Category Archives: International Investors - Page 4

The Foreign Marriage: Choosing Whether to Marry Your Immigrant Spouse Inside or Outside of the U.S.

Posted by on March 2, 2008 Comments Off

If a U.S. citizen wishes to sponsor his or her spouse for a green card (“lawful permanent residency” under U.S. immigration law; see www.uscis.gov), timing can always be an issue. Whether a U.S. citizen marries the immigrant spouse inside or outside of the U.S. can affect how soon the couple can begin living together in the U.S.

When a U.S. citizen marries a foreign national (“immigrant” for purposes of this article) and the marriage takes place outside of the U.S., it could be difficult for the immigrant spouse to enter the U.S. as s/he once did, i.e., on a tourist visa or other temporary visa to visit his or her family, friends, and spouse.

The reason that re-entry into the U.S. is difficult for an immigrant is that when an immigrant marries a U.S. citizen, that shows CIS and airport DHS inspection officers that the immigrant has the permanent intent to stay in the U.S. and not return to their home country. Yet, when the immigrant tries to enter on a tourist visa or other temporary visa, the immigrant is telling CIS that s/he plans to stay only for a short period in the U.S. This conflicting temporary v. permanent intent problem (commonly referred to as “dual intent”) usually results in CIS concluding that the noncitizen committed “visa fraud.” Further, if a DHS (www.dhs.gov) inspecting officer at the airport discovers that the immigrant is married to a U.S. citizen when the immigrant tries to enter on a tourist or other temporary visa, the officer will be likely to conclude that the immigrant will overstay their visa and live permanently in the U.S. because of the existence of a U.S. citizen spouse giving the immigrant “good reason to stay” in the U.S. Read more »

How To Handle A Lay Off In USA – For the H1-B Visa Holder

Posted by on March 2, 2008 Comments Off

Amongst all the worries of a tech job these days, the most worrisome is a layoff. This problem is elevated by undefined and often contradictory interpretation of the INS law. So what should you do in case of a layoff?

Well first of all you need to know the law. Here is what I have found to be the best layman friendly explanation to the parts of INS law pertaining to H-1B workers.

First of all, too many persons have stated that an H-1B worker who is laid off has ten days to either apply for a new job or leave the U.S. This is completely untrue.

The confusion regarding the “ten day” rule stems from the following regulation (8 C.F.R. §214.2(h)(13)(I)(A)):

“A beneficiary shall be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may not work except during the validity period of the petition.” Read more »

H-1B Visas – Complications in Maintaining Status and Avoiding Liability

Posted by on March 2, 2008 Comments Off

Introduction:

Most employers believe that the most difficult part of the H1-B Visa process is the H1-B Visa approval process. However, seasoned immigration attorneys realize that after the U.S. Citizenship and Immigration Services (“USCIS”) approves an employer’s H1-B Visa application, maintaining the valid H-1B Visa is arguably even more difficult.

This is where an experienced immigration attorney becomes a company’s invaluable asset. Employees and their employees must adhere to strict H1-B Visa guidelines that carefully define an H1-B employee’s place of employment, job duties, and hours of employment. A change or addition to any of those categories can potentially trigger a loss of status, or even subject the employer to liability.

Therefore, this article explores (1) possible situations where an employer must notify the USCIS of changes in a H-1B employee’s duties, (2) whether a new or amended H-1B petition must be filed, and (3) how an employer can properly terminate an H-1B employee to avoid liability. Read more »

Obtaining Permanent Residence Based On Employment

Posted by on March 2, 2008 Comments Off

It is common knowledge that most people obtain their permanent residence (“greencard”) through family petitions (marriage, siblings and parents) or asylums. This is quite true. However, there is a significant majority of people especially in the Bay Area who have obtained their permanent residence through employment. In fact, our office has successfully processed many of such cases.

First before proceeding to filing such petitions, you have to have an employer who is ready to offer you a position. There are some other petitions that do not require an employer such as National Interest Waivers. But this article will concentrate on the labor certification process. Note that because such petitions are for future prospective employment, you do not have to be working for this employer until you get a greencard in your hand. Thus a labor certification can be processed even if you are not working for this particular company right now. In fact, you can even start the process when you are outside the United States. For instance while you are in Fiji.

