What Does Obama’s New Executive Order Mean to Me?

In November 2014, President Barack Obama established a new executive order that addressed border security and illegal immigration. By statistical estimates, the new executive order would provide for some distinct benefits to about 5 million immigrants who were already in the country.

Immigration Priorities

Due to limited resources to remove all illegal immigrants from the country, the Department of Homeland Security was given three different priority groups to focus on while having the discretion not to pursue individuals who were in the country illegally but posed no real threat to security or the immigration system.

Priority One

The highest priority is on individuals who pose a threat to national security, border security or public safety. These are characterized as individuals who engage in terrorism, individuals who are apprehended at ports of entry while attempting to illegally enter the United States, individuals who participate in gang activity and individuals who are convicted of a felony or aggravated felony.

Priority Two

The second priority is to remove individuals who have been convicted of three or more misdemeanors other than minor traffic offenses, individuals who are convicted of domestic violence, sexual abuse, burglary, sexual exploitation, unlawful possession of a firearm, driving under the influence, drug charges or other crimes that result in more than 90 days jail time, individuals who have abused the visa program or individuals who are apprehended after illegal entry who cannot show that they have continuously resided in the United States since January 1, 2014.

Priority Three

This priority encompasses individuals who have committed immigration violations and who have been ordered remove on or after January 1, 2014.

New Initiative

President Obama’s executive order emphasizes the importance of apprehending criminals and not punishing individuals who have been in the country for a substantial period of time who help care for their family. It also allows undocumented immigrants to pay taxes and stay in the United States temporarily without being in fear of removal. Individuals who take advantage of the new initiative may be eligible for a variety of benefits.

Social Security Number

Individuals who affirmatively apply for deferred action under the new executive actions will receive a new Social Security number. Immigrants can use this number for identifying purposes. They can also use their Social Security number to assist them in getting a driver’s license.

Work Authorization

One of the most significant benefits that qualified applicants can receive is the legal right to work while in the United States. Individuals who are eligible for Deferred Action for Childhood Arrivals can now receive work authorization for a minimum of three years instead of two. There is also a new program entitled “Deferred Action for Parental Accountability” that allows parents to receive work authorization for a minimum of three years.

Subject of Provisional Waivers

Provisional waivers are used to allow individuals who would otherwise not be able to pursue legal status to be allowed to apply for immigration benefits. New executive actions now allow spouses and children of United States citizens and permanent residents to be used for the purpose of obtaining an unlawful presence waiver.

Federal Benefits

After individuals pay into the system for a certain number of years, they are eligible for certain federal benefits. By paying payroll taxes, these individuals may be able to receive Social Security and Medicare benefits. Additionally, immigrants would be eligible for survivor benefits if the decedent had worked for at least ten years. Current laws require individuals to work for at least ten years before they can receive these benefits. In order for individuals impacted by the executive order to become eligible for federal benefits, Congress or future executive orders would need to be extended for this to occur. However, income-based aid, such as food stamps or welfare would not be available for these applicants. Additionally, current laws do not allow for these individuals to purchase healthcare through a federal exchange or take advantage of tax credits that would make health insurance more affordable.

Applying for Benefits

At the time of publication, USCIS had not yet established a procedure for individuals to apply for these benefits. However, they were in the process of developing necessary forms and procedures. However, eligible individuals can begin gathering documentation that they will likely need in order to be approved, such as documents that show their identity, establish their relationship to a United States citizen or permanent resident and demonstrate their continuous residence in the United States for five years or more.

 

If you are a loved one need to speak with an attorney, Call William G. Meyer Today at 419-246-5722

What Is Deferred Action?

Deferred action is the exercise of prosecutorial discretion for certain law enforcement agencies and governmental entities, including Immigration and Customs Enforcement and United States Citizenship and Immigration Services. There are several reasons why deferred action may be exercised.

Deferred Action Overview

There is not technically a statute that provides for deferred action of immigration cases. However, there is a policy basis for deferred action, based on the lack of resources for the government to pursue removal of every illegal immigrant. Typically, deferred action provides a formal determination of a governmental agency not to pursue removal of an individual who is unlawfully in the United States for a particular period of time.

