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STATE DEPARTMENT’S VISA OFFICE TAKES BROADER VIEW OF “SOUGHT TO ACQUIRE” PROVISION UNDER THE CHILD STATUS PROTECTION ACT

January 23, 2012/3 Comments/in Blog/by Cyrus Mehta

Many cases involving complex interpretations of the Child Status Protection Act (CSPA) occur while the applicant is applying for an immigrant visa at an overseas consular post. The CSPA protects a child who may turn 21 or more from “aging out,” and thus being eligible for permanent residence as a derivative, when his or her parent is issued permanent residence. Often times, while there is room for interpretations under the CSPA, the consular officer may take a restrictive view of a CSPA provision and refuse the visa. There is no appeal process to review a consular officer’s decision at an overseas post, and the refusal may seem to be the end of the road and separation from the “aged out” child from the parent. Fortunately, despite the absence of an appeal process, one can seek an advisory opinion on a purely legal issue with the State Department’s Visa Office in Washington DC via legalnet@state.gov, and a denial under the CSPA mostly involves a legal issue rather than a factual issue. By contrast, the denial of a tourist visa application is almost always fact based, and under such circumstances, it may not be possible to seek an advisory opinion from the Visa Office.

This author has had success in overturning a consular official’s denial on at least two occasions in the past. On both these occasions, the State Department’s Visa Office agreed that the 45 days provided in section 421(2) of the USA Patriot Act can be subtracted from the age of a child if the age subtraction formula under the CSPA did not bring down the age of the child under 21 years. In other words, the child can use the benefit of both the Patriot Act and the CSPA to lower the age of a child below 21 years. Although this author had previously advocated that there was nothing in the CSPA preventing the use of the 45 days from the Patriot Act in addition to the age subtraction formula provided in the CSPA, this is now no longer an issue as it has been clearly acknowledged in 9 FAM 42.42 N12.4(e.) and 9 FAM 42.42 N12.8(b.).

Our recent success, which we report here for the benefit of others, was regarding the interpretation of “sought to acquire the status of permanent residency” within one year of visa availability. At issue is whether the payment of the visa processing fees with the National Visa Center within the one year period constituted “sought to acquire” permanent residency within the one year period. The actual application for the immigrant visa, DS 230 Part I or II, had not been filed within one year. The applicant was unrepresented at that time and was not aware of the precise requirement to apply for permanent residence within one year of visa availability.

As a background, INA §203(h), introduced by Section 3 of the CSPA, provides the formula for determining the age of a derivative child in a preference petition even if the child is older than 21 years. To qualify as a child under INA §101(b)(1), one must be below the age of 21 and unmarried. The age is determined by taking the age of the alien on the date that a visa first became available (i.e. the date on which the priority date became current and the petition was approved, whichever came later) and subtracting the time it took to adjudicate the petition (time from petition filing to petition approval). Based on this formula, if the child’s age falls below 21, the child is protected under the CSPA. Specifically, §203(h)(1)(A) also requires the alien to have “sought to acquire” LPR status within one year of visa availability.

The CSPA thus artificially freezes the age of a child below 21 years of age so that he or she is not deprived of permanent residency when the parent is granted the same status. One of the requirements, however, is for the child to seek permanent residency within one year of visa availability. Often times, a CSPA protected child falls through the cracks by failing to meet the prevailing rigid filing requirements within the one-year deadline.

Both the Department of Home Security (DHS) and the Department of State (DOS) have interpreted the phrase “sought to acquire” narrowly, although unpublished decisions of the Board of Immigration Appeals have taken a broader view. DHS limits this phrase to filing an I-485 application for adjustment of status. See “Revised Guidance for CSPA” (April 30, 2008). The DOS too has interpreted “sought to acquire” narrowly and indicated that in consular processing cases, the date that a child seeks to acquire LPR status is the date Form DS 230, Part I, is submitted by the child, or by the child’s parent on the child’s behalf to the National Visa Center (NVC). See “Child Status Protection Act: ALDAC 2” (January 17, 2003), See “Child Status Protection Act: ALDAC 2” (January 17, 2003). If the principal beneficiary parent adjusts status in the US, and the child will be applying for the visa overseas, the DOS requires the principal to file Form I-824 to initiate the child’s follow-to-join application. The DOS has also indicated that since Form I-824 is not the only way to initiate the process, posts may seek advisory opinions in cases in which some other “concrete” step has been taken.

The US consular post we were dealing with insisted that the applicant did not seek to acquire permanent residence within one year because the applicant only paid the visa processing fees with the National Visa Center, but did not file the DS 230, Part 1, within one year of visa availability. The payment of the visa processing fee was not sufficient to constitute “sought to acquire” permanent residence within the one year time frame.

Upon receiving official confirmation of the refusal at the US consular post, we sought an advisory opinion from the Visa Office through legalnet@state.gov. Although we acknowledge that they are not binding on the State Department, we pointed to recent unpublished decisions of the Board of Immigration Appeals (BIA), which have interpreted the “sought to acquire” term more broadly, that should still be persuasive. For example, In In re Murillo, 2010 WL 5888675 (BIA Oct. 6, 2010) the BIA reaffirmed its broadened “sought to acquire” to include substantial steps towards the filing of the relevant application, although these steps may fall short of an actual filing of an application. In this case, the applicant claiming protection under the CSPA hired an attorney to prepare an I-485 adjustment application within the one year time frame, but filed it within a reasonable time thereafter. This decision follows closely on the heels of other unpublished Board decisions that have applied the same “sought to acquire” standard. See In re Kim, 2004 WL 3187209 (BIA Dec. 20, 2004), (the child beneficiary “sought to acquire” LPR status within one year of visa approval because her parents hired an attorney to start preparing the adjustment application within the one-year period); In re Castillo-Bonilla, 2008 WL 4146759 (BIA Aug 20, 2008) (the respondent “sought to acquire” LPR within the one-year period when, during this time, he informed both the Immigration Judge and the Board that he wished to file an adjustment application, even though the application was not actually filed within one year).

It is in the same spirit as the unpublished BIA decisions, and consistent with INA §203(h)(1)(A), we requested that the Visa Office advise the Consul to consider the fact that the filing fee paid within the one year time frame constituted a very concrete step towards seeking permanent residency. Indeed, payment of the fees constituted a much more credible step towards seeking permanent residency than making an informal request to the NVC or contacting an attorney, which are the facts supporting the aforementioned BIA decisions. We also pointed out to Visa Office, as we did with the consulate unsuccessfully, that the Foreign Affairs Manual (FAM) at 9 FAM 42.42 N12.9 recognizes the complexity of the CSPA, and advises that a Consul may seek an advisory opinion in the following instance:

If the officer encounters a case involving a derivative following to join a legally admitted immigrant, or adjusted principal, who has not filed Form I-824, Application for Action on an Approved Application of Petition, on the derivative’s behalf within the required time frame, but the consular officer determined that the derivative has taken some other concrete step to obtain LPR status within the required one year time frame.

We therefore asked that the Visa Office provide such an advisory opinion under the authority laid out in the FAM, and advise the consular officer that other concrete steps taken to obtain LPR status, such as the payment of immigrant visa fees that occurred here, may be considered.

In less than two weeks from seeking the advisory opinion just prior to the New Year (2012), we received the following communication from the Visa Office:

Thank you for your inquiry to LegalNet. Since the derivative applicants submitted their IV fee within one year of visa availability, the Consular office will consider CSPA’s sought to acquire requirement satisfied. The visa unit in [redacted] will contact the applicants to resume processing.

