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Filing H-1B may face tougher guidelines

Posted on February 22, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

New guidelines are issued for the H-1B regarding more substantial proof of employee and employer relationship existence. USCIS invites national stakeholders to a teleconference on 2/18/10 to discuss the implementation of the memo issued on 1/8/10 which provides guidance on determining if a valid employer-employee relationship exists. In light of recent fraud cases appearing at major immigration firms constituted some way of determining valid employment of applicant of the   H-1B.

H-1B Attorney

Amended H-1B petition

H-1B process

H-1B Cap: Questions and answers

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US Economic Policy on H-1B and L-1 Visa

Posted on February 22, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Are US companies taking advantage of cheap labor in H-1B Visa applicants? This is the question some government officials are asking. The Economic Policy Institute released a briefing paper titled “Bridge to Immigration or Cheap Temporary Labor? The H-1B & L-1 Visa Programs Are a Source of Both.”

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Can they deport me again?

Posted on February 22, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I was deported years ago and could not stay away from my wife any longer. I reentered the U.S. illegally and am now reunited with my wife. Can they deport me again?

Answer: Removal pursuant to §241(a)(5) of the Immigration and Nationality Act (INA) – the reinstatement of removal provision – accounts for 40% of all removals nationwide, and two-thirds of nationwide reinstatements take place within the Ninth Circuit.

Question: What is reinstatement of removal?

Answer: Reinstatement of removal is the term for removal pursuant to INA §241(a) (5). Reinstatement of removal orders against those illegally reentering if the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed. The alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.

Reinstatement orders (or orders of reinstatement) are issued by low-level immigration officers, not immigration judges. The orders may be executed within hours or days. Due to the lack of a hearing and speed at which the orders are executed and issued, removal under INA §241(a)(5) is sometimes called summary removal.

Significantly, individuals subject to INA §241(a)(5) are “not eligible and may not apply for any relief” under the Immigration and Nationality Act.

Question: Who is subject to reinstatement of removal?

Answer: Noncitizens who return to the United States illegally after having been removed under a prior order of deportation, exclusion, or removal are subject to removal under §241(a)(5) unless they meet a statutory or judicial exemption.

Question: Who is statutorily exempt from reinstatement of removal under INA §241(a)(5)?

Question: Congress has enacted legislation that specifically exempts the following individuals from being subject to reinstatement of removal: Individuals applying for adjustment of status under INA §245A (the legalization program) who are covered by certain class action lawsuits. Nicaraguans and Cuban applicants for adjustment under §202 of the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA). Salvadoran, Guatemalan, and Eastern European applicants under NACARA and Haitian applicants for adjustment under the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA).

Question: Who is judicially exempt from reinstatement of removal under INA §241(a)(5)?

Answer: Litigation in the courts of appeals has resulted in a number of case law exemptions to §241(a)(5). The First, Seventh, and Eleventh Circuits who applied for discretionary relief before April 1, 1997; and the Ninth Circuit who filed an application for adjustment of status and application for permission to reapply for admission to the United States after deportation or removal (aka I-212 waiver) prior to the reinstatement determination.

Question: After issuance of a reinstatement order, can a person apply for any “relief” from removal?

Answer: A final reinstatement order triggers the bar to relief in INA §241(a)(5). However, DHS has previously taken the position that withholding of removal is not a form of relief because it is mandatory, not discretionary. Thus, if a person expresses a fear of return during the reinstatement process, the regulations provide for an interview with an asylum officer. If an asylum officer determines that the person has a “reasonable fear of persecution or torture,” he or she may apply for withholding before an immigration judge.

Question: If the person did not leave under the order of deportation, can it be reinstated?

Answer: No. If the client has not departed since the prior order was issued, then he or she cannot be subject to reinstatement under INA §241(a) (5) because the statute requires an illegal reentry “after having been removed or having departed voluntarily, under an order of removal.”

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https://californiaimmigration.us/how-a-deportation-attorney-can-help-you-win-a-cancellation-of-removal-for-non-permanent-residents/

 

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Is it possible to go back to USA after life deportation?

