Green Card & Visa News » Green Card

Microsoft stresses importance of US H-1B visa for IT companies

Tushar Mathur — Tue, 17 Apr 2012 05:35:00 +0000

This week, as employers began filing petitions for the popular US H-1B work visas, Microsoft stressed the importance of the visa in keeping America’s IT companies competitive.

“While the vast majority of our US workforce is comprised of US workers, the individuals we employ in H-1B status -educated at some of the best universities in the US and around the world – are crucial to our business,” said Brad Smith, general counsel & executive vice president, Legal & Corporate Affairs, Microsoft.

Current immigration law allows for a total of 85,000 new H-1B visas to be made available each government fiscal year. This consists of 65,000 new H-1B visas available for graduate level overseas workers in professional or specialty occupation positions, and an additional 20,000 visas available for those with an advanced degree from a US academic institution.

“Even with our economy in the midst of a prolonged recovery, the annual allotment of H-1B visas is projected to be exhausted earlier than last year, and well before the end of the government’s fiscal year,” Smith said. “Our economy is hungry for workers with strong educational backgrounds, especially those with degrees in the science, technology, engineering and mathematics (STEM) fields.”

Smith also expressed Microsoft’s unhappiness with the current Green Card system and the per-country caps they currently have in place.

“There are important steps that Congress can take right now to accomplish this. The House passed the Fairness for High-Skilled Immigrants Act in November with overwhelming and rare bipartisan consensus, 389-15,” Smith said. “The bill would replace the discriminatory ‘per-country’ limits on employment-based green cards with a merit-based, first-come-first-served system, but it has unfortunately stalled in the Senate.”

If the bill is passed, the 140,000 employment-based green cards that the US issues each year would be available on a first come, first served basis. Currently, individuals from any one country can account for no more than 7 percent of the total work-related green cards issued. Critics of the current process claim that it is more likely to affect individuals from populous countries such as India and China, which produce large numbers of technology professionals.

Global Visa Support offers a variety of programs in United States. Please visit our USA page for more information: http://www.globalvisasupport.com/usa.html

DOS Confirms China-Mainland Born and India EB-2 Visa Retrogression as of March 23, 2012

Tushar Mathur — Thu, 05 Apr 2012 16:35:00 +0000

Charlie Oppenheim, Chief of Visa Control at the State Department, has confirmed that, effective March 23, 2012, no further EB-2 visas will be authorized for China-mainland born and India applicants with priority dates of August 15, 2007, or later. Visa applicants processing in April at consulates abroad will still receive visas, as those numbers were allocated before the cut-off date was established. Mr. Oppenheim understands that USCIS will continue to accept applications for adjustment of status for aliens with priority dates prior to the date established in the April 2012 Visa Bulletin. Those cases with priority dates of August 15, 2007, or later, will be processed by USCIS to the point of approval (pre-adjudicated) and a request for a visa number will be forwarded Visa Control at DOS to be held in a “pending” file until new visas are available beginning with FY2013 on October 1, 2012. Mr. Oppenheim advises that an item in the May Visa Bulletin will address the EB-2 movement. - AILA InfoNet Doc. No. 12040447 (posted Apr. 4, 2012)
The announcement just confirmed the recent predictions by DOS. In summary, it means that applicants may still submit their I-485 applications through the end of April 2012 if their priority date is before May 1, 2010 (EB-2 cutoff date for India and China). However, only cases with priority date earlier than August 15, 2007 will be issued an immigrant visa or green card; other cases will be put on hold pending new visa numbers being available.

Major Retrogression Predicted for Employment Second Preference (EB-2) India and China

Tushar Mathur — Sat, 24 Mar 2012 23:30:00 +0000

In a Chicago conference with the American Immigration Lawyers Association (AILA) held on March 16, 2012, the Chief of State Department’s Visa Control and Reporting unit, Mr. Charles Oppenheim, stated that the EB-2 India and China visa category will likely retrogress in the May or June 2012 Visa Bulletin. The extent of retrogression will be quite drastic, reverting the EB-2 cutoff date back to approximately August 2007 from the April cutoff date of May 1, 2010.

