigations are being conducted on a very case-by-case basis. In cases like my client’s, where the student himself was duped and where he is trying to do the right thing by contacting a lawyer and is in the process of changing status, ICE is not interested in doing anything other than gathering information about the school.
I also questioned whether they would issue an NTA to my client. He said, again, that ICE is trying to treat each case individually and that in my client’s case it was unlikely. However, if he received directions to issue an NTA, he would do his best to coordinate with my client and me so that my client would have options and would be able to make the choice to depart the country on his own if he preferred. I asked what other students in the same situation should do and he said my client had done the right thing by contacting an attorney, trying to change his status to maintain a lawful status, and that in cases like his,again, ICE is only interested in getting information for their larger investigation.
I asked whether the agent knew what happens when someone contacts ICE through the phone number or email address that have been set up for TVU students. (415-844-5320, or SFRHSIFraud@dhs.gov are the numbers my client had found.) He said he hasn’t been sent to follow up on any of those contacts personally and that his investigation is proceeding from a larger investigation and using a list of students that the university had on file. He actually wasn’t aware of the phone number or email address that I referred to and I believe it may be the San Francisco area ICE office contact information.
The other agent present was quiet throughout the interview and didn’t ask any questions. At the end, before the agents left he told me his heart went out to the students and he understands that many are very afraid right now.
My overall impression of the interview was that the ICE agents we saw today are after bigger fish than students like my client. They are interested in finding out exactly how much money TVU has obtained, who was involved in enrolling the students and what information the students were given. The agents were not intimidating or rude. One interesting point, however, is that my client and I are not clear on how they found him. He had not turned in a change of address form AR-11 to DHS and had recently moved in with his uncle, but didn’t have his name on the apartment lease. His new address wasn’t included in his H-1B petition either.
I still can’t say with 100% certainty what someone in my client’s situation should or shouldn’t do. The agents we encountered were very reasonable and even seemed quite helpful, but there’s no guarantee that other agents would conduct their investigation in the same way. There doesn’t seem to be any coordination between the ICE contact information that has been given out to students and the local ICE office in Central Texas. I think it helped very much that my client was a student who didn’t know that the university was acting in a fraudulent way, who had been completing the online coursework, and who had made an effort already to change his status.
It was good timing on my client’s part to have sought out an attorney the day before, so that he did have someone he could call when the agents appeared at his door. In a worst case scenario, I had retained copies of all of his relevant documents during his consultation and would have been prepared if he had been detained. In hindsight, I should have also requested contact information for close friends or family members in case I needed to work with them on getting him released from detention. I would recommend that to others who are seeking out an attorney right now. If you decide to retain the attorney’s services, leave them a copy of all your relevant documents and an emergency contact person’s information.
This is a highly stressful situation for a lot of innocent students and I hope that this recap of my client’s interview this morning was helpful to some of you.
Yesterday, I met with one of TVU's former students in my office for a consultation. We discussed several options for him, including contacting ICE directly to find out whether they were going to interview him or serve him with an NTA. He had transferred to TVU from another school before his Optional Practical Training had expired, and enrolled in a PhD program with TVU. He was offered Curricular Practical Training (CPT) in order to accept employment while enrolled in online courses with TVU. In the meantime, his employer had filed a petition for an H-1B and change of status for him (using a different attorney), which is still pending. He told me he would weigh his options, which including leaving the country and waiting for news on his H-1B, staying and hoping the change of status would be approved, and contacting ICE regardless of whether he stayed or left.
This morning, I received a phone call from this individual with the surprising news that two men identified as DHS agents were at his apartment. He requested that I come immediately. I asked to be put on the phone with one of the agents, who identified himself, told me he was there to interview my client about TVU and said he would wait until I arrived at my client’s apartment before he be began the interview. I assured him I would be there in 15 minutes and rushed over.
When I arrived at the apartment, I introduced myself to the two agents and they showed me their DHS badges. They joked that they didn’t know attorneys made house calls.
