Archive for the ‘immigration news’ Category

Premium Processing – Is Paying Extra Worth It?

October 24th, 2014
posted by at 7:37 pm
Premium Processing Immigration

The Need for Speed in Immigration Cases

Our clients often ask us if paying $1225 for premium processing is worth it.  We often give the lawyerly response and say, it depends. Immigration law is so complex that no two cases are the same. Sometimes paying extra for expediting a case is worth it and at other times it’s not. Here are some of our thoughts on the subject:
  • If you file an EB-1 Extraordinary Ability case under premium processing, you are going to increase your chances of receiving an Request for Evidence (RFE).  Why?  All the USCIS officer has to do within 15 days is approve the case or issue an RFE.  Once they do that, they do not have to return the $1225 USCIS filing fee.  Since EB-1 cases are quite complex, sometimes officers simply cannot review the case within 15 days given their case load.  Thus, they automatically issue an RFE to ‘buy time.’  Of course, that is not always the case, but it’s something to consider when deciding whether or not to use the premium processing program.
  • Are you on L1 status and filing an extension shortly before your expiration date?  You might want to file the case under premium processing.  The USCIS is increasingly scrutinizing L1 cases, so you want to know quickly what is going to happen to your status.  That way, you can plan your future without being rushed to do it.
  • If you are outside the US and want your prospective employer to file a TN application with the USCIS instead of applying directly at the port-of-entry, file the case under the premium processing program. You’ll probably want a quick decision on the case.
  • Are you an Information Technology professional and your employer is filing an H-1B extension, amendment or transfer?  Don’t fear the premium processing program.  Just document the case well!

As you can tell, there’s isn’t an easy answer to this question.   There are hundreds of differnet scenarios to consider when using premium processing, the least of which is simply timing. However, we think it’s worth it in many cases based on one word:

ACCESS!

Filing a case under premium processing provides you, your employer and/or attorney the opportunity to call or email the USCIS officer handling the case.  This is not available in regularly-processed cases.

We can’t tell you how valuable this access can be in getting complex cases approved.  It’s certainly something to think about when deciding whether or not to pay an extra $1225 for your case.

AAO Clarifies ‘Culturally Unique’ in P-3 Cases

July 15th, 2012
posted by at 3:13 pm
Music

Music

The Administrative Appeals Office (AAO) recently addressed the meaning of “culturally unique” for P-3 visas in Matter of Skirball Cultural Center, 25 I&N Dec. 799 (May 15, 2012).  Skirball involved a group of Argentine musicians performing music that blends klezmer (a form of Jewish folk music) with Argentine influences. The California Service Center (CSC) initially denied the P‐3 petition, finding that the music could not be culturally unique if it is based on a hybrid of artistic styles from more than one culture or region. Fortunately, the AAO reversed this decision.

The AAO held that while a style of artistic expression must be exclusive to an identifiable people or territory to qualify as “culturally unique,” it is not limited to traditional art forms and can include a “hybrid or fusion” art form from more than one culture or region. Citing 8 CFR §214.2(p)(3), the AAO noted that the regulations require a style of artistic expression, methodology or medium that is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons. The AAO explained that the phrase “group of persons” allows for flexibility that could include unique artistic expression that crosses regional, ethnic, or other boundaries. Therefore, the “culturally unique” standard was met even though the art form was a hybrid of Jewish folk music and Latin music.

This AAO precedent decision is important for performers applying for P-3 visas.  In our increasingly global and mobile society, we will see more artistic expression that crosses regional, ethic or other boundaries.  Every group, individual or immigration attorney applying for a P-3 visa, where the music could be considered ‘cross cultural,’ should make sure to read the Skirball case before submitting their petition.

Why Tech Needs Open Borders

April 28th, 2012
posted by at 7:31 pm
By Murali Bashyam

I recently read an article in Forbes where the author, Mr. Flip Filipowski, discussed immigration policy, the technology industry, and why it needs open borders.  We often write about smart immigration policy, and it doesn’t seem smart for the United States to restrict immigration of highly-skilled workers.

