ImmigrationPortal Forums

ImmigrationPortal Forums - Blogs http://forums.immigration.com/blog.php en Thu, 18 Mar 2010 08:10:09 GMT vBulletin 60 http://forums.immigration.com/images/misc/rss.jpg ImmigrationPortal Forums - Blogs http://forums.immigration.com/blog.php Adoption for US Citizens, Immigrants and Nonimmigrants http://forums.immigration.com/blog.php?b=244 Tue, 23 Feb 2010 12:12:50 GMT Quite a few of our community members have asked me about te basic laws governing adoptions. One of my colleagues has prepared brief write up for you. The procedure to adopt a child from a foreign country varies depending on whether the Prospective Adoptive Parent(s) are U.S. Citizens, Green... Quite a few of our community members have asked me about te basic laws governing adoptions. One of my colleagues has prepared brief write up for you.

The procedure to adopt a child from a foreign country varies depending on whether the Prospective Adoptive Parent(s) are U.S. Citizens, Green Card Holders/Permanent Residents, or Non-Immigrant Visa holders. Two alternatives exist for United States Citizens only: adoption through the Hague Convention and orphan adoptions (from non Hague countries). Under these two processes, USCIS determines the eligibility and suitability of the Prospective Adoptive Parent(s) in addition to the eligibility of the foreign born child to immigrate to the United States.

Non-immigrants and Permanent Residents may not adopt foreign born children under the Hague Convention. In order for a Nonimmigrant or Permanent Resident to bring an adopted child into the United States, Prospective Adoptive Parent(s) must prove that they have been in legal and physical custody of the child for at least two years. The statutory provision pertaining to adopted children is found in INA Section 101(b)(1)(E), which provides immigrant classification for "a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years..." This "two-year provision" is for Prospective Adoptive Parent(s) who are able to temporarily reside abroad and adopt a child in accordance with the laws of the foreign state in which they are residing. Note, the two year requirement is counted in the aggregate. Intermittent gaps in time are permitted. Legal custody begins when it is granted to the Prospective Adoptive Parent(s) by a legal process through the courts or other recognized government entity. This legal grant of custody must be evidenced by an official custody document or a final adoption decree.

The “two year provision” option is complicated and difficult to carry out because it is nearly impossible for Prospective Adoptive Parents (Permanent Residents and/or Non-immigrant visa holders) to return to their home countries/foreign countries and remain with the child abroad for two years before adopting. The two year absence from the United States raises other concerns with maintenance of one’s Permanent Resident status and/or Non-immigrant status. Prospective Adoptive Parents (Permanent Residents) who have completed the two year requirement would complete the immigration process by filing the I-130 and ancillary documentation. A Non-immigrant Prospective Adoptive Parent can attempt to obtain a dependent visa for his or her adoptive child so long as the child meets the definition of a child under INA, as per Section 101(b)(1)(E) noted above. Note, the primary applicant should have fulfilled the two year requirement, not only a/the dependent spouse.

**Please note this is a general summary of the inter-country adoption requirements for Green Card Holders/Non-immigrants. Adoption is a complicated matter and requirements may vary per country. Additional requirements may exist depending on the Prospective Adoptive Parent(s)’ circumstances. Please consult an attorney to discuss your inter-country adoption inquiries. ]]> Rajiv S. Khanna http://forums.immigration.com/blog.php?b=244 Must we withdraw a PERM application if the employee is laid off? http://forums.immigration.com/blog.php?b=239 Tue, 02 Feb 2010 20:15:20 GMT Here is a set of questions posed to me recently by one of our clients:

I am Mr. Jones, the employer. The employee, Mr. Smith, is no longer employed with us because of company's budget issue. However, we may hire him in the near future if circumstance changes.

My question:
Q1. Do we need to withdraw PERM LC for him that was submitted 2009?
The status is still in process now. I would like to know if this PERM LC still has any goods for him. Let me know the pros & cons between withdraw it and not withdraw it.

