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H-1B Cap is reached

Posted on November 28, 2011 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

All H-1B’s used up for this fiscal year

Question: I am planning on applying for an H-1B. Are there H-1B’s still available?

Answer: U.S. Citizenship and Immigration Services (USCIS) announced today that it has
received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 for fiscal year (FY)
2012. USCIS notified the public that yesterday, Nov. 22, 2011, was the final receipt date for new
H-1B specialty occupation petitions requesting an employment start date in FY 2012.
Properly filed cases will be considered received on the date that USCIS physically receives the petition;
not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B
specialty occupation workers seeking an employment start date in FY 2012 that arrive after Nov. 22,
2011.

Question: How about if I have a master’s degree?

Answer: As of Oct. 19, 2011, USCIS had also received more than 20,000 H-1B petitions filed on behalf of persons
exempt from the cap under the ‘advanced degree’ exemption.

Question: What if I am not subject to the H-1B cap?

Answer: USCIS will continue to accept and process
petitions that are otherwise exempt from the cap. In addition, petitions filed on behalf of current H-1B
workers who have been counted previously against the cap will not be counted toward the FY 2012 H-1B
cap.

Accordingly, USCIS will continue to accept and process petitions filed to:
1) extend the amount of time a current H-1B worker may remain in the U.S.;
2) change the terms of employment for current H-1B workers; 3) allow current H-1B workers to change employers; and
4) allow current H-1B workers to work concurrently in a second H-1B position.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require
theoretical or technical expertise in specialized fields such as scientists, engineers or computer
programmers.

Question: Who is exempt from the H-1B cap?

Answer: This H-1B provisions exempts from the annual 65,000 H-1B numerical limitation or “cap” petitions for H-1B beneficiaries employed “at” ), or who have received an offer from, one of the following four types of organizations:
(1) An institution of higher education;
(2) A nonprofit entity that is related or affiliated to an institution of higher education;
(3) A nonprofit research organization;
(4) A governmental research organization.
If you were waiting for an H-1B for this fiscal year and are not exempt, then you would just do what is necessary to make sure it is ready to be filed in April of 2012.

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I can get a visa through a lottery?

Posted on November 7, 2011 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

I can get a visa through a lottery?

Question: I have heard that there is some type of lottery system for being able to immigrate to the U.S. Can you elaborate?

Answer: Yes, it is known as the diversity lottery system. The Department of State will determine by a complex formula based on number of persons from each foreign state who were provided LPR status during the most recent 5-year period for which data is available. . The number of diversity visas available is 55,000 each year, reduced by up to 5,000 by the number of grants of special cancellation under NACARA §203(d).

Question: What do I need to qualify for the DV Lottery?

Answer: First, you must be a native of a designated low admission state.

Question: Do I need a minimum education to apply?

Answer: A high school diploma or its equivalent is required. Note that a GED is not the equivalent. To meet the U.S. high-school equivalency, “a foreign course of study must provide the alien with the minimum academic records required for admission to study in U.S. universities or colleges as determined in the most recent edition of the publication entitled ‘Foreign Credentials Required for Consideration of Admission to Universities and Colleges in the United States.

Question: Do I need to have work experience to apply?

Answer: Within 5 years of applying, at least 2 years of work experience in an occupation requiring at least 2 years’ training or experience.

Question: Is my family eligible to immigrate to the United States with me?

Answer: Spouse and children, including those acquired subsequent to the DV entry are eligible as long as the marriage took place prior to the principal’s admission to the U.S. under the DV program.

Question: What if my spouse if from a different country?

Answer: An applicant spouse may be charged to the nonapplicant spouse’s country of birth to qualify for DV as long as the parties were married prior to submitting the lottery entry. Thus, for example, if you are from Guatemala and your wife is from the Philippines, she would qualify to come with you as long as you were married prior to submitting the DV Application. In other words, For spouses in cases involving cross-chargeability, the nonapplicant spouse’s country of birth may be charged to the applicant spouse to allow the applicant spouse to qualify for DV as long as the parties were married prior to submitting the entry in the lottery and their visas were issued and they applied for admission simultaneously.

Question: What is the procedure for filing the Diversity Lottery Visa and can I submit more than one application to increase my chances of winning?