Mr. Filipowski, a technology-industry CEO himself, said the following:

At the other end of the spectrum, we have the technological and economic viability of the United States. Our prosperity is built on the renegade, risk-taking entrepreneurial concoction of truly American innovation and invention – in addition to the fact that a disproportionate number of companies are created by immigrants. In Silicon Valley alone, immigrant-founded startups make up a remarkable 52 percent of companies. Wave upon wave of immigrants bought into the American dream that anything was possible in the United Sates and anyone who put in the effort could succeed here. We were to own that one magical thought in perpetuity but instead we have exported it to the world not in a gesture of generosity but in the incompetence bred in fear of immigration. Perhaps even in the moronic fear of adding Democrats to the voting roles as these immigrants assimilate into our society. The real fear should be directed at the complacency that seems to permeate subsequent generations that believe entitlement comes with citizenship via birthright.

He is right!

I recently attended a Raleigh Chamber of Commerce meeting on immigration policy.

The CEO of SAS, Dr. Jim Goodnight, said at the Chamber meeting that finding talent with the right skill set in the U.S. is their biggest challenge.  Other CEOs at the meeting said the same thing.

Unfortunately, our education system is not graduating enough people with the skills necessary for today’s economy.  How could it?  Only two thirds of high school students graduate. Nearly 50% of college students drop out.

Filipowski continues:

As the land of opportunity drifts to other locations through our neglect and inept immigration policies even our own best talent will be at risk. Not infrequently do I hear the comment that “If I were just graduating I would seriously consider relocating to Beijing – Mumbai – Singapore – etc.” Let’s come to our senses and hang a welcome sign on the border:  Buy a house, start a business, become a citizen.

It is a myth that foreign workers take U.S. jobs.  Why would a U.S. company go through the expense, headache, and bureaucracy involved with hiring a foreign highly-skilled worker if the same worker can be found in the U.S.?

I agree with Mr. Filipowski.  Let’s make it easier for highly skilled workers to come to the U.S.  Let them buy a house, start a business, become a citizen, and contribute to our great country.

Tip of the Day: I-140 Premium Processing

November 15th, 2011
posted by at 12:19 pm

Q: Are there any reasons why my I-140 immigrant worker petition should not be premium processed?

For those of you who aren’t familiar with USCIS Premium Processing, this program provides a much faster processing time for certain types of employment-based petitions in exchange for an additional filing fee of $1,225. Under Premium Processing, USCIS guarantees that the petition is reviewed for adjudication within 15 calendar days. At some point within the 15 days, the petitioner will receive an approval, a denial, or a request for additional evidence. If not, the $1,225 is refunded.

Wouldn’t everyone want to premium process their case?

The answer is no.

There are a couple of reasons why premium processing might not be the best strategy for everyone.

First, if USCIS finds any issues with the petitioner’s case, there is a risk of receiving a more extensive Request for Evidence from the Premium Processing unit than the standard I-140 processing unit. It could be that the officers in the premium processing unit are under so much pressure to speed the adjudication process, that perhaps they do not always have time to review and consider all the evidence carefully within the 14 days allotted. In this case, wouldn’t it be faster and easier to send out an RFE that covers too many issues rather than spend the time to narrow it down to key issues?

Second, if the foreign national has children who might turn 21 before their green card cases are approved, premium processing may not be a good idea. The Child Status Protection Act (CSPA) protects many children from aging out of the green card process. However, part of the CSPA calculation depends upon the length of time the I-140 is pending. The longer it is pending, the more likely the child is protected. Ask your immigration attorney to analyze this issue BEFORE you file your I-140 under the Premium Processing program.

What is the Immigration Service Thinking?!

October 8th, 2011
posted by at 7:55 pm
In what falls into the “how does that make any sense” category, our office started receiving courtesy copies of USCIS immigration approval notices instead of the originals a few weeks ago.  Of course, this goes against long-standing USCIS policy, so we looked into it.
It seems USCIS changed their I-797 approval notice policy without prior notification!

