Description H-1B Season is Upon Us . . . Will This Year’s Economy Bring a Lottery? Probably not, but planning for the H-1B is key to being able to continue your work authorized status in the U.S.

It is that time of year again! We always hear the accountants moan and groan about the approaching April 15th deadline each year but, you have to listen a bit more closely and you will hear (and see) the U.S. business immigration lawyers and attorneys manifesting their distaste for the April 1st filing date for “cap” subject H-1B professional and specialty occupation workers.

Well, here we go again . . .

On April 1st, 2012 marks the first day when prospective H-1B petitioning employers and prospective H-1B employees will be able to apply to the U.S. Department of Labor (”DOL”) for and Labor Condition Application (”LCA”) and Petition to the U.S. Citizenship and Immigration Services (”CIS”) for H-1B visa petitions for employment in the fiscal 2012-2013 year (”FY 2013″). Our advice to our H-1B employer clients continues to be that they need to think about filing H-1B petitions on (or very close to) April 1st for new and existing employees who will be eligible for a first-time H-1B visa to begin their employment on or after October 1st, 2012.

Each Fiscal Year, Congress has mandated an annual cap of 65,000 H-1B visas for “professional and specialty occupation workers” who possess the equivalence of a U.S. Bachelor’s Degree. There are also an additional 20,000 H-1B visas available for individuals who possess the equivalence of a U.S. Master’s Degree or other advanced degrees from U.S. Colleges or Universities. It continues to be the case that H-1B visa petitions filed on behalf of current workers who have been counted previously against the H-1B visa cap are not included in the annual cap established by Congress. Additionally, pursuant to the Chile and Singapore Free Trade Agreement, 6,800 H-1B visas are available exclusively to Chile and Singapore Nationals. This reduces the total allotment of H-1B visas available each fiscal year to 58,200.

For many years, our office assisted students who had to deal with the “cap-gap” issue. We also assist employers with E-Verify applications so that they can offer international students the 17 month STEM extensions.

In 2008 there was a regulation that gave some assistance to international students in the U.S. who applied for H-1B in their OPT period. In 2008, a regulation was promulgated that provided “cap-gap” relief for F-1 students with pending H-1B petitions. For example, F-1 student visa holders who received work authorization in Optional Practical Training (OPT) were permitted to extend the authorized period of stay and work authorization as long as they have received approved H-1B visas prior to the expiration of the OPT. Also, many Science, Technology, Engineering and Mathematics (”STEM”) students continue to use the 19 month extension as a way to have the time they need to petition in the appropriate H-1B cycle. However, to get the STEM extensions, the employer needs to be enrolled in E-Verify.

For the last three (3) fiscal years, the H-1B allotment actually lasted for almost eight to nine months. This past year, the H-1B allocation lasted until November. However, in previous years, the H-1B allotment was actually exhausted within three (3) days of the H-1B visas becoming available. This required the CIS to conduct a “lottery” and only one of three visas submitted was accepted for processing by the CIS. The demand for H-1B visas this fiscal year may be greater than it was for last year. We keep hearing that “economic recovery” is on the way. For this reason, we continue to advise our H-1B employers to consider filing on April 1st, or as soon thereafter as possible.

Employers Feel the VIBE . . . Look Out For A New Validation Instrument for Business Enterprises (”VIBE”).

CIS announced in its several recent stakeholders meetings that it will continue to use a new web-based tool called the Validation Instrument for Business Enterprises (”VIBE”). The VIBE program is purportedly designed to enhance the speed and accuracy for the adjudication of certain employment-based immigrant and nonimmigrant petitions. The VIBE Program uses public information and previously accumulated data by third party provides to validate data about the organizations that file petitions for the temporary and permanent employment of foreign national workers in the U.S.

The VIBE Program allows CIS to electronically “ping” databases. One such database is Dun & Bradstreet (”D&B”). The D&B database contains information about the petitioner organization including, but not limited to:

1. Business activities, such as type of business (North American Industry Classification System code), trade payment information and status (active or inactive);

2. Financial standing including sales volume and credit standing;

3. Number of employees including onsite and globally;

4. Relationships with other entities including foreign affiliates;

5. Status, for example, whether it is a single entity, branch, subsidiary or headquarters;

6. Ownership and legal status, such as LLC, partnership or corporation;

7. Company executives;

8. Date of establishment as a business entity; and

9. Current physical address.

The idea is that a CIS adjudicator will consider the information submitted by the H-1B petitioner and also compare that information to the information that they glean from VIBE. Since the VIBE database is not fully populated it is likely that H-1B petitions will continue to be met with requests for evidence (”RFEs”), when the H-1B petitions are submitted to the CIS. The receipt by an employer of an RFE is likely to cause delays in processing of the H-1B (even when the cases are submitted with premium processing requests.

As an aside, the CIS also announced that they are working on an electronic registration for H-1B employers to attempt to more streamline the process and to avoid the “run on cap-subject H-1Bs” that has occurred in prior years. The CIS announced a proposed rule that would establish a system which will allow an H-1B employer to submit an electronic registration prior to the submission of the H-1B. The idea is behind the registration is that before April 1st, the CIS will be able to predict how many visas are being demanded by cap subject H-1B employers/employees. The implementation of this system is still in its genesis

Other changes in the H-1B arena that employers need to know include: (1) that CIS announced a review of its policy on H-1B cap exemptions for nonprofit entities that are related to or affiliated with an institution of higher education (examples include teaching hospitals that are affiliated with medical schools or organizations affiliated with nonprofit colleges or universities; and (2) that U.S. employers seeking to sponsor foreign nationals on H-1B, H-1B1 (Chile/Singapore), L-1 and O-1A visas must certify to compliance with Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR).

For any additional information about the 2012-2013 “H-1B season”, please feel free to contact our offices at [email removed]

The Nachman Phulwani Zimovcak Law Group P.C. is ready to assist you with any and all of your immigration law needs in the U.S.

Please feel free to contact our offices at 201-670-0006 (x100) for David Nachman, Esq., (x124) for Michael Phulwani, Esq., and (x105) for Ludka Zimovcak, Esq.

We also have Canadian Lawyers on our staff to assist you with transfers to Canada and we have an affiliated office in Mumbai, India.

Read more: http://newyork.ebayclassifieds.com/legal-lawyer/new-york/u-s-immigration-law-h-1b-season-is-upon-us-beware-the-cap-gap/?ad=16799191#ixzz1lWYgIRHI

THE NEW FACE OF FDNS: Social Networking Sites and Their Importance to FDNS.

A CIS internal memorandum has been circulating which instructs DHS Fraud Detection officers on how to use Facebook, MySpace and similar internet sites to detect fraud in immigration cases. While most people are aware that this has probably been going on for some time now, it is now officially in writing and there can be no doubt about the importance of monitoring what is posted on the internet (either by you or by someone else).

The memorandum is vague in terms of how CIS examiners are to find information, or how they will disclose (if at all) that they have found grounds to deny an application for an immigration benefit. Basically this will give the CIS an ability to perform an “unannounced cyber visit” to any petitioner or beneficiary’s web page with the hope of detecting fraud.

Read the the full text of the memorandum at:

http://www.eff.org/files/filenode/social_network/DHS_CustomsImmigration_SocialNetworking.pdf

Contact Us – Nachman & Associates, P.C. – Global Business Immigration Lawyers.

Our staff of immigration law professionals are sensitive to the needs of our clients and the members of their families. Many members of our staff are themselves foreign born and have family and/or friends who have gone through the immigration process. As a result, our staff of business immigration law professionals have a personal and unique approach to processing visas and for dealing with our foreign national clientele. Our legal team can clearly explain how to process temporary and permanent work permits in the U.S. The PERM Labor Certification Process is time-consuming and complex and our staff of business immigration law professionals can clearly explain the process in Spanish, French, Japanese, Korean, Tamil, Hindi, Slovak, Czech, Russian, Chinese, German and English.
To schedule a consultation, please feel free to contact us at info@visaserve.com or you can call us at 201-670-0006 (x100) or Toll Free at 1-866-599-3625.

USCIS To Issue Redesigned Green Card – Questions and Answers

Introduction

U.S. Citizenship and Immigration Services (USCIS) announced today that it has redesigned the Permanent Resident Card—commonly known as the “Green Card”—to incorporate several major new security features. Beginning today, USCIS will issue all Green Cards in the new, more secure format.

Questions and Answers

Q. What is a Permanent Resident Card, or “Green Card”?
A. A Green Card is proof of authorization to live and work in the United States on a permanent basis. It also is evidence of registration in accordance with U.S. immigration laws. Newly issued Green Cards are valid for ten years for lawful permanent residents and two years for conditional residents. The permanent resident must renew his or her card each time it expires.