Answer: Fist, it is the Secretary of State will designate the time and place for filing. An applicant may only file one petition. If more than one petition is submitted all petitions submitted by the applicant for that period are void. DV lottery applications are submitted through an electronic filing system located at http://dvlottery.state.gov. An electronic confirmation notice will be sent upon receipt of a completed application.

Question: How do I submit the photo and what is the cost?

Answer: Must submit a separate, recent digital photo of the applicant and each derivative that meets the following specifications: (1) JPEG format; (2) color or grayscale (monochrome images will not be accepted); (3) resolution of 600 pixels wide by 600 pixels high, color depth of either 24-bit color, 8-bit color or 8-bit grayscale, and if scanned the print must be 2×2 inches square and must be scanned at a resolution of 150 dots per inch; (4) maximum image size of 240 KB; (5) directly facing the camera with no tilt up, down or to the side and the face should cover about 50% of the area of the photo; (6) background for photo should be neutral and light-colored; (7) no sunglasses or other paraphernalia in picture is acceptable, nor is out-of-focus picture; and (8) hats and head coverings not acceptable except if for religious beliefs and only then if no portion of the person’s face is obscured; tribal or other headgear that is not religious is not acceptable nor are military, airline or other personnel wearing hats. Signatures are not required on applications. Applicants will be selected randomly and persons who are not selected will not be notified. No fee is charged to enter.

Question: What do I do after I have won the visa lottery?

Answer: If selected as lottery winner, must obtain the visa within the fiscal year applied. “Under no circumstances may a consular officer issue a visa after the end of the fiscal year. Thus, you need to move very quickly.

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Waiting for years outside the U.S. Is not necessary

Posted on October 24, 2011 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Do I have to wait for years to come to the U.S.?

Question: I have been waiting for many years to come to the United States from a petition from my sister. It has been 14 years. Must I still wait?

Answer: Actually, it takes even more years to do this. The visa number must be current and there is no way to speed this process up. However, there are different petitions where they do not have to wait for the visa number as they are not required to be on the visa waiting list to be able to come into the United States.

Question: What types of petitions are these?

Answer: Battered spouses/children; Returning resident aliens; Certain former U.S. Citizens; Qualifying ministers of religion and religious workers; and Certain widows and widowers of U.S. citizens.

Question: Can I have more than 1 petition go through at a time, or must I wait for my petition from my sister to become current.

Answer: You can have as many petitions as you like. It is like two horses going around the track. The first one to the finish line wins. Thus, for example, if you have a church that will petition you for the special immigrant religious petition, by all means try to get it.

Question: So which petition are on the visa waiting chart?

Answer: The basic category includes Family-based preference immigrants; Employment-based preference immigrants; Diversity immigrants; and Family unity immigrants.

Question: What about temporary visas? Can I come in temporarily while waiting?

Answer: Most of the time, the answer would be no. However, there is what is known as the H-1B work visa which allows both immigrant processing and the H-1B to go forward at exactly the same time. You will need to have an employer agree to sponsor you for a job. It does not need to be a full-time position, but it should be related to your degree. Once filed, this petition only takes about 6 months to process.

Another type of petition for a non-immigrant visa would be the L-1. An L-1 Visa is one of the nicest working visas as it allows you to run your own business or a business owned by the foreign company. If you have your own business outside the U.S. and have been working there for at least one year, you can come to the U.S. on the L-1 Visa.

Additionally, your spouse and unmarried children under 21 years old can come as beneficiaries to your approved L-2. Your children will be able to go to school in the U.S. without having to get a separate student visa (as long as they are not in college.). A great deal of the success of the L-1 Petition is how it is prepared. Unlike other investment related visas, the investment in the U.S. business could be as low as $10,000U.S.  

Thus, there are several ways to avoid the multiple years of waiting outside the U.S.

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My FOIA took YEARS, not only 20 days!

Posted on October 18, 2011 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

I have to wait years for a FOIA?

Question: I filed for a FOIA years ago and still do not have a response. Is there anything I can do?

Answer: It has taken longer and longer. The Freedom of Information Act (FOIA) does allow you to get a copy of of your file from Immigration to basically see what information they have on you. There was actually a case in U.S. District Court which had this same issue. In that case, Mirsad Hajro is a lawful permanent resident of the United States who applied for naturalization in 2003. In October 2007, Hajro received notice that his application had been denied based on evidence in his alien registration file that allegedly revealed false testimony regarding his foreign military service. On or about November 9, 2007, Hajro filed an appeal pursuant to 8 U.S.C. 1447(a) and requested a review hearing before an immigration officer. Hajro also filed a request under FOIA with the Department of Homeland Security (“DHS”), USCIS, National Records Center, seeking a copy of his alien registration file. Hajro has since applied for and been denied naturalization a second time on the same grounds.

