• The Deferred Action for Childhood Arrivals

    Feb 20 • SMA Immigration Law Frim Featured • 1943 Views

    在符合要求的申请者中只有一半申请了新的Deferred Action(延迟审理),如果您符合基本要求就请您尽快申请

    作者:史蒂夫·马基律师 (Steve Maggi)

     

     

    小孩延后审理项目(The Deferred Action for Childhood Arrivals)简称DACA,是2012年6月15日奥巴马总统发布的行政命令。DACA旨在为从小就来美国并滞留至今且没有身份(未安检进关简称EWI或者签证过期后仍呆在美国)的年轻非法移民者提供保护。如果申请成功,申请者就会受到保护而不被驱逐出境(不包括由于犯罪而被驱逐出境)并会有合法的工作证。虽然这个项目的优点很明显,但是它最大的缺点是申请者不能取得公民身份,另外由于DACA是由总统下达的行政命令而非通过国会颁布的法案,所以它的下一步怎么发展也是个未知数。

    本来为那些可以受益的申请者提供机会的DACA现在却很少有人申请,或者说参与率比预计少的重要原因是DACA 没有为申请者提供最可靠的保证,即使有了DACA也不能保证申请者身份的合法化和长久居住权,毕竟此项目不是一项长期性的措施。

    无党派调查小组–移民政策机构(The Migration Policy Institute的调查数据显示:到目前为止那些符合要求的申请者中约只有一半提交了申请书。也就是说在110万个符合申请条件的非法移民中,只有567,500(52%)的人进行了申请。

    在2014年底,那些抓住此次机会申请DACA并被批准的申请者们,就可以更新身份了。但是现在还无从知道奥巴马行政部门将如何处理这些身份已更新的申请者,所以那些选择提交DACA的申请者的前景也未可知。

    正如我指出的,当此项目首次被推出的时候,它缺少在法制层面对非法移民进行本质上的保护,而这就解释了为什么很多移民不想要去申请DACA。因为当申请者递交申请表时,上面的信息不能保证不会被美国移民局共享或被用作以后驱逐出境的新资料,所以很多在美国已经住了很久的非法移民不愿意向相关部门提供他们的姓名,居住地和背景情况。

    最近众议员发言人Jone Boeher指出:任何能表明众议院立场的移民改革将会逐渐的被落实。国会的无所作为会让DACA和整体美国移民处境的不确定性雪上加霜。Jone 还认为总统的行政命令DACA今年就会过期。因此我的意见也是我唯一想给大家的意见是,现在就申请!

     

    如果您有任何问题请发邮件到:lin.luo@smalawyers.com

    联系人:罗小姐(Ms. Luo)

     

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  • Covering All Bases in the H1-B Visa Process

    Jan 29 • SMA Immigration Law Frim Featured • 2082 Views

    Starting April 1, 2014, the United States Citizenship and Immigration Services (USCIS) will begin accepting H1-B visa petitions, used by U.S. employers to hire skilled professionals from abroad. If lessons are to be learned from last year, employers who are serious about hiring a foreign national should start planning their strategy and preparing their paperwork NOW.

    What many employers do not realize is that two potential time-consuming obstacles exist that may make the process longer – measures that have to be taken before H-1B applications are accepted on April 1st. Since there has been no progress on comprehensive immigration reform, advocates are expecting the same scenario to play out as last year:

    • It is anticipated that all 65,000 non-Master’s cap will be met and surpassed in the first week, resulting in a random selection of cases to adjudicate;

    • There will be a lottery to determine which cases get adjudicated, which is completely random and does not give preference of any kind.

    • All applications which do not get selected in the lottery will be returned, envelope unopened, and the candidates (foreign national beneficiaries on whose behalf the petitions are filed) will either have to apply under another visa category or wait one more year to apply.

    In order to sponsor a candidate for an H1-B visa, employers first are required to provide what is called a Labor Condition Application (LCA), and these applications require the verification of the company’s Federal Employer Identification Number (FEIN).

    If a company has never sponsored an H1-B visa candidate, or if it has reorganized or changed its name, it is likely to face a delay in the verification of its FEIN. In order for the candidate to have a viable chance of getting his or her petition ready to file on April 1, the prospective employer should give itself a cushion of 4-6 weeks to get the FEIN and LCA approved. If an employer takes too long to submit its LCA, it is possible that it will not be processed in time to be able to submit the H-1B on time, since the H-1B petition requires an approved LCA, signed in original by the company representative. Simply put, if your company’s strategy is to “hope” that the federal government processes everything quickly in order to get the H-1B in time, then it is likely that you will be out of luck. Just ask the thousands of H-1B sponsors which did not get their LCA approvals back before April 1 last year.