Reasons for Deferred Action

Deferred Action may be exercised due to humanitarian concerns, such as when foreign students who were impacted by Hurricane Katrina were provided with deferred action or after Haitians came to the United States after a major earthquake in 2010. It also is used for law enforcement purposes. It is considered a convenient tool for the government and is not an immigration benefit or a method of providing status for immigrants.

Benefits of Deferred Action

Individuals who are approved for deferred action can receive work authorization. This allows immigrants to work in the United States legally while the work authorization is valid.

Deferred Action for Childhood Arrivals

After the so-called DREAM Act failed to pass multiple times, the Secretary of Homeland Security announced on June 15, 2012 that certain individuals who came into the United States when they were children and who met other guidelines could request deferred action for childhood arrival. The period of applicability would be for two years and could be renewed. However, President Barack Obama announced on November 20, 2014 that this period would be expanded from two years to three years. Other eligibility guidelines for Deferred Action for Childhood Arrivals are that the applicant was 31 or younger on June 15, 2012, came to the United States before he or she was 16 years old, continuously resided in the United States for five years prior to the 2012 announcement and after, was in the United States on June 15, 2012 and had no other lawful status as of that date. Additionally, the individual must have been in school, graduated from high school or been in a general education development program. Individuals who had been convicted of a felony, had been convicted of a significant misdemeanor or who had three or more misdemeanor convictions are ineligible. There are other rules pertaining to individuals who are part of the armed forces. On November 20, 2014, President Barack Obama announced an executive order that would provide eligibility for even more individuals, such as by removing the age limit announced in 2012, as well as updating the time frame for continuous residence beginning in 2010 instead of 2007.

Deferred Action for Parents of Americans and Lawful Permanent Residents

This new program was also announced by President Barack Obama on November 20, 2014. This program is designed to assist the parents of American citizens and lawful permanent residents who have been in the country since January 1, 2010. This new program would also allow for a three-year period of deferred action, provided that applicants successfully pass required background checks. To be eligible, the individual must have a child who is an American citizen or lawful permanent resident by the date of the announcement. Again, the program does not provide a direct immigration benefit. Each case is determined on a case-by-case basis. It is supported by the belief that these individuals do not represent a high priority for removal. At the time of publication, there was not a formal process to apply for this program and forms had not been drafted for this program. However, USCIS estimated that such a process would be put in place within 180 days of the president’s announcement. However, eligible individuals are encouraged to begin gathering documents that they would likely need to apply, such as documents that demonstrate their identity, their relationship to a permanent resident or American citizen and their continual residence in the country for the time proscribed by the executive order. There was not a deadline that was put in place for the program at the time that the announcement was made.

If you are a loved one need to speak with an attorney, Call William G. Meyer Today at 419-246-5722

Requirements for Naturalization

Becoming a naturalized citizen can be a challenging process but if you meet any or all of the below guidelines the process can become much simpler. We have detailed what to consider when trying to obtain your naturalized citizen when the time comes.

 

Requirements for Naturalization

There are exceptions and waivers that a person may be eligible for, but the main requirements include the following: 1) Good Moral Character, 2) 18 years old or older, 3) Permanent Resident for 3 or 5 years (discussed below), 4) Physical Presence, 5) Continuous Residence, 6) English and Civics, 7) Reside in the District of filing.

Good Moral Character

The law really does not define what is “good moral character” but does define what is NOT “good moral character”. It includes people who are habitual drunkards, those jailed for 180 days or more and aggravated felons. Note that “good moral character” is required during the proper time period. In other words, the standard applicant needs to be a Permanent Resident for 5 years. So, the INS/DHS looks back only 5 years to determine good moral character. However, serious crimes have no time limit. For example, if you murdered someone 10 years ago, you will never meet the good moral character requirement. If you have a criminal issue in your past, and wish to file for naturalization, you should definitely consult an attorney.

