Articles Posted in Immigration Visas

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Department of LaborBefore an employer in the U.S. can hire a worker from abroad for a job here, the employer must petition for a visa for the worker. This requires a labor certification from the Department of Labor (DOL). The employer must establish that it is in compliance with U.S. labor law regarding the employment of someone from outside the country. In a recent case, a DOL certifying officer (CO) denied a request for certification on the basis that the job posting disadvantaged U.S. workers. The DOL’s Board of Alien Labor Certification Appeals (BALCA) reversed the CO’s decision. In re Cosmos Foundation, Inc., No. 2012-PER-01637, dec. order (BALCA, Aug. 4, 2016).

Permanent labor certifications are required for employment-based immigrant visas, through which an immigrant employee can come to the U.S. with the intention of staying permanently. The main purpose of a labor certification is to demonstrate that no qualified U.S. workers are available to fill a position, and hiring someone from abroad will not negatively affect wages for workers here. A similar process, known as the labor condition application, applies to petitions for temporary visas, such as the H-1B visa program. The Program Electronic Review Management (PERM) system, an electronic application system established by the DOL in 2005, is supposed to enable the DOL to process an application in 60 days or fewer.

DOL regulations impose numerous requirements for labor certifications. The Cosmos case involved an alleged defect in the way the employer advertised the position. If an employer places a job advertisement in a newspaper or professional journal before applying for a labor certification, the advertisement must describe the job in terms that are “specific enough to apprise the U.S. workers of the job opportunity for which certification is sought.” 20 C.F.R. § 656.17(f)(3).

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world mapFederal immigration law allows U.S. employers to petition for an immigrant visa for a current or prospective employee, and citizens or lawful permanent residents may do so for a family member. The length of time it takes for the government to approve an immigrant visa petition mainly depends on two factors:  the type of visa sought and the prospective immigrant’s country of origin. Most family- and employment-based visas are subject to annual numerical limitations. Federal law also imposes an annual cap on the number of numerically limited visas available to citizens of any one country. A bill currently pending in the U.S. Congress, H.R. 213, or the Fairness for High-Skilled Immigrants Act of 2015, would eliminate or increase the limits placed on each country. The bill likely has little to no chance of passing during the current Congressional session, but it offers a useful look at this particular system of numerical caps.

Some prospective immigrants are not subject to any numerical limitation, such as “immediate relatives” of U.S. citizens. 8 U.S.C. § 1151(b). All other prospective immigrants are subject to annual caps of up to 480,000 family-based and 140,000 employment-based immigrants. Id. at §§ 1151(c), (d). These immigrants are assigned to employment- and family-based immigrant visa categories, based on either the type of job involved or the petitioner’s own status and the immigrant’s relationship to the petitioner. 8 U.S.C. § 1153. In addition to these annual caps, the total number of visas given to citizens or nationals of any one country in a fiscal year cannot exceed seven percent of the total number of authorized visas. 8 U.S.C. § 1152(a)(2). For dependencies of a foreign country, the limit is two percent. Id.

This per-country numerical limit largely affects nationals of some countries more than others. The monthly Visa Bulletin issued by the U.S. Department of State, which indicates how long beneficiaries of each type of immigrant visas petition may expect to wait, illustrates the disparate impact on countries with a high volume of petitions. The Visa Bulletin shows the priority dates for each immigrant visa category that are currently being processed by the government. A petition’s “priority date” is roughly equivalent to its filing date. The Visa Bulletin further distinguishes between petitions received from China, India, Mexico, the Philippines, and all other countries. According to the August 2016 Visa Bulletin, the current priority date for the “F1” family visa category for most countries is May 22, 2009, a waiting period of just over seven years. For the Philippines, however, the priority date is March 22, 2005. For Mexico, it is March 8, 1995.

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dogThe process of applying for a visa to come to the United States is lengthy and complex, even at its best. Two bills currently pending in the U.S. Congress would modify various aspects of the visa application process, and they could possibly complicate the process even further for some prospective immigrants. H.R. 5203, the Visa Integrity and Security Act (VISA) of 2016, would affect how petitions are submitted, the extent of Department of Homeland Security (DHS) background checks, and the burden of proof to establish visa eligibility. H.R. 5253, the Strong Visa Integrity Secures America Act (SVISAA), would modify procedures for vetting visa applicants and for sharing information within DHS and between DHS and the Department of State (DOS).