EDGE SAYS INDIAN 2- YEAR MASTER’S DEGREE FOLLOWING 4-YEAR BACHELOR’S IS NOT EQUIVALENT TO US MASTER’S DEGREE

January 14, 2012/1 Comment/in Blog, uncategorized/by Cyrus Mehta

Determining whether a foreign degree is equivalent to a US degree is crucial for an employment-based immigrant visa petition. Within the US employment-based preference system, being classified under the Employment-based Second Preference (EB-2) puts one at a significant advantage over one who is classified under the Employment-based Third Preference (EB-3). There is no backlog in the EB-2 for most countries while the EB-3 is hopelessly backlogged, Even if the EB-2 for countries like India and China is backlogged, it is less so than the EB-3. Indeed, the EB-3 backlog for India is unimaginable and totally untenable. It is estimated that it will take 70 years for the green card for a person from India who establishes his or her priority date in 2012!

To be classified under the EB-2 pursuant to section 203(b)(2) of the Immigration and Nationality Act, the position must require an advanced degree or its equivalent, which the USCIS in 8 CFR section 204.5(k)(2) defines as a foreign equivalent 4-year bachelor’s degree plus five years of post baccalaureate experience.

In the United States, one normally obtains a master’s degree after completing a 2-year program following a 4-year bachelor’s degree. Thus a student has to undertake 6 years of study in order to be awarded a master’s degree from an accredited US college or university.

It has generally been assumed that a foreign master’s degree, obtained after 6 years of education, would generally be equivalent to a US master’s degree. EDGE (Electronic Database For Global Education), administered by the American Association of Collegiate Registrars and Admissions Officers provides information on foreign degree equivalence from educational institutions from around the world. It is treated as gospel truth by the USCIS in determining whether a foreign degree is equivalent for immigration purpose. Till recently, EDGE has correctly said that an Indian 4-year degree, such as a Bachelor of Technology degree, followed by a 2-year master’s degree, is equivalent to a US master’s degree. On the other hand, a master’s degree following a 2- or 3-year Indian bachelor’s degree only equated to a US bachelor’s degree and not a master’s degree.

It has recently come to our attention, thanks to Natalie Muehlberger of Trustforte Corporation, that EDGE has recently downgraded many Indian master’s degrees. This is how EDGE, a paid service, describes it now:

Credential Description

Awarded upon completion of 1.5-2 years of study beyond the three-year bachelor’s degree or four year BTech or BEngr degree.

Credential Advice

The Master of Science represents attainment of a level of education comparable to a bachelor’s degree in the United States.

Thus, regardless of whether the master’s degree is obtained after a 3- year or a 4- year bachelor’s degree program in India, EDGE is now equating both to a US bachelor’s degree. This downgrade of Indian master of science degrees would impact those who would otherwise qualify under the EB-2 as the USCIS closely relies on EDGE. We do hope that EDGE realizes that it is wrong and reverts to its earlier assessment that a master’s degree, following 6 years of education, is equivalent to a US master’s degree and not a bachelor’s degree. In addition, EDGE has also downgraded the Indian MBA, regardless of whether it was preceded by a 4-year engineering degree and the Indian master of science by research degree (which no longer appears in EDGE at present). While EDGE used to maintain that 2 years of coursework in business management leading to a post-graduate diploma from the prestigious Indian Institute of Management, India, was comparable to a master’s degree in the United States, this degree to has been downgraded to equate to only a US bachelor’s degree since only a three year bachelor’s degree is required

[Updated on 9/2/2013]. EDGE also still finds that an Indian master of technology or engineering degree, and master of computer applications degree, is equivalent to a US master’s degree. The same logic should hold true for other Indian master of science and MBA degrees, following a 4 year bachelor degree. It is therefore important to constantly check the foreign national’s educational credentials with EDGE before embarking on an employment-based green card sponsorship.

Since USCIS follows EDGE, the beneficiary of an I-140 petition with an Indian master’s in the above situations may be only able to qualify under the EB-2 if he or she can demonstrate a bachelor’s degree (since this master’s degree will still equate to a single source bachelor’s degree) plus 5 years of progressive experience following this degree. If the beneficiary does not have the 5 years of post-baccalaureate experience, he or she will have no choice but to be classified under the EB-3, and if born in India, the green card will materialize after decades.

If EDGE does not revert to its original position with respect to Indian master of science degrees and the MBA, petitioners and their attorneys should still endeavor to convince the USCIS, or then litigate before the AAO and in federal court, that a 2-year Indian master of science degree following a 4- year bachelor’s degree ought to be comparable to a US master’s degree. In a 2009 USCIS liaison meeting, the agency indicated that it would still be receptive to arguments notwithstanding a contrary EDGE finding:

USCIS considers all sources, including EDGE and AACRAO databases, and has received many evaluations where the evaluators list membership in AACRAO in their credentials and list AACRAO publications as their reference materials. USCIS adjudicators review all evidence in the record and make determinations based on the individual facts of each case. The AAO’s decisions are available to the public and provide an extensive compilation of the results of its findings as to the equivalency of particular foreign degrees.

The USCIS pursuant to its 2009 guidance ought to be receptive to arguments that an Indian master’s degree following 6 years of post-secondary education is functionally equivalent to a US master’s degree. Otherwise, the EDGE downgrade with Indian master of science and other degrees will strike another blow to Indians, who will then be endlessly mired in the EB-3 even though they qualify for a position that requires an advanced degree. It will also be another example of how the USCIS constantly shifts the goal posts concerning foreign equivalent degrees, adversely and unfairly impacting mostly skilled foreign nationals with Indian degrees.

(The blog was amended on January 18, 2012 to clarify that the downgrade only applies to Indian master of science degrees and a few other degrees but not all Indian master degrees)

UPDATE: EDGE FLIP FLOPS – SHOULD USCIS BE RELYING ON EDGE SO SLAVISHLY? – JANUARY 20, 2012

The author has learned today that EDGE has again reverted to its former position. It has deleted within the entry that a master of science degree beyond a 4 year degree is equivalent to a US bachelor’s degree. It leaves intact within that entry that a master’s degree following a 3 year bachelor’s degree is equivalent to a US bachelor’s degree. Does this mean that a master of science degree following a 4 year bachelor’s degree is equivalent to a master’s degree? We hope that the USCIS follows this logic and agrees. On the other hand EDGE now has an entry , and this is very strange, indicating that the master of engineering or master of technology degree following a 4 year bachelor of technology or bachelor of engineering degree is equivalent to a US bachelor’s degree. This cannot be the case and must be an error! In yet another entry, EDGE says that an Indian master of physiotherapy, master of science (nursing), master of science in engineering/technology, master of pharmacy and master of laws, following 4 or 5 year bachelor degree programs is equal to US master’s degree. All this is completely inconsistent with the downgrade, and results in uncertainty for those who rely on EDGE in filing immigrant visa I-140 petitions to get classified under the EB-2. Perhaps, USCIS, given these flip flops and inconsistencies, should no longer treat EDGE as the gospel truth with respect to determining whether these degrees are equivalent to US degrees, and give more credence to justifications provided from other reliable sources determining the accurate equivalence of such degrees.