Permanent Resident

In order to meet the requirement for Naturalization, a person must be a Permanent Resident for 5 years, unless you are married to a U.S. Citizen for more than 3 years (your spouse has to be a Citizen for at least 3 years), and then it is 3 years. This date is calculated from the date on your green card.

Physical Presence

Physical Presence means that you have actually been in the U.S. Most applicants must be “physically present” in the U.S. for at least half of the total required period. So, if you are not married to a U.S. Citizen, and need 5 years of permanent residence, then you need to be in the U.S. for at least 2 ½ years. If you only need 3 years of permanent residence, then you need to be in the U.S. for 1 ½ years. There are some exceptions to this requirement for Religious missionaries or U.S. Armed forces.

Continuous Residence

Continuous Residence means that you have not left the U.S. for a long period of time during one trip. For most applicants (not married to a U.S. citizen), you need 5years of continuous residence. If you are outside of the U.S. for more than 1 year, your continuous residence is interrupted. There are, of course, exceptions to this.

When to File for Naturalization

By law, you can apply no more than 90 days before your Permanent Residence requirements are met. Thus, if you are required to have 5 years of permanent residency, you can file after 4 years and 9 months.

English Requirement Exceptions and Retakes

There are 4 main exceptions: 1) age 50 or over and a Permanent Resident for at least 20 years-take test in language of your choice, 2) age 55 or over and a Permanent Resident for at least 15 years-take test in language of your choice, 3) age 65 or older and Permanent Resident of at least 20 years-get an easier test in language of your choice, 4) have a physical or developmental disability or mental impairment-need a doctor’s letter and need to file a separate form.

If you fail the English exam, you are usually given a second chance to pass the test within 90 days after the first exam.

Naturalization of Children

The Child Citizenship Act (CCA) says that if one parent is a U.S. citizen by birth or naturalization, and the child is under 18, is a Permanent Resident, and is in the U.S. with the parent, they automatically become a citizen. Note: this law only applies if you met these requirements after February 27, 2001. Thus, if the child turned 18 before that date, this law does not apply. While the child becomes a citizen automatically, you get no proof of this unless you file for the appropriate paperwork. This law is somewhat complicated, so it is best to talk to an Attorney.

Unnecessary Delayed and Denied Application

Qualified attorneys can file what is called a “Writ of Mandamus” forcing the INS/DHS to complete the processing of naturalization if they have unnecessary delayed its processing.

If your application has been denied, you can appeal the decision within a certain period of time or you can re-file.

Citizenship Oath and Dual Citizenship

Once the interview is over, an appointment will be set up to take the oath for citizenship. Due to security checks by the FBI, this time can vary from 1 month to 1 year. It now affects many cases regardless of whether the applicant is a male or female or their country of origin.

Once the oath is taken to become a U.S. citizen, you may still be able to keep your original citizenship, creating a dual citizenship. Dual citizenship is when a person is concurrently regarded as a citizen of more than one country. The U.S. allows dual citizenship, but each country has its own rule on this.

 

If you are a loved one need to speak with an attorney, Call William G. Meyer Today at 419-246-5722

Who Can Apply for U.S. Citizenship

U.S. citizenship gives a person as many rights as the U.S. has to offer; for example, the right to vote, petition for family members to immigrate, and live abroad without losing the right to return. For these reasons, citizenship is not easily obtained.

To become a U.S. citizen through the process known as naturalization, you must first have a green card (permanent residence) and then meet other requirements, listed below. There are only a few rare exceptions in which a person goes straight from having no U.S. status to getting U.S. citizenship; some are discussed in Nolo’s article “U.S. Citizenship by Birth or Through Parents.”

