New York & New Jersey Immigration Lawyer Blog

Articles Posted in Immigration Visas

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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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NYS-Notary-Seal.jpgImmigration law in the United States can be complicated and confusing for anyone, especially someone who might not speak English as their first language. In today’s environment of possible immigration reform, unscrupulous individuals are holding themselves out as immigration-service providers, offering assistance with visa petitions and green card applications. People who pay them for their services, however, rarely if ever see any benefit. Government agencies, from the Federal Trade Commission (FTC) to city officials, are pursuing and prosecuting alleged immigration-services scammers, and seeking to educate the public about their rights.

In order to provide immigration services to the public, a person must be a licensed attorney or have accreditation from the Board of Immigration Appeals (BIA). U.S. Citizenship and Immigration Services (USCIS) offers an overview of common scams targeting immigrants. Some scammers pose as USCIS officials on the telephone in order to obtain personal information for identity theft, or to demand payment to fix non-existent immigration problems. Similar scams may use email or social media instead of the telephone. Local businesses and websites may purport to offer assistance with immigration petitions and applications, despite having no legal authority to do so.

A common scam that targets immigrants from Latin American countries involves the use of the title Notario Público. In the Spanish-speaking world, a notary public performs many of the same functions as an attorney, possibly including immigration assistance. A notary public in the U.S., however, is not authorized to provide legal services (unless they are also an attorney). The FTC obtained a judgment against a Baltimore company that targeted Spanish-speaking individuals from El Salvador and Honduras and charged them a fee for immigration services that were rarely fulfilled. FTC v. Loma Int’l Business Group, No. 1:11-cv-01483, mem. order (D. Md., Mar. 24, 2014).
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file0001996506733.jpgThe EB-5 investor visa program, which allows foreign nationals to obtain green cards for themselves and their families if they meet certain benchmarks for investment and job creation, has been the subject of recent scrutiny from several federal agencies. The Securities and Exchange Commission (SEC) filed suit against a Chicago man in connection with an allegedly fraudulent investment scheme targeting prospective immigrant investors. It has also issued subpoenas to companies that have raised capital through the EB-5 program. The White House has generally expressed its support for the EB-5 program and other programs that attract immigrant entrepreneurs and others, as a means of boosting the economy. It is not yet clear whether the current EB-5 controversy will amount to anything, or if it will be yet another political feud in the larger process of immigration reform.

Prospective immigrants may petition for an employment-based immigrant visa under the EB-5 program if they meet four major criteria:
1. Investment of at least $1 million in a “new commercial enterprise,” or at least $500,000 in some circumstances;
2. “New commercial enterprise” is generally defined as a for-profit business, however organized, formed after November 29, 1990;
3. The immigrant must play an active role in managing the enterprise; and 4. The investment must create at least ten new full-time jobs for authorized workers, not including the investor or the investor’s immediate family.

U.S. Citizenship and Immigration Services (USCIS), which manages the EB-5 program, has authorized the establishment of Immigrant Investor Regional Centers (IIRCs) to assist investors with various EB-5 processes. Ten IIRCs have opened in New Jersey so far.
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Kyrgyzstan-mountains_in_summer_panorama.jpgAmerican families who wish to adopt a child from abroad face an array of challenges. While federal immigration law places few, if any, barriers to citizenship for a child adopted by U.S. citizen parents once the child is in the U.S. and the adoption is complete, the process of actually getting the child to the U.S. can be difficult, depending on the laws of the child’s home country. Several countries have instituted bans on intercountry adoptions with the U.S., including adoptions that were in progress. This has prevented some families, who have already met and bonded with the children they want to adopt, from bringing them home.

The AP reported on the “Kyrgyz 65,” a group of Americans who are trying to adopt sixty-five children from Kyrgyzstan in central Asia. The adoption process stalled in 2008, when the Kyrgyz government halted international adoptions because of alleged corruption. Kyrgyz government officials were accused of “dealing in what was effectively a trade in children,” according to the AP. The situation grew even more complicated in April 2010, when an uprising deposed the country’s president, who fled to neighboring Kazakhstan and then to Belarus. Two months later, ethnic violence broke out between Kyrgyz, who constitute the majority ethnic group, and minority Uzbeks.