Posted on February 22, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

It is possible to come back, but some will depend on why you were deported, how long the deportation bar was and whether you have any petitions pending. Generally, you need to do the Permission to Reenter, Waiver of the 10 year bar and Consulate Processing. I would need more specifics from your case.

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WT/WB Visa Waiver

Posted on February 22, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

There are many countries in the world that do not require formal issuance of a visa to visit the United States. If you are from one of those countries, then you are eligible to come in on either the visa waiver for pleasure as a tourist visa (WT).

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BIA rules on Step-Child

Posted on February 22, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

The BIA found that a stepchild who meets the definition of a “child” under INA § 101(b)(1)(B), 8 U.S.C. § 1101(b)(1)(B) (2006), is a qualifying relative for purposes of establishing exceptional and extremely unusual hardship for cancellation of removal under the Act. Matter of Portillo-Gutierrez, 25 I&N Dec. 148 (BIA 2009).

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Stepparent who qualifies as a “parent”

Posted on February 22, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

A stepparent who qualifies as a “parent” under section
> 101(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(2)
> (2006), at the time of the proceedings is a qualifying relative for purposes of
> establishing exceptional and extremely unusual hardship for cancellation of
> removal under section 240A(b)(1)(D) of the Act, 8 U.S.C. §
> 1229b(b)(1)(D)(2006)

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Skilled or Unskilled Alien Workers

Posted on February 22, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

This is a visa to meet temporary needs (H-2’s.) U.S. employers may petition for skilled or unskilled alien workers to meet temporary or seasonal needs in positions for which qualified U.S. workers are not available. It is important to note that both the services for which the employer requests H-2 labor approval and the employer’s need for such services must be temporary. There is currently an annual cap of 66,000 visas for H-2B workers. There is currently no annual cap on visas for H-2A workers. The Department of Labor has compiled a list of H-2B Program Certifications By Occupation for the period June 1, 1999 to May 31, 2000.

The first step to hiring an H-2 worker from outside the U.S. is for the employer to apply for a temporary labor certification with the Department of Labor. These certificates are designed to assure that the admission of aliens to work in this country on a temporary basis will not adversely affect the job opportunities, wages, or working conditions of U.S. workers. The employer is required to file the labor certification with the I-129 petition. For specific procedures on filing, please visit the Department of Labor’s Employment and Training Administration.

Dependents (spouses and unmarried children under 21 years of age) of H-2 workers are entitled to H-4 status with the same restrictions as the principal. Dependents may not be employed under the H-4 classification. A single petition may cover multiple workers if:

  • they will perform the same services
    -they will work in the same location
    -they are included on the same labor certification and,
    -they come from places that are served by the same U.S. consulate, or, if visa exempt, they will enter at the same port of entry.
    -It is not necessary to identify requested H-2A beneficiaries by name (unless only a single worker is needed) if they are unnamed on the underlying labor certification. H-2B beneficiaries must be named unless circumstances (e.g. emergencies) make identification by name impossible. The number of unnamed beneficiaries must always be stated on the petition.
  • Highly skilled workers
  • Skilled workers
  • H2-B 
  • H-2B temporary worker

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Is there any law to help undocumented workers?

Posted on February 22, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard a lot about upcoming immigration reform and bills to help immigrants obtain jobs. However, I know many people who have been working under the table for a very small wage. Do know what laws may be coming and how they might help immigrants?
Answer: There has been the introduction in the Senate of the first comprehensive immigration reform bill introduced in Congress. Other bills are expected to be introduced shortly. One such proposal is centered on an uncapped temporary worker program intended to “match willing foreign workers with willing U.S. employers when no Americans can be found to fill the job.” The program would grant program participants temporary legal status and authorize working participants to remain in the U.S. for three years, with their participation renewable for an unspecified period. Initially, the program would be open to both undocumented people as well as foreign workers living abroad (with the program restricted to those outside of the U.S. at some future, unspecified date).
American employers would have to make reasonable efforts to find U.S. workers. Under this proposal, participants would be allowed to travel back and forth between their countries of origin and “enjoy the same protections that American workers have with respect to wages and employment rights.” The proposal also includes incentives for people to return to their home countries and calls for increased workplace enforcement as well as an unspecified increase in legal immigration.