U.S. immigration law provides for two broad categories of visas. An immigrant visa allows a person to come to the U.S. with the intention of remaining permanently, usually after qualifying through a family member or an employer. Someone who comes to the U.S. on an immigrant visa often applies to adjust their status to lawful permanent residence, also known as a “green card.” Once they have been in the U.S. long enough, they might be able to become a naturalized U.S. citizen. By contrast, a nonimmigrant visa allows a person to come to the U.S. temporarily for a specific purpose. A B-1 tourist visa, for example, allows a person to visit the U.S. but not to work, while an H-1B visa allows a person to hold a job in the U.S. while the visa remains valid. Nonimmigrant visa holders who remain in the U.S. after their visa expires are said to be “overstaying” their visa.

A person petitioning for a visa typically files the petition with U.S. Citizenship and Immigration Services (USCIS), which is part of DHS. A prospective immigrant located outside the U.S., however, has to go through a U.S. consulate in the country where they are located. The U.S. consulates are part of DOS.

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FirmBee [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayImmigration is a critical component of the American economy, with employers constantly petitioning to bring employees here from abroad for particular jobs. This is especially true, for a variety of reasons, in the STEM fields (Science, Technology, Engineering, and Mathematics). Several studies released in the past few months demonstrate the extent of immigrant involvement in the economy, particularly in business startups. Immigrant founders now account for more than one-fourth of all new startups, as well as over half of startups valued at $1 billion or more. Immigrants also make up a significant portion of New Jersey entrepreneurs. Several methods of immigration are available for aspiring U.S. entrepreneurs.

The type of visa most commonly associated with the high-tech field is the H-1B visa. This is a nonimmigrant visa, meaning that it is officially only available to people who do not intend to remain in the U.S. permanently. An employer must petition for the visa on behalf of an employee. Federal law caps the total annual number of visas at 65,000, plus another 20,000 for people with advanced degrees. U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B petitions for fiscal year 2016 on April 1, 2015, and it reported that the number of petitions received exceeded the annual cap six days later. For a total of 85,000 available visas, the agency reported receiving almost 233,000 petitions.

The H-1B visa is valid for three years, and it may be extended for another three years. Various provisions allow an H-1B visa holder to change jobs, or to extend their stay if they are working toward seeking permanent residence, but the overall purpose of the visa is a temporary stay. It is therefore far from ideal for someone who wants to start a new business. Employment-based (EB) immigrant visas allow a person to come to the U.S. for a job with the intention of adjusting status to that of a permanent resident. EB immigration also requires a petition filed by an employer, and it is subject to annual numerical limits. Unlike H-1B visas, however, they are far less subject to backlogs.

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klimkin [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayTitle 8 of the United States Code, which deals with immigration and nationality, defines multiple grounds for inadmissibility, by which the federal government may deny a prospective immigrant entry to the U.S., and deportability, by which it may remove an immigrant from the country. Drug abuse and drug addiction, even without a criminal conviction, are considered grounds for both inadmissibility and deportability. This has been the case since Congress passed the Immigration and Nationality Act of 1952. See Castaneda de Esper v. INS, 557 F.2d 79, 82 (6th Cir. 1977). As a report published by Vice several months ago notes, this can be difficult to enforce, since it relies on an immigrant’s honesty on immigration forms, or an inadvertent admission, such as through medical records.

U.S. courts have generally held that drug addiction does not, in and of itself, mitigate criminal liability for drug-related offenses, although some judges have expressed concern about criminalizing mere drug possession when addiction is involved. See, e.g., United States v. Moore, 486 F.2d 1139, 1243 (D.C. Cir. 1973) (Wright, J.; Bazelon, C.J.; Tamm, J.; Robinson, J.; dissenting) (“[I]in determining responsibility for crime, the law assumes ‘free will’ and then recognizes known deviations ‘where there is a broad consensus that free will does not exist’ with respect to the particular condition at issue.”) Federal authorities in immigration cases have a lower burden of proof than in criminal cases, so this principle would certainly seem to apply in decisions regarding inadmissibility and deportability.