A1. I do not know of any law that requires an employer to withdraw a PERM application if an employee leaves or gets laid off, but the employer still retains a good faith intention to hire them back. When we first filed the PERM application, we filed it in good faith, asserting to the USDOL under penalty of perjury that:
You have enough funds available to pay the wage or salary offered the alien and you will be able to place the alien on the payroll on or before the date of the alien’s proposed entrance into the United States.
Both these assertions were true when we filed the PERM application on your behalf. So, we have followed the laws to the letter. Now, several months later, circumstances have changed. Do we have an affirmative duty to withdraw the PERM application? I do not see such a duty in the law.
Having a PERM in process, gives your employee an opportunity to continue extending their H-1 with any employer beyond 6 years. That is a considerable benefit.
The government could take the position that your application is now void on two grounds. First, you no longer have a job open, which is a continuing requirement. Second, you had an interruption in your ability to pay the intended wage, which is also a continuing requirement. We could lose the green card on both counts, but I see nothing illegal in letting the application stay pending. My opinion could change if we get an audit request from the USDOL. At that point, it may be inappropriate for us to continue. That is something we will review carefully at that time. Please do remind us. We will also post a note to your file.

Q2. Question from the employee, Mr. Smith:
If Mr. Smith filed an immigration benefit (e.g. visa, petition, change of status), does he need to answer YES / NO to the following question: "Has an immigrant petition ever been filed for you?" Basically: does submitting PERM/LC mean filing an immigrant petition? This question is often asked in application.
A2. A PERM is not a visa application or an immigrant petition, a Form I-140 (the step after PERM) is. ]]> Rajiv S. Khanna http://forums.immigration.com/blog.php?b=239 Importance of having continuity of employment/pay stubs http://forums.immigration.com/blog.php?b=237 Fri, 29 Jan 2010 21:16:34 GMT Here is a question from our clients-only extranet. ---Quote--- Whats the relevance or importance of having continuous pay stubs (How much gap is permissible if Not significant?) in the processing of Green card of an H1B holder. ---End Quote--- Continued payments are required by law for H-1... Here is a question from our clients-only extranet.

Whats the relevance or importance of having continuous pay stubs (How much gap is permissible if Not significant?) in the processing of Green card of an H1B holder.

Continued payments are required by law for H-1 holder, unless they come under some very limited exceptions for leave for employee's personal reasons. Not paying, exposes the employer to investigation and penalties and may place the employee out of status.

In the green card context, non-payment can lead to problems with demonstrating ability to pay wages.

For both H-1 and GC, nonpayment can lead to an assumption that no genuine job exists. That could lead to cancellation of one or both processes, except for situations where AC21 portability is involved. ]]> Rajiv S. Khanna http://forums.immigration.com/blog.php?b=237 AILA moves to correct the January 8 Memo http://forums.immigration.com/blog.php?b=238 Fri, 29 Jan 2010 18:16:27 GMT See attached memo. They will be writing separately to set aside the Jan 8 memo completely. Looks like we might see some good results without having to go to court. See attached memo. They will be writing separately to set aside the Jan 8 memo completely. Looks like we might see some good results without having to go to court.

Attached Files

]]> Rajiv S. Khanna http://forums.immigration.com/blog.php?b=238 Entering USA, what to expect? http://forums.immigration.com/blog.php?b=236 Tue, 26 Jan 2010 20:16:37 GMT *What kind of problems can employment-based nonimmigrants (H-1, L-1, E-1, E-2, E-3, TN) face during reentry? * I think this question is most relevant for H-1 holders, but other employment-based nonimmigrants may also note the general principles here. For the last two weeks I had been hearing... What kind of problems can employment-based nonimmigrants (H-1, L-1, E-1, E-2, E-3, TN) face during reentry?

I think this question is most relevant for H-1 holders, but other employment-based nonimmigrants may also note the general principles here.

For the last two weeks I had been hearing rumors of H-1B employees being “deported” from the airport when they tried to enter (or reenter) USA. I did not believe there was much to these rumors until, during the employers conference call a week ago I spoke with an employer with whose employee this had happened at an international airport in NY/NJ. I have gone over the details of what transpired.