USCIS has advised the American Immigration Lawyers Association (AILA) Liaison that the change in processing of I-797 approval notices and the mailing of “courtesy copy” notices to the attorney of record is the result of a planned change in the CLAIMS III management system. AILA Liaison has advised USCIS of the consequences of the processing change and has urged USCIS to return to the prior notification procedure immediately.

We think that this is a terrible policy change by USCIS.  By mailing original approval notices that contain important documents such as original I-94 cards to the petitioners, USCIS is further risking that these documents will get lost.  Just think about large employers who have mailrooms filled with mail getting original approval notices for their employees.

Will they get routed to the right person?

What if the employer changes office locations while the petition is pending?  The US Postal Service does not forward immigration mail, so what happens then?  Note this example:

Employer X files an H-1B transfer petition on October 1, 2011.  It remains pending for a few months, during which time the Employer X relocates its primary office.  The H-1B petition is approved on January 1, 2012. Under the old USCIS policy, the I-797 approval notice containing the important I-94 card for the employee would be sent to Employer X’s immigration attorney.  Under current USCIS policy, the I-797 approval notice is sent to Employer X’s old address, and since the Postal Service does not forward USCIS correspondence it is sent back to USCIS.  Without the I-94, how can Employer X complete an I-9 form for the new employee and allow him/her to work?

As you can see, this new USCIS is going to cause all kinds of problems.

Hopefully, USCIS will reverse course and start resending the courtesy copy to the petitioner and the original approval to the attorney-of-record, as it has done in the past.  In the meantime, petitioners should be on the lookout for the original approval notices and immediately notify the attorney-of-record when they receive these documents.

 

Changes in L-1A Visa Processing – The Semantics of Titles

May 24th, 2011
posted by at 7:17 pm

For well over a decade, managers and executives of foreign companies could enter the U.S. to work for or establish a parent, subsidiary or affiliate of that company in the United States.  In addition, it was irrelevant to visa processing whether the manager or executive also owned a part of the U.S. or foreign company.  That has since changed…

Owner vs. Employee

The U.S. visa category commonly used by managers and executives of multi-national companies is the L-1A intra-company transfer visa. The U.S. Citizenship and Immigration Service (USCIS) has recently changed its long-standing policy on the L-1A visa.  The new policy is that an owner of a company cannot also be an ‘employee,’ and therefore they are not eligible to receive an L-1A visa.  Simply, that in the L-1A visa category an employer-employee relationship must exist, and one test of that relationship is the ability of the employer to fire the employee.  The USCIS position is that an owner of a company cannot fire him or herself, and therefore no employer-employee relationship exists.

Real World Examples

If a senior level Vice President (VP) of a large company in the United Kingdom wants to come and work as a VP of the company’s US parent, subsidiary or affiliate, they no longer can use the L-1A visa if they own any percentage of either company.  Or, if an entrepreneur starts and grows a successful company in another country, they can no longer use the L-1A visa to come to the U.S. to establish a parent or subsidiary of that company if the entrepreneur owns any percentage of the foreign company.

Why is the USCIS Arbitrarily Changing this Policy Now?

Your guess is as good as ours!

Common sense would dictate that business immigration should be made easier during an economic downturn.  People should be encouraged to come to the U.S. and start businesses.  Creation of companies results in the creation of jobs.  Instead, the opposite is happening.  The USCIS is going against long-standing policy in many business immigration categories, and is making it more difficult for foreign business professionals and entrepreneurs to contribute to our country and our economy.

Regardless of whether it’s the best or worst of times, the U.S. should always have a welcoming immigration policy for foreign business professionals and entrepreneurs.  We have nothing to lose, but everything to gain from their contributions to our society and economy.