Kyrgyzstan’s new president signed a law in May 2011 establishing new guidelines for adoptions, but much of the law still has not taken effect. The Kyrgyz government shut down adoptions again in July 2012 because of corruption charges. While some of the Americans have given up in the roughly five years since their adoption processes started, about fifteen families continue to travel to Kyrgyzstan to visit the children, and they regularly send letters and packages. The U.S. State Department last updated its adoption information for Kyrgyzstan in June 2011.
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320px-Secaucus_Junction_interior.jpgA New Jersey business has settled with the federal government regarding accusations of failure to verify employees’ work eligibility and employment of undocumented or otherwise unauthorized immigrants. After an audit of the company’s I-9 employment eligibility verification records allegedly revealed multiple deficiencies, the company reached an agreement with Immigration and Customs Enforcement (ICE) and Homeland Security Investigations (HSI) to pay a fine of $625,000. The case helps demonstrate how the government assesses fines in cases of alleged employment violations.

HSI reportedly received an anonymous tip regarding a Secaucus, New Jersey clothing manufacturer. The tipster claimed that the company was hiring undocumented immigrants who lacked authorization to work in the United States. Federal immigration laws require all employers to complete a Form I-9 for each employee, and to retain that form in their personnel records. The form requests evidence demonstrating the employee’s authorization to work in the U.S. This can include evidence of U.S. citizenship, such as a passport, or evidence of legal permanent residence, like a green card. Other forms of identification, such as a driver’s license or social security card, may also satisfy the requirements of the I-9 form. Individuals who are not citizens or permanent residents must present a work authorization card or other evidence of immigration authorities’ permission to obtain employment in the U.S.

HSI audited the company’s I-9 records in March 2012 and said that it found “serious deficiencies” in the company’s employment practices. The company and HSI agreed to the $625,000 fine in July. HSI’s announcement did not say how large of a fine it initially sought, nor did it provide any information on the alleged number of undocumented immigrants hired by the company.
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1188234_24691010.jpgThe United States Senate passed a bill in August extending the EB-5 Regional Center Program (RCP) for an additional three years. The RCP is a special part of the EB-5 Immigrant Investor Visa Program, allowing qualified immigrants who invest in a business venture and create jobs in designated regions to obtain an immigrant visa. The RCP has existed for twenty years, and was set to expire on September 30, 2012. The extension still requires the House of Representatives’ approval and the President’s signature.

According to U.S. Citizenship and Immigration Services (USCIS), Congress created the EB-5 program in 1990. EB-5 is a category of immigrant visa available to investors who meet certain investment and job creation requirements. The immigrant must be able to invest at least $1 million in a “new commercial enterprise,” defined as a for-profit business venture established after November 29, 1990 or, if established earlier, restructured, reorganized, or significantly expanded after that date. The minimum investment amount is lowered to $500,000 if the commercial enterprise is located in a “Targeted Employment Area,” defined as either an area with an unemployment rate of at least 150 percent of the nationwide average, or a rural area located outside a municipality with a census population of at least 20,000.
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640px-DV_eligible_countries.pngThe U.S. Department of State (DOS) will open registration for the 2014 Diversity Immigrant Visa Program (DV-2014) on October 2, 2012. The program is also known as the “Green Card Lottery.” Registration will remain open until November 3. Prospective immigrants from qualifying countries must submit an application electronically through the DOS website during that time period. Applicants who meet the criteria for the program may then be eligible for one of 55,000 immigrant visas. Selection in the lottery does not guarantee that an applicant will receive a green card, making the overall probability of any individual obtaining a green card through the program rather low.