Q. Why did USCIS redesign the Green Card?

A. The Green Card redesign is the latest advance in USCIS’s ongoing efforts to deter immigration fraud. State-of-the-art technology prevents counterfeiting, obstructs tampering, and facilitates quick and accurate authentication of the card. The enhanced features will better serve law enforcement, employers, and immigrants, all of whom look to the Green Card as definitive proof of authorization to live and work in the United States.

Q. What major improvements has USCIS included in the redesigned Green Card?

A. Secure optical media store biometrics for rapid and reliable identification of the card holder. Holographic images, laser engraved fingerprints, and high resolution micro-images make the card nearly impossible to reproduce. Tighter integration of the card design with personalized elements makes it difficult to alter the card if stolen. Radio Frequency Identification (RFID) capability allows Customs and Border Protection officers at ports of entry to read the card from a distance and compare it immediately to file data. Finally, a preprinted return address enables the quick and easy return of a lost card to USCIS.

Q. Is the Permanent Resident Card actually green, as its nickname suggests?

A. After the redesign, the card is now colored green.

Q. Who will receive the redesigned Green Card?

A. Beginning May 11, 2010, USCIS will issue all Green Cards in the new, more secure format. Recipients of the redesigned card will include those newly approved for lawful permanent residency, as well as those who have sought a renewal or replacement card.

Q. What happens to existing Green Cards with the old design?

A. Some existing Green Cards bear an expiration date, and those cards will remain valid until they expire. Holders of those cards will receive the redesigned version when seeking a renewal or replacement.

Other existing Green Cards have no expiration date, and those cards remain valid. USCIS recommends that holders of cards without an expiration date apply to replace their cards with the redesigned version.

The current cost of renewing or replacing a Green Card is $370. Additionally, eligible permanent residents may choose to explore becoming a naturalized U.S. citizen. For more information on eligibility for naturalization, go to www.uscis.gov/citizenship.

Q. How does a lawful permanent resident replace a Green Card, if lost or damaged?

A. A lawful permanent resident may seek a replacement card by filing a Form I-90, Application to Replace Permanent Resident Card. The Form I-90 and instructions are available online at http://www.uscis.gov/forms. If outside the United States, a lawful permanent resident should contact the nearest U.S. consulate, USCIS office, or U.S. port of entry before attempting to file a Form I-90.

Last updated:05/11/2010

Naturalization: Are You Eligible and Should You Apply?

Presented by: Victoria Donoghue, Esq.

Rights of Citizenship

• Ability to petition for the permanent residence of parents, children and spouse with no backlog
• Ability to bestow USC on child born abroad
• USC cannot be placed in removal proceedings
• Right to vote, hold office, and serve on juries
• Right to live abroad indefinitely

Liabilities of Citizenship

• May lose citizenship in native country
• Could highlight a ground for removal
• May lose property owned in home country

Eligibility for NATZ by Application

• Must be LPR
• Must be at least 18 years old
• Must be a resident continuously for 5 years subsequent
to LPR status (3 years if married to USC)
• Must have resided for at least 3 months in the state in which the petition is filed
• Must be physically present in the US for at least ½ of the 5 yrs
• Must reside continuously within the US from the date the application is filed up to the time of admission to CITZ
• Must not be absent from the US for a continuous period of more than one year during the period for which continuous residence is required
• Must be a person of good moral character for 5 yrs
prior to filing
• Must be attached to the principles of the US Constitution
• Must be willing to bear arms for the US
• Must not be otherwise barred (subversive, communist, etc)
• Must be able to satisfy the Civics and English language requirement

Continuity of Residence

• An absence of < 6 months does not break the alien’s continuity of residence for NATZ purposes
• An absence of 6 months or more but < 1 year breaks the continuity of the alien’s residence for NATZ purposes absent a reasonable explanation (like an oversees assignment with a US employer)
• An absence of 1 yr or more automatically breaks the continuity of the alien’s residence for NATZ purposes, unless the alien takes steps prior to the expiration of the yr to preserve the continuity of residence
Avoiding a break in the continuity of residence
• The result of a break in the continuity of the alien’s residence is that the alien must start all over again to accumulate the 5 yrs upon returning to the US
• Ways to avoid a break:
– Return to the US every 6 months or every yr if there is a reasonable explanation for the absence
– Apply for extended absence benefits (N-470) to preserve continuity of residence. Note: Unless the alien is a government employee, he still must be actually physically present in the US for at least ½ of the 5 year period