When we were all settled, one of the agents took up his interview questions with my client. He explained that he had already asked a few questions and repeated them for me. The agent seemed to follow a script of questions on a printed sheet of paper. He was very courteous and his line of questions were focused mainly on how the university operated, with whom my client had spoken before and after enrolling and what they had told him, what the campus was like when he visited, what his coursework was like, whether he had lived in California, and how much money he had paid for tuition. The only documentation the agents were interested in seeing, aside from my client's passport, visa and I-94, was any proof of the tuition payments he had made. My client agreed to email all the electronic receipts that he had and he explained that TVU had not sent receipts for all of the payments. The agent said that he would let him know if he needed anything else, but for now, that was all the documentation he wanted. The agent provided my client and me with his business card and contact information in case we had any follow up questions or thought of any other information that might be important to the investigation.
We had a few questions for the agents, which they were very willing to answer. My client wanted to know whether he should contact ICE (Immigration and Customs Enforcement) and the agents explained that they were part of ICE, and that it’s ICE that is conducting these investigations. They clarified for him that the Department of Homeland Security is the larger government organization, and that ICE, CIS and CBP are the agencies underneath it.
I wanted to know whether they were coordinating or sharing information with CIS in cases like my client’s where someone has a request for Change of Status pending. The agent said that as far as he knows, there is no coordination, but that if anyone at CIS had a question about my client’s case, he would be happy to let them know what he had learned during the interview. He emphasized that these investigations are being conducted on a very case-by-case basis. In cases like my client’s, where the student himself was duped and where he is trying to do the right thing by contacting a lawyer and is in the process of changing status, ICE is not interested in doing anything other than gathering information about the school.
I also questioned whether they would issue an NTA to my client. He said, again, that ICE is trying to treat each case individually and that in my client’s case it was unlikely. However, if he received directions to issue an NTA, he would do his best to coordinate with my client and me so that my client would have options and would be able to make the choice to depart the country on his own if he preferred. I asked what other students in the same situation should do and he said my client had done the right thing by contacting an attorney, trying to change his status to maintain a lawful status, and that in cases like his,again, ICE is only interested in getting information for their larger investigation.
I asked whether the agent knew what happens when someone contacts ICE through the phone number or email address that have been set up for TVU students. (415-844-5320, or SFRHSIFraud@dhs.gov are the numbers my client had found.) He said he hasn’t been sent to follow up on any of those contacts personally and that his investigation is proceeding from a larger investigation and using a list of students that the university had on file. He actually wasn’t aware of the phone number or email address that I referred to and I believe it may be the San Francisco area ICE office contact information.
The other agent present was quiet throughout the interview and didn’t ask any questions. At the end, before the agents left he told me his heart went out to the students and he understands that many are very afraid right now.
My overall impression of the interview was that the ICE agents we saw today are after bigger fish than students like my client. They are interested in finding out exactly how much money TVU has obtained, who was involved in enrolling the students and what information the students were given. The agents were not intimidating or rude. One interesting point, however, is that my client and I are not clear on how they found him. He had not turned in a change of address form AR-11 to DHS and had recently moved in with his uncle, but didn’t have his name on the apartment lease. His new address wasn’t included in his H-1B petition either.
I still can’t say with 100% certainty what someone in my client’s situation should or shouldn’t do. The agents we encountered were very reasonable and even seemed quite helpful, but there’s no guarantee that other agents would conduct their investigation in the same way. There doesn’t seem to be any coordination between the ICE contact information that has been given out to students and the local ICE office in Central Texas. I think it helped very much that my client was a student who didn’t know that the university was acting in a fraudulent way, who had been completing the online coursework, and who had made an effort already to change his status.
It was good timing on my client’s part to have sought out an attorney the day before, so that he did have someone he could call when the agents appeared at his door. In a worst case scenario, I had retained copies of all of his relevant documents during his consultation and would have been prepared if he had been detained. In hindsight, I should have also requested contact information for close friends or family members in case I needed to work with them on getting him released from detention. I would recommend that to others who are seeking out an attorney right now. If you decide to retain the attorney’s services, leave them a copy of all your relevant documents and an emergency contact person’s information.
This is a highly stressful situation for a lot of innocent students and I hope that this recap of my client’s interview this morning was helpful to some of you.
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