USCIS Approval/Denial Statistics for EB-1 Cases

April 25th, 2011
posted by at 12:13 pm

Our firm’s Senior Counsel, Ame Coats, was telling the office staff  about these EB-1 statistics, which were recently released by the USCIS.   Given that more immigrants are exploring the possibility of obtaining permanent residency through the EB-1 Outstanding Researcher or Extraordinary Ability categories, we thought you might find these statistics to be interesting.

Did you know?

  • That in 2005, USCIS approved 791 EB-1 Extraordinary Ability cases.
  • In 2005, nearly 1400 cases were filed in this category and the USCIS approval rate was 55%.
  • In 2010, close to 5400 cases were filed and the USCIS approval rate was 62%.

Did you know?

  • That in 2005, USCIS approved 5,042 EB-1 Outstanding Researcher/Professor cases.
  • In 2005, nearly 5400 cases were filed in this category  and the USCIS approval rate was 94%.
  • In 2010, close to 3500 cases were filed and the USCIS approval rate was 91%.

Did you know?

That our law firm’s success percentage in both EB-1 categories trumps all of these statistics?  As they say, numbers don’t lie!

If you think you might qualify as an EB-1 Outstanding Researcher or a person of Extraordinary Ability, contact us and we will evaluate your case.

Employer Fined for Violating H-1B LCA Posting Obligations

April 19th, 2011
posted by at 9:00 am

Late last year, a Newark, New Jersey based company was fined $638,449 in back wages and interest by the United States Department of Labor (DOL) for violating H-1B provisions of the Immigration and Nationality Act.   In addition, the company and its owner were fined $126,778 in civil penalties for failing to provide notice of the filing of labor condition applications (LCA) at each place where any H-1B worker was to be employed.

Nancy J. Leppink, deputy administrator of the DOL said the following:

“Peri Software not only took advantage of these workers by not properly compensating them, it also violated the part of the law that provides the greatest protection to the American workforce… When companies participating in the H-1B program do not post filed labor condition applications, they clearly undercut American workers who may be qualified for available employment but aren’t aware of it.”

Under law, an employer has to post a copy of the LCA it files on behalf of an H-1B worker at the worker’s place of employment for 10 consecutive business days.  Even though this requirement can be cumbersome for consulting companies where employees are constantly changing client locations, this case proves that employers must remain diligent about following these rules or face the possibility of severe DOL action.

Based on the economy and the general anti-immigrant climate facing the country right now, we expect these fines, audits, and civil/criminal actions against employers to increase in the coming years.

Compliance Assistance Available

If you are an employer who hires foreign H-1B professional workers and are unsure about the legal obligations you must follow, make sure to contact a qualified immigration attorney immediately or visit our website for a list of clear and easy-to-access information and assistance on how to comply with the Immigration and Nationality Act. Among the many resources available are:

Human Resource Professional Resources

Educational immigration-related Videos & Podcasts

Immigration Web Links

Immigration Options: Immigration Through Employment

More detailed information may also be obtained by contacting the Office of Foreign Labor Certification or the Wage and Hour Division directly (1-866-4USWAGE/1-866-487-9243). Information on how to submit a petition requesting an H-1B, H-1B1, or E-3 visa may be obtained from USCIS.

Bashyam Shah 15th Anniversary Memory #2: PAM – Remembering 9/11

November 19th, 2010
posted by at 8:00 am

By Pam Prather, Senior Paralegal & Client Relations Manager

I’ve been part of Bashyam Shah for 10 years now.  It’s impossible to write about all the memories I have of these people and our firm, because this has been such an integral part of my life.  There are a few times that stand out, though, like 9/11/2001.  I think everyone will remember where they were when those seminal events unfolded.  It was at the beginning of my work day, and  I was standing in Murali’s office, talking with him, when Rob Spiro ran down the hall with the news that a plane had hit the World Trade Center.

Do you remember what you were doing at that same moment?