Reasons for Retrogression: The recent rapid advancement in EB-2 cutoff dates was to use up all available visa numbers for the fiscal year. To that end, the State Department has generously advanced the cutoff days during the past six months from July 15, 2007 (October 2011 Visa Bulletin) to May 1, 2010 (April 2012 Visa Bulletin). As expected, the advancement has allowed thousands of adjustment applications and immigrant visa petitions to be filed during the past few months, resulting in rapid exhaustion of visa numbers for the fiscal year. Consequently, the State Department must exercise restrain now in the allocation of visa numbers through retrogression. In fact, Mr. Oppenheim has been warning about possible retrogression all along. The lack of movement in April for EB-2 should serve as harbinger of future retrogression.

Extent of Retrogression: Perhaps the surprising aspect of the announcement is not retrogression itself but the extent of it. Mr. Oppenheim predicted that EB-2 may go back to about August 2007 in May or June. It means that EB-2 India and China will lose almost all the progress they have made during the past six months. The extent of retrogression is indeed drastic and catches many applicants by surprise. Many Indian and Chinese green card applicants will be disappointed by the sudden change in direction after the recent rapid advancement.

Ways to Handle Retrogression: First of all, it is important to note that although the prediction will likely come true, retrogression has not happened yet. Mr. Oppenheim predicted that May 1 is the earliest possible date that retrogression will happen. It means that applicants with a priority date earlier than May 1, 2010 (cut off date in April) will still be able to file their I-485 applications or immigrant visa petitions until the end of April. Hence, eligible applicants must take steps to prepare and file their applications as soon as possible.

For those applicants who are fortunate enough to have already filed their I-485 applications, they should also qualify to apply for their employment authorization document (EAD) and advance parole travel document. These documents will allow them to work in the U.S. and travel internationally. Hence, the impact of retrogression should be minimal to them. In fact, some of these cases will actually be approved before visa numbers retrogress. Even if their cases have not yet been approved, if their I-485 applications have been pending for six months or longer, they will be able to port their case to another employer if they lose their job in the interim as long as the new position is in the same or similar occupational category.

Finally, for those who are not able to file their green card applications due to retrogression, they must continue to wait patiently for the next opportunity, which may not be that far fetched. Even though Mr. Oppenheim’s predictions are usually accurate, the extent of retrogression will depend on actual visa usage. Further, visa numbers will become available again in October when the new fiscal year begins. Depending on visa number usage, it is possible that we will see advancement in visa numbers again soon.

Conclusion: An immigrant visa is required by most green card applicants, and visa numbers are controlled by law. Retrogression happens when the number of visa applicants exceeds the number of available visa numbers. Applicants cannot control visa numbers but should continue to maintain their lawful status and obtain the necessary documents to prepare for the filing of their green card applications.

EB-5 Investor Visa: Sources of Capital

Tushar Mathur — Thu, 08 Mar 2012 03:04:00 +0000

The U.S. Immigration and Nationality Act sets aside 7.1% worldwide visa numbers to qualified immigrants seeking to enter the U.S. for the purpose of engaging in a new commercial enterprise. The applicant must either have invested or is in the process of actively investing capital not less than U.S. $1,000,000 in the enterprise. This is commonly known as the EB-5 investor visa. Other categories of immigrant visa are usually oversubscribed for countries such as China and India. For instances, many family-based petitions, including those filed by U.S. citizens, are currently backlogged. The EB-2 and EB-3 employment visa categories are similarly oversubscribed. The advantage of the EB-5 visa is that, so far, there has been sufficient number of visa numbers for qualified applicants. It means that once a qualified applicant has establish that he or she meets all the legal requirements, a conditional green card will be issued by the U.S. government. For those immigrants who have sufficient capital, the EB-5 visa is an attractive alternative. It is not to say that it is easy for anybody to apply for an EB-5 visa. Rather, the investor visa requirements are quite complicated and adjudication standards very high.