WHAT THE PROPOSED PROVISIONAL WAIVER RULE MEANS FOR THOSE FACING 3- OR 10-YEAR BARS

January 6, 2012/1 Comment/in Blog/by Cyrus Mehta

By Cyrus D. Mehta and David A. Isaacson

In the raging immigration debate concerning the millions of undocumented immigrants in the US, one important issue has received scant attention. We have yet to meet a person who has roots in the US who desires to choose to remain undocumented. Most are forced to remain undocumented even though they have a pathway to a green card due to a perverse Catch 22 effect in our immigration law as a result of the 3 and 10 year bars imposed under INA § 212(a)(9)(B).

Those who have remained unlawfully present in the US for 1 year or more face a 10 year bar to reentry if they depart the US. Similarly, those who have remained unlawfully present for more than 180 days face a 3 year bar to reentry if they depart the US. It should be noted that the term “unlawfully present” is a complex legal term and a discussion of this term is beyond the scope of this blog. These individuals, if they are the beneficiaries of an approved immigrant visa petition filed by a US citizen spouse or parent or a US citizen child (who is over 21), may often be unable to adjust their status in the US. Under INA § 245(a) one has to be inspected or paroled in order to qualify to adjust status to permanent residence in the US. Thus, a non-citizen spouse of a US citizen who previously surreptitiously crossed the border from Mexico into the US would be ineligible to adjust status because she was not inspected under § 245(a). Of course, there are exceptions to this rule too, which is beyond the scope of this blog and an article discussing these exceptions can be found here. This spouse would need to leave the US and apply for an immigrant visa at the US consulate in her home country. However, if she was unlawfully present in the US for 1 year or more, it would result in her triggering the 10 year bar to reentry. Although, under the current regime, she can apply for a waiver under INA § 212(a)(9)(B)(v), she can only do so after she has departed the US.

Obtaining the waiver is no small matter because she has to demonstrate extreme hardship to the US citizen spouse if the waiver is denied. The emotional angst resulting from the separation of two spouses is not enough. She will need to demonstrate, in addition to the emotional issue, financial, cultural, political and health conditions, among many others, as well as the balancing of ties within and outside the US. See Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999), aff’d, Cervantes-Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001). Thus, this spouse will be rolling the dice if she departs the US to chance winning the waiver while outside the US. If the waiver is denied, she will be stuck outside the US and will be separated from her loved ones. Moreover, she can only demonstrate extreme hardship to a limited universe of qualifying relatives, which include a spouse or a parent. If she has US citizen children, under INA § 212(a)(9)(B)(v), she cannot demonstrate extreme hardship to them if she is separated.

It is not hard to see why there has been such a huge build up of the undocumented population in the US. Even while people may be eligible for permanent residence, they are unwilling to leave and chance a waiver from outside the US. While Congress enacted INA § 212(a)(9)(B) to deter overstays, it has had the exact opposite effect. People overstay, despite being approved for a green card, because of fear of facing the 3 or 10 year bars.

It is thus heartening that the Obama administration has proposed a rule that will be published in the Federal Register on January 9, 2012 in the form of a Notice of Intent to publish such a rule, which will permit intending immigrants to apply for a provisional waiver in the US prior to their departure from the US. This rule, if published, will remove the uncertainty in leaving the US and being barred for 3 or 10 years if the waiver application is denied. Under the proposed rule, the waiver can be applied for while in the US. With the waiver in hand, the individual departing the US can more readily hope to reenter the US without facing the 10 year bar. This move has received thunderous applause from the immigration advocacy community and rightly so. In a time when Congress is virtually paralyzed and cannot even make small tweaks to improve the immigration system, the proposing of a smart administrative rule such as this one is consistent with the intent of the law. People subject to the 3 or 10 year bars still need to apply for the waiver and meet the rigorous “extreme hardship” standard, except that they can apply for it in the US prior to their departure. If they obtain the waiver, they can at least be assured of not triggering the 3 or 10 year bars upon their departure.

Apparently, if and when the rule takes effect, which under the formal rule making process may take some time, it will be limited to immediate relatives of US citizens who are seeking a § 212(a)(9)(B)(v) waiver of unlawful presence based on hardship to a US citizen, although the petitioning US citizen and the one to whom extreme hardship exists need not be the same (so that, for example, it appears that the parent of a 21-year-old US citizen petitioned for by that son or daughter would qualify if seeking a waiver based on extreme hardship to a US citizen parent, the grandparent of the petitioning relative). It appears that the rule will not cover people who are not immediate relatives of a US citizen (such as the over-21-year-old son or daughter of a US citizen who is petitioned for by their parent and not protected by the Child Status Protection Act), or whose qualifying relative for the waiver is a lawful permanent resident. It also will not cover people who need some other sort of waiver in addition, such as a waiver under INA § 212(i) for fraud. It is not entirely clear whether the proposed rule would cover people who in addition to a waiver under § 212(a)(9)(B)(v) need to obtain permission to reapply for admission because their departure will execute an order of removal and create inadmissibility under INA § 212(a)(9)(A), but it would seem that it should, since such applications for permission to reapply can already be filed in advance under existing regulations– the actual proposed rule may clarify this when it comes out. We do urge the USCIS to at least include sons and daughters of US citizens who do not qualify as immediate relatives. A child who has turned 21, and who may not be protected under the Child Status Protection Act, still remains very much part of the nuclear family especially in hard economic times when their parents are still the lifeline. These adult children, technically referred to as sons and daughters, would otherwise qualify under DREAM Act legislation, and may at least be able to take advantage of this provisional waiver if the proposed rule is adjusted to allow them to do so.

Although this new proposed rule may be portrayed as some sort of radical innovation by immigration restrictionists, it is actually nothing of the sort. The governing regulations, specifically 8 C.F.R. § 212.2(j), have long provided that one who is consular processing an immigrant visa, and will need permission to reapply for admission because his or her departure will execute an order of deportation or removal and create inadmissibility under INA § 212(a)(9)(A), can file the Form I-212 application for permission to reapply in advance of departing from the United States, and “shall receive a conditional approval depending on his or her satisfactory departure.” That is, people who will be subject to the 5- and 10-year bars based on executed removal and deportation orders (the length of the bar can vary depending on the circumstances of a removal order) have long been able to apply for advance waivers of those bars before they leave the US to consular-process an immigrant visa. This new proposed rule would simply update the regulations to create a similar procedure for the parallel 3- and 10-year bars created by IIRIRA (the “Illegal Immigration Reform and Immigrant Responsibility Act of 1996”), for people who remove themselves from the United States after being unlawfully present even though there may have been no removal proceedings against them. It can therefore be seen as a long overdue technical fix. However, it remains to be seen how long the rule making process will take, which includes notice and comment. There is also bound to be opposition to the rule. The USCIS still has to publish rules from the enactment of IIRIRA provisions in 1996! Hopefully, the Obama administration will give this high priority as the promulgation of such a rule may even reduce the undocumented population in the US.

This technical fix could also reduce inefficiency in the era of Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), especially if accompanied by an additional change in the proposal relating to potential issues of fraud. Under Quilantan, entering the United States at a port of entry with the permission of an immigration officer is sufficient to create eligibility for adjustment of status as an immediate relative of a U.S. citizen, regardless of whether one’s entry was procedurally proper, as long as the entry did not involve a knowing false claim to U.S. citizenship. Many people who were waved through the border as passengers in a car or the like have little corroborating evidence of their manner of entry. Absent this regulation, if such a Quilantan entrant is married to a U.S. citizen and is denied adjustment because USCIS rejects their testimony regarding manner of entry, they will effectively be forced to request that removal proceedings be commenced against them so that they may testify before an Immigration Judge and seek to establish their manner of entry by credible testimony as Ms. Quilantan did in her case. Under the new procedure, some such Quilantan entrants may decide that it is simpler to seek an advance waiver of inadmissibility, as long as their qualifying relative’s particular form of extreme hardship is such that a brief trip abroad to pick up an immigrant visa will not be intolerable. If the advance waiver is approved, the already overcrowded immigration court system would then be spared the necessity of hearing testimony regarding the applicant’s manner of entry. One caveat, however, is that the current version of the proposal, which excludes waivers of fraud-related inadmissibility under INA § 212(i), could lead potential applicants and their attorneys to fear a potential finding of fraud inadmissibility by a consulate where the circumstances of the applicant’s prior entry into the United States are murky and difficult to prove (making it hard to refute an inaccurate consular suspicion that some fraud may have been committed). The potential efficiency would be much greater if the USCIS proposal were modified to allow either advance waivers under INA § 212(i), or at least an advance finding that no fraud was committed by an applicant. Otherwise, Quilantan entrants within the U.S. may be reluctant to give up their right to have an Immigration Judge (and if necessary the BIA) adjudicate their contention that they did not commit fraud in their entry, and to instead be at the mercy of an effectively unreviewable determination by a consular officer.

IT’S 9:OO A.M.- DO YOU KNOW WHERE YOUR H-1B EMPLOYEE IS? AN OVERVIEW OF FDNS SITE VISITS

December 21, 2011/0 Comments/in Blog/by Cyrus Mehta

By Myriam Jaidi

U.S. companies employing foreign workers in H or L nonimmigrant status are increasingly subjected to random, surprise site visits by the USCIS. This article provides an overview of such visits.

The site visits occur under the Administrative Site Visit and Verification Program (ASVVP) conducted by the Fraud Detection and National Security (FDNS) Directorate. The purpose of the visits, according to USCIS, is to “verify information contained in certain visa petitions.” Visits are conducted pre- and post-adjudication on randomly selected applications and petitions. Interestingly, ASVVP site inspections are not performed in cases where fraud is suspected, although they are part of the fraud detection process, geared toward enhancing the “integrity of the immigration benefit process.”

Many of those who have experienced such site visits are thrown into a state of worry and sometimes panic, convinced that there must be a huge problem with their petition and ability to employ foreigners in H-1B or L status. Beneficiaries get worried because they see their H-1B status (and perhaps the green card process they have been waiting so long to come to completion) flash before their eyes, as if it might disappear. There is a great deal riding on these site visits: if an officer is unable to find a beneficiary or verify the information in a petition, the petitioner may receive a denial on a pending case or a notice of intent to revoke an approved petition. If derogatory information is discovered during a site visit, this may lead to further investigation or even civil or criminal penalties.

Our advice? Nothing earth shattering: Be prepared. If you employ foreign nationals in H or L status, be sure that if an officer from FDNS comes to conduct a site visit, your employees (such as the receptionist, HR team, etc.) know to contact a specific person (such as the signatory on the petition) who can accompany the officer throughout the visit and answer his or her specific questions about the petitioner, the details of the petition, and the beneficiary. The officer will usually want to speak with the signatory and the beneficiary. If those individuals are not available, the officer should be asked to provide contact information for a follow up discussion. The officers may also want to verify details with the signatory or beneficiary by phone or via email after conducting the site visit, if they are not available at the time of the visit. If the beneficiary is not available at the worksite, for example because he or she is out sick or tending to a family member, the company should have clear proof that the individual has taken a sick day, otherwise revocation could result. If the beneficiary is employed at a third-party worksite, it is important that the receptionist or other first-contact employees are aware of the person’s placement and can direct the officer to the beneficiary.

What kinds of information are FDNS officers looking for? Some typical areas of inquiry include:

To the petitioner, about the petitioner

Verify the signatory of the petition, his or her position within the organization
Whether the signatory is aware that an H-1B petition was filed for the beneficiary
Check the ID of the petitioner’s signatory
Total number of employees at the petitioner’s company
Number of employees on H-1B status
Number of employees with LPR status
Gross annual income
Net annual income

To the petitioner, about the beneficiary:

Start date with the organization
Current salary
Whether the petition signatory is aware that the beneficiary is on H-1B status

To the beneficiary:

Name of the employer/petitioner
Offer letter for the position with the petitioner
W2 for the most recent year
Most recent paystubs
Description of job duties
Photocopies of qualifying degrees
Who paid petition filing fees and attorney fees?

To a third-party/end-client worksite representative:

Describe the relationship between end client and the petitioner
Does the end client anticipate receiving the services of the beneficiary?
If the answer is yes, the end client may be asked to provide
- beginning and ending dates of beneficiary’s employment;
- job description/duties;
- beneficiary’s physical work location
- project description of the task to which beneficiary has been assigned; and
- name and title of the beneficiary’s supervisor
Is end client aware that the beneficiary is an employee of petitioner?
Who assigns work to the beneficiary?
Who does the end client contact about employee related issues for the beneficiary?

You may recognize that these questions go to the issues not only of verifying details in a petition but also of verifying the existence of an employer-employee relationship and whether the employer controls the employment of the beneficiary. We discussed this issue in former articles about guidance issued by USCIS in January 2010, providing a general overview of the guidance, and advice on using the guidance

Once this information is provided, the parties are often greeted with silence, in large part because the officers conducting the site visits report their results to FDNS for review, but do not themselves make decisions regarding the validity of an application or petition. After the site visit is over, FDNS reviews the information and determines whether further inquiry is necessary. As USCIS summarizes: “If FDNS cannot verify the information on the petition or finds the information to be inconsistent with the facts recorded during the site visit, the ISO may request additional evidence from the petitioner or initiate denial or revocation proceedings. When indicators of fraud are identified, the FDNS Officer may conduct additional administrative inquiries or refer the case to ICE for criminal investigation.”

Most petitioners have an attorney prepare their immigration filings for them. Where is the attorney in this process? Unless the petitioner or the beneficiary gets the attorney on speakerphone in a conference room during a site visit, or asks the attorney to take the lead on following up with the officer, the attorney will be absent from the process. Site visits are surprise visits of the petitioner’s offices or the beneficiary’s worksite (if not at the beneficiary’s offices). Attorneys are not informed of the visit, and a petitioner’s (and beneficiary’s) right to counsel in this context is basically ignored. USCIS takes the position that petitioners have consented to the visits by signing the Form I-129, Petitioner for Nonimmigrant Worker, which in Part 7 includes the following statement: “I also recognize that supporting evidence submitted may be verified by USCIS through any means determined appropriate by USCIS, including but not limited to, on-site compliance reviews.” Thus, the burden is on the petitioner and/or beneficiary in a particular case to get counsel involved in the on-going process.

BALCA EN BANC SPEAKS ON RECRUITMENT AND THE PREVAILING WAGE VALIDITY PERIOD

December 12, 2011/0 Comments/in Blog/by Cyrus Mehta

U.S. companies employing foreign workers in H or L nonimmigrant status are increasingly subjected to random, surprise site visits by the USCIS. This article provides an overview of such visits.

The site visits occur under the Administrative Site Visit and Verification Program (ASVVP) conducted by the Fraud Detection and National Security (FDNS) Directorate. The purpose of the visits, according to USCIS, is to “verify information contained in certain visa petitions.” Visits are conducted pre- and post-adjudication on randomly selected applications and petitions. Interestingly, ASVVP site inspections are not performed in cases where fraud is suspected, although they are part of the fraud detection process, geared toward enhancing the “integrity of the immigration benefit process.”

Many of those who have experienced such site visits are thrown into a state of worry and sometimes panic, convinced that there must be a huge problem with their petition and ability to employ foreigners in H-1B or L status. Beneficiaries get worried because they see their H-1B status (and perhaps the green card process they have been waiting so long to come to completion) flash before their eyes, as if it might disappear. There is a great deal riding on these site visits: if an officer is unable to find a beneficiary or verify the information in a petition, the petitioner may receive a denial on a pending case or a notice of intent to revoke an approved petition. If derogatory information is discovered during a site visit, this may lead to further investigation or even civil or criminal penalties.

Our advice? Nothing earth shattering: Be prepared. If you employ foreign nationals in H or L status, be sure that if an officer from FDNS comes to conduct a site visit, your employees (such as the receptionist, HR team, etc.) know to contact a specific person (such as the signatory on the petition) who can accompany the officer throughout the visit and answer his or her specific questions about the petitioner, the details of the petition, and the beneficiary. The officer will usually want to speak with the signatory and the beneficiary. If those individuals are not available, the officer should be asked to provide contact information for a follow up discussion. The officers may also want to verify details with the signatory or beneficiary by phone or via email after conducting the site visit, if they are not available at the time of the visit. If the beneficiary is not available at the worksite, for example because he or she is out sick or tending to a family member, the company should have clear proof that the individual has taken a sick day, otherwise revocation could result. If the beneficiary is employed at a third-party worksite, it is important that the receptionist or other first-contact employees are aware of the person’s placement and can direct the officer to the beneficiary.

What kinds of information are FDNS officers looking for? Some typical areas of inquiry include: To the petitioner, about the petitioner

Verify the signatory of the petition, his or her position within the organization
Whether the signatory is aware that an H-1B petition was filed for the beneficiary
Check the ID of the petitioner’s signatory
Total number of employees at the petitioner’s company
Number of employees on H-1B status
Number of employees with LPR status
Gross annual income
Net annual income

To the petitioner, about the beneficiary:

Start date with the organization
Current salary
Whether the petition signatory is aware that the beneficiary is on H-1B status

To the beneficiary:

Name of the employer/petitioner
Offer letter for the position with the petitioner
W2 for the most recent year
Most recent paystubs
Description of job duties
Photocopies of qualifying degrees
Who paid petition filing fees and attorney fees?

To a third-party/end-client worksite representative:

Describe the relationship between end client and the petitioner
Does the end client anticipate receiving the services of the beneficiary?
If the answer is yes, the end client may be asked to provide
- beginning and ending dates of beneficiary’s employment;
- job description/duties;
- beneficiary’s physical work location
- project description of the task to which beneficiary has been assigned; and
- name and title of the beneficiary’s supervisor
Is end client aware that the beneficiary is an employee of petitioner?
Who assigns work to the beneficiary?
Who does the end client contact about employee related issues for the beneficiary?

You may recognize that these questions go to the issues not only of verifying details in a petition but also of verifying the existence of an employer-employee relationship and whether the employer controls the employment of the beneficiary. We discussed this issue in former articles about guidance issued by USCIS in January 2010, providing a general overview of the guidance, and advice on using the guidance

Once this information is provided, the parties are often greeted with silence, in large part because the officers conducting the site visits report their results to FDNS for review, but do not themselves make decisions regarding the validity of an application or petition. After the site visit is over, FDNS reviews the information and determines whether further inquiry is necessary. As USCIS summarizes: “If FDNS cannot verify the information on the petition or finds the information to be inconsistent with the facts recorded during the site visit, the ISO may request additional evidence from the petitioner or initiate denial or revocation proceedings. When indicators of fraud are identified, the FDNS Officer may conduct additional administrative inquiries or refer the case to ICE for criminal investigation.”

Most petitioners have an attorney prepare their immigration filings for them. Where is the attorney in this process? Unless the petitioner or the beneficiary gets the attorney on speakerphone in a conference room during a site visit, or asks the attorney to take the lead on following up with the officer, the attorney will be absent from the process. Site visits are surprise visits of the petitioner’s offices or the beneficiary’s worksite (if not at the beneficiary’s offices). Attorneys are not informed of the visit, and a petitioner’s (and beneficiary’s) right to counsel in this context is basically ignored. USCIS takes the position that petitioners have consented to the visits by signing the Form I-129, Petitioner for Nonimmigrant Worker, which in Part 7 includes the following statement: “I also recognize that supporting evidence submitted may be verified by USCIS through any means determined appropriate by USCIS, including but not limited to, on-site compliance reviews.” Thus, the burden is on the petitioner and/or beneficiary in a particular case to get counsel involved in the on-going process.

How Fair is the Fairness For High-Skilled Immigrants Act?

December 5, 2011/0 Comments/in Blog/by Cyrus Mehta

H.R. 3012, the Fairness for High Skilled Immigrants Act, was passed in the House on November 29, 2011 by a landslide 389-15 vote. Introduced by Rep. Chaffetz (R-UT), it eliminates the employment-based per country cap entirely by 2015 and raises the family-sponsored per-country cap from 7% to 15%. If H.R. 3012 does become law, it will significantly decrease the wait times for certain countries in the employment-based preferences, especially India and China. Even wait times in the family-based preferences will get reduced.

H.R. 3012 only redistributes the allocation of visas, it does not increase the visas that are fixed in number each year. As a result of the existence of the per country limits, those born in India and China have been drastically affected by backlogs. Each country is only entitled to 7 percent of the total allocation of visas under each preference. Thus, a country like Iceland with only 300,000 people has the same allocation as India or China with populations of more than a billion people. For instance, in the Employment-based second preference (EB-2), those born in India and China have to wait for over 5 years to obtain green cards while all other nationalities do not have any wait times. The situation is even more dire in the Employment-based third preference for India (EB-3). Under the per country limit for India in the EB-3, only 2,800 visas can be allocated each year while an estimated 210,000 Indians, along with their dependants, are eligible for green cards. As a result, according to a report of the National Foundation For American Policy, the waiting time for a green card for an Indian under the EB-3 has been estimated to be 70 years, while it may be over 5 years for others.

As a result of such unmanageable waiting times, skilled foreign nationals in the pipeline for a green card, especially from India and China, have no incentive to stay in the US even though they may be invaluable to their employers who have sponsored them by demonstrating that there were no US workers available for the position. Many of these skilled immigrants have graduated with degrees in science, technology, engineering and math (STEM), vital to US growth and innovation. Such skilled workers are generally on H-1B visas, but many are on other nonimmigrant visas such as the L visa too. Even though they are able to extend their H-1B visas beyond the six year limit while waiting for the green card under provisions in the American Competitiveness in the 21^st Century Act (AC21) (and many are already past 10 years on the H-1B visa), they are generally bound to the same employer during the green card process and their spouses cannot work. If their children turn over 21, they lose the ability to remain on the H-4 dependent status and most likely will also be unable to derivatively get the green card along with the parent.

The passage of H.R. 3012 has been met with jubilation by Indians and Chinese, but those from the rest of the world may not be so happy. While Indians and Chinese may still need to wait, the waiting times will get more tolerable, but others who did not have to wait in the EB-2 will now need to wait. While it is hard to predict, there may eventually be waiting times of 1-2 years for all countries in the EB-2. While everyone in the EB-3 is subject to unreasonable waiting times, upon the elimination of the per country limits, Indians may still need to wait but it will not be for 70 years. Instead, it may be 10-12 years for all EB-3 nationals, according to the NFAP report. Those who have priority dates prior to November 2005 in the EB-3, according to the NFAP report, will need to wait only 1 to 2 more years instead of an additional torturous 11-18 years. While waiting times for Indian and Chinese may likely lessen, waiting times for all others may go up in both the EB-2 and the EB-3.