N-470 Eligibility Requirements

• Alien must be physically present and residing in the US as a LPR for an uninterrupted period of one yr prior to the absence
• Must be employed abroad by the US gov’t, a US research institute, a US corporation or mjty owned subsidiary, or an international organization
• Must request extended absence benefits before the alien has been absent from the US for one year
• The absence must be in furtherance of overseas employment

Reentry Permit

• Alien can also request an I-131 request for a reentry permit along with the N-470
• The purpose of the reentry permit is to maintain lawful permanent residence status. If the client wants to make sure to maintain continuous residence for NATZ purposes, he/she must also file an N-470.

Good Moral Character (GMC)

• An individual must be of good moral character for the requisite 5 yrs (or 3 yrs if married to a USC) prior to filing a NATZ application and up to the time of admission as a USC. This is called the “statutory period.”

People who are NOT of GMC

• Habitual drunkards
• Certain individuals are inadmissible under 212(a)(2)
• One who’s income is derived principally from gambling
• One who has given false testimony to obtain a benefit under the INA
• One who is convicted of an aggravated felony
• One who has committed genocide or torture
• One who has been imprisoned (after a conviction) during the “statutory period” for an aggregated period of 180 days or more
• One who has voted unlawfully or made a false claim to USC

Grounds of Inadmissibility Under INA § 212 (a)(2)

• Conviction or admission to the essential elements of crimes of moral turpitude (CIMT)
• Conviction or admission to the essential elements of controlled substance violations
• Multiple criminal violations
• Trafficking in controlled substance
• Prostitution and commercialized vice
• Smugglers of aliens
• Practicing polygamists

THESE ARE ALSO GROUNDS OF REMOVAL!

What is a CIMT?

• Not defined in the act- no exhaustive list
• Conduct which is inherently base, vile, depraved or contrary to accepted rules of morality
• Felonies and Misdemeanor
• Criminal statute must be examined

Exceptions to CIMT

• Petty Offense
• Juvenile Offenders
• Purely Political Crimes

Nonstatutory/Discretionary GMC Grounds

• Nonsupport of dependents
• Homosexuality- But cannot be only basis for
baring NATZ
• Adultery tending to destroy an existing marriage
• Knowing & willful failure to register with selective service between 18-26 within statutory period
• Drunk driving
• Other bad acts showing poor moral character

Civics & English Language Requirement

• NATZ applicant must demonstrate:
– An elementary level reading, writing and understanding of English
– A knowledge and understanding of the fundamentals of US history & government

Proof of Civics & English Knowledge

• All NATZ applicants must pass an examination. At the examination, the CIS examiner will do 3 things:
– Go over the NATZ application in detail, questioning about any problems such as an arrest
– Gauge the alien’s ability to understand and respond to questions (alien will be asked to write a sentence).
– Test the alien’s knowledge of US gov’t & history through the use of standard questions on the subject
• If the alien does not pass, a second examination will be scheduled within 90 days

Exceptions to English Language Requirement

• Persons over 50 and living in the US for 20 yrs subsequent to becoming a LPR
• Persons over 55 and living in the US for 15 years subsequent to becoming a LPR
• Special consideration in determining the knowledge requirements to persons over 65 with 20 yrs as a LPR (a test of 10 questions in the person’s native language where only 6 need to be correct)
• Physically/developmentally disabled or mentally impaired including:
• Individuals with Alzheimers, Parkenson’s Disease, senile dementia or a related disability

Disability Waivers

• Must establish a physical or developmental disability or mental impairment
• A medical doctor, osteopath, or clinical psychologist “experienced in diagnosing” these disabilities must complete an N-648 to be filed with NATZ application
• Even with a disability waiver the applicant still must meet the moral character, residence, and other NATZ requirements
• However, the oath can be waived if the person is unable to understand or communicate the meaning of it.