Hajro requested expedited processing of his FOIA request under the terms of a 1992 national settlement agreement (“Settlement Agreement”). The Settlement Agreement provides for the establishment of a national policy on priority for processing FOIA / Privacy Act requests to be used by Immigration and Naturalization Service (“INS”) officers. The policy requires immediate processing of an expedited request, where the failure to process a request immediately would either: (a) jeopardize life or personal safety; or (b) impair “substantial due process rights of the requester” and the information sought is not otherwise available. Hajro’s request noted that he needed the copy of his alien registration file in order to see the alleged evidence upon which the denial was based in time to prepare his appeal.
Basically, Hajro needed to get a FOIA to see what evidence was in the file against him to claim that he has committed fraud. It certainly was impairing his due process rights by not having it. Likewise, most people who file FOIA’s are not just filing them because they want an extra copy of their file. They are filing it because they are being denied some benefit from Immigration or not able to move forward with some immigration process.
Question: Well, I’m assuming he did not get his FOIA which was the basis for the suit. Why not?
Answer: On November 19, 2007, Cejka, the Director of the San Francisco Office of USCIS, sent a letter acknowledging receipt of Hajro’s FOIA request and informing him that it did not qualify for expedited processing and would be processed on the Track 2 “complex track.” The Settlement Agreement notwithstanding, since 2007, USCIS has used a three-track system for processing FOIA requests: “Track 1” for simple requests, “Track 2” for complex inquiries that require additional time, and “Track 3” for expedited processing for individuals subject to removal proceedings and scheduled for a hearing before an immigration judge.
Question: So what was the ultimate ruling in the case?
Answer: Plaintiffs argue that the unlawful withholding of information underlying USCIS’s denial of Hajro’s naturalization application violated his fundamental due process rights to a fair hearing. Specifically, Plaintiffs contend that Hajro has a constitutional right to see the evidence relied upon by Defendants in their decision to deny citizenship, and that denial of citizenship should not be based on “secret evidence” unless national security is involved. Plaintiffs also point out that Hajro’s counsel needed to see the evidence in order to prepare his client’s appeal, such that these circumstances, like those discussed in other attorney declarations submitted by Plaintiffs, constituted a situation where expedited processing of the FOIA request would have been warranted under the due process protections of the Settlement Agreement.
Therefore, the Judge ruled that Hajro should have received the FOIA within 20 days of requesting it. Likewise, if you have such a case, especially where allegations are being alle`ged against you, make sure you get a FOIA and if there is a delay, you can sue them in Federal Court.

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My petitioning husband died, now what?

Posted on October 3, 2011 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: My husband had petitioned me and he just died. Now I’m all alone and have no petiton. What can I do?

Answer: I am very sorry for the loss. Actually, there might something you can do. There is what is known as the I-360 Widow Petition. It may be able to be converted. Section 568(c) of the FY 10 DHS Appropriations Act Public Law 111-83, enacted on 10/28/09, amended existing benefits for surviving spouses of U.S. citizens.
The DHS Appropriations Act amended the widow/widower provisions to remove the 2 year marriage requirement.

Question: What are the basic requirements for this I-360 Widow Petition to be converted?

Answer: An I-130 spousal petition:
– that was pending when the U.S. citizen spouse died is adjudicated as a pending I-360 widow/widower petition.
If the I-130 was approved when the U.S. citizen spouse died, it is treated as an approved I-360 widow/widower petition.
The surviving spouse must meet the legal requirements for widow/widower classification and must not have remarried.

Question: What exactly are those requirements?

Answer: The deceased was a U.S. Citizen;
The deceased spouse had already filed Form I- 130 on behalf of the surviving spouse; The marriage to the citizen was bona fide; The surviving spouse and citizen were not legally
separated at the time of death, and the surviving spouse has not remarried.

Question: Is there anyone else that might be able to receive I-360 Conversion Benefits?