Congress created the Diversity Visa (DV) program as a way of providing immigration opportunities to countries with low rates of immigration to the United States. It creates a separate class of immigrants, “diversity immigrants,” in addition to family- and employment-based immigrants. The first diversity visas were available for the 1995 fiscal year. A total of 55,000 immigrant visas are available through the DV program every year. Available visas are apportioned among six geographic regions: Africa; Asia; Europe; North America; Oceania; and the Caribbean, Central and South America. Beginning in fiscal year 2000, five thousand diversity visas are reserved for use under the program established by the Nicaraguan and Central American Relief Act (NACARA).
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245333_3375.jpgThe U.S. Department of State (DOS) released its Visa Bulletin for August 2012 on July 31, listing the priority dates for family- and employment-based immigrant visas. These are the visas for people intending to immigrate to the United States and obtain legal permanent residence. The Visa Bulletin provides important information for people who are awaiting a decision on an immigration petition that is subject to an annual quota. Certain immigrant visa petitions, such as U.S. citizens petitioning for an immigrant spouse or minor child, are not subject to a numerical limitation, so they are not included in the monthly Visa Bulletin.

The two major types of immigrant visas listed in the Visa Bulletin are family-based petitions subject to a quota and employment-based petitions. Once a petitioner, typically a U.S. citizen relative, permanent resident family member, or prospective employer, files a petition, the immigrant, known as the “beneficiary,” receives a “priority date.” This indicates the date the government accepted the petition. Different types of petitions receive different preferences from DOS and U.S. Citizenship and Immigration Services (USCIS). Immigration law also restricts the number of visas available from any particular country in a given year. As a result, the waiting periods, indicated by the priority date, vary depending on the type of petition and, in some cases, the immigrant’s country of origin.
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320px-Downtown_New_York_City_from_the_Empire_State_Building_June_2004.JPGComputer companies account for nearly one-half of all new petitions for H1-B visas each year, according to a recent study. This type of visa allows immigrants with particular skills in “specialty occupations” to work in the United States temporarily. A “speciality occupation” is one that involves specialized knowledge in fields such as science, medicine, engineering, technology, education, or the arts. Most require at least a bachelor’s level degree to qualify for a visa. The study, conducted by the Brookings Institution, examined H1-B petitions filed by employers in 106 major metropolitan areas around the country. It found that the New York City area has the highest demand for H1-B workers. It also found that, in most metropolitan areas, more than half of all H1-B petitions involved occupations in the areas of science, technology, engineering, and mathematics (STEM).

An employer who wants to bring a foreign worker to the United States for a job must petition to obtain an H1-B visa for the worker. The employer begins the process by filing a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL), in which the employer attests that it is offering the “prevailing wage” for the position and that it is not replacing an eligible American worker or adversely impacting similar workers’ working conditions. Once DOL approves the LCA, the employer files a visa petition with U.S. Citizenship and Immigration Services (USCIS) and pays various visa fees. The beneficiary, for whom the visa is sought, must undergo an interview at a U.S. embassy or consulate abroad before receiving a visa. An annual cap limits the total number of available H1-B visas. The is usually 85,000 total visas per year. The cap has been reached every year since 2003, at different times each year. USCIS announced that the cap for fiscal year 2013 was reached on June 11, 2012.
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320px-New-york-bay.jpgWe may soon reach the cap on J-1 visas in the Summer Work Travel (SWT) program, which allow visitors participating in “cultural exchange” programs to come to the United States for a defined period of time. Once the cap is reached, no more visas will be available until January 2013. The U.S. Department of State (DOS) has recently modified several procedures related to J-1 visas, effectively limiting the total available number. While the J-1 visa SWT program has provided excellent work and educational experiences for many visitors, it has also been the subject of controversy in recent years, with allegations of mistreatment and abuse of visitors by their employers.

The purpose of the J-1 Exchange Visitor Program, according to DOS, is to foster “global understanding through educational and cultural exchanges.” Applicants for a J-1 visa in the SWT program must have an offer of employment through a sponsoring organization approved by DOS. They must also meet requirements for English proficiency, proof of medical insurance, and to complete orientation and ongoing monitoring with the sponsor.

As a condition of the visa, visitors must return home when the program ends so that, in the words of DOS, they may “share their exchange experiences.” Visitors typically have a thirty-day “grace period” after the completion of their program to depart the country. At this point, once they leave the country, they must obtain another visa in order to return. Most participants in the program must remain in their home country for at least two years before they can return to the U.S.
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