The process for obtaining permanent residence based on employment consists of three phases: 1) the labor certification, (Processed with the Department of Labor) 2) the visa petition, and 3) either adjustment of status (obtaining a green card without leaving the United States, if the employee is eligible) or consular processing (processing in which the employee would leave the United States in order to obtain an immigrant visa). Read more »

H-1B 7th Year Extensions and the Visa Backlog

Posted by on March 2, 2008 Comments Off

What is an H-1B?

An H-1B temporary worker is a foreign national who is coming temporarily to the U.S. to perform a specialty occupation. A specialty occupation is defined as “an occupation that requires (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor’s or higher degree in the specific specialty as a minimum for entry into the occupation in the United States.” INA214(i); 8USC 1184(i)

Limitation on Duration of Stay

An employer may request initial employment for up to a maximum of 3 years. The H-1B can be extended. Generally, the maximum amount of time that an individual can hold H-1B visa status is 6 years.

On the 6th Year as an H-1B + Visa Backlog = Trouble

A major issue created by the EB-3 (and EB-2) backlog is its effect on many H-1B workers who are subject to the 6 year limitation. Read more »

Employment Based Immigration – 3 Steps to Understanding the Process

Posted by on March 2, 2008 Comments Off

U.S. employers wishing to sponsor a foreign national for permanent residency face the daunting task of navigating through the treacherous waters of U.S. immigration laws. The vast majority of applicants will fall into the EB-2 or EB-3 category. Sponsoring foreign workers for permanent residency on the basis of an EB-2 or EB-3 petition generally requires a three step process:

1.) a Labor Certification
2.) an immigrant visa petition
3.) filing an application to adjust status to that of a permanent resident.

EMPLOYMENT BASED IMMIGRATION

A U.S. employer may sponsor a foreign national who is abroad or currently in the U.S. under their employ for permanent residency (colloquially known as a “greencard.”) through an employment based immigrant petition. Read more »

Immigration Visa Backlog – Options For U.S. Employers And Their Foreign Workers

Posted by on March 2, 2008 Comments Off

According to the December, 2007 Visa Bulletin foreign workers falling in the EB-3 category and EB-2 workers from Mainland China and India will be affected by a severe backlog of visa numbers. This means there are more individuals wishing to immigrate than there are allotted visas. As a result, foreign workers in the effected categories may have a wait time exceeding 5 years before they are able to file an application to adjust status to that of a permanent resident.

Filing a New Labor Certification as an EB-2

The same employer who had filed an EB-3 application for a foreign worker may file a new labor certification for EB-2 classification for the same foreign worker if the job offer as an EB-2 is bona fide and the foreign worker possesses the requisite educational and employment experience that meets the criteria for EB-2 classification. Read more »

The Advisory, Conciliation and Arbitration Service (ACAS)

Posted by on March 2, 2008 Comments Off

The Advisory, Conciliation and Arbitration Service (ACAS) is a non-departmental body of the Government of the United Kingdom. It was founded in 1975 to foster industrial relations and improve employee working conditions. ACAS involves employers and employees in an effort to resolve disputes though conciliation. ACAS also works with employees to increase productivity levels and provides up-to-date information on employment legislation through its helpline. Read more »

H-1B – A Non-Immigrant Visa Option for US Employers

Posted by on March 1, 2008 Comments Off

An H-1B temporary worker is a foreign national who is coming temporarily to the U.S. to perform a specialty occupation. A specialty occupation is defined as “an occupation that requires (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor’s or higher degree in the specific specialty as a minimum for entry into the occupation in the United States.” [INA214(i); 8USC 1184(i)]

For example, accountants, architects, teachers (primary and secondary, excluding nursery school teachers), university professors, certain types of nurses, attorneys, physicians, and engineers will all qualify as H-1B workers. The only way to make a determination whether a particular worker will qualify is through advice from an experienced immigration attorney. Read more »

Free Immigration Lawyer – Free Advice On The Net

Posted by on February 29, 2008 Comments Off

You can get a free immigration lawyer on the net who gives you free advice on immigration matters. You can also fill up the free application form given on the website, for a free assessment of your candidature, for migration in a specific category. You do not have to pay a single penny for this service. It is also very important that you choose your online immigration lawyer after taking an interview of as many lawyers as you possibly can. You should not file your application unless you find the perfect attorney to handle your case. Read more »

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