Answer: Children of widows/widowers are eligible for derivative classification.
They can be included in the approved I-360 and follow to join the principal.
When the widow/er’s approved or pending I-130 converts to an approved or pending I-360, the children are included, regardless of whether the U.S. citizen step-parent had filed separate petitions for them.
If the children are able to adjust based on the I- 360, any previously submitted I-130, in their behalf, will be terminated.

Question: How is I-360 Conversion Requested?

Answer: Conversion need not be requested, as it occurs automatically for both pending and approved I-130 petitions.
The beneficiary does, however, need to inform USCIS of the petitioner’s death, and provide a death certificate.

Question: Are there other Ways to Obtain Widow/Widower Classification via Form I-360
if the surviving spouse did not have a pending or approved I- 130 on file when the U.S. citizen spouse died?

Answer: He/she may file Form I-360 in the following situations: If a spousal I-130 was denied before 10/28/09, Form I-360 must be filed on or before 10/28/11; A spousal I-130 was never filed and the citizen’s death occurred before 10/28/09; Form I-360 must be filed on or before 10/28/11.

That deadline is quickly approaching and should be filed right away.

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USCIS Additional 30-Day Comment Request on Form N-600K Revision

Posted on September 20, 2011 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

USCIS notice of an additional 30-day comment period on the revision of Form N-600K, Application for Citizenship and Issuance of Certificate under Section 322. Comments are due 10/19/11.

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CBP Announces Pilot Project Using Biometrics to Process Arriving Pedestrian Traffic in El Paso

Posted on September 20, 2011 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

CBP press release announcing a pilot project to launch in November, 2011, at the Paso Del Norte international crossing in El Paso, which will use biometrics to expedite the pedestrian entry process.

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The U Visa – Part II

Posted on July 18, 2011 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

The U Visa – Victim of Crime – Part 2

Question: If I come forward and try to apply for the U Visa, can ICE deport me?

Answer: ICE may not rely solely on information obtained from the perpetrators of the crime against the respondent to initiate removal proceedings and must place a certificate on the NTA indicating that it has complied with 8 U.S.C. §1367.

Question: If I’m already in Removal Proceedings, can I still go forward with the U Visa?

Answer: A person who may be prima facie eligible for a U visa can seek a joint motion with DHS to continue, stay, or terminate proceedings, to allow for the adjudication of U status.

Question: Can I request a Stay of deportation if I already have a deportation order?

Answer: A stay of a final order of removal may be granted by DHS when a person files a prima facie U status/visa request. A stay should be favorably considered when the applicant has established prima facie eligibility for a U visa and/or when there are favorable humanitarian factors related to the applicant or his or her close relatives who rely on the applicant for support.

Question: Can a Stay of deportation be denied?

Answer: A stay is not appropriate where: (1) the applicant is not prima facie eligible; (2) the petition for the U-visa has been denied; or (3) there are serious adverse factors weighing against a stay including (a) national security concerns; (b) evidence that applicant is a human rights violator; (c) evidence that applicant has engaged in significant immigration fraud; (d) applicant has a significant criminal history; and (e) any significant public safety concerns.

Question: Are there Waivers of inadmissibility for the U Visa?

Answer: All grounds of inadmissibility are waivable by DHS if in the “public or national interest.” However, Inadmissibility is not waived for Nazis, participants in genocide, or persons who committed, ordered, incited, assisted or otherwise participated in torture or extrajudicial killings. If you are inadmissible on criminal or related grounds, USCIS will consider the number and severity of the offenses. In cases involving violent or dangerous crimes or inadmissibility based on security or related grounds, USCIS will only exercise discretion in “extraordinary circumstances.”

Question: If the Waiver is denied, can I appeal?

Answer: There is no appeal from the denial of the waiver.

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I can Alien Smuggle and not get Deported?