The EB-5 visa program requires an investment of capital of at least one million U.S. dollars (except for certain target investment areas). Cash investment is perhaps the most direct way to meet the capital requirement. However, the regulations also allow other forms of capital investment including equipment, inventory, other tangible property and cash equivalents. Further, debts secured by assets owned by the investor entrepreneur also qualifies as capital as long as the investor is personally and primarily liable and that the assets of the new commercial enterprise are not used to secure any of the debts. Such a broad definition of capital makes it easier for investors to inject capital into their businesses. For instance, a restaurant owner may have a portion of the capital invested in equipment and cooking appliances; a pharmaceutical company may partially satisfy the capital requirement by investing in laboratory equipments and facilities; and a manufacturer or distributor of goods could meet the capital equipment through the purchase of inventory and other assets. All assets are valued at fair market value in United States dollars.

Another important requirement of capital is that it must come from lawful sources. Assets obtained through unlawful or criminal means cannot be used to meet the capital investment requirement. To prove the lawfulness of sources of capital, an investor must provide documentary evidence including: (1) Foreign business registration records, (2) Corporate, partnership (or any other business entity), and personal tax returns including income, franchise, property (whether real, personal, or intangible) filed within five years in or outside the United States by or on behalf of the immigrant investor; (3) Evidence identifying any other sources of capital; or, (4) Certified copies of any judgments or evidence of all pending governmental civil or criminal actions, and any private civil actions involving monetary judgments against the immigrant investor from any court in or outside the United States within the past fifteen years. Unfortunately, many investors are able to come up with the capital for investment but are not able to provide evidence to prove that the capital comes from lawful sources.

Finally, it is important to note that although an investor must commit to invest one million U.S. dollars in the enterprise, there is no requirement that the full amount must be invested when an EB-5 visa application is filed. An investor can use documents to show that she is in the process of investing the capital, perhaps in different stages depending on the needs of the business enterprise.

When is a Lawful Permanent Resident considered seeking admission to the United States?

Tushar Mathur — Mon, 24 Oct 2011 05:21:00 +0000

The United States immigration laws confer certain rights and privileges to a person who has been granted Lawful Permanent Resident (LPR) status by the government. These individuals, commonly known as green card holders, are authorized to work and live in the United States indefinitely. Legal residents are also allowed to return to the United States after international travel. Nonresidents, on the other hand, are considered applicants for admission and must establish that they are admissible to the United States in order to enter.

Sec. 101(a)(13)(C) of the Immigration and Nationality Act provides that a returning LPR should not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the legal resident (i) has abandoned or relinquished that status, (ii) has been absent from the United States for a continuous period in excess of 180 days, (iii) has engaged in illegal activity after having departed the United States, (iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings and extradition proceedings, (v) has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240A(a), or (vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

If either one of the six conditions apply, the returning green card holder is considered an applicant for admission and will be subject to less legal protection that he or she normally enjoys as a legal resident. A LPR is like a person who is returning home with a key (his green card) while an applicant for admission is like a visitor asking for permission to enter another person’s house. A visitor seeking admission but not a legal resident is subject to all the grounds of inadmissibility contained in the immigration statutes. When a legal resident is placed in removal proceedings, the government must first prove by clear, unequivocal, and convincing evidence that the grounds and basis for deportation are true before the person may be removed from the United States. The burden of proof is on the government to prove that the person is deportable. Similarly, to treat a returning resident as seeking admission to the United States, the Department of Homeland Security bears the burden of proving by clear and convincing evidence that a returning lawful permanent resident falls under one of the above six categories of individuals.

For example, in a recent Board of Immigration Appeal (BIA) case, Matter of Benno Rivens, decided October 19, 2011, the Board remanded the case to the Immigration Judge to analyze if the offenses committed by the respondent – a green card holder – constitute a crime involving turpitude (CIMT). (This falls under condition v above.) If the DHS meets its burden by proving by clear and convincing evidence that the respondent had committed a CIMT, then he would be treated as an applicant for admission. Further, since convictions of CIMTs are also grounds of inadmissibility, he would also not be allowed to be admitted to the United States and, consequently, he would lose his green card. On the other hand, if the government fails to meet it burden of proof, the respondent would be allowed to return to the United States as a lawful permanent resident.

Hence, before a legal resident travels outside of the United States, it is very important for him to determine whether or not he will be regarded as a returning resident or an applicant for admission upon his return. Sometimes, it may be wise for a legal resident not to depart the United States at all.

EB-2 India and China Advanced to November 1, 2007 in November Visa Bulletin

Tushar Mathur — Wed, 05 Oct 2011 20:54:00 +0000

Good news for Indian and Chinese EB-2 green card applicants: the cut-off dates advanced 2 1/2 months to November 1, 2007 in November's visa bulletin just released by the State Department.

LA Asylum Fraud and Asylum Reform

Tushar Mathur — Mon, 19 Sep 2011 17:29:00 +0000

Recently, an immigration consulting business in Los Angeles was charged by the authorities with immigration benefit fraud and failing to disclose their role as preparers on hundreds of asylum applications. This story may not be news for people who are familiar with immigration news. It is just another immigration fraud case, one may say. However, it offers some insights into the political asylum application process in the U.S.

The U.S. as a country of immigrants and freedom has always embraced the idea of providing protection for those who need it. It has incorporated the definition of “refugee” from the United Nations Convention and Protocol Relating to the Status of Refugees in the domestic law. Simply put, a refugee is a person outside her country or last place of residence who is unable or unwilling to return to that country or place because of persecution or a well-founded fear or persecution on account of race, religion, nationality, membership in a particular social group of political opinion. A person who meets the definition of a refugee may apply for political asylum if such a person is physically present in the U.S.

Because of the benefits that it offers to the applicant, including an opportunity to obtain a U.S. green card and employment authorization, political asylum has become the target of fraud and abuse. Prior to 1995, by filing an asylum application, a person was able to also obtain an employment authorization document (EAD) at the same time, thus providing a strong motive for filing fraudulent asylum applications. In 1996, Congress amended the Immigration Act to implement asylum reform. An applicant who is found to have filed a frivolous asylum application is barred from applying for any immigration benefits in the future. Further, an applicant is not able to obtain an EAD until 180 days have elapsed after filing of an asylum application. Individuals who are involved in asylum fraud – including the applicant herself – are subject to civil and criminal punishment.

Asylum reform was effective for a short period of time. However, greed trumps fears of punishment again after a while when unscrupulous scammers got used to the new process. They continued to advertize their services and lure the undocumented foreigners to submit frivolous asylum applications. Sadly, these foreigners are the real victims of the story. Some of them may not even know what was being filed on their behalf. Take the recent LA-area immigration fraud case as an example – two men were charged with preparing and filing bogus asylum applications for hundreds of Chinese individuals based religious persecution. Reportedly, these applications contain fabricated stories of religious persecution with identical accounts of happenings. No wonder they were caught by the authorities! All of these cases will be reopened and reviewed once again. Most if not all of them will be denied. These applicants will likely never be able to apply for any immigration benefit. They could also be charged with fines and put in jail. This is after each of them has paid anywhere between $3,500 and $6,500 to the agency.

Perhaps what is worse is the collateral damage caused by this kind of fraudulent cases – it greatly reduces the chances of genuine asylum applicants to obtain protection in the U.S. Proving an asylum claim by itself is already a formidable task. Adjudicators of asylum applications will be extra careful when examining asylum applications after reading reports of asylum fraud such as the LA case. This story also suggests that more is needed to be done to improve the U.S. asylum process. Most immigrants tend to seek assistance from the folks who speak their language and who come from their place of origin. More non-profit organizations and outreach programs should be set up in immigrant communities to provide correct legal advice and information for newcomers to America.

VAWA self-petitions can be filed by the victim between the ages of 21 and 25

Tushar Mathur — Thu, 08 Sep 2011 23:38:00 +0000

The USCIS has issued a policy memo dated September 6, 2011, to allow victims of abuse to file their self green card petitions even though they are over the age of 21 if it is filed before the age of 25. The Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005) amended section 204(a)(1)(D) of the Immigration and Nationality Act to allow continued eligibility for certain individuals to file a VAWA self-petition after the age of 21, if the abuse was at least one central reason for the filing delay.

The Religious Worker Path to a Green Card

Tushar Mathur — Wed, 11 May 2011 20:21:00 +0000

If you work for a recognized religious organization, either as a minister or a religious worker, you might qualify for a green card as a special immigrant. You can apply for your green card as a minister or religious worker from inside the U.S.—if you are in lawful status and not working without authorization—or from abroad. You start the process by filing an I-360 petition on your own or through your employer. Whether you or your employer files the petition, the prospective U.S. employer must submit certain documentary evidence, including an attestation showing that certain requirements have been met regarding the organization, its history of filing this type of petition and the position and salary.

Now, the immigration regulations define a “minister” as someone who is fully authorized by a religious denomination to conduct religious activities, such as a minister, priest, rabbi, imam, ordained deacon, or Buddhist monk. A “religious worker” is defined as someone who is in a religious vocation or occupation and is authorized to perform normal religious duties, such as religious instructors, religious counselors, missionaries, religious broadcasters, workers in religious hospitals and cantors. Purely non-religious workers and volunteers are not included in this definition. Over the years the regulations defining religious occupations have changed and there has been litigation over varying interpretations. Someone attempting to immigrate under this category would be well advised to consult with an immigration attorney about their specific circumstances.

To qualify for a green card as a minister or religious worker, for at least 2 years immediately before filing the visa petition, you must have been a member of a religious denomination that has a bona fide, nonprofit, religious organization in the U.S.

Also, you must be seeking to come to the U.S. to work full time (35 hours) in a paid position, purely to carry on your vocation as a minister or to work for a bona fide, nonprofit religious organization in the U.S. or its affiliate in the U.S.

Finally, you must have been working as a minister or religious worker—abroad or lawfully in the U.S.—for at least 2 years immediately prior to filing the visa petition. (There can be breaks in the 2-year period but only in certain situations. And, unauthorized employment during the 2-year period stops the 2-years from accruing but it can be restarted again.)

Because of a recent court decision, immigrants can no longer file both the visa petition for a special immigrant visa as a religious worker and the green card application at the same time. This applies specifically to the religious worker classification. Currently, any green card application (I-485) that is based on a special immigrant petition (I-360) for a special immigrant religious worker must be filed only after you have an approved I-360 petition.

In addition, currently, all religious workers (not ministers) must enter the U.S. with a valid immigrant visa or adjust to permanent resident status (have an approved I-485) before September 30, 2012. This date might be extended in the future, but this is the current law.

Visa Backlog Expected to Go Down For Spouses & Children!

Tushar Mathur — Thu, 10 Feb 2011 04:46:00 +0000

I have heard from a reliable source in Seattle earlier this week that the State Department backlog for the Family 2A preference category–spouses and children of permanent residents–will likely be going down very soon. This is a big deal. Currently, as of the February 2011 Visa Bulletin, there is a three (3) year wait for green card holders who are applying for their spouses and children (under 21). If this changes, and the backlog starts to be cleared up, we will start seeing much faster processing times for family-based visa petitions, meaning that families will not have to wait as long as they were expecting in order to be reunited.

According to the same source, the number of visas available for the Family 2B preference category–unmarried sons and daughters (21 years of age or older)–will be increasing but processing times will not be as fast as the Family 2A. Currently, as of the February 2011 Visa Bulletin, there is a nearly eight (8) year wait for this category. Any improvement would obviously be welcomed.

So, green card holders who are waiting for their priority date to become current or who are considering applying for their loved ones to join them should watch the Visa Bulletin closely for signs of movement. The March bulletin should be published in the next several days. Here is the link to check: http://www.travel.state.gov/visa/bulletin/bulletin_1360.html