H.R. 3012 is thus not a perfect bill. It also has to be passed by the Senate before it becomes law, and there is an identical version introduced in the Senate. At present, Senator Grassley (R-1A), who has been a foe to skilled immigrant from India, including H-1Bs used by Indian IT companies, has placed a hold on legislation in the Senate. Senate procedures allow any member of the Senate to place such a hold on legislation, and it is uncertain whether Grassley will release his hold in the near future, although he is being persuaded to do so by colleagues and advocates. What is so significant about H.R 3012 is that it received bipartisan support and that too by a landslide, especially in a time when such bipartisan support on other measures is rare or non-existent. The easy passage of H.R. 3012 also shows that there is concern about the unfairness and imbalance in the system towards certain countries, especially India and China. Indeed, although the country limits were originally enacted for all countries, it has resulted in invidious discrimination within the immigration system for Indians and Chinese.

Things may work out better than expected if H.R. 3012 became law, though, as we have lived without per country limits in recent times. Prior to Jan 1, 2005, the EB numbers were always current because AC 21, enacted in 2000, recaptured 130,000 numbers from 1998 and 1999, and the per country limits were postponed under a formula until the demand in the EB outstripped the supply. The lack of per country limits helped, but we also had the additional unused numbers. However, at that time, we also had a surge under the 245(i) program, which we do not have today. The notes in the January 1, 2005 Visa Bulletin, when there was retrogression in the EB-3 for the first time after AC21, explains it all.

In conclusion, even if H.R. 3012 imposes waiting times on others who were hitherto not affected in an unfair system while decreasing the wait times for Indians and Chinese, it is consistent with principles of fairness.

The words of Justice Jackson ring true with respect to H.R. 3012 too:

“The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected.”Railway Express Agency, Inc. v. New York, 336 U.S. 106, 112—113 (1949) (concurring opinion).

Of course, H.R. 3012 ought to be viewed as a first baby step towards more comprehensive immigration reform. Even if it does become law, and skilled immigrants continue to wait, who may not only be Indians or Chinese, Congress will realize that the ultimate solution is to increase the visa numbers, rather than to maintain fossilized quotas that never change and are oblivious to economic and global realities. If there is no consensus for an overall increase in the 140,000 visas that are allocated each year to EB immigrants, Congress can exempt certain people from the numbers such as graduates with STEM degrees, or better still, dependent family members. Such carve outs too could restore further balance and integrity to the US immigration system.

SHUTTING DOWN GLOBAL BUSINESS IN AMERICA: WHY THE H-1B CAP HURTS US ALL

November 24, 2011/2 Comments/in Blog/by Cyrus Mehta

By Cyrus D. Mehta

The USCIS announced that November 22, 2011 was the final receipt date for accepting H-1B petitions under the 65,000 cap of FY2012. The 20,000 advanced degree cap was reached even earlier on October 19, 2011. Any H-1B petitions filed after that date will get rejected. The new fiscal year started only on October 1, 2011 and the H-1B cap was reached less than 2 months later.

If a company now wishes to hire a badly needed engineer from abroad, it will need to wait till October 1, 2012 before this person can come on board. It is self evident that the cap hinders the ability of a company to hire skilled and talented workers in order to grow and compete in the global economy. The hiring of an H-1B worker does not displace a US worker. In fact, research shows that they result in more jobs for US workers.

What is particularly counterintuitive with the H-1B cap is that it completely negates the recent Administration’s policy to encourage foreign entrepreneurs to create startup companies, resulting in job growth. On August 2, 2011, the Department of Homeland Security Secretary Napolitano Secretary Napolitano and United States Citizenship and Immigrant Services Director Mayorkas made dramatic announcements advising that foreign entrepreneurs could take advantage of the existing non-immigrant and immigrant visa system to gain status and permanent residency. According to the DHS press release, these administrative tweaks within the existing legal framework would “fuel the nation’s economy and stimulate investment by attracting foreign entrepreneurial talent of exceptional ability.” In the H-1B Question and Answers accompanying the August 2, 2011 announcement, the USCIS appears to reaffirm the existence of the separate corporate entity, and its ability to sponsor its owner or investor on an H-1B visa so long as an employer-employee relationship can be demonstrated between the company and the beneficiary. This may be established by creating a separate board of directors, which has the ability to hire, fire, pay supervise and otherwise control the beneficiary. There is nothing preventing such a board constituting foreign nationals or family members of the beneficiary.

In the experience of this author, the August 2, 2011 announcement fired the imagination of lots of entrepreneurs who had dreams of making it big in the US, notwithstanding the sluggish economy and the stubbornly high unemployment rate. With the convergence of social media, wireless technology and the cloud, it has never been easier for anyone anywhere to be an entrepreneur and also have access to the best infrastructure. Foreign students while still in their dorms have dreamed of starting Facebook-style ventures and being able to work for them under an H-1B visa. Many inquiries came in from people in other parts of the world with bold new ideas about how to go about this, and while the August 2, 2011 policy may yet not have seeped down into the rank and file of the immigration bureaucracy, it was possible to outright win the occasional H-1B visa for a client who was part of an interesting startup. All these entrepreneurial dreams have now been dashed with the announcement of the H-1B cap being reached on November 22, 2011 – and that too just before Thanksgiving. The August 2, 2011 policy will never be able to take fruition, at least until October 1, 2012, and allow entrepreneurs to thrive in the US and create jobs. While there are other options for entrepreneurs, using a startup for an H-1B visa did not require huge sums of money or a close affiliation with a foreign entity. Unlike the Treaty Investor Visa, which only applies to nationals of countries that have a treaty with the US (and the dynamic BRIC countries are excluded), the H-1B visa was open to all nationals.

Mr. Mayorkas has also been receptive to initiating changes in the USCIS Adjudicators Field Manual and training manuals for the USCIS, based on suggestions by Vivek Wadhwa and other entrepreneurs. These suggestions intend to make USCIS examiners aware of some unique features of startups, especially those in stealth mode, which may lack extensive promotional materials and the like. The lack of an organizational structure in a startup ought not to dissuade the USCIS from granting an H-1B visa. While entrepreneurs may be able to avail of other green card categories, such as the National Interest Waiver, the H-1B visa allows the entrepreneur to quickly enter the US and be able to work through his or her startup. After the announcement of the H-1B cap, unless one has been the subject of a prior approved H-1B petition, and thus been counted before in the past 6 years, the H-1B visa will not be available until Ocotber 1, 2012, and a person brimming with bright ideas may be better off setting up the startup in another country even if Mr. Mayorkas is willing to make changes in the AFM.

It is obvious that we need more H-1B numbers, but will Congress, which is in a stalemate, rush to the rescue of US employers and startups? Other factors have also contributed to the cap being reached so soon this year. Perhaps, certain parts of the economy have been ticking again, and employers were scrambling to fill positions with badly needed foreign skilled workers. Business immigration lawyers, after all, tend to see upticks and downturns in the economy faster than others! The wholesale denial of L-1B visas at the US Consulates in India may have probably forced companies to rely on the H-1B visa more than necessary. Note, though, that many prefer the L-1B to the H-1B since the spouse of an L-1 worker can also work in the US. The H-4 spouse, by contrast, is not allowed to partake in any activities that have the semblance of work, even if it is selling a work of art that was created as part of a hobby. The H-4 spouse has to obtain his or her own H-1B. Clearly, the decline in L-1 approvals in India has sucked up more H-1B numbers this year. Finally, the B-1 in lieu of H-1B visa was also placed under a lot of scrutiny this year, which robbed those who were assigned to the US on short term assignments easy flexibility and also forced them to use the H-1B visa.