The employee was asked who was his employer and where was he working. As soon as the CBP officer found out that the employee was working at a site other than the employer's he went into the entire employment history of the employee. The CBP officer then made a quick call to the employer as well. Finally, he gave the employee a choice: "either we formally decline you entry, then you cannot come back for 5 years, or you withdraw your application for admission and leave USA." So this poor guy took a 20-hour flight back.

I am incensed for two reasons. One, the issue of what an "employer" is under common law is so complicated that IRS has been struggling with it or several decades. A CBP employee with no legal training makes a snap judgment distributing misery without a thought given to the rule of law. Second, if there were any doubts about the veracity of the case, the proper recourse would have been deferred inspection where an employee is allowed to enter USA, but they have to come back with documents, and perhaps their lawyer to explain the case.

I have talked with three H-1B holders who were put in deferred inspection. I can live with that. The January 8th Memo of USCIS will end up in court whether through us or some other law firm. this memo has made a mockery of the legal process. I will explain more once I have decided on a detailed course of action. Until then, I want every employee entering USA to do the following things:

1. Remember, not everyone is being stopped and turned back. I have spoken with many, many recent entrants, who had no problem.
2. Make sure you have contact numbers of your employer and your end-client, if you are deployed at a third-party site.
3. Let your employer/end-client know when you will be entering USA.
4. Remember also, I do not believe you can carry any documentation over and above what you would normally carry.
5. Advance parole entries are relatively safer.
6. Dependents traveling alone are not likely to be bothered.

Feel free to post your questions here ONLY related to this topic please. I will try my best to answer. I had stopped answering while we were doing some changes on site. But this issue is important. I want to make sure we address all aspects as best as we can. ]]> Rajiv S. Khanna http://forums.immigration.com/blog.php?b=236 H-1b Employer Employee Memo of 8 January - Practice Hints http://forums.immigration.com/blog.php?b=235 Tue, 19 Jan 2010 14:23:24 GMT I am reproducing material from our employers-only (by invitation only) conference call for tomorrow. These matters need to be in place for H-1 new applications, transfers as well as extensions. In view of the Memo of 8 January 2010 from USCIS, employers in the consulting business need to... I am reproducing material from our employers-only (by invitation only) conference call for tomorrow. These matters need to be in place for H-1 new applications, transfers as well as extensions.

In view of the Memo of 8 January 2010 from USCIS, employers in the consulting business need to prepare for some changes in the way they work and their documentation. In our community call for employers on 14 January 2010, I had touched on some of the changes in the way you do business. This memo will provide further advice. Treat this both as a document providing guidelines for change as well as a starting point for several discussion, we as a community, will have. Feel free to let me have your comments.
For our purposes, an H-1B is based upon formation (and continuation) of a valid employer-employee relationship between the petitioner and the beneficiary. Note what USCIS says how they will define this relationship.
We need to establish we have the right to control when, where and how the job is performed.
1. We need to establish that you continue to supervise the employee even when the employee is working off site
2. Establish work flows and document them to show how many times a week/month the employee reports to you. Create documentation that provides dates and substance of discussions with the employee.
3. Do you have to right to control the day to day work of the employee? In other words, do you get to tell the employee: the times they arrive and leave; the amount of work they must do each day; the quality standards for the work; how to do the work, etc.
4. Do you provide the tools or instrumentalities needed to perform the job? In many industries, that would men providing items like laptops, desktops, printers and job-related software. If yes, document that you do.
5. Do you have the ability to hire, pay and fire the employee? This can be documented through employment contract with the beneficiary or through the offer letter. There is no legal requirement that you must enter into an employment agreement with you employees, H-1B or otherwise.
6. Do you evaluate the work product of the employee? In the IT industry, you can think of as the review before user acceptance. But even if you do not, you should be able to meet this requirement by establishing periodic performance review (at least annual) criteria. You can create spreadsheets of various elements that can be assessed: technical proficiency; ability to learn new material; client satisfaction; communication skills, etc.
7. Do you claim the employee on your corporate taxes (W-2)? The answer will of course be “yes” for all consulting companies, because you are required to place employees on your payroll as W-2 employees.
8. Do you provide any employee benefits? These can be medical insurance, paid vacations, bonuses, travel allowances (per diem), etc.
9. Does the employee use any of your proprietary information to perform the job? So, for companies that are selling products bundled with consultation would have an easier time proving this element. For most consulting companies the answer would be no. Nevertheless, document any training you provide the employees. That could be relevant.
10. Is the work product directly related to your business? The answer here would be “no” for most consulting companies. But an argument could be made that the work product for consultants is “consulting advice.” If that is true, then the work product is indeed directly related to the business.
11. Do you have the right to control how the work product is produced? This is similar to some of the points above and deals with the control of how work is performed.