The Eligibility Criteria

If you are interested in applying for U.S. citizenship, first make sure that all of the following apply to you:

  • you have lived in the United States as a lawful permanent resident for at least five years (with exceptions for refugees, people who get their green card through asylum, spouses of U.S. citizens, and U.S. military personnel)
  • you have been physically present in the United States for at least half of the last five years
  • you have lived in the district or state where you are filing your application for at least three months
  • you have not spent more than a year outside the United States
  • you have not made your primary home in another country
  • you are at least 18 years old
  • you have good moral character
  • you are able to speak, read, and write in English
  • you are able to pass a test covering U.S. history and government (based on questions provided by USCIS), and
  • you are willing to swear that you believe in the principles of the U.S. Constitution and will be loyal to the United States.

Green Card Qualification

A green card identifies its holder as a U.S. permanent resident, with rights to enter, exit, work, and live in the United States for their entire life — and to eventually apply for U.S. citizenship. But before you think about applying for U.S. permanent residence, make sure you’re eligible under one of the following categories.

1. Immediate Relatives of U.S. Citizens

Immediate relatives are at the top of the list when it comes to qualifying for green cards and receiving them quickly. This category includes:

  • spouses of U.S. citizens, including recent widows and widowers; also including same-sex spouses, if the marriage is considered legally valid in the state or country where it took place
  • unmarried people under age 21 with at least one U.S. citizen parent
  • parents of U.S. citizens, if the U.S. citizen child is at least age 21
  • stepchildren and stepparents of U.S. citizens, if the marriage creating the stepparent/stepchild relationship took place before the child’s 18th birthday, and
  • adopted children of U.S. citizens or permanent residents, if the adoption took place before the child reached age 16 and other conditions are met.

Special Immigrant Juveniles Status (SIJS) Eligibility & Process

Special Immigrant Juveniles Status, commonly known as SIJS, is a federal law that allows certain undocumented children to get legal permanent residency in the United States. Below, we discuss this complex immigration process and the requirements in detail.

 

In order to be eligible for SIJS, the following requirements must be met:

1. There must be an action by a state family or juvenile court;

2. Apply for Special Immigrant Juvenile Status;

3. Apply for adjustment of status to that of lawful permanent residency;

Action by a state family or juvenile court: The court must be one that has the authority to decide the custody and care of children, usually family court or juvenile court. The court must find that the child has been “abused, abandoned, or neglected” by one or both of the child’s parents. The court must find that because of one of these reasons, or a similar reason, the child cannot be reunited with one or both parents. The effect is that the child must be made a dependent of the court or be legally placed with a state agency, a private agency, or a private person. The private person may be one of the parents. A child is eligible for SIJS as long as he or she cannot be reunited with at least one parent. The court must also find that it is not in the child’s best interest to return to his or her home country or the last country he or she lived.

Apply for Special Immigrant Juvenile Status through USCIS:

USCIS has the following requirements to apply for SIJS:

1. Must be under 21 years old on the date of filing the Form I-360; A child must be under 21 years old when the SIJS application is filed. A child does not need to be under 21 years old when a decision is made by USCIS. A child is “locked” into their age when they file the Form I-360 so that they can be eligible for SIJS even if they are over the age of 21 years old by the time a decision is made by USCIS.

2. The state court order must still be in effect at the time of filing the Form I-360 and when USCIS makes a decision on the application; Some states have different ages when a person is no longer considered a child or juvenile. For Texas, a person is no longer considered a child or juvenile after the age of 18. This means that an order by a state court would only be in effect until a child reaches 18 years old. Historically, USCIS required that the state court order be in effect until the entire immigration process was complete.

This means that, in Texas, a child must be 18 years or younger by the time USCIS had made a decision on both the SIJS and the adjustment of status. Recently however, there has been legislation that protects children from “aging out.” This means that a child is “locked” into their age at the time the Form I-360 is filed. This change is very recent, however, and a child should seek SIJS and adjustment of status as quickly as possible, while the state court order is still in effect.

3. The child may not be married at the time the Form I-360 is filed or at the time USCIS makes a decision on the application; Divorce, annulment, death of a spouse, and having children of his or her own will not bar a child from being eligible for SIJS.

4. The child must be inside the United States at the time of filing the Form I-360. Apply for adjustment of status to that of legal permanent residency: In order to adjust his or her status from SIJS to legal permanent resident (also known as green card status), the child must meet the same requirements as any other person attempting to adjust their status or get a green card.