Drug abuse and addiction are considered health-related grounds for inadmissibility. 8 U.S.C. § 1182(a)(1)(A)(iv). Federal law allows waivers for other health-related grounds, i.e., subsections (a)(1)(A)(i) through (iii), under 8 U.S.C. § 1182(g). Subsection (iv) is conspicuously absent from that list. For example, a prospective immigrant without a vaccination record for certain illnesses, who would be inadmissible under § 1182(a)(1)(A)(ii), may obtain a waiver by demonstrating that they have received a vaccination, that a vaccination would not be “medically appropriate,” or that it would go against their “religious beliefs or moral convictions.” 8 U.S.C. § 1182(g)(2). The only waiver that might be available for all health-related grounds, including subsection (iv), applies to victims of human trafficking and individuals involved in trafficking investigations. 8 U.S.C. §§ 1101(a)(15)(T), 1182(d)(13)(B)(i).

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By A. Coeffler [Public domain], via Wikimedia CommonsImmigrant visas are available to certain family members of U.S. citizens and lawful permanent residents, as well as investors, employees, and prospective employees of American businesses. Recent announcements from federal immigration authorities and others have brought changes to immigrant visa procedures, as well as the potential for additional changes in the future. One recent change affects all immigrant visa categories, while others specifically apply to the EB-5 program for immigrant investors.

Procedural Changes at USCIS

In September 2015, U.S. Citizenship and Immigration Services (USCIS) announced new procedures for determining the availability of immigrant visas. Previously, visa bulletins issued by the U.S. Department of State (DOS) identified “final action dates” for each immigrant visa category. This date represents the priority date for immigrant visa petitions that the government is currently processing.

Many employment-based categories are current, but low-priority family-based applications can have distressingly long backlogs. According to the November 2015 visa bulletin, the government is now processing applicants from the Philippines in the fourth preference group—siblings of adult U.S. citizens—with priority dates in June 1992.

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By ISAF Headquarters Public Affairs Office from Kabul, Afghanistan (110329-A-5634G-004) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia CommonsThe U.S. Supreme Court, in an extremely divided opinion, ruled that the federal government did not violate a U.S. citizen’s constitutional rights by denying her husband an immigrant visa and refusing to tell her why. Kerry v. Din, 576 U.S. ___ (2015). Justice Scalia’s plurality opinion was only joined by two other Justices, Chief Justice Roberts and Justice Thomas. Justice Kennedy filed a concurring opinion with Justice Alito, and the remaining justices joined a dissenting opinion written by Justice Breyer. The court ruled that the plaintiff does not have a “constitutional right to live in the United States with her spouse,” Din, slip op. at 1, a conclusion the dissenting justices strongly disputed.

The plaintiff married her husband, an Afghan national, in 2006, and she filed a visa petition for him soon afterwards. U.S. Citizenship and Immigration Services (USCIS) approved the petition, but several months after her husband’s visa interview at the U.S. Embassy in Islamabad, Pakistan, she received notice that the State Department was denying the visa application. It merely cited “terrorist activities” as the reason, stating that it could not tell her anything further. 8 U.S.C. §§ 1182(a)(3)(B), (b)(2)-(3).

The husband worked as a payroll clerk for the government of Afghanistan from 1992 to 2003. The Taliban controlled most of Afghanistan from 1996 to 2001. This might have been the basis for the State Department’s “terrorism” conclusion, although the Taliban is not on the State Department’s list of Foreign Terrorist Organizations. The legal definition of “terrorism” is extremely vague, broad, and circular. Federal immigration law’s definition of “engaging in terrorist activity” includes acts that “afford[] material support” to terrorists. 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). See also 18 U.S.C. §§ 2339A, 2339B.

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By Ted Eytan from Washington, DC, USA (SCOTUS Marriage Equality 2015 58151) [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia CommonsThe U.S. Supreme Court issued a historic ruling in June 2015 that effectively allows same-sex marriage in all 50 states. Obergefell v. Hodges, 576 U.S. ___ (2015). The court held that laws in 14 states banning the recognition of marriages between two people of the same sex violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Obergefell will not have much direct impact in New York and New Jersey, which have allowed same-sex marriage since 2011 and 2013, respectively. The federal government has also formally recognized same-sex marriage since the Supreme Court’s ruling in United States v. Windsor, 570 U.S. ___ (2013). It is not yet clear exactly how Obergefell will affect the U.S. immigration system, except that it will most likely remove the necessity of distinguishing among different states’ laws relating to marriage.

Marriage is considered a state law matter in the U.S., although the federal government takes marital status into account in numerous programs, including immigration benefits. The U.S. Congress enacted the Defense of Marriage Act (DOMA) in 1996, which defined “marriage” exclusively as “a legal union between one man and one woman as husband and wife” for the purposes of federal laws and programs. 1 U.S.C. § 7, 28 U.S.C. § 1738C. The Supreme Court ruled in Windsor that DOMA violated the Due Process Clause of the Fifth Amendment.