We first thought it was probably an accident, or at least an isolated event. It wasn’t until the second plane hit about 15 minutes later that it started to sink in what was happening.  It was so shocking – so outside our experience – that we didn’t know what to do.  We couldn’t work, but we didn’t want to go home.  We were terrified and appalled, but we could not turn away from the tv and radio.   As news of the Pentagon hit was breaking, Rob and I rushed to the phones to call family and friends we had in the DC area.  The day passed in somewhat of a fog.  We all gathered in the break room to listen to updates together.  We simply could not concentrate on work, but it didn’t matter because no one was calling.  I suppose business phones everywhere were eerily silent.  We sat, watched tv, tried to come to terms with the dawning of a new – and dangerous – era.  We threw darts for a little while, just to have something to do with our hands as those tragic images came across the airwaves.  Someone ran across the street to get some sandwiches. And the day finally passed.

Of course most of my memories of Bashyam Shah are funny, touching, proud, exciting, silly, warm, nostalgic – anything but sad.  I’m so lucky to have a decade of good memories here to help balance out the one tragic.  So, this firm and these people – like 9/11 – are indelibly etched on my mind because they are part of my history.  And, good or bad, happy or sad, our history makes us who we are.

Reflecting on Women’s Most Valued Right: Election Day 2010

November 2nd, 2010
posted by at 12:19 am

“Men, their rights, and nothing more; women, their rights, and nothing less.” – Susan B. Anthony

A few weeks ago, my mother called to tell me all about what she learned during a visit to the Women’s Suffrage Museum in Lorton, Virginia. She was showing some out of town guests around the Woodbridge, Virginia area and they stumbled upon what is known as the Workhouse Museum. It is open at the Lorton Arts Foundation space.

She said that the “tour guide” was an elderly woman who told her the story behind how the American woman suffrage movement came to be what was then called the “Occoquan Workhouse.”

This prompted me to “google” the location and I learned that in 1917, a group of women, termed “suffragists,” were imprisoned at the workhouse for demanding the right to vote. Feminist Sonia Pressman Fuentes documents this history in her article on Alice Paul. She includes this re-telling of the story of Occoquan Workhouse’s “Night of Terror,” November 15, 1917

90th Anniversary of Women’s Right to Vote

This year marks the 90th anniversary of a woman’s most valued right, the right to vote. The Nineteenth Amendment, giving women the right to vote, passed on August 26, 1920, but the road to the Occoquan Workhouse had started in 1848 at the Seneca Falls Women’s Rights Convention in New York.  There groups of brave women joined forces to write and sign the Declaration of Sentiments and Resolutions, which outlined the issues and goals of the budding Women’s rights movement.

I have always understood the importance of public service, political leadership and civic duty. It wasn’t anything that I was taught growing up. Somehow, I just “knew.”

It’s why I’ve always maintained strong involvement in political and civic organizations and probably why I built a career in media as well as government, so that I wouldn’t miss anything.

Sometimes it’s easy to forget, however, that the fundamental principles of American democracy weren’t always around and available to everyone. Hearing these stories reminds us of the struggles and the sacrifices that others made so that U.S. citizens, women and men, of all races and cultural backgrounds could exercise their authority directly through voting and indirectly through their elected officials.

Women with more to lose than any of us could ever imagine, fought and struggled for equal rights and the opportunity for a vote in our democracy.

Right and Responsibility to Vote

Today, there are more women registered to vote than men. But according to the Washington Post, only 17 percent of members of Congress are women, and women make up just 24 percent of state lawmakers. Being registered alone doesn’t cut it. Women and other minority groups need to participate in all parts of the public and political spectrum if we are going to see those stats change. If we want our political representatives to mirror us, our values and our needs, we should encourage our community to vote, we need to be represented at the polls, we should run for office and support other women in office.

On the eve of election day 2010, reflecting on how far society has come as a result of the Women’s Suffrage Movement and exercising our right to vote,  are the only ways that we can truly thank those who fought so hard to give us a choice.

Alice Paul, celebrating ratification of the 19th Amendment and Women's Right to Vote