AILA President Eleanor Pelta sums it all up very nicely, “During a time when job creation is the nation’s number one priority, why are we still fiddling around with an outmoded quota system that ignores the importance of immigrants to the economic engine? The marketplace dictates the pace and type of demand by business for specialized workers. To be more competitive globally, we really should be smarter about our high skilled visa distribution so that it is related to market needs instead of pinned to a static limit that was determined by Congress in the last decade. Congress needs to be working on ways to make the visa system work for fueling the economy. The status quo is no longer acceptable.”

THE ETHICAL ROLE OF THE ATTORNEY UNDER ALABAMA’S ANTI-IMMIGRANT LAW

November 12, 2011/0 Comments/in Blog/by Cyrus Mehta

By Cyrus D. Mehta

Alabama’s immigration law, HB 56, is aimed at making life miserable for unlawfully present immigrants, and is intended to drive them out of the state. The law criminalizes a person’s very existence in Alabama. Many portions of the law have been enjoined pending appeal by the 11^th Circuit Court of Appeals in USA v. Alabama, 2011 WL 4863957 (C.A 11 (Ala.)), although some very troubling provisions still remain and have taken effect.

What is the role of the attorney in advising non-citizens who may be committing crimes in Alabama by virtue of simply being alive in Alabama? At this point in time, Section 30, which is very much in effect, makes it a felony for an alien not lawfully present in the United States to enter into a “business transaction” with the State of Alabama or any political subdivision thereof. Although “business transactions” may be thought of as activities such as renewing a license or commercial activities with the government, it already appears to be going beyond these activities and can apply to any dealings with state or local governments. A powerful IPC Report highlighting Section 30’s impact, Turning Off The Water, gives the example of an Alabama probate court putting out a notice that all individuals conducting business transactions with it must provide proof of US citizenship or that they are lawfully present in the US. Hence, a woman unlawfully present in the US who is applying to change her name after divorce from her abusive husband may be committing a felony under Section 30. The IPC Report also states that the town of Allgood, Alabama, has interpreted this provision to require all water customers to provide an Alabama driver’s license or Alabama picture ID in order to keep current water service. Alabama Power has asked for proof of lawful presence when a family tried to get electricity reconnected.

Model Rule 1.2(d), which has its analog under state bar rules, provides, “A lawyer shall not counsel a client to engage or assist a client, in conduct that the lawyer knows to be criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist the client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

Does this mean that an attorney cannot advise a client who is unlawfully present to apply for the probate of her deceased husband’s will? Must an attorney thus advise an unlawfully present parent of three US citizen children to no longer contract with an Alabama utility for water and electricity in her modest dwelling? There are other provisions that also criminalize the person’s very being but have been temporarily blocked. Section 11(a) makes it a misdemeanor for an unauthorized alien to apply for, solicit, or perform any kind of work. Section 13(a)(2) makes it unlawful to encourage an unlawful alien to come to Alabama. Thus, an immigration attorney who represents a US citizen living in Alabama temporarily for work related reason, and who wants to sponsor his unlawfully present spouse living in Tennessee for a green card, may violate Section 13 if the attorney encourages her clients to live together in Alabama in order to strengthen their case to further establish that the marriage is bona fide.

Some provisions were not blocked before the law took effect. For instance, Judge Blackburn in the lower district court decision, USA v. Alabama, 2011 WL 4469941 (N.D. Ala.) did not enjoin Section 10, which criminalizes one who fails to carry a registration document and who is in the US unlawfully. Section 10 was enjoined only on October 14, 2011 by the 11^th Circuit Court of Appeals and was effective from September 30, 2011 until October 14, 2011. An attorney may have represented an unlawfully present client who had no registration documents, but who was eligible for asylum, and it took time to prepare and file a solid asylum application. If this attorney, even if outside Alabama, in the course of the representation logically advised the client to remain in Alabama in violation of Section 10 while it was in effect, would he or she have breached an ethical rule?

Sections 5 and 6 state that government officials including “an officer of a court” cannot block the enforcement of immigration laws by “limiting communication between its officers and federal immigration officials.” Because “an officer of the court” could include an attorney, this might require attorneys to reveal information about their clients to immigration officials, if demanded by government officials. This provision has already stirred consternation among local attorneys, and the President of the Morgan County Bar Association has predicted that there will be many lawyers who will challenge this provision before turning client information in to the government. Clearly, Sections 5 and 6 breach the Sixth Amendment right to counsel as the essence of this right is the ability to have privacy of communication with counsel. See U.S. v. Rosner, 485 F.2d 1213 (2d Cir. 1975). Even outside the criminal context, the same analogy applies to Sections 5 and 6. Federal statutes and regulations provide a right to counsel in removal proceedings, INA § 240(b)(4)(A), 8 C.F.R. § 1003.16(b), 8 C.F.R. § 1240.3, and any Alabama attacks on lawyer-client confidentiality would most certainly be a violation on the Supremacy Clause.

An ethical argument can be made that a lawyer may represent unlawfully present non-citizen clients in Alabama if they can ultimately seek an immigration benefit under federal law. For instance, a person who is unlawfully present is not driven out of the US under federal law, unlike Alabama, but has a right to appear before an Immigration Judge in a § 240 removal proceeding. As indicated in my prior blog on the ethical role of the lawyer in advising undocumented clients, under federal law, being unlawfully present is generally an infraction under civil immigration statutes. This individual may seek various forms of relief in removal, including cancellation of removal under INA § 240A or adjustment of status under § 245. He or she may still be considered unlawfully present under federal law, but can apply for work authorization, while pursuing relief applications, even if they have been denied in the first instance and are being appealed in federal court. Even a person who has an outstanding order of removal may seek to apply for an administrative stay of removal or supervised release as well as apply for work authorization. While this unlawfully present individual legitimately pursues relief and is permitted to work, his or her existence in Alabama is criminalized and is not allowed to contract with the state for electricity and water. Further examples of how Alabama’s, and even Arizona’s, anti-immigrant laws absurdly conflict with federal law are amplified in David Isaacson’s blogs. A lawyer, after discussion the consequences of various courses of conduct, may permit a client to disobey a law if the lawyer in good faith believes that this law will ultimately be held unconstitutional. Arizona’s law, SB 1070, which contain many similarly ridiculous provisions that conflict with federal law, has been enjoined as unconstitutional in USA v. Arizona, 641 F.3d 399 (9^th Cir. 2011). A law that is ultimately held to be unconstitutional is no law at all. Of course, the lawyer bears some risk if the law’s constitutionality is ultimately upheld, but it may also be possible, that under federal law his or her client may have obtained permanent residency after being unlawfully present, or at least been granted permission to remain in the US to pursue applications for immigration benefits.