    Last year thousands of LCAs were not processed in time and were approved after the H1-B lottery had happened, essentially nullifying any H-1B petitions linked to those LCAs. Add this to the number (over 50,000) of timely-filed petitions that lost the lottery and this equates to a need for a radical change in strategy in 2014 in order to optimize chances of success.

    Luckily the fate of H1-B petitioners and their prospective employers does not rest entirely on the outcome of the lottery. A good immigration attorney will conduct a parallel evaluation for alternative visa options; there are other visas that can be used in place of an H1-B, if necessary. They are sometimes of a shorter duration than the H1-B, and may carry more restrictions, but can offer a stop-gap solution so that the foreign candidates are not lost forever. In many cases they offer advantages to the H-1B such as no filing deadlines and no visa caps. For more information, please see the article H-1B alternatives here.

    You have been forewarned: If you are a U.S. company interested in hiring a foreign national for a professional position, the time to act is NOW.

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  • What You Should Know About The Treaty Investor Visa

    Jan 14 • SMA Immigration Law Frim Featured • 2056 Views

    U.S. citizens and permanent legal residents can generally only use immigrant visas to petition for their direct relatives like parents or children to join them in the United States. However, non-immigrant visas like the E-2 Investor visa provide opportunities for people to invite their more distant relatives or close friends to come to the U.S. with a visa to start a business. For that reason I call this visa the “Entrepreneurial Visa.”

    Immigrants with a small amount of capital and a solid business plan to start a new company, or buy a business or franchise, can apply for the E-2 visa depending on their nationality(ies) and whether the U.S. has an investor treaty with the country. The decision of whether to grant the visa is based on the probability of success of that business. This determination takes into account both how detailed and innovative the business plan is as well as the demand for the business’ products and/or services, as well as the amount of funding required to get a business up and running until it begins to generate revenue sufficient to lead to its growth and success. Here are some things to keep in mind about this particular visa:

    • The E-2 visa gives the applicant 5 years to form a successful business in the U.S.: The continuation of the individual’s legal stay in the U.S. is based upon the success of the business. So if the business fails, the visa is terminated and the holder must return to his or her country of origin or apply for a change of status to another visa or for a green card based on another venture, job offer or direct family relationship with a U.S. citizen or resident. The good news is that as long as the business remains successful, the visa holder can continue to live in the U.S. indefinitely. The visa can be continually renewed every five years as long as the business remains viable.

    • Only an individual with experience and/or interest in running a small business should apply: While the visa may accomplish an important goal of family reunification, it should not be used by someone who is not serious about running a business or lacks an entrepreneurial mindset. There are other potential means available for someone just looking to invest money and come here to stay with relatives, such as the EB-5 visa. The E-2 is best used by a person who wants to work hard and do what it takes to maintain a profitable business. If they lack experience sometimes a franchise model is the best one, as they are instructed and guided by the corporate entity which controls the brand, which of course maximizes the probability of success.

    • The application process is relatively simple:  Many visa applications have a mandatory two-part process, ie. the petition must first be reviewed in the U.S. by immigration officials here and then, if approved, an applicant must apply for the visa itself at his or her corresponding U.S. embassy. In contrast, the E-2 visa can be applied for directly in U.S. embassies vis-a-vis consular processing, a process which is a quicker and less expensive application process, and can reduce the chance of denials (one chance of denial versus two). The application can also be done if the applicant is already in the U.S. through a change of status.

    • E-2 applicants are only eligible if they come from certain nations:  Investor visas are only available to citizens from countries that have bilateral investor treaties with the U.S. Notably, citizens of Brazil, Russia, India and China are not currently eligible for the E-2 visa. In those cases, the alternative may be EB-5 or other categories. However, it is important to point out that if someone possesses dual or multiple nationalities, that they can qualify based on just one nationality which has an existing treaty. For example, Israeli citizens don’t qualify, but if they have any European Union country nationality as well, they do.

    In many situations, the E-2 visa can be a win-win situation for all involved. Many 1st and 2nd generation Americans don’t have the necessary funds to start a business on their own, but their uncles, aunts, cousins or even friends from their home countries do. These relatives can come to the U.S. while starting a business that will bring jobs and economic growth to the communities in which they reside. In that way the Entrepreneurial visa provides a means of reuniting families and creating new American jobs at the same time.

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  • Only Half Of Those Eligible Have Applied For New Deferred Action Program and Should Do So Before It’s Too Late

    Jan 7 • SMA Immigration Law Frim Featured • 4796 Views

    The Deferred Action for Childhood Arrivals (DACA) is a progam that was enacted vis-a-vis an Executive Order signed by President Obama on June 15, 2012.DACA’s intent is to protect undocumented individuals who were brought into the country as children and overstayed, or entered illegally (Entered Without Inspection, “EWI”). By coming forward and applying, they are guaranteed that they will not be deported (barring any subsequent criminal convictions that make them deportable) and will be legally permitted to work in the United States. The intent of the program merits praise, but its fatal flaw is that it offers no path to citizenship – and the future of DACA is uncertain since it is an Executive Order rather than an Act of Congress.