Advantages and disadvantages of SIJS

There are both advantages and disadvantages to seeking SIJS. The greatest benefit to SIJS is that it creates a path to citizenship. After attaining SIJS, a child can apply to adjust his or her status to legal permanent residency and he or she can eventually become a naturalized U.S. citizen. Additionally, a child can apply for work authorization if they have SIJS. In Texas, a child can work as young as 14 years old in certain fields. This means that a child can receive work authorization to work in the United States even before he or she has adjusted their status to legal permanent residency.

There are, however, a couple of disadvantages. A child with SIJS can never apply for a green card for his or her parents. A child can eventually petition for his or her brothers and sisters, but only after becoming a United States citizen. This means that a child can only petition for his or her siblings after they a given a state court order, SIJS has been granted, he or she has adjusted their status to legal permanent resident, and they have gone through the naturalization process to become a United States citizen.

You can find all the documents and information you might need to become familiar with this process on the U.S. Citizenship and Immigration Services website. However, we highly recommend seeking the advice of an attorney who is familiar with immigration law, it’s complexities and this process in particular.

Transition from Optional Practical Training to H-1B Status

Here are some things to consider to make the road to obtaining H-1B status a bit less bumpy.

 

Many beneficiaries of H-1B petitions are already employed by their petitioning U.S. employers. They are employed under Optional Practical Training (“OPT”), which was granted after they completed their studies in F-1 student status. OPT is twelve months of authorization to work in the student’s major field of study. It gives a U.S. employer the opportunity to get to know a foreign worker before committing to an expensive and potentially time-consuming H-1B petition.

Thus, if you are a foreign national, who is currently looking for employment in the U.S. and asking employers to sponsor you for H-1B status, but are having difficulty finding a U.S. employer willing to do so, you may want to first consider an F-1 student visa. When you finish your academic program in the U.S., you will be able to apply for OPT at no cost to a U.S. employer. During your one year of OPT, your U.S. employer may decide to file an H-1B petition on your behalf. Thus, from an F-1 student visa, you would transition to OPT and then to H-1B status. The H-1B petition filed by the U.S. employer may include a request for a change of status so that you do not need to leave the U.S. between the time that your OPT expires and October 1, when your H-1B status begins. If your OPT expires after the H-1B petition is filed with the U.S. Citizenship and Immigration Services, but before October 1, you may be able to continue working in the U.S. pursuant to the cap-gap. However, an updated Form I-20 should be obtained from your Designated School Official.

If you have OPT, and your employer files an H-1B petition for you during the first five business days of April, which is highly recommended due to the cap on new H-1Bs each fiscal year, but the petition is not selected in the H-1B lottery, you may want to consider extending your OPT. A 17-month extension of your OPT is possible if you are a STEM (Science, Technology, Engineering, Mathematics) graduate and your employer is registered with E-Verify. If you are unable to extend your OPT, you may want to consider re-enrolling at a college or university as an F-1 student and then continuing to work for the employer pursuant to curricular practical training. Obviously, before pursuing this route, you need to make sure that the particular academic program allows curricular practical training.

EB-2 Visa Versus EB-3 Visa

The differences between EB-2 and EB-3 in an effort to alert aliens and employers, and help both seek EB-2.

 

For aliens intending to permanently move to the U.S. through employment the typical route is through seeking an employment-based immigration second preference category (“EB-2”) or third preference category (“EB-3”). Ideally EB-2 is preferred as obtaining permanent residency is faster through this route and aliens from certain countries need not wait to obtain their permanent residency as those who would be current on the date of filing Form I-140 Immigrant Petition for Alien Worker may concurrently file Form I-485 Application to Register Permanent Residence or Adjust Status (concurrent filing is also applicable for EB-3 applicants although this category has typically not been “current”).