VISA OPTIONS FOR FOREIGN ENTREPRENEURS IN THE US – WHILE KEEPING AN EYE ON THE POTENTIAL TRAPS AND PITFALLS

November 7, 2011/0 Comments/in Blog/by Cyrus Mehta

By Cyrus D. Mehta

On paper, there are many attractive options for foreign entrepreneurs to live and work in the US temporarily without investing large sums of money. This blog takes the reader through these options, but will also make one aware about the many traps that may befall him or her on the way to achieving fame and fortune in the land of opportunity. This may sound a bit cliché as the US economy remains sluggish and the unemployment rate hovers over 9%, along with the fact that immigration bureaucrats have been tending to restrictively apply the rules. Yet the Administration, at the highest levels, has welcomed entrepreneurs and investors. On August 2, 2011, the Department of Homeland Security Secretary Napolitano Secretary Napolitano and United States Citizenship and Immigrant Services Director Mayorkas made dramatic announcements advising that foreign entrepreneurs could take advantage of the existing non-immigrant and immigrant visa system to gain status and permanent residency. According to the DHS press release, these administrative tweaks within the existing legal framework would “fuel the nation’s economy and stimulate investment by attracting foreign entrepreneurial talent of exceptional ability.” Many were left wondering whether this was simply hot air or whether it represented an attitudinal shift to encourage a surge of entrepreneurs into the US.

H-1B Visa

The DHS announcement acknowledged that the H-1B visa, which is the workhorse nonimmigrant work visa, could be used by entrepreneurs who formed their own entities and were even the owners of these entities.The H-1B visa requires the employer to demonstrate that the position normally requires a bachelor’s degree is a specialized field, regardless of the size of the company or the investment. Prior decisions have recognized the existence of the separate corporate entity as being able to petition for the beneficiary, even though it may be solely owned by him or her. However, in recent times, this concept got somewhat muddied by the insistence that the sponsoring entity also control the H-1B worker’s employment, and such a sponsorship could not be possible when the H-1B worker owned the sponsoring entity. In the H-1B Question and Answers accompanying the August 2, 2011 announcement, the USCIS appears to still hold the line about the need to demonstrate an employer-employee relationship, but has conceded that this can nevertheless be demonstrated even when the owner of the company is being sponsored on an H-1B visa. This may be established by creating a separate board of directors, which has the ability to hire, fire, pay supervise and otherwise control.There is nothing preventing such a board constituting foreign nationals or family members of the beneficiary.

Yet, despite this announcement, USCIS officers in the field still appear to display an anti-small business attitude. Take the example of Amit Aharoni, an Israeli citizen who graduated with an MBA from Stanford University. He founded a hot startup, www.cruisewise.com, and received over $1.65 million in venture capital funding. The H-1B visa that was filed on his behalf by the company got denied and he was forced to leave the US and run his company from Canada. It was only after ABC news reported the story that the USCIS changed its mind and reversed the denial.Since the H-1B visa requires a bachelor’s degree in a specialized field, be aware that when one is managing a small company as its CEO, the USCIS may absurdly view the position based on old administrative decisions as too generalized and not requiring a specialized bachelor’s degree. See Matter of Caron International Inc., 19 I&N Dec. 791 (Comm. 1988). While Mr. Aharoni was fortunate that the USCIS relented because the media shone a bright light on his case, one wonders how many similar deserving cases that have not received media attention have been denied, resulting in the loss of so many jobs here. The H-1B visa is also subject to a 65,000 annual cap, which gets exhausted well within the fiscal year.

L-1A Visa

If the entrepreneur has been running a company in his or her home country as a manager or executive, the L-1A visa also readily lends itself to a foreign national who wishes to open a branch, subsidiary or affiliate in the US, but it is important that the beneficiary must still be able to establish that he or she will work in an executive or managerial capacity. The source of the salary can come from the foreign entity. Matter of Pozzoli, 14 I&N Dec. 569 (RC 1974). A sole proprietorship can also qualify as a qualifying entity for L purposes. Johnson-Laid v INS, 537 F.Supp. 52 (D. Or. 1981). If the beneficiary is a major stockholder or owner, then “the petition must be accompanied by evidence that the beneficiary’s services are to be used for a temporary period and evidence that the beneficiary will be transferred to an assignment abroad upon the completion of the temporary services in the United States.” 8 CFR § 214.2(l)(3)(vii). The purpose of this regulation is to ensure that the beneficiary will maintain the qualifying foreign entity, which is a pre-requisite for the L visa. The entity in the US must generally be the subsidiary, parent or affiliate of the foreign entity.

Yet, in recent years, the USCIS has come down on L-1A petitions by small businesses with a heavy hand. Denial decisions often argue, albeit erroneously, that the manager in a small business would also be involved in day to day operations, which are considered disqualifying activities. Despite the salutary amendment to the L-1A definition by the Immigration Act of 1990 to also include one who manages an essential function, INA § 101(a)(44)(A)(2), as opposed to people, the USCIS appears to have read this provision out of the INA by insisting that such a manager still cannot perform the duties of the function. There have also been credible reports that the US Consulates in India have been denying L visa applications in what is thought to be an unofficial trade war against India, although these also include employees of established global companies who are applying for L-1B specialized knowledge visas.

E-1 and E-2 Visas

The E-1 and E-2 visa categories lend themselves readily to foreign entrepreneurs, but they are only limited to nationals of countries that have treaties with the US. This category thus disqualifies entrepreneurs from dynamic BRIC countries – Brazil, Russia, India and China. For the E-1 visa, the applicant must show substantial trade principally between the US and the foreign state. For the E-2 visa, the applicant must demonstrate that he or she has made a substantial investment in a US enterprise. While there is no bright line amount as to what constitutes a substantial investment, it must be weighed against the total cost of purchasing the enterprise and whether the investment will lead to the successful operation of the enterprise. However, based upon the proportionality test in the Foreign Affairs Manual,the lower the cost of the enterprise, the investor under the E-2 will be expected to make a higher proportion of investment. 9 FAM 41.51 N.10. Note that the E-2 visa will be denied if the enterprise is marginal – if it does not have the present or future capacity to generate more than a minimal living for the investor and family.

Conclusion: The Importance of Foreign Entrepreneurs

These three options, if applied consistent with the true intent under their respective statutory statute provisions, provide wonderful opportunities for foreign entrepreneurs, including students graduating out of a US university, to implement their business ideas in the US. Unfortunately, in recent times, immigration adjudicators have become the self-appointed guardians of US economic well being by assuming that the entry of foreign nationals in the US would eliminate US jobs. In fact, it is quite the opposite as such individuals through their innovations will generate more jobs for Americans. New York City Mayor Bloomberg has categorically called the failure to bring in foreign entrepreneurs and skilled workers as being akin to committing “national suicide.”There also exists the Employment-based Fifth Preference (EB-5) pursuant to INA §203(b)(5) resulting in permanent residency, which is specifically designed for investors, but this involves an investment of $1 million (or $500,000 in targeted areas with high unemployment or that are rural) and the creation of 10 jobs. Investments in designated regional growth centers allow the showing of the indirect creation of 10 jobs and also allow passive investment. The H-1B, L and E categories can offer speed and flexibility to a foreign entrepreneur who may not be able to afford a $ 1 million or $500,000 investment, and the need to immediately create 10 jobs. Also, the EB-5 option is fraught with risks if the investor cannot show his or her own source of funds and if the 10 jobs are not created directly or indirectly at the end of the two year conditional residency period. Another important bill, the Startup Visa Act, remains stuck in Congress as a result of partisan stalemate, which would allow the investor to demonstrate that he or she has obtained funding or created jobs to a lesser degree than the EB-5. While we wait for the Startup Visa, an enlightened interpretation of the already existing H-1B, L and E visa categories for entrepreneurs will surely benefit the US at this point of time and be consistent with the Administration’s August 2, 2011 announcement.