    DACA has provided few assurances, which may be the main contributing cause to the reason it has seen a lower participation rate than anticipated among those it was designed to benefit.

    • DACA does not grant legal status to any immigrants and it is not a permanent measure.

    A newly released study shows that only about half of those immigrants who are eligible have applied.Statistics compiled by The Migration Policy Institute, a nonpartisan research group, found that only567,500 (52%) of the 1.1 million immigrants eligible for deferred action have applied thus far.

    Immigrants who took advantage of DACA and were approved will need to have their statuses renewed by the end of 2014. How these renewals will be handled by the Obama administration is currently unknown. So even those who have chosen to come forward are still in limbo.

    As I pointed out when the program was first launched, DACA lacks substantial protections for those here unlawfully, which is likely what has caused so many immigrants to shy away from it. Many immigrants who have been living in this country without permanent status are reticent to come forward and provide their names, residences and backgrounds for any official records. There is no guarantee within DACA that the information an applicant provides in his or her application will not be shared by USCIS (U.S. Citizenship and Immigration Services); or, that deportation will result from the new information.

    Additionally, if someone omits part of his or her criminal history and this omission is discovered, it has the potential to trigger an appearance before an immigration judge and eventually deportation could occur.

    The Speaker of the House of Representatives John Boehner has recently stated that any Immigration reform that clears the House will be done in piecemeal fashion. Congressional inaction has served to exacerbate the uncertainty that surrounds DACA and US Immigration as a whole. The Executive Order behind DACA is set to expire this year. Many members of the House Republican caucus are adamantly opposed to providing a path to citizenship.

    What is your Representative’s stance on comprehensive Immigration Reform?

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  • The Numerous Barriers to Getting Your Non-Immigrant Visa

    Oct 24 • US Immigration News • 2153 Views

    There are several layers to obtaining a Non-Immigrant Visa (“NIV”) to enter the United States. Fortunately, with the right legal representation, you can get help for this often complicated process.

    When a foreign national initially applies for an NIV, federal authorities check to see whether he or she meets certain standards. Once the United States Citizenship and Immigration Services (“USCIS”) approves someone’s petition, there are still several hurdles to surpass.That is why it is vital to retain an immigration lawyer who covers “both ends” — the Stateside process of obtaining a petition as well as the consular phase in the person’s home country.

    The next step after obtaining approval of a petition is to make an appointment at the US embassy in his or her home country for an interview. The person analyzing a given petitioner’s case is a Consular Officer (“CO”). If all goes well, the petitioner will get a “visa stamp” which corresponds to his or her specific approval.

    The CO can deny visas based on:

    • The merits of USCIS approval: The embassy’s decision overrides that of the USCIS. That means that, upon reviewing a person’s application, the CO may disagree with USCIS’s determination that the petitioner qualifies for a visa. This decision is, for all intents and purposes, final.

    • Insufficient ties to home country: NIVs  are meant for people who will not be staying in the US permanently. Therefore, the CO will be looking for evidence that a petitioner has sufficient ties to their country of origin. Not every visa has this stipulation.

    • Prior conviction or infraction: The CO will be especially interested in a petitioner’s legal history, in their native countries and the United States. Anything more grievous than a petty offense can bar entry to an otherwise qualified petitioner. Some things to remember:
      • COs have a particular distaste for finding “surprises” in a petitioner’s criminal record, so it is imperative to list everything.
      • Arrests or convictions from anywhere on the planet need to be acknowledged.
      • It may be possible to obtain a waiver to this kind of bar to entry. Waivers are what serve to lift the legal bar based on past criminal or immigration infractions. All the more reason to hire someone who knows how to handle waiver applications at the specific U.S. consulate where they will apply for their visas.

    When choosing an immigration attorney make sure they know how to represent you on a consular level, in addition to preparing the initial visa application — so you are protected throughout the process and your chances of encountering problems along the way are minimized. Contact me via email or call (212) 402-6885.

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  • Systematic and Epidemic Immigration Representation Problems Perpetuated by Media, especially in foreign language media outlets

    Aug 21 • US Immigration News • 1557 Views

    As a former journalist and current immigration attorney, it never ceases to amaze me how the media not only distorts the truth, but perpetuates those distortions in the way it covers immigration issues. It is not difficult to regurgitate the content of a USCIS (U.S. Citizenship and Naturalization Services) press release, yet journalists oftentimes do the public a great disservice in not supplementing that information with critical analysis of the information, including what has been omitted or is lacking in a piece of reform, and explaining the implications and impact on the public. The tendency has been to simply rephrase or paraphrase a new law or immigration policy, much in the style of printing an AP or Reuters wire story.

    However, since USCIS rules and regulations are often themselves convoluted and confusing, a simple rehashing of information is not sufficient in properly reporting the news and educating the reader. In analyzing this trend, I noticed that literal translations of legal terms into foreign languages augments confusion and actually drive the reader or watcher to potentially choose the wrong path in terms of who they go to to assist them in immigration matters which will permanently affect their futures and that of their immediate families.

    This growing problem reared its ugly head on August 15, 2012, when young illegal immigrants began presenting their applications under a new program called Deferred Action for Childhood Arrivals. Around the country, thousands flocked to community centers, churches and even tourist destinations like the Navy Pier in Chicago, to get assistance in applying. The media covered it in its typical feel-good way, focusing on the backgrounds of the applicants and how their lives might be positively changed by the new measure, something which I support, and I have written about.

    In this coverage, there was little or no discussion of the holes in the policy, the discrepancies between the instructions and forms, the confusion generated by the application process, and most importantly what comes after the applications are submitted and their legal effect. Rather, there was just a lot of language encouraging people to go fill out their forms quickly. This message was ubiquitous in all mass-media coverage of the most recent immigration reforms. The spirit of such coverage is to encourage people to take part in the process, but it does not tell them the potential pitfalls of doing so, or who should be assisting them with something so important. It also does not comprehend an immigrants’ perspective as to what immigration law is and therefore does not do its job of properly educating them and steering them in the right direction, which leaves them to choose the wrong path, i.e. the thousands of “practitioners” around the country ready to pounce on those people and take their money without a second thought as to the egregiously negative consequences on those people’s lives.

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  • H-1B Visa Alternatives for U.S. Employers

    Jul 4 • SMA Immigration Law Frim Featured • 1949 Views

    The H-1B visa is the best known employment visa.

    It allows foreign nationals to work in the United States for up to six years, and sometimes longer if the employee is sponsored for a green card.  

    Unfortunately, because the annual quota for the H-1B visa is so low, and the filing deadline is so inflexible, most employers cannot rely on being able to use this category. In 2013 there were 124,000 applications filed between April 1st and April 5th. Of those, only 65,000 were actually adjudicated through a lottery system. That means that within a week there were 59,000 disappointed candidates, as well as thousands of disappointed employers with positions still left to fill. So what can those employers do?

    The good news is that there are alternative visas to the H1B, which fall into two separate categories:

     

    • Those which bypass the need to apply for H-1B visas;
    • Stopgap measures that allow the worker to stay in the country until he or she receives an H-1B visa.

    1) Bypassing the H-1B visa process

    Employment-Based Green Cards: When a worker has extraordinary ability as documented through their work experience or advanced degrees, they may qualify directly for an employment-based green card. For example, individuals who have served as CEO or CFO of a multinational entity overseas, or who have won many awards for his or her work, may be able to obtain a green card in a matter of months by paying an extra fee for premium processing. The alternative would be a year-long wait for an H-1B visa.

    O-1 Nonimmigrant Visa: The professional qualifications that are encompassed within the O-1 category are diverse. They are frequently utilized by people that work in motion pictures or the arts, in business, as research scientists or as exceptional journalists. The O-1 visa allows the employer to onboard these individuals directly and quickly.

    2) Stopgap measures

    These alternative visas are viable options for employers who are interested in having someone work for them that qualifies for an H-1B visa, but he or she did not make the lottery. They may also be used by businesses that decide to hire a candidate after April 1st.

    The H-3 Visa: This visa allows the employer to sponsor a training program that can last up to 18 months, after which the visa-holder may apply to change his or her status to an H-1B visa if the sponsor chooses to employ them.

    The employer becomes a trainer for purposes of qualifying for the H-3 visa, ensuring that the trainee spends a minimum of 90% of his or her time doing some sort of training-related activity. This allows qualified candidates to gain the practical knowledge required to be an effective employee if and when the employer hires him or her.

    J-1 Visa: This visa allows a private company to take on a foreign national through a training visa that permits paying a salary. It makes it possible to avoid a mandatory two-year foreign residence period. Should the employer wish to hire the employee on a permanent basis, the opportunity to apply for an H-1B visa remains viable.

    If April 1st and the accompanying H-1B quota have come and gone, employers still have options. When an employer calls my office interested in hiring a worker from another country, I analyze the situation to see what options the law affords. Each case has a unique set of factors that must be considered, which is why the experience of a seasoned Immigration Law/Labor attorney can make the difference in your case.

    How can I help your company find a solution? 

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