Question: Are there any more bills?
Answer: The Immigration Act of 2004 also includes a “Willing Worker” program that revolves around a needed reform of the current H-2B program and the creation of a new H-2C program. The bill reforms the H-2B program as follows: it caps the program at 100,000 for five years, after which the numbers revert to 66,000; admission of H-2B visa holders is limited to nine months in any twelve-month period (with a maximum of 36 months in any 48-month period); and, with some exceptions, it does not allow portability. The new H-2C program is a two-year program
renewable for another two years. It is capped at 250,000 annually, and sunsets five years after regulations are issued. Portability is allowed after three months, with exceptions for earlier transfers allowed under certain circumstances. An attestation is required for both visas, with employers having to meet certain U.S. worker recruitment requirements. Dual intent is allowed in both visas and derivative status is available for both as well.
Thus, if these two reform bills go through, there will be a significant boost to the legal jobs available to people in these situations.

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The New Immigration Reform Bill

Posted on February 22, 2010 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Eagerly awaited legislation to legalize millions of undocumented immigrants was filed in the House of Representatives Tuesday, but chances of passage were unclear.

Provisions in the legislation from Rep. Luis Gutierrez, D-Ill., are somewhat similar to those in prior bills.

Democratic lawmakers, led by Rep. Luis Gutierrez, D-Ill., on Tuesday filed the first comprehensive immigration reform bill in the current Congress, giving renewed hope to millions of undocumented immigrants in South Florida and around the country.

But the prospects for passage remain as uncertain as ever.

Provisions in the Gutierrez legislation — Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009 — are somewhat similar to those in prior bills. The Immigration Bill is trying to reform a broken system and give hope to millions of illegal aliens.

Undocumented immigrants in the United States prior to Dec. 15, 2009, would be encouraged to come forward and register with the government in exchange for a future path to residency and citizenship.

Certain immigrants in deportation proceedings, facing removal or ordered to depart would be able to apply for legalization under Gutierrez’s bill. Applicants would pay a $500 fine — lower than the thousands of dollars sought in prior bills — and must have clean criminal records. If approved, applicants would receive a six-year visa, which eventually could be replaced by a green card — the path to possible citizenship.

The bill also incorporates provisions of the DREAM Act, separate legislation filed earlier that would provide green cards to children of undocumented parents who are in high school or college and were brought to the United States as minors.

As Gutierrez, an eight-term House member representing a Chicago district, unveiled his legislation at a news conference on Capitol Hill, immigrant rights activists in Miami and other U.S. cities stepped up efforts to convince federal lawmakers and the Obama administration to embrace immigration reform as a priority.

Several South Florida groups are organizing news conferences, a march to Washington by young students and a hunger strike in January — initial steps in what is expected to be a national campaign by immigration activists on behalf of immigration reform.

Similar bills in recent years have failed because of fierce opposition by conservative and anti-immigrant forces. Whether the political climate has changed is difficult to say, but most experts say debate on immigration reform will be as emotional and polarizing as the healthcare reform debate. However, there is currently a Democratic President and a Democratic Congress, so there may be a much higher chance of getting approved this time.

President Obama has signaled he will push immigration reform, but not until healthcare reform is out of the way.

Rep. Lincoln Diaz-Balart, R-Fla., who supports immigration reform, criticized Gutierrez’s bill because it disrupts efforts by him and a group of bipartisan lawmakers drafting a separate immigration reform bill.

“This effort today, a showhorse not workhorse effort, is throwing a hand grenade into the midst of the bipartisan efforts,” said Diaz-Balart.

Mario Diaz-Balart, R-Fla., echoed his brother saying Gutierrez’s bill “will probably destroy the chances of passing any real reform.”

Long standing opponents vehemently criticized Gutierrez’s bill.

“The bill proposes to reduce illegal immigration by making all illegal immigrants legal,” Rep. Lamar Smith, R-Tex., a longtime legalization opponent, said in a statement.

The Obama Administration is doing enough to ease the suffering of immigrant communities,” the organizations said in a statement.

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