Posted on June 20, 2011 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

I can Alien Smuggle and not get deported? Question: I helped somebody get across the border of the U.S., and it was not done in a legal matter. I am now in removal proceedings and they are trying to deport me. Do I have any way of staying here in the U.S.? Answer: First, what you did would be known as alien smuggling. It is when you encouraged, induced, assisted, abetted, or aided an individual who to enter the United States in violation of the law. There are waivers available for this, but it is limited and only in certain circumstances. Who did you smuggle into the U.S.? Question: It was my husband. Can you help? Answer: Yes, there is a Waiver available here. The waiver is only available to residents who have the Green Card, and only when you have encouraged, induced, assisted, abetted, or aided an individual who, at the time of the offense, was your spouse, parent, son, or daughter to enter the United States in violation of the law. The waiver does not apply if the individual assisted anyone else. Question: What do I need to do to apply for the Waiver? Answer: The Attorney General may grant the waiver for humanitarian purposes, to ensure family unity, or when otherwise in the public interest. Immigration judges have authority to grant the waiver in removal proceedings. There is no particular form required to make application. You must establish that you meet the statutory requirements and demonstrate how granting the waiver would serve a humanitarian or public interest purpose or promote family unity. Question: What if I was not married at the time that I smuggled my husband into the U.S.? Answer: The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 amended the smuggling waiver provision to specify that the family relationship must have existed at the time of the smuggling, rather than at the time of application for the waiver. The change applies to applications filed before, on, or after September 30, 1996, as long as there has been no final determination on the application as of that date. The amendment was drafted specifically to overrule a 1996 Board of Immigration Appeals (BIA) decision that held that the waiver was available if the familial relationship arose after the smuggling incident but before the time of application for relief. In Matter of Farias-Mendoza, the respondent, an LPR, was caught smuggling her boyfriend from Mexico into the United States. She married her boyfriend before the deportation hearing and the BIA held that the waiver was available. It found that to hold any other way would defeat the purpose of the waiver provision, which was to encourage family unity. Congress apparently did not agree. It passed the amendment to foreclose what it perceived to be an opportunity for abuse. Therefore, unless you are applying for this relief prior to 1996 which is not likely, you would have had to have been married at the time that the alien smuggling was committed and you would have to be a Lawful Permanent Resident. Question: Should I get the help of an attorney in Removal Proceeding to help apply for the Waiver since there is no actual form? Answer: It would be a great idea to get an attorney. Just because there is no formal form required, there will have to be put together a Waiver package and there must be witnesses and a trial that is put on for the Judge. It is very discretionary and if not approved, you would be deported.

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I can invest only $50,000 and get a work visa – not $1,000,000?

Posted on June 6, 2011 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

I can invest and get a work visa without having $1,000,000?

Question: I have about $75,000 to $120,000 and want to invest in a business in the U.S, but have heard that I need $1,000,000 to invest. Is there anything I can do?

Answer: Actually, you need only $50,000 to $100,000 depending on the business. You can buy a franchise, a business already in operation, start your own business or open a branch office of a business in the your home country.

Question: How do you begin preparation of the E-2 Visa?

Answer: 1. Make sure you are from a Treaty-Investor Country

The U.S. has treaties with many different countries around the world. However, if there is no treaty with the counry that you were born in, then it will not qualify you for an E-2 Visa.

2. Make sure you have enough money to invest

There is no set number. However, the general guideline is that you want to have around $100,000 to invest in your own company in the U.S.

3. Make sure you will manage the company

You need to make certain that you will manage the company in a supervisory or managerial capacity and not as a line type worker.

4. Make sure you are in status

If you are inside the U.S. and will be doing a change of status, you will want to make sure that you are in legal status and have not violated your status in anyway. Otherwise, you might not be able to change your status to E-2.

5. Keep all of your receipts and contracts

Once you would get the E-2, you need to make sure that you keep all of the receipts and contracts so that when it becomes time to renew the E-2, you are able to provide the necessary proof.

Question: How long is the stay allowed for in an E-2 status?

Answer: Qualified treaty investors and employees will be allowed a maximum initial stay of two years. Requests for extension of stay may be granted in increments of up to two years each. There is no maximum limit to the number of extensions an E-2 nonimmigrant may be granted. All E-2 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.

An E-2 nonimmigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States. It is generally not necessary to file a new Form I-129 with USCIS in this situation.

Question: How do you apply for the E2 ?

Answer: Application for E status filed on Form I-129 if seeking C/S in U.S. If filing application at consular post, most posts use the DS-156E supplemental form in addition to the DS-160 visa application. Applicant must provide supporting evidence of the investment. The burden of proof is on the applicant.

Question: Can I apply for a Franchise?

Answer: Yes, there are a number of Franchises that are within this monetary range and would would perfectly for an E-2. There are fast food franchises, cleaning, dollar-store, and many other types of opportunities.

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