Additional suggestions:
1. Create company-wide performance guidance for all consultants, no matter where they are deployed. For IT companies, it could be something akin to creating good practices for the SLDC.
2. Provide reimbursement for travel and similar job-related expenses. Avoid reimbursement from end-clients to your employees.
3. Where possible, add terms in your contracts with end-clients and vendors that specify that you have:
a. The right to control and manage how the employee performs the work;
b. The exclusive right to reassign the employee and that no one else has that right during their employment with you
4. Get the assignments from the end-client and take responsibility for delegating them to your employees.
5. Remind me to speak with you all about distressing “staffing” including specific positions in contracts.
6. Remind me to also speak with you all about extensions of H-1, which will be problematic under this memo.

You can place all of the above workflows, processes and other factors in your employee handbooks if you are already using them. ]]> Rajiv S. Khanna http://forums.immigration.com/blog.php?b=235 H-1b Employer Employee Memo of 8 January http://forums.immigration.com/blog.php?b=234 Thu, 14 Jan 2010 12:39:30 GMT I have received emails from many employers wanting my comments on the attached memo that affects all employers but especially targets consulting companies. We will be holding a conference call today for employers. This call is by invitation only. A recoding will be made. You may request a copy... I have received emails from many employers wanting my comments on the attached memo that affects all employers but especially targets consulting companies. We will be holding a conference call today for employers. This call is by invitation only. A recoding will be made. You may request a copy of this recording by contacting us through:
http://www.immigration.com/contact

The recording will be sent to bona fide employers only. So, do not provide gmail/hotmail type emails. Write us from your corporate email accounts only.

Attached Files

]]> Rajiv S. Khanna http://forums.immigration.com/blog.php?b=234 Link to my 2009 articles on immigration law compliance and end-client letter issues http://forums.immigration.com/blog.php?b=233 Wed, 13 Jan 2010 14:15:56 GMT I have received e-mails from folks about my 2009 articles on immigration law compliance and end-client letter issues in H-1B cases published by American Law Institute - American Bar Association. Here is the link: http://www.immigration.com/articles-rajiv-s-khanna I have received e-mails from folks about my 2009 articles on immigration law compliance and end-client letter issues in H-1B cases published by American Law Institute - American Bar Association. Here is the link:
http://www.immigration.com/articles-rajiv-s-khanna ]]> Rajiv S. Khanna http://forums.immigration.com/blog.php?b=233 USCIS explains its types of site visits http://forums.immigration.com/blog.php?b=232 Mon, 23 Nov 2009 11:25:39 GMT USCIS' Fraud Detection and National Security (FDNS) office has recently explained the three types of site visits that are currently being conducted:

1. Risk Assessment Program fraud study (RANDOM VISITS). This is a joint study by USCIS and ICE applicable to both family-based and employment-based cases. Cases are chosen for randomly for review and site visits – usually after a case is approved. The purpose of this study is to build a profile of the types of cases where fraud is most prevalent.
2. Targeted site visits (PLANNED VISITS). These are targeted visits where fraud is already suspected. USCIS is supposed to give advance notice of the site visit to counsel of record.
3. Administrative site visits (RANDOM VISITS). These are currently conducted by contractors (who know nothing of immigration law) for religious worker and H-1B cases. The questions are already scripted and involve issues like whether there exists a genuine employer, and whether the beneficiary is doing the work and receiving the wage indicated on the petition. Generally, if all is clear, these visits are not repeated more than once per site (not per employer). ]]> Rajiv S. Khanna http://forums.immigration.com/blog.php?b=232 H-1B Quota Numbers - 55,600 http://forums.immigration.com/blog.php?b=231 Thu, 19 Nov 2009 10:57:23 GMT USCIS reported yesterday (11/18/2009)
that as of November 13, 2009, approximately 55,600 H-1B cap-subject petitions had been filed. Advanced degree holders' cap of 20,000 has been reached. Any H1-B petitions filed on behalf of advanced degree professionals will now count toward the general H1-B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until further notice. ]]> Rajiv S. Khanna http://forums.immigration.com/blog.php?b=231 H-1B Quota Numbers http://forums.immigration.com/blog.php?b=230 Wed, 18 Nov 2009 10:50:15 GMT USCIS reported yesterday (11/17/2009)
that as of November 6, 2009, approximately 54,700 H-1B cap-subject petitions had been filed. Advanced degree holders' cap of 20,000 has been reached. Any H1-B petitions filed on behalf of advanced degree professionals will now count toward the general H1-B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until further notice. ]]> Rajiv S. Khanna http://forums.immigration.com/blog.php?b=230 H-1B for in-house projects http://forums.immigration.com/blog.php?b=229 Tue, 10 Nov 2009 10:22:43 GMT Two recent RFE’s for which I have provided consultation raise an interesting practice pointer. When an employer claims that they have an in-house project for an H-1 worker, USCIS asks for details of the project. In the RFE’s, USCIS then seems to have Googled the language of the project plans. ... Two recent RFE’s for which I have provided consultation raise an interesting practice pointer. When an employer claims that they have an in-house project for an H-1 worker, USCIS asks for details of the project. In the RFE’s, USCIS then seems to have Googled the language of the project plans. Both RFE’s asked for explanation on why the language was copied and pasted from a publicly available source on the Internet. Our recommendation: If you have a genuine project, describe it in your own words. Apparently, plagiarism is now a sin outside school as well. ]]> Rajiv S. Khanna http://forums.immigration.com/blog.php?b=229 More questions on AC21, EAD, losing job, etc. http://forums.immigration.com/blog.php?b=228 Thu, 05 Nov 2009 11:35:18 GMT Here is a series of questions that should be relevant for many people: ---Quote--- I’ve been having a whole lot of sleepless nights trying to ascertain facts from fiction relating to AOS, job change, job loss etc. I have poured through your blogs and posts and have the following questions. ... Here is a series of questions that should be relevant for many people:

I’ve been having a whole lot of sleepless nights trying to ascertain facts from fiction relating to AOS, job change, job loss etc. I have poured through your blogs and posts and have the following questions.
Situation: On 5th year of H1. Single employer till date from day one of H1. Same employer has sponsored GC applications, I-140 approved, I-485 filed in Aug-07, EAD and AP approved and successfully renewed.

1. What is the real value of CIS issuing EADs to people like me?
a. Does this allow me in addition to the current job I have, take up ‘any’ other job using EAD?

Yes.

b. Does having an EAD permit me to work multiple jobs?

Yes, but you will then lose H-1 status (which can be revived by reentering USA using an H-1 visa during the life of your H-1 and taking up single-employer job with the H-1 sponsoring employer – not a difficult task, usually).

2. If due to economic situation my employer (who has sponsored GC) has to lay off people and I am let go:
a. Am I out of status? Reading through your blogs I understand that since I-485 is pending, one is NOT out of status even if NOT working – is this correct?

Correct. You are in authorized period of stay. That has been explained in my blog.

b. How long can one stay without working (no job) while I-485 is pending? Will not working be seen as ‘abandoning the GC application’?

You can stay as long as CIS does not send an RFE or a Notice of Intent to Deny requiring you to prove similar, alternate employment (AC21 portability – also explained in detail on my blog).

c. Do we have to let CIS know that one has been laid off? If we have to do this wouldn’t CIS see that the job for which GC is being processed is no longer available and immediately terminate the I-485 application?