EB-3 Category

EB-3 is designated for skilled and unskilled workers (the latter is typically referred to as “other workers”), and professionals. It should be noted that all three (3) classifications require 1. an offer of full-time employment (the position may not be temporary or seasonal although full-time), 2. evidence that there are no qualified workers in the U.S. to perform the work (i.e., an approved labor certification), and 3. an employer willing to petition on the alien’s behalf, which includes paying for this entire process up to and including Form I-140, and eventually paying the offered wage. In addition to the previous requirements, a skilled worker classification also requires the alien to have at least two (2) years of job experience or training, the employer must require the experience or training, and the experience or training required must be typical of the position. The latter means it must be the industry standard or practice of the position to require the experience or training.

Because this classification does not require higher education (i.e., a college/university degree), these aliens have little they can do to move up to EB-2. Their only options for EB-2 are to be classified as having exceptional ability or being part of the National Interest Waiver (both are discussed below). Unlike the skilled worker classification, the unskilled worker’s position requires less than 2 years of experience or training. Although an unskilled worker is an EB-3, these aliens have different processing times. As of August 2013 the unskilled workers’ processing times mirror those of other EB-3 categories except for China–mainland born who are almost five (5) years behind. Similar to the skilled worker classification, because this classification does not require higher education their only options for moving up to EB-2 is where the alien has exceptional ability or is part of the National Interest Waiver. To be considered a professional for EB-3 the alien must have and the position must normally require for entry into the occupation a U.S. bachelor’s degree or a foreign equivalent. Where the alien has a foreign degree, a professional outside company must provide an academic evaluation to prove the alien has the equivalent of a U.S. bachelor’s degree.

If the alien has a foreign degree and a U.S. master’s degree, an academic evaluation is not necessary where the master’s degree is in the same major field of study as required by the position. Furthermore, a combination of education and work experience may not be substituted for the bachelor’s degree like it can be for EB-2 and H-1B. This means the alien must possess an actual bachelor’s degree (whether U.S. or a foreign equivalent) and work experience may not be counted to equal a bachelor’s degree. These aliens are more likely to be able to upgrade to an EB-2 as an advanced degree classification, which will be discussed below.

EB-2 Category

EB-2 is designated for those aliens who have an exceptional ability in the sciences, arts, or business, fall under the national interest waiver, or have an advanced degree or its equivalent. Similar to EB-3, 1.full-time employment is required, 2. proof that there are no qualified U.S. workers for the position, and 3. an employer willing to petition on the alien’s behalf. The latter two (2) requirements are not needed where the alien is eligible for the National Interest Waiver. In addition to the above requirements, aliens classified as having exceptional ability must show they have “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business” (includes athletes), which may be proven through at least three (3) of the following: Official academic record showing a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to their area of exceptional ability; Letters documenting at least ten (10) years of full-time experience in the occupation; A license to practice their profession or certification for their profession or occupation; Evidence that they have commanded a salary or other remuneration for services that demonstrates their exceptional ability; Membership in a professional association(s); Recognition for their achievements and significant contributions to their industry or field by their peers, government entities, professional or business organizations; or Other comparable evidence of eligibility is also acceptable. Additionally some exceptional ability aliens may bypass the labor certification process where they fall under Schedule A Group I or Group II. These include physical therapists, professional nurses, and aliens with exceptional ability in the arts, sciences, and performing arts.

Each has their own list of evidence which must be provided and can be found at 20 C.F.R. ? 656.5. An advanced degree professional are those whose position requires an academic or professional degree beyond a baccalaureate. Similar to EB-3, the position must regularly require the advanced as it is not enough for the alien to possess it and the employer to require it. Additionally, the advanced degree need not be from a U.S. institution if it can be shown (i.e. through an academic evaluation) that the foreign degree is equivalent. An advanced degree may encompass a baccalaureate degree where five (5) years of progressive work experience is required.