Designated Representative

• A representative of a person who is developmentally or physically disabled or suffering from mental impairment can complete the N-400 exam (including the oath) by attesting orally and submitting documentation that the applicant qualifies for NATZ
• Representative may be a legal guardian, surrogate, USC spouse, parent or adult sibling
• An MD, osteopathic doctor, or clinical psychologist must provide an evaluation attesting to the impairment and the ability to take the oath

Redesigned NATZ Exam

• In the past, the NATZ testing process and test content varied in each USCIS district office
• CIS revised the process to ensure uniformity
• CIS began administering the new test in October 2008
• Applicants will still have 3 chances to read & write a sentence. However, the study material will include a civics-based vocabulary list
• Sentences will focus on civics and history instead of broad range of subjects
• Civics questions will be drawn from a new list of questions

Adjudications of N-648

• CIS will look for:
– A complete description of the medical diagnosis
– An explanation of how the disability affects the applicant and prevents him from learning or demonstrating knowledge of English/Civics
– The MD’s conclusion with a focus on the nexus between the disability and the applicant’s ability to learn or demonstrate knowledge of English/Civics
– CIS may request documentation if the interview raises questions about the extent of the disability

CIS MAY NOT SECOND GUESS THE MD

Reasonable Accommodations

• Section 504 of the Rehabilitation Act of 1973 requires the CIS make reasonable accommodations/modifications to make it possible for NATZ applicants to get through the process
• This is the case regardless of whether the applicant has applied for a disability waiver
• Section 504 of the Rehabilitation Act of 1973 requires the CIS make reasonable accommodations/modifications to make it possible for NATZ applicants to get through the process
• This is the case regardless of whether the applicant has applied for a disability waiver

GMC Review

• An individual must be of good moral character for the requisite 5 yrs (or 3 yrs if married to a USC) prior to filing a NATZ application and up to the time of admission as a USC. This is called the “statutory period.”
• However, some criminal activity serves as an absolute bar to NATZ even if in occurred before the statutory period.

Absolute Bars to NATZ

• Aggravated felony convictions that occurred after 11/29/1990 render the person ineligible to establish GMC even when the conviction was before the statutory period
• Convictions for murder, even before 11/29/1990, render the person permanently ineligible to establish GMC

THESE ARE ALSO GROUNDS FOR REMOVAL

Definition of Aggravated Felony

• Murder, rape, or sexual abuse of a minor
• Trafficking in a controlled substance
• Trafficking in firearms or explosive material
• Money laundering
• Crimes of violence w/ an imprisonment term of > 1 yr
• A theft offense w/ an imprisonment term of > 1 yr
• Crimes related to prostitution & child pornography
• Offenses related to national security
• Fraud offenses
• Offenses related to bribery, counterfeiting or forgery
• Perjury

Deportation

• If an individual with a conviction applies for naturalization, and he or she is removable under §237(a) on the basis of that conviction, the NATZ unit may (and usually will) issue a Notice to Appear (NTA), commencing removal proceedings against the individual

ALWAYS MAKE SURE THAT A CLIENT HAS NOT COMMITTED A CRIME SUBJECTING HIM/HER TO DEPORTATION BEFORE FILING A NATZ PETITION

Exceptions to the Normal NATZ

Requirements

• Veterans/Military Service during hostilities
– If a person served in US Armed Forces during hostilities and continues to be in Armed Forces or was honorable discharged- he/she need not be a LPR to naturalize.
– Physical presence and residency requirements inapplicable
– 9/11/2001 to present is a period of hostilities for NATZ purposes
• Veterans/Military Service (not during hostilities)
– If a person served in the Armed Forces for a period aggregating one year (and separated honorably) and if NATZ application is filed during the service or within 6 months after separation, physical presence & residency requirements are inapplicable. No need to be a LPR.
– If person files after 6 months, he/she must be LPR
to naturalize
• Spouses of USC’s- eligible for NATZ 3 yrs after obtaining LPR status (instead of 5)
• Spouses (in LPR status) of USC’s who are assigned abroad by their qualifying US employer (next slide)
are exempt from continuous residence and physical presence requirements. They are permitted to naturalize prior to accompanying their USC spouses abroad
• Must be physically present in US at time of naturalization
• The USC spouse assigned abroad MUST be working for:
– The US government
– An American Research Institute
– A US firm engaged in the development of foreign trade or commerce
– A public international organization that the US is a member of
• Battered Spouses- a victim of domestic abuse perpetrated by a USC spouse is eligible for NATZ after he/she has resided continuously in the US for a period of at least 3 years
• No requirement that the abused spouse be living with the abuser in marital union
• Must have obtained LPR status based on a battered spouse filing, or through AOS or cancellation of removal
• Abusive spouse need not be alive at the time of filing a NATZ petition

Questions?

Please feel free to contact our office if you still have questions:

Victoria_donoghue@visaserve.com
201-670-0006 ext. 101

http://www.visaserve.com

Thank you.