The next consultation will be Thursday, September 9, 2010,  from 10 a.m. to 4 p.m. (Eastern Standard Time). I will offer a monthly consultation the 2nd Thursday of each month.

Please click here to make an appointment.

Look forward to talking with you.

 After I explain the general situation to people I always get the question “how do I, in my specific situation, get a GC”?  This is impossible to answer without a detailed review of your immigration situation, both current and in the past, your personal education and work history, the company where you are working if you are in the U.S., and the situation of your family.  This is one of the most complicated areas of Immigration law. 

 Nonetheless, I will give you the basic ideas. 

 There are three normal ways to apply for a green card:

• Through employment.  This will be the primary focus of this posting.
• Through family relations.  If you have a family member who is a US citizen in it may be possible for that person to sponsor you for a GC.  The most common situation is if you marry a US citizen.  However, US citizens cannot sponsor all relatives (for example, cousin’s are too remote) and the waiting period to get a GC will vary depending upon the family relationship.  I will cover topic in the later blog;
• GC lottery.  If you are from a country that can apply you should do so every year.  The application usually in the fall.  The list of eligible countries change every year so please check the Department of State’s Web’s site. 

 The most common way to apply for a GC through your job is called using the PERM-based process which I will explain below.  However, since this is such a slow, difficult, and expensive process we usually spend time seeing if you can avoid it by using another method. 

 The alternatives to PERM-based GC are:

•  Intracompany manager.  If you worked for a company outside the U.S. for at least 1 year and are transferred to be a manager to a U.S. company which is related to your foreign employer you can get a special GC.  
• Extraordinary person.  If you are prominent in your field, either business, arts, or science, you are eligible for a special GC.  It is not enough to be successful in business or science or a talented artist.  You must be able to show you are prominent.  You can also sponsor yourself for a GC in this category.
• Person with at least a masters degree & whose employment will be in the national interest of the U.S.  If you qualify for this group you can avoid advertising and one of the more difficult parts of the GC case by getting a “national interest waiver”.  A few examples might be if you are working on a cure for cancer or AIDS or develop a spaceship to take us to Mars.   You can also sponsor yourself for a GC in this category.  This is very difficult to get, but if you are doing something which you think is very important to the U.S. please discuss this possibility with an attorney.   

 Assuming you don’t fit in one of the three alternatives above (and most people don’t), you and your employer will have go through the PERM-GC process.  This has 3 stages.

 Stage 1 — Labor Certification

[Generally takes around 1.25 – 1.75 years]

• Determine the job title and duties – We will research the job title in the Department of Labor’s job dictionary called O’Net.  The following information must be obtained from O’Net:
  • The official title of the job, according to the Department of Labor
  • The “normal” requirements of the job, including:
    • Previous work experience
    • Educational background
    • Language skills
    • Other important requirements, such as computer skills.
  • The requirements of the job cannot exceed the “normal” requirements unless the employer can show a “business necessity”, which is a high standard of proof.
• The requirements of the job cannot exceed the “normal” requirements unless the employer can show a “business necessity”, which is a high standard of proof. 
• Determine the “prevailing” wage for the position
  • We  will submit the required form to the Department of Labor to determine the prevailing wage.
  • It usually takes two months to get a response from the Department of Labor 
• Advertise the position
  • Your company will post the position internally in a conspicuous location for 10 days
  • The position must be posted in the Department of Labor’s national job bank for usually 30 days
  • The position must be posted in 2 Sunday editions of the appropriate newspaper’s help wanted section. 
  • The position must be posted in 3 of the following additional ways:
    • Job Fairs
    • Employer’s website
    • Job search website other than the employer’s
    • On-campus recruiting
    • Trade or professional organization
    • Employee referral program with incentives
    • Campus placement offices
    • Local ethnic newspaper
    • Radio and television 
• Respond to resumes
  • Your company will evaluate whether each candidate meets the minimum qualifications for the job.  The question is not whether they would be a good candidate but simply whether they meet the objective qualifications.
  • If the candidate does not meet the minimum qualifications, no further actions are required for that candidate.
  • If the candidate does meet the minimum qualifications or additional information is needed to determine whether s/he meets the minimum qualifications, your company will contact the candidate to schedule an interview following its standard procedures. 
• Interview process
  • Your company will meet with candidates following its standard procedures.
  • All resumes will be kept in a public access file in preparation for a potential audit. 
  • Your company will prepare a spreadsheet listing each candidate, the interview date, and the reason s/he was not qualified for the position. 
• Filing
  • Your attorney will file on-line the labor certification through PERM.
  • Filing cannot occur until 30 days after the last advertising
  • Filing must be completed within 6 months of the first advertising
  • If no audit is required, an approval is generally received within a 1 after filing 
• Audit (If necessary)
  • If an audit is required, your company will have 30 days to answer the Department of Labor’s questions.  The following information must be included in the response:
    • Copies of all advertisements and postings
    • Proof of business necessity for requirements that are beyond the “normal” requirements listed on O’Net
    • Copies of all resumes received
    • A “recruitment report” from the Museum explaining why each candidate was not qualified and why the “unusual” requirements were a business necessity.
  • If the application is denied, your company cannot advertise again for 6 months from the last advertising.   

Stage 2 — I-140 Filing [Generally takes around 1–1.5 years]

 Your company will file the I-140 with the Department of Homeland Securities.  The petition must be filed within 6 months of the date the labor certification was approved.

• The following documents must be filed:
  • Proof that you met all the requirements of the job and did so when you were first hired by your company. 
  • Proof that your company can afford to pay the wages offered.
  • The original labor certification
• Currently, it should take about 1 to 1.5 years until the I-140 is approved.  The processing date changes every month. 
• Presently, premium processing will only be available for most I-140 cases. For an  additional filing fee to Immigration of $1000 it guarantees a response within two weeks or you get your money back.
• If your case is “current” when you file your I-140 you can also file for your green card interview in the U.S. as well as work and travel authorization at that time. 

Stage 3 — “Green card” interview

• Assuming your  case is “current” when the I-140 petition is filed, you will have a choice about where to have the green card interview: your home country or the U.S.  I will explain what “current” means in a later blog. 
  • It is generally faster and less expensive  to have the interview in your home country, however, there are other factors to consider, such as:
    • You may have to do one or more extensions of your  visa before your interview. 
    • You  will need a police certificate for most countries where you lived for at least 1 year since you were16 years old, which can be difficult to get in some situations.. 
    • You will have to remain employed by your company until your interview.   
    • You  will have to go to your home country for the interview and stay for about a week afterwards to get your passport.

•  
  • Some very positive about having a GC interview in the U.S. are:
    •  In most cases Immigration is waiving the interview.  This means you will just receive your GC in the mail and not have to go for an interview in the mail.  This may change in the future. 
    • If you have waited for more than 180 after filing your GC you can change employers or even become self-employed in some situations and continue with your GC.  Please see my blog about this complicated area. 

Technorati Tags: Company Green Card, GC lottery, Green Card Lottery, “Green Cards”, “green card”

The problem  is that most of the exceptions require  the visa holder to  take action at least a year and a half before the end of the 6^th year and if a person asks about the extension  too late there might not be anything more he can do.  That is why we send out a reminder to our clients about 2 years before their 6^th year expires to avoid this problem.

Before discussing extending the H-1B visa there are a few other alternatives which may work in certain situations. 

• If you are  Canadian or Mexican change to TN visa
• If you are Australian change to E-3 visa
• If your country has a treaty with the U.S. allowing investor  visas change to an E-1/E-2 visa.  This requires the employee to be the same nationality as the owner and be a manager or have specialized knowledge.  For example, if a Japanese citizen is promoted to a managerial position at his company which is owned by Japanese citizens who do not have a GC he may be able to get an E-1/E-2 visa.  You can see if your country qualifies by clicking here, select your country from the drop down box at the top and go down the page to E-1 or E-2 visa line.  If it says “no treaty” you can’t get an E-1 or E-2 visa.   
• If you have won some awards or become famous in your field maybe you can apply for an O visa
• You may be able to return to school and get an F-1 student visa.  You can’t work, but you can stay in the U.S.  Getting an F-1 visa stamp to allow you to travel may be difficult.   When you finish school you may be able to get an optional practical training card to allow you to receive paid training for a year after you graduate, but you won’t be able to get another 6 years on your H-1B visa.
• If you marry a U.S. citizen you can apply for a “green card” (GC) and stay while you are waiting for your  GC interview.  This doesn’t work if you marry someone who also has a GC because there is a long  wait for spouses of GC holders. 

Assuming you can’t or don’t want to change to another status you have a few options to extend your H-1B visa beyond its 6^th year. 

First, you can extend your H-1B visa for the days you have been physically outside the U.S. during your 6 years on your H-1B status.  The time outside the U.S. does not have to be consecutive.  You get your passport out and count the days you were outside the U.S.  and you can extend you visa for this length of time.  For example, if you count that you have been outside the U.S. for 190 days during your H-1B visa stay, you can file for an extension of 190 days.  If you file your extension before your visa expires you can continue to stay in the U.S. and work for your sponsor while you wait for your approval.  You can’t travel outside the U.S. after your visa expires without getting a new visa before you return and you can’t get a new visa stamp until your visa is approved. 

You can’t ask for an H-1B visa extension for more than 3 years so even if you have been outside the U.S. more than 3 years you can only ask for a 3 year extension.  You can use the remaining days on your next extension plus any additional time you were outside the U.S. in the next 3 years.

Second, if you have filed for a PERM-based labor certification more than 1 year before the end of your 6^th year (in other words, by the end of your 5^th year) you can apply to extend your H-1B visa for 1 year while you are waiting for the labor certification. You do not have to have your labor certification approved to file for your H-1B extension. 

This is also true if you have filed for your I-140 petition and you are still waiting for your approval.  

In addition to the 1 year you can also add on the time you were physically outside the U.S.  so you can get an extension for 1 year plus the time you were outside the U.S. during your 6 years in H-1B status, but for no more than 3 years.

The problem with this option is that it takes at least 4 months after starting a PERM case to be able to file it and you have to file it more than a year in advance of the H-1B visa expiration. Most people don’t even think about it until it is too late. 

If you file for your PERM-based GC less than 1 year before the end of the 6^th year you normally can’t extend your H-1B visa because of the filing.  You may be able to use the 3^rd option discussed next or you may be able to use the time you were outside the U.S. to help.

Third, if you file an I-140 petition for your GC case,  Immigration approves it, but your case isn’t “current” you can file to extend your H-1B visa for 3 years.  It doesn’t matter when you filed your GC case – as long as your I-140 is approved and you aren’t  “current”  you can extend your H-1B visa for 3 years.  I have explained what  “current” means  in another blog  so please review it.

The problem with this option is that you can’t file for your I-140 if you use the PERM-GC system until your labor certification is approved and it is taking over a year to get an approved labor certification.  In most cases if you haven’t filed for your PERM-based labor certification in time you won’t be able to use this option. 

As you can probably tell this is a complicated area and, to make the posting as clear as possible, I have not discussed every possible issue (and there are many others!).   if you have other questions please call us and we would be glad to discuss your options with you.

Technorati Tags: Company Green Card, H-1B visa, “Green Cards”, “green card”

With “green card” (GC) cases taking so long we often have the situation where a person who has been waiting for his card for years and is laid off or wants to take another job but  wants to keep his GC going through his new company. This is called “green card portability”. 

To answer the question I first have to explain the 3 stages of a GC case because the answer depends on which stage of the case the person is in. 

The first stage is called the “labor certification” stage and involves advertising the job and seeing if any qualified U.S.  workers are available.  This stage ends when the U.S. Department of Labor issues a labor certification. 

If the worker leaves his job before getting a labor certification he cannot continue his GC case.  Even if the Department of Labor later issues a labor certification after he leaves he cannot use it.

The second stage of the GC case is usually called the I-140 stage because the employer files the form I-140 with supporting evidence with the Department of Homeland Security.  Sometimes this can be combined with the third stage, but usually not.  I will assume it cannot be combined in this blog.  The second stage ends when the employee is “current” and files for a “green card” interview in the U.S. or “adjustment of status” (AOS).  I will explain what “current” means below. 

During the second stage the employee cannot continue his GC case except for one special situation. 

The special situation which will allow the GC case to continue is if the current sponsor’s business is acquired by a “successor in interest” and the employee continues to work for the successor in the same job.  A common example would be if the sponsor’s, Company A’s, business was purchased by Company B and the employee started working for Company B the next day in the same job. 

In this situation it may be possible for Company B to take over Company A’s GC case for the employee and his case would continue. 

This is a complicated area and in August 2009 the Department issued a 13 page memo outlining various situations and how to deal with them.

However, under the most common situations, when the employee is fired or leaves for a new job, he cannot continue the GC case during the second stage.

Before getting to the third stage, I want to point out a common misunderstanding which can be very serious.  The employee’s ability to stay and work in the U.S. during the first two stages of the GC depend on his keeping his non-immigrant visa valid, usually an H-1B visa. The pending GC case in the first two stages has nothing to do with his legal status and ability to work in the U.S.

 If he is fired he is no longer in legal status in the U.S. and has to leave the country unless he can get another employer to sponsor him for a visa, not a GC.  The employee will have a “grace period” after he leaves his job before he has to leave the U.S..  For information on the “grace period” please see my blog.

 If he wants to change jobs he can’t do so until his new employer files for a new visa for him.  Even in the “successor in interest” situation the employee can’t start working at the new company until it first for his new visa. 

The third stage of the GC case is usually called the “adjustment of status” (AOS) stage.  This is when the employee can file the documents to ask for a GC interview in the U.S. for himself and his family.  The employee can do this when his case is “current” and this means that the Department is now accepting cases for AOS with a filing date for the first stage. 

Every month the Department of State (DOS) publishes the dates of different types of GC cases it is accepting which means that those people’s cases are “current”.  The employee or his lawyer have to compare his  filing date to the DOS date.  Tthe DOS or Immigration will not notify you when you are “current” – you have to keep track yourself.

Once the employee is “current” the employee can file the appropriate documents to ask for his GC interview in the U.S.  

180 days (6 months) after the employee files the papers requesting a GC interview in the U.S. (not just 6 months after you are current) THEN the employee can leave the sponsor and he can continue his GC case if he moves to a new job which is the same or similar to the job he was sponsored for. 

This is also a complicated area and in December 2005 the Department issued an 8  page memo outlining various situations and how to deal with them.

Some of the key points of the December 2005 memo say the following:

• If the I-140 is approved and the employee leaves for a new job after 6 months,  and the old employer withdraws the approved I-140,  then the employee is “expected” (no time frame is given) to report to Immigration about his new position and explain why it is the “same or similar” to the old position. 
• On the other hand, though not stated, if the employee leaves for a new job and the old employer doesn’t withdraw the approved I-140 there is no “expectation” of notice and the employee does not have to report anything to Immigration.
• The old employer should withdraw the I-140 when it no longer intends to offer the sponsored job when the person is approved for GC;
• If the employee leaves for a new job and the old employer doesn’t withdraw there are two situations:

     a.  The employee has GC interview, but can’t bring an employer letter from the old employer.  He will then have to bring proof that the new job is the same or similar to the job he was sponsored for. He will have to bring this to local Immigration office where he has interview.  If the INS officer agrees that it is the same or similar job the officer will approve the GC.  If not, the officer will issue a notice of intent to deny (NOID) and the employee will have 30 days to give more evidence that his new job is the same or similar to his old one.  If he can do so successfully he will get his GC.  If not, Immigration will deny his GC; or

    b.  In many employee-type GC cases, Immigration is “waiving” the GC interview and  the person gets GC in the mail and the case is over. In this situation the new job problem will not come up.  This is what everyone hopes for. 

Good luck!

Technorati Tags: Company Green Card, GC, Permanent resident visa, “Green Cards”, “green card”

 It appears the increased filing fee starts immediately, though this is unclear.

Technorati Tags: H-1B visa, H-1b “cap”, H-1b “cap” exempt, L-1A, L-1B

Any registration done before September 8^th will be without the fee and be valid for 2 years or until the person’s passport expires.  You won’t have to pay the fee until the next time you have to register. 

Since January 2010 everyone traveling on the VWP  is legally required  to complete ESTA on-line within 72 hours of their trip to the US.  If they don’t they should not be able to board their plane. 

 This does not affect US citizens returning from overseas or people traveling on a valid US visa.

Technorati Tags: Visa Waiver Program, VWP

If he or she will not receive any payment for an honorarium or reimbursed expenses for his trip they do not need a visa and they can come into the U.S. on either the visa waiver program (VWP) or B1 business visa.  

This is different from a performing artist.  Such an artist who is a professional in his or her home country must normally get a special visa to perform in the U.S. even if he or she is not being paid in the U.S. 

 Even if the speaker receives a payment for an honorarium or reimbursed expenses he or she still may be able to come into the U.S. without a visa if:

 (1) The activities last no longer than nine days at any single institution or organization;

 (2) Payment is offered by an institution or organization described in INA 212(p).  These organizations are only limited to;

• An institution of higher education, a related or affiliated nonprofit entity,
• a non-profit research organization, (please note not any non-proft organization ), or
• a Government research organization

 (3) The honorarium is for services conducted for the benefit of the institution or entity; and

 (4) The speaker has not accepted such payment or expenses from more than five institutions or organizations over the last six months.

If the speaker does not meet ALL of these requirements he or she would need an O visa and show he or she is “prominent” in their field either internationally or in their home country.  An O visa takes time so the sponsor should apply early and they can apply up to a year in advance of the speech.

Technorati Tags: Business work visas, no visa, Visa Waiver Program, VWP

EAD’s are usually used by two groups of people.  The first is students who have recently graduated and have optional practical training  (OPT) cards for 1 year.  The second  group is  people who have applied for a “Green card” interview in the U.S., but they are waiting for their interview date to arrive.  While they are waiting they can get EAD.

For students we have noticed that Immigration is getting slower about sending out the EAD after they file for it.  If the student doesn’t have the EAD card when they want to start their paid training the employer can’t hire them.  Just a filing receipt isn’t enough.

For the GC-interview waiting people, the problem usually comes up when they are trying to extend their EAD card.  If their card expires before they get their new one they have to stop working until the new one arrives.  Just applying before it expires isn’t enough.  In some states this also means their driver’s license will expire and they can’t renew that without a new card. 

If more than 90 days have passed since you asked for  your EAD you can make an appointment to try to get it. It is a very simple process.  Please go to the following Web site:  http://infopass.uscis.gov/ and do the following:

•  Click in upper left hand for English (unless you would prefer one of the other languages listed there)
• Click “Make your appointment with InfoPass
• Put in your zip code, not my office’s zip code, and hit continue
• Select “You need Service on a case that has already been filed”
• Select ‘EAD inquiry appointment – If your  I-765 employment authorization application has been pending for more than 90 days
• Print out your appointment notice so you can show it at the entrance on your appointment date

 You can go to Immigration and sometimes the Immigration officer will be able to help you get your EAD card faster, but not always.

The real solution  to both problems  is to file as soon as you can to get your original EAD when you are a student or to extend it if you already have one.  The earliest you can file is 4 months in advance so get going!

Technorati Tags: Company Green Card, Employment Authorization Document (EAD), work cards, “Green Cards”, “green card”

There is no clear answer to this and it has risks if you try to return without being prepared.

First, assuming you are from a citizen of countries that can use the VWP and have never had any trouble with law before, you can come back to the U.S. and at the airport or border ask the Immigration officer to let you back in to the country for up to 90 days as long as you have a return ticket home or, at least, a ticket out of the U.S.

However, just because you can ask to come back doesn’t mean the officer will let you in.  There is always a risk he or she won’t believe you are coming to the U.S. to be a tourist, but think you are actually planning to live or work in the U.S.

Many people don’t understand that just because you say you don’t plan to live or work in the U.S. doesn’t mean that the Immigration officer will believe you.    If the officer doesn’t they will hold you at the airport and put you on the next plane back to your home country.

Second, you have to see if you have any what I call “risk factors” which would cause the Immigration officer not to believe you and, if so, prepare to explain AND PROVE the situation to the officer at the airport.

The most common risk factors are:

• How long have you been in the U.S.   If you have been in the U.S. for 6 years on an H-1B visa and 4 years before that as a student and are asking to return on the VWP you are a much higher risk than someone who has never been to the U.S. before
• How long have you been outside the U.S. since you last left  If you just left and returned 2 days later you have a higher risk factor than if you have been out 6 months. 
• Do you have any U.S. citizen or “green card” holder relatives in the U.S.  If so, you are a higher risk factor than if not. 
• Have you applied for a “green card” and are you still waiting for it.  If yes,  you are a higher risk factor

Even if you have high risk factors that does not mean you will automatically be turned away at the boarder by the Immigration officer.  It does mean that you should come prepared to prove the following:

• You are really coming to the U.S. this time as a tourist or for a short-term business trip; and
• You have strong ties to your home country.

If you can show this to the Immigration officer at the airport he or she will let you in the U.S.

You can bring any kind of proof to show these points you want and you don’t have to bring all of the ones I will suggest later in this blog.  However, the more  risk factors you have the more proof you should try to bring.

 The most common types of proof are: 

Purpose of your trip to the U.S.

• If you are coming as a tourist,
  • your itinerary showing your schedule in the U.S. showing tourist-type  events, ideally with purchased tickets.
  • A letter from a friend you are meeting confirming your visit and what you will do together
• If coming for short-term business trip,
  • A letter from the people you are meeting explaining what you will be doing in the U.S.
  • An explanation of who will be paying for this trip and your salary.  If a foreign company is paying, a letter from this company would be very important.  If you are paying yourself please bring a recent copy of your bank account  to show that you have the money to do so. 

Ties to your home country

• If you have a job back home,  a letter from your employer or recent proof of payment with English translation
• A copy of your lease showing where you are living in your home country with English translation
• A copy of your foreign driver’s license, phone bill, electricity bill, credit card statements to your foreign address
• Letter from relatives confirming your live there and listing all of your relatives in your home country. 

I would suggest you keep all your proof in your carry-on luggage, but DON’T show it to the Immigration officer when you approach him or her at the airport.  I would suggest you give the officer your passport, I-94, and return ticket and wait.  It is very likely he or she will just let you in the U.S. for 90 days, particularly if the lines are long.  You should never tell the officer something which is untrue, but you also don’t have a duty to volunteer any information unless you are asked. 

However, if you start to get questions about do you really plan to come back as a tourist and start to hear statements like you’ve been in the U.S. a long time and you didn’t stay out that long this time, then bring out your evidence and show it to the officer. 

You should truthfully explain your situation and why you are coming as a tourist or on a short-term business trip and that you will return to live in your home country. 

To avoid this risk, it might be safer to stay in the U.S. to get ready to leave and apply to change your status to a tourist visa while you in the U.S.  You do this by mailing form I-539 and supporting evidence to Immigration.  As long as you mail in your request to change your status before you old visa (plus any grace period) expires you can wait in the U.S. while Immigration decides and this usually takes a few months.  If your request is approved you can usually stay in the U.S. for 6 months.  However, you CANNOT travel outside the U.S. based upon this approval.  You must either get a new visa stamp or use the VWP as I discussed above. 

You should be fine, but it is always better to be prepared.

Technorati Tags: Business work visas, no visa, Visa Waiver Program

There are two parts to answer this question.

First, there is nothing which prohibits a new company from using someone’s home for their business and successfully sponsoring a visa.  

Second, Immigration is very suspicious of this and it usually doesn’t work.

If someone list their business address as their home Immigration will usually ask  for one of the following documents:

• A copy of their lease showing that the landlord has approved using the apartment for commercial purposes.  Most residential leases, particularly in NY,  specifically say it is only to be used for residential purposes and when Immigration sees this they will not approve the visa.
• If the lease does say commercial purposes are permitted or the business person owns a home, Immigration will often ask for proof that the zone that the building is in permits commercial uses.  You will have to get something from the city government to show the permit uses for this space under government law and this can be very difficult to do.   If the zone permits commercial use then Immigration may approve the visa if the owner can explain it is only temporary.  If the zone does not, the visa will be denied. 

My experience is that it would be better for a new office  to have a separate space, even in an executive suite-style space, on a month-to-month basis, than use a home office.

The best option from an immigration perspective is to rent a normal office with a commercial lease.  Of course, for many new business this is cost-prohibitive for a while, and we have found Immigration will approve visas with an executive style office lease at least for the first year.

Technorati Tags: Business work visas, Work Visas, working visa