After the Windsor decision, the White House directed federal agencies, such as U.S. Citizenship and Immigration Services (USCIS), to treat immigration petitions and applications filed for a same-sex spouse the same as those filed for opposite-sex spouses. This includes immigrant visa petitions filed by U.S. citizens and legal permanent residents on behalf of spouses, as well as derivative nonimmigrant visas, such as H-4 visas for spouses of H-1B specialty workers and F-2 visas for spouses of F-1 students.

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OpenClips [Public domain, CC0 1.0 (http://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayImmigration law allows U.S. citizens and permanent residents to petition for immigrant visas for family members. Certain family members of U.S. citizens, including spouses, are not subject to any numerical restriction. Relatives of permanent residents fall into various preference categories and may face substantially longer wait periods before obtaining a visa. Once a family member has an immigrant visa, they can begin the process of applying to adjust status to permanent residence. Since marriage to a U.S. citizen is one of the fastest routes to obtaining a green card, immigration authorities are wary of fraud, such as through “sham marriages” between a U.S. citizen and a prospective immigrant. Two recent cases from New Jersey and New York illustrate how federal and state officials investigate and handle these types of cases.

U.S. Citizenship and Immigration Services (USCIS) places a high priority on detecting marriage fraud in immigrant visa petitions and applications for adjustment of status. They may require a substantial amount of evidence establishing that a marriage is genuine, and USCIS inspectors have broad discretion to determine whether a marriage is genuine or not. If an immigrant was married for less than two years at the time their application for permanent residence is approved, they receive “conditional permanent residence.” They may petition to remove the conditions after two years by showing that they are still married, that they are divorced or widowed, or that they were subjected to domestic abuse or other extreme hardship. A “bad” marriage is not necessarily a fraudulent one. The key question is whether the couple entered into the marriage primarily for the immigration benefits.

The head of a New Jersey immigration consulting firm was sentenced to two years in prison in March 2015, after pleading guilty to three charges arising from various acts of immigration and marriage fraud. United States v. Poku, No. 1:14-cr-00492, judgment (D.N.J., Mar. 30, 2015). The defendant was accused of creating sham marriages for numerous individuals, mostly from Ghana, to help them obtain immigrant visas and green cards. According to the government, he hired people to pose as spouses in USCIS interviews, forged documents demonstrating cohabitation in the U.S., and forged Ghanaian government documents. He pleaded guilty to one count of illegally inducing people to come to the U.S. without legal documentation for commercial advantage. 8 U.S.C. §§ 1324(a)(1)(A)(iv), (a)(1)(B)(1). He also pleaded guilty to two counts of money laundering and wire fraud.

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1909_Tyee_-_Faculty_Foot.jpgEmployers are required by federal immigration law to verify their employees’ eligibility to work in the United States. The U.S. Department of Justice (DOJ) warned employers late last year, however, that employers should be careful when investigating employees’ proof of eligibility. Federal law only requires employers to review certain documents to determine whether they appear facially valid. Further investigation could expose employers to liability, also under federal immigration law, for discrimination based on immigration status or national origin. New York and New Jersey immigrants and employers alike should be aware of these laws and how they impact their rights and obligations.

The government has promulgated a form for employers to use with all employees and new hires called Form I-9, Employment Eligibility Verification. Employees must submit one or two documents to establish identity and work eligibility. A U.S. passport, green card, or employment authorization card, known as “List A Documents,” would demonstrate both elements. A driver’s license or other form of identification, known as “List B Documents,” would be acceptable along with a “List C Document” like a Social Security card or birth certificate. Employers must retain I-9 forms in their records for three years after the employee’s hire date or one year after the termination date, whichever is later.

Federal immigration law prohibits employers from knowingly hiring or continuing to employ immigrant workers without work authorization under 8 U.S.C. § 1324a. Violations of these provisions can results in civil fines, criminal fines, or even imprisonment. The law also imposes monetary penalties for failing to retain I-9 records. The law also, however, prohibits employers from discriminating against employees based on national origin, citizenship status, or other legally-protected categories in 8 U.S.C. § 1324b. Problems may arise when an employer investigates an employee’s work authorization beyond the basic Form I-9 review.
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