This means a position may be classified as an EB-2 advanced degree if the position requires a baccalaureate degree plus five (5) years of progressive experience. Although there is no law defining “progressive experience”, INS has stated it “is demonstrated by advancing levels of responsibility and knowledge in the specialty.” INS Memorandum, “Educational and Experience Requirements for Employment-Based Second Preference (EB-2) Immigrants” (Mar. 20, 2000). This means the alien’s work responsibilities (i.e., the experience) must have progressed for five (5) years in the field. To be eligible for the national interest waiver the alien must hold an advanced degree or have an exceptional ability (both described above), and due to this the U.S. would greatly benefit having this alien in the labor force.

To show this the following must be proved: The employment is in an “area of substantial intrinsic merit”; The benefit of having the alien is “national in scope”; and The national benefit outweighs the benefit of the labor certification process (a local labor shortage is not sufficient). Matter of New York State Department of Transportation, Int. Dec. 3363 (Comm’r 1998). Once the employer and alien select the category most appropriate, they must begin the labor certification process (where applicable). If the alien’s priority date (the date the labor certification is accepted for filing or the date the I-140 is filed for those who do not need a labor certification) is current at the time of filing Form I-140, Form I-485 may be filed concurrently. Additionally, premium processing is available for all EB-3s and EB-2s with the exception of those seeking the national interest waiver. It is imperative to pay careful attention to the requirements of each category and to pay extra attention where an alien and the position may qualify for EB-2 instead of EB-3 as the road to a green card is faster. As always, it is highly recommended you seek the assistance of an immigration attorney as they can better guide you towards the alien’s green cards.

H1-B and Labor Certification Matters: Documentation

What employers must know with regards to keeping documentation in H1-B and Labor Certification matters.

 

H1-B

The H-1B visa is a non-immigrant under the Immigration and Nationality Act of 1965 which allows U.S. employers to temporarily employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers.

Who Can be an H-1B Employer?

The H1B Employer has to be a U.S. person or entity. (i.e., an individual, partnership, corporation, or an organization that qualifies as such an entity within the U.S.)

What is a “Public Inspection File?”

A Public Inspection File (“PIF”) is a file required to be made available by an employer containing a filed or certified, if available, Labor Condition Application (“LCA”) and its supporting documents. It is required to be made available for public inspection at the worksite or place of business within one working day after the LCA is filed with the Department of Labor.

How Long Must the Employer Retain PIF?

PIF documentation must be retained for one year beyond completion of the H-1B employment.

Other Required Documentation

Additional documentation required for employers to keep:

List of “exempt” H-1B nonimmigrant workers
Summary of recruitment methods, if the employer hired any “non-exempt” H-1B workers
Documentation concerning compliance with the non-displacement obligation
Payroll records
Wage records
Hour records
Working conditions of employees
If the employer is a multinational employer and “home country” benefits are provided, evidence of the benefits provided to the H-1B employee before and after the transfer to the U.S. should be maintained.

General Information

The employer must make PIF available to a requestor within one business day after the request.
The employer must provide each H-1B employee with a copy of the certified LCA no later than the first day of work.
It is important that the employer maintain some type of documentation to evidence this action was taken.
Where there is a strike or lockout of workers at the place of employment in the same occupational classification as the H-1B nonimmigrants after the LCA is certified, the employer is required to notify Employment and Training Administration within three days.

In the event of a corporate change, PIF will contain further documentation, such as:
A sworn statement by the successor entity accepting all liabilities of the predecessor entity
Affected LCA number(s) and effective date(s)
Description of the successor entity’s actual wage system
The successor entity’s employer identification number
Each time the H-1B worker receives an adjustment in wage, the statement in PIF must be updated.

Compliance

An H-1B employer will be considered in compliance notwithstanding a technical or procedural failure if such employer:
Makes a good faith attempt to comply
Voluntarily corrects violations within 10 business days of being advised by an enforcement authority
Has not engaged in a pattern or practice of willful violations
For prevailing wage violations, can establish that the wage was calculated consistent with recognized industry standards and practices
Where the employer fails to maintain the documentation, the employer can be subject to penalty and fines and could also be barred from filing nonimmigrant and immigrant petitions in the future.

Labor Certification

A permanent labor certification is a document issued by the Department of Labor (DOL), which allows an employer to hire a foreign worker to work permanently in the United States. The DOL must certify to the United States Citizenship and Immigration Services (USCIS) that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

What Documents Must an Employer Retain?

The employer should retain any documents used to answer ETA Form 9089, such as, but not limited to:

Prevailing Wage Determination obtained from the State Workforce Agency
All recruitment information and documentation, such as website/newspaper postings where recruitment information was placed, any resumes received, etc.
Any documentation regarding wage offer
Any documentation regarding the alien’s education and identification, such as copy of the alien’s U.S. visa, affidavit/letter of experience from alien’s previous employer, etc.
Employer letter in support of petition

How Long is the Employer Required to Retain the Documents?

The employer is required to retain copies of applications for permanent employment certification and all supporting documentation for five years from the date of filing the ETA Form 9089.

The date of filing is the day DOL receives ETA Form 9089 (Also known as the “Priority Date”)

In Summary

The PIF and compliance requirements for an employer regarding keeping documentation after doing an H-1B or Labor Certification is lengthy. Failing to abide by the requirements may mean an employer may suffer civil penalties, or no longer be able to file for nonimmigrant and/or immigrant petitions in the future.For these reasons, it is highly recommended the employer seek the professional assistance of a lawyer in the field of employment immigration.

The E Visa

The E visa is a non-immigrant or temporary visa. There are 2 main categories of E visas.

 

What is the E Visa?

 

The E visa is a visa that is issued for a certain amount of time as set by a treaty and can be renewed continuously. It is available only to those people who are nationals from a country that has a specific type of treaty with the United States. The following is a list of some of the countries that have the required treaty for E-1, E-2, or both:

 

Australia (both)

Armenia (E-2 only)

Bangladesh (E-2 only)

Canada (both)

Cameroon (E-2 only)

Egypt (E-2 only)

Ethiopia (both)

France (both)

Germany (both)

Iran (both)

Israel (E-1 only)

Italy (both)

Liberia (both)

Mexico (both)

Oman (both)

Pakistan (both)

Sri Lanka (E-2 only)

Switzerland (both)

Tunisia (E-2 only)

Turkey (both)

United Kingdom (both)

Zaire (E-2 only)

* Note the above list frequently changes. Some countries were not listed.

 

What are the requirements of an E Visa?

 

There are a few main requirements for any E visa, including, but not limited to, the following:

 

The alien must be a national from a country with a specific treaty with the U.S. (as discussed above)

The company also must be considered a national from the same country as alien (this means at least 50% ownership of the company must be held by qualifying people from that country)

Must be “substantial” trade (E-1) or investment (E-2)

The alien must serve the company in either a managerial function or a function with “essential skills”

There is no set amount that qualifies as “substantial”. A number of factors are considered by the CIS in these cases and a qualified attorney should be used.

 

The E visa is a non-immigrant visa, so the applicant must intend to leave the U.S. upon the expiration of E status. However, an application for initial admission, change of status, or extension of stay in E classification may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition.

 

What is the E-1 Visa?

 

The E-1 is a Treaty Trader Visa available to people who will enter the US “solely to carry on substantial trade, including trade in services or trade in technology,” principally between the US and the foreign country of which the person is a national.

 

What is substantial trade depends on several factors including the following:

 

The volume of trade

The # of transactions

The continued course of trade

What is the E-2 Visa?

 

The E-2 is a Treaty Investor Visa available to people who enters the US “solely to develop and direct the operations of an enterprise in which he has invested, or is actively in the process of investing, a substantial amount of capital.”

 

The investment must be active, not passive. This means that the money invested must be used to produce a real commodity or service not just an investment in land.

 

What is substantial investment depends on several factors including the following:

 

The amount of investment compared to the total value of the enterprise

The usual amount required in a similar enterprise

The investment cannot be marginal

 

What about Dependents?

 

Spouses and children can also gain status through this visa and spouses can get work authorization. One important thing to remember is that the family members do not have to be nationals of the same country as the principal alien or company as discussed above.