• Hiring Foreign Workers Means Proving Your Ability To Pay Them The Prevailing Wage

    Hiring Foreign Workers Means Proving Your Ability To Pay Them The Prevailing Wage

    Sep 13 • E-2 Visa Attorney, H-1B Visa Attorney, L-1 Visa Attorney, O-1 Visa Attorney, SMA Immigration Law Frim Featured, Steve Maggi, Steven Maggi, US Immigration News, US Visas • 887 Views

    E-2 Visa Attorney – H-1B Visa Attorney.

    Employers sponsoring foreign workers for green card employment must show that they have the ability to pay the new worker’s wages. When hiring through the EB-2 or EB-3 visa categories, employers must present all proposed job duties and minimum requirements for the position, and the Department of Labor will return a prevailing wage request with a minimum salary. If the employer moves forward with a labor certification, it must show that it is able to pay that salary when the new employee gets his or her green card, or the proffered wage, whichever is higher.

    Recently, The Department of Labor has been creating minimum prevailing wage numbers that are significantly higher than they are for the same exact positions under H-1B and other employment non-immigration visa categories. Continue Reading

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  • Preconceived Intent: A Red Flag that Could Curtail Your Path to Immigration

    Preconceived Intent: A Red Flag that Could Curtail Your Path to Immigration

    Aug 12 • SMA Immigration Law Frim Featured, US Immigration News • 3112 Views

    {3:20 minutes to read} When an individual has entered the US on a non-immigrant visa, and during their stay applies for another visaeither another non-immigrant or an immigrant visa through family sponsorshipUS customs, border and immigration authorities look back to the date of entry for potential “preconceived intent.”

    Preconceived intent is inferred by US officials in cases where a foreign national enters the United States on a non-immigrant visa with the intent of remaining in the US for purposes other than the ones allowed under their current visa. Their goal is to secure a “change of status” or an “adjustment of status.” This is not allowed under US immigration law. Continue Reading

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  • Steve Maggi - Are You Eligible for a Visa Under the Petty Offense Exception?

    Are You Eligible for a Visa Under the Petty Offense Exception?

    Jul 25 • SMA Immigration Law Frim Featured, US Immigration News • 1102 Views

    {3:30 minutes to read} When people apply for visas at US embassies and consulates around the world, the embassy or consulate adjudicates based on:

    1. whether the applicant meets the criteria for the specific visa for which the applicant is applying; and,

    2. the legal admissibility of the individual applying.

    A visa applicant could have an approved petition by United States Citizenship and Immigration Services (USCIS), or show qualification for a type of visa applied for directly at the embassies or consulates, such as a tourist visa. Continue Reading

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  • 5 Things to DO When Renewing an L-1 Visa

    5 Things to DO When Renewing an L-1 Visa

    Jun 14 • SMA Immigration Law Frim Featured, US Immigration News • 1100 Views

    {4:23 minutes to read} The L1 visa is also called the Intra-Company Transfer. It is designed for multi-national companies to use in two contexts:

    — Foreign companies that recently set up a US subsidiary or branch office in the US (the most common type)

    — Existing US companies with foreign subsidiaries or branches that need to transfer personnel back and forth

    First, a US company is set up as a subsidiary of a foreign company. At least 50% of the US company must be owned by the foreign entity. Assuming that requirement is met, the foreign company can then transfer managers, executives and other employees who are considered to have what’s called “specialized knowledge” to the US to work for the US subsidiary. Continue Reading

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  • U.S. Embassies and Consulates—Duties and Powers

    U.S. Embassies and Consulates—Duties and Powers

    May 27 • SMA Immigration Law Frim Featured, US Immigration News • 1247 Views

    {4:20 minutes to read} The U.S. currently has 294 physical embassies, consulates and diplomatic missions across the world. In addition to assisting U.S. citizens and U.S. green card holders abroad, these posts also adjudicate visa applications as well as final adjudications of immigrant visa petitions and waivers (legal pardons) for previous deportations/removals and criminal infractions.

    The visa policies, based on the Immigration and Nationality Act (INA), are applied by consular officers using the Foreign Affairs Manual (FAM)—the “bible” for consular officers.

    That being said, each post is its own island. Each post has its own politics, procedures and ways of emphasizing certain elements over others, requiring more or fewer documents, etc.

    Individual consular officers adjudicate the nonimmigrant (temporary) visa applications, with significant leeway to deny petitions based on several grounds:

    1.The applicant does not meet the legal standard on the merits.

    This includes applications presented directly at the post, including B1/B2 visas or E1/E2 visas. Officers can also “re-adjudicate” a petition already approved by USCIS and determine that the law was not sufficiently applied to the facts. They remand the case back to USCIS, which ends in a denial of the underlying petition.

    2. The applicants lacks sufficient ties to their home country.

    With the exception of the L and H visa categories (“dual intent”), applicants for nonimmigrant (temporary) visas must clearly demonstrate “sufficient” ties to their home country—their country of origin or country where they have permanent residence. This is shown through:

    — Stable employment;

    — Property/Possessions such as houses, cars, boats, etc.;

    — Savings/Investments in their home country;

    — Family ties, the strongest being to a spouse or children; and/or

    — Community ties, the “catch all” standard used in the majority of visa applications.

    3.The applicant demonstrates “Immigrant Intent.”

    If, in reviewing the circumstances surrounding a petition, the officer feels that the applicant has the intention of remaining in the U.S. permanently (and thus violating the terms of their potential visa), the application can be denied. Form DS-160 serves to alert officers of immigrant intent by including information on family members in the U.S., U.S. travel history, previous visas, bank accounts, real property, etc.

    4.The applicant is inadmissible.

    Previous criminal or U.S. immigration infractions can make applicants inadmissible for 3, 5 or 10 years, or even for life, however each consular officer has the power to grant waivers which allow the bars to admissibility to be raised temporarily for specific purposes. An officer can also apply the “petty offense exception” to small, one-time infractions.

    On April 27, 2011, the Department of State issued a final rule that broadened a consular officer’s visa revocation authority. A consular officer is now authorized to revoke a nonimmigrant or immigrant visa at any time, including after issuance, at the sole discretion of the consular officer. Consular officers can also revoke a visa provisionally, pending the outcome of an investigation as to whether a final revocation is appropriate.

    In light of all the above, it is very important that visa applicants be thoroughly prepared when they apply for ANY visa and consulting with an experienced U.S. consular attorney will maximize their chances of getting the visas they need. For any consular law questions, please contact Steve Maggi at smaggi@smalawyers.com

     

    Steve Maggi, Esq.Steve Maggi, Esq.
    SMA Law Firm
    U.S. Immigration & Consular Law
    212-402-6885

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  • State’s Rights vs. Federal Rights

    States’ Rights vs. Federal Rights

    Apr 27 • SMA Immigration Law Frim Featured, US Immigration News • 1286 Views

    {4:22 minutes to read} If a new Supreme Court Justice isn’t appointed while President Obama remains in office, his DAPA plan might not come to fruition.

    In November 2014, President Obama announced his Deferred Action for Parents of Americans and lawful permanent residents, known as DAPA. He also announced the extension of the DACA program—Deferred Action for Childhood Arrivals—which had already been in place but would be expanded to incorporate more people.

    There are arguably four million people that would qualify under either one of these two new programs that Obama issued through an executive order, meaning he bypassed Congressional approval for it. It didn’t come into law. Continue Reading

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  • Donald Trump and the H-1B - Steve Maggi

    Donald Trump and the H-1B

    Apr 13 • SMA Immigration Law Frim Featured, US Immigration News • 3346 Views

    {5:30 minutes to read} Donald Trump has been very vocal with his opinions about the H-1B visa program. He has not been clear in terms of what his actual plan for the program is, but earlier this year he was quoted talking about how he would end the use of H-1B as a ”cheap labor program.”

    Trump has also stated his view that it’s an absolute requirement to hire American workers “for every visa and immigration program,” which makes no sense; if Americans are hired for every job, then there are no foreign workers and no need for visas. At the same time, Trump admits that the ”U.S. needs more highly skilled people and if we can’t find them in the U.S., we’ll find a way to get them into the U.S.”—which contradicts what he said about all positions being filled by Americans.

    Some people argue that there are enough Americans who have the skills and education to take all the skilled positions available and that, therefore, there is no need for a visa or immigration program at all. USCIS has created a 17-month extension to the already existing one year authorization to work to foreign nationals graduating from U.S. universities, in the STEM fields (science, technology, engineering, and math). This was clearly done to encourage those individuals to remain in the U.S., because there is a need for them that is not met by U.S. citizen graduates. Continue Reading

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  • Dreamland School – 2016 Update

    Mar 10 • SMA Immigration Law Frim Featured, US Immigration News • 1544 Views

    {4:40 minutes to read} “Wow, these kids grow up fast!” That was the thought that kept coming to mind when I saw the students this time around. Since 2009, my wife and I have been making an annual visit to Dreamland School in Ghana, a school for orphans and underprivileged children.

    It’s remarkable how much the school has grown over the past six years. At first, there were only 140 students attending up until 6th grade. Now, the school has nursery-aged students and goes all the way up to 9th gradewith over 400 students attending. Some of them were only seven years old when we first met, and now they are getting ready to graduate and move on to high school. Continue Reading

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  • Top 5 Myths About Immigrants

    Mar 2 • SMA Immigration Law Frim Featured, US Immigration News • 2884 Views

    {6:54 minutes to read} In the current political environment, candidates, the media, and the pundits have thrown around a lot of myths regarding immigration and the negative impact the influx of foreign nationals may have on the U.S.  Here are 5 of the principle myths and the facts that disprove them.

    Myth 1: The deportation of all undocumented immigrants is a viable solution to our immigration problem. There are a number of reasons why this statement is a myth:

    A. Economically speaking, the deportation of up to 15 million people would cost the U.S. hundreds of billions of dollars.

    — Cost estimates are up to a quarter of a trillion dollars and it could take 5 years or more to actually enact and carry out the deportation of all undocumented immigrants.

    — There is no viable plan in place to stop the flow of additional undocumented foreign nationals coming into the U.S. while these deportations are being processed, so the problem is not solved.

    — There is no mechanism for assuring that the people who are deported won’t re-enter again without inspection.

    B. There is no mechanism to absorb or counteract the impact to the economy.

    There are a lot of industries that depend on this invisible class of undocumented workers to supply intensive labor and to help them generate revenue:

    — Agricultural industry;

    —  Hospitality industry (restaurants, hotels);

    — Domestic work;

    — Construction; and

    — Food service.

    C. Without undocumented workers, companies would have to outsource those jobs, pay higher salaries, and the unemployment rate would go up, probably leading to a rise in inflation.  

    Before people are deported on a wide scale, there would have to be an economic plan, to prevent the economy from being negatively impacted by this vast loss of workers and to recoup the $250 bilion in costs generated by putting all these people through the deportation process.

    Myth 2: Immigrant-owned businesses take market share from American-owned businesses.

    While many people believe this myth, the truth is that in terms of percentage of businesses versus the population, there is a higher percentage of immigrant entrepreneurs launching start-up businesses than those set up by American citizens. Those businesses are actually creating more work opportunities and employing American citizens by introducing:

    — New products;

    — Different kinds of services;

    — Improved services; and in some cases,

    — Lower cost services.

    Overall, American owned businesses are not being negatively impacted because of immigrant-owned businesses. Instead, they are being bolstered by them, as those businesses drive competition and drive down prices to consumers, while simultaneously creating millions of jobs.

    Myth 3: Illegal aliens take jobs from American citizens.

    Most undocumented foreigners occupy jobs that are not even on the grid. They comprise the bulk of an invisible labor class which is prevalent in many industries, working at jobs that are not registered or jobs that most people won’t take. These workers are either getting underpaid or paid at minimum wage, and often times off the books, for employers who do not want to pay taxes.

    Illegal aliens are taking some of the most difficult jobs like harvesting fruits and other agricultural products, or working in the back of restaurants and hotels. Most Americans will not take these jobs because they cannot stay above the poverty line working in these positions, and do not want to work off the books with no insurance or basic protections.

    Myth 4: Foreign companies which launch subsidiaries in the U.S. only benefit the foreign entities.

    A lot of foreign companies launch subsidiaries in the U.S. and sometimes transfer personnel to oversee the growth of these entities. For the most part, however, the visas that are given to those individuals are based on projected revenue generation and job creation in the U.S. The U.S. government determines whether to issue visas based on how many U.S. jobs will be created, so the benefit is really more on the U.S. side. Usually these positions are managerial and executive, while the rest of the work teams created are comprised of U.S. citizens.

    Not only do we benefit from the job created by these companies, but there is also an economic boost because generation of revenue leads to payment of more U.S. taxes.

    Myth 5: Foreign university graduates take jobs from Americans because they can be paid less.

    Any foreign graduate, especially under the H-1B program, that is hired by a U.S. company is required to be paid what’s called the prevailing wage. The employer must make an attestation to the Department of Labor that they will pay x amount, calculated using the minimum wage for that job position and the experience level of the applicant.  Therefore, by law, companies are not allowed to pay foreign individuals less than they are paying American individuals for the same positions. As a merit-based system, foreign university graduates are earning those positions and are not being selected over Americans because they can be paid less.

    Secondly, the annual H-1B cap is so low that the few university graduates who are able to get that visa, are occupying positions that can’t be filled by American university graduates because there are not enough American graduates with the educational requirements to work in high demand STEM (science, technology, engineering, and mathematics) positions. Therefore, this myth is just that, a myth.

     

     

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  • Immigration USA – What is the status of the EB-5 program for 2016?

    Jan 14 • SMA Immigration Law Frim Featured, US Immigration News, Video • 1646 Views

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