There is no such obligation for the employee. If the employer informs CIS, they should send (eventually) an NOID requiring proof of employment – see the answer above.

d. Do I lose EAD and AP?

No.

e. My wife is working using her EAD…will she lose her EAD?

No.

f. Is it possible to invoke EAD and take up similar job if one can be found? Is there a time period within which this has to be done?

I am not sure I understand, but there is no deadline unless an RFE or an NOID is issued.

g. Is it possible to invoke EAD and take up ‘any’ job if a ‘similar’ job is unavailable? If this route is chosen I understand that Labor Certification & I-140 may have to be re-applied, but would the priority date remain where it was originally (as obtained in original GC application) OR would priority date change to the date when new I-140 is filed?

Since your I-140 is approved and I-485 has been pending over 180 days, you are entitled by law to change jobs to a similar position with any employer. And you do not have to start your green card all over again. This is referred to as AC21 portability – discussed in exhaustive detail on my blog. But if the jobs are not similar, you can only carry forward the PD and have start your GC all over again. Make sure you maintain H-1 status. ]]> Rajiv S. Khanna http://forums.immigration.com/blog.php?b=228 Current USCIS procedures for PD transfer and AOS http://forums.immigration.com/blog.php?b=227 Mon, 02 Nov 2009 12:53:13 GMT Here is a question from our clients-only extranet that I think is on the minds of many people.

Hi Rajiv,
Recenlty we submitted my NOID response for my 485 through u'r lawfirm.
Today called USCIS customer service about my status of my 485.They said its PreAdjucated waiting for Visa number.But they mentioned i have 2 I-140s in my file
1.EB3 PD,2002
2.EB2 PD,2005.
They said which date first current then that 140 will use.

I am not sure about EB3 140( i don't have any info about this 140).B'cos i filed my 485 with Eb2 140.My case is Ac-21 .So i wasn't with both employers now.

Is that above statement correct? Do i need to do anything now or just stay calm until either of EB category comes current? Pl Advice.

I would probably do nothing. Under current USCIS procedures, they scan an applicant for all existing I-140 approvals. You are then automatically assigned the earliest PD your are entitled to. ]]> Rajiv S. Khanna http://forums.immigration.com/blog.php?b=227 How does one assist family in applying for B-2 (Visitors/Tourist) visa http://forums.immigration.com/blog.php?b=226 Wed, 21 Oct 2009 11:48:04 GMT I am responding here to a question from Immigration.com *How to Assist Family Members in Applying for B-2 (Visitors/Tourist) Visa* There are no fixed procedures for applying for a tourist visa. Generally, the applicant just goes to the U.S. consulate closest to their home and applies. Often... I am responding here to a question from Immigration.com

How to Assist Family Members in Applying for B-2 (Visitors/Tourist) Visa
There are no fixed procedures for applying for a tourist visa. Generally, the applicant just goes to the U.S. consulate closest to their home and applies. Often a friend or a family member (who is in the U.S.) of the applicant may be required by the consulate to provide Form I-134, Affidavit of Support.

Once a visa is obtained, the visa holder can travel to USA. Assuming, they travel by air, INS (actually, CBP) will grant them stay at the airport. The usual period of this stay is 6 months. Extension is possible but is usually not advisable. Visa duration governs the time within which someone can land in USA. I-94 (issued by INS (CBP) at the airport) governs how long they can stay in USA. So for example if your visa is expiring tomorrow and you flew into USA today. INS (CBP) has given you an I-94 expiring in 6 months, you may stay in USA for 6 months.

FREQUENTLY ASKED QUESTIONS
-----------------------------------------------
Q. In filling out Form I-134 form (Affidavit of Support), If you look at the question No.1. It says are your Citizen...., or permanent resident of US. It has no column says are you H1B etc. What should I do here. Should I leave this column or do something else please guide me.
A. Hand write or type next to it "H-1B Holder" ]]> Rajiv S. Khanna http://forums.immigration.com/blog.php?b=226