H-1b Visa Filing Deadlines Announced

April 1 is the last day you can file for a H-1b visa for fiscal year 2016, according to the USCIS. A record-breaking number of petitions is expected from employers filing for professional workers, particularly those with expertise in IT and technology. There are so many applications that the USCIS has created a lottery system by which the petitions that arrive the first week are given priority, which makes meeting the deadline all the more crucial. 200,000 petitions are expected to fill a cap of 65,000, with the first 20,000 set aside for those with masters degrees and not counted in the 65,000.

 

It is important to remember that petition filers should have a job that cannot be practically filled by a current resident of the United States. Most jobs should require an academic degree, though there are exceptions (e.g., marketing, human resources). But the visas are aimed to fill particular needs, not find simply find the most talented person to fill any need. This means that petitions filers should be a specific as possible in the job description when filing and provide an explication as to why the position cannot be filled by United States residents.

Defenses against removal – Part I

For many resident hopefuls, the fear of deportation / removal is always hanging over their heads. Many despair that a ruling of removal cannot be challenged, though this is not the case. Here are a few defenses that your immigration attorney might use in your defense.

  • Those under conditional permanent residence must keep their noses clean during their probationary period, and at the end of this period they must file Form I-751, Petition to Remove the Conditions of Residence. Alas, many forget to file this, which means that the government will begin the removal process against them. In many cases, renewal of  the I-751 can serve as a defense.
  • If you have suffered harm or believe that you will suffer harm if you return to your country of birth, you may apply for asylum and withholding of removal and relief. However, don’t count on an asylum defense in most cases, because they are extremely rare. You will be asked to jump through hoops to “prove” that what you have or will experience will be legally defined persecution, which is defined by the United Nations Convention Against Torture.
  • Prosecutorial Discretion happens when the attorneys representing the government may close a can at will, sort of like declining to prosecute in criminal law. They may believe that the case against you will be difficult for them to prove, or that it will consume too much in the way of resources. Interestingly however, you can actually apply for prosecutorial discretion, so it won’t hurt to try your luck.

 

Check out Part II in a couple of weeks.

How to Get Unlawful Presence Ban Waiver

If you have lived undocumented in the United States and then willfully left the country, you may find that you are barred from entering the county gain for a certain period of time. If this happens, the only hope for you will be a waver.

There is a number of ways in which you can accumulate unlawful presence. One is by entering the United States without inspection, which could commonly called “crossing the border.”  Another way would be by overstaying your visa. Finally your sojourn in the United States could be ruled unlawful presence if by violating your current status if you have been notified by the government that you have done so. NOTE: Anyone who commits fraud or who otherwise misrepresents himself will be banned permanently from entering the United States.

The amount of time for which you will be banned will be determined by the length of your unlawful presence. For example, if you have accumulated 180 days of unlawful you will not be permitted to return to the United States for 3 years. If you stayed one year or more unlawfully, you will not be permitted to return for 10 years. Both bans start from the day the law took effect, which was April 1, 1997.

To be allowed to enter again you would need a waiver, which might be granted if one of your resident relatives has an illness or who would otherwise suffer “extreme hardsship” should your waiver not be approved. Keep in mind that both “unlawful presence” and “extreme hardship” are difficult to determine, and you will definitely need an experienced attorney on your side to guide you through the process.

 

 

 

 

 

Skills for the US Visa Interview

If you are scheduled for your visa interview, you know how stressful it can be. But here are a few things to help you prepare for the questions.

Firstly you should have any and all documents ready well in advance. We recommend at least 2 weeks and maybe even a month. Now don’t expect them to ask to see your documents. As a rule they will only ask you questions. But it does happen sometimes that they may ask you to document something, so you want to be prepared. The types of documents you might need are:

  • Valid Passport
  • Birth Certificate
  • Bank Certificate
  • Proof of Marriage.
  • Letter of Invitation by your resident relative
  • Income tax returns are good, but not necessary if you are a student.

Make sure you get up early enough to be at the office an hour before your interview. Before you go you should remember that you will not be able to bring food into interview building, though you will be able to buy refreshments. You are going to be doing a lot of waiting and going from room to room, and lots of standing in line and filling things out so be prepared.

As far as personal accoutrements, leave the cell phone at home if you possibly can. They are not explicitly prohibited, but much will depend on what security wants. If you absolutely must bring it, turn it off entirely; this is particularly important for the interview itself. You will probably be instructed to do this anyway. Dress should look like the application you’re applying for, maybe one level of dress higher. If you’re an business executive, wear a suit, not jeans. If you’re a student, wear slacks but not too dressy.  Overdressing gives off signs of desperation, and there is absolutely no evidence that the better you dress the better your changes for being approved.

Finally, talk like you know what you’re talking about. Be natural, but not cocky. Be polite, not subservient. Be prepared, not disorganized And this should go without saying: DON’T LIE.

What’s the Difference between Executive Capacity and Managerial Capacity?

If you are an executive in an overseas office of the company based in the United States, you may be asked to relocate if your skills demand it. The visa you will need is called the L-1A Intra-company Transferee Executive or Manager visa. As you might expect, you must first determine the type of position your job will demand. The executive capacity visa is somewhat easier to get, and those who apply might want to consider the criteria of you job as see if it fits with that category.

First let’s distinguish between the criteria for managerial and executive positions: differences.
• Do people report directly to you and do you have the capacity to hire and fire? If so you will probably be classified as a manager.
• Do you have a great deal of capacity in decision making with respect to the goals and policies of the company? Then you will probably be classified as an executive, even though employees may report to you.

So, the essential difference is that managers manage people and executives manage the organization or project. There is a slight catch: some positions may be classified as managerial but do not involve any subordinate employees. This may sound curious, but immigration law doesn’t taken number of reporting employees into account when determining applicant status. Nevertheless, these managers operate at a high level of functioning in the corporation even without have broad decision making capacity.

In this sounds like you, you can apply for an L-1 as a “function manager.” The difference here is that a function manager may only supervise other supervisors, i.e., not employees directly, yet retain executive status. Additionally, the function manager must work in a capacity that involves an essential function of the organization, especially one in which he or she has some power to make decisions regarding the direction of the company.

Keep in mind that L-1 visas have come under scrutiny by the United States Citizenship & Immigration Services. If you are considering applying for one, have your company speak to a qualified attorney.

Tips for Turning a Fiancee Visa into a Green Card

A K-1 visa allows citizens of the United States to bring a fiancé and the spouse’s children to the U.S. for the sole purpose of getting married. It is valid for 90 days and cannot be renewed. However, many who come here on this visa wish to make their stay permanent, and thus apply for an Adjustment of Status, which is the process of applying for immigrant status (Green Card) if you already have a non-immigrant status visa.

To begin the process of Adjustment of Status, the resident spouse must prepare an I-864 Affidavit of Support, which ensures that the immigrant spouse will have to means to survive materially. At the same time, the residence hopeful must submit form I-485, known as Application to Register Permanent Residence or Adjust Status.

Covering all the bases is essential. Here are a few things you can do to help make the application move more smoothly.
• Begin the application process at least 6 months in advance of your expected arrival in the U.S. Snafus happen.
• Meet your future spouse as often as possible in the two year period preceding your planned marriage date. Keep documentation of your trip including holiday snaps. It’s also good for the relationship in that you will get to know each other better, which will make you interview with officials more credible. The same goes for interactions with the future spouse’s children.
• When gathering information and documents that prove the validity of your courtship, make sure the documentation is solid. If you go on vacation, produce a picture of both of you taken in front of a well-known attraction, and have the plane and all other transportation stubs you have to show that you were there. Both parties should keep all letters and copies of emails.
• Make copies of all documents, one for yourself and one to send to your future spouse.
• Only send copies of all original documentation like driver licenses and birth certificates. Keep the originals safe. You may be required to produce the originals at one of the immigration offices of the consulate.

See related article http://denver-immigration-attorney.com/visas/family-visas/fiancee-visas

Consulate Interview Tips for Indian National Applying for a Visa.

Indian nationals in India seeking non-immigrant (e.g job visas) status entry to the United States will be required attend an interview with officials at the U.S embassy or consulate. It is one of the most crucial steps in the process because it’s known that interviewers weigh what the applicant says in interview more heavily than what they have written in the application. It’s important that applicants be and fully prepared to accurately answer all the questions that may be posed, and have the documentation to back up what they say.

Interviewers are trained to sniff out an applicant’s intention to remain in the United States permanently, contrary to the provisions of their temporary visa. Be prepared for the interviewer to fire questions at you rapidly and expect you to answer quickly. “How did you come to work for the present company?” “What tasks and responsibilities will you have on your job?” will be the sort of questions you will be asked for a work visa. Also be prepared for more probing question, designed to cause the applicant to think deeply about possible actions in the future and provide clues as to the applicant’s motives. “What would you do if you fell in love with an American?” is common. “What would you do with the money if you won a lottery in the U.S.?” is another we’ve heard. (Hint: don’t say you would bring your entire family over from India.)

The interview process for visa applicants is frankly contentious, and many interviewees report that it is a distasteful experience. They know that one slip up can mean a denial of their applications. The good news is that the U.S. Embassy is developing a more friendly interview.

Be sure to schedule your interview at least three days in advance. Wait times can be long nevertheless, so make sure that you have not planned anything else important for that day. Almost everyone receives a decision on the same day, and if approved can expect to receive the visa within three days.

Prosecutorial Discretion and the undocumented

Prosecutorial discretion is simply a measure of latitude in the degree to which the ICE may pursue a deportation case. Since no government agency has unlimited funds, prosecutorial discretion exists mostly to allow the agency to set priorities in the cases it submits to an immigration court.

Most of these priorities are low, which mean they can close “run of the mill” cases quickly and concentration on the more important ones. Now, as to which sorts of cases are more important, to a certain degree, that is a matter of opinion. The types of cases where the ICE uses prosecutorial discretion include public safety , border security, national security, and finally cases that are admitted on an ad hoc basis. It is the ones in the final category that discretion is used with least standard. Indeed, ask immigration officials about a hypothetical situation and ask them whether their cases should be closed through prosecutorial discretion, and you’ll find a considerable difference in opinion.

There are upsides to prosecutorial discretion. Naturally, not everyone who goes before the judge is allowed stay, but if your case is strong, they ruling might be in your favor. However “in your favor” should be elucidated. You may be granted a temporary stay, but you will not be granted the authorization to work, for example.

The downsides are that it’s a gamble. If you are not confident that your case is strong, it can backfire on you.

So we will admit that prosecutorial discretion can be arbitrary and finally unfair. And you can’t get it by asking for it. In fact that is something you should NOT do, because the chances are high that it will not be used in your favor. A better bet might be to simply fight your case the old fashioned way: in court through fighting removal or an appeal.

How did expedited removal become so popular?

Expedited removal, a State Department deportation process that does not allow for an immigration hearing, has become more and more popular since 2005. In fact, only about 20% of deportees even get a hearing. How did this state of affairs come about?

One reason is that the ICE is under pressure from opposing factions to deport 400,000 people every year. Add to that the fact that funding for court hearings has been reduced, both during the Bush administration and the current. With the current number of cases pending reaches 400,000, there is a lot of pressure to just “do it.”

One thing that should be made clear, and that is the expedited removal is not exactly arbitrary, and it does not mean that there is NO due process. Agents must still go over every deportee’s record, no matter how briefly, to make sure that they are not on one of the eligibility lists that would qualify them for asylum, e.g., they are legitimate political asylum seekers. And even if there is a question as to eligibility, their cases should be viewed by a judge. That is how it works in practice. Many deportees and their attorneys complain that their records are not well reviewed, and that often it seems arbitrary as to who gets a hearing and who does not.

One provision of expedited removal is that the undocumented immigrant must be apprehended within 100 miles of the border and within two weeks of entering. The presumed justification for this is that most immigrants who match those criteria have not yet settled in. They do not typically have jobs or regular lodging. Undocumented immigrants who do are more difficult to deport.

However, the policy does not take into account that many people in this group already have family here and often have a job set up, albeit illegally. With expedited removal, they have permanent black mark on their record, and if they reenter at a later date to join their family, that black mark will make them eternally persona non grata.

Is expedited removal a violation of due process?

When President Obama was elected, may immigrant hopefuls believed they had someone on their side. Now as we enter the final half of his second presidential term, many of those who supported him are now looking the other way. Much of the dissatisfaction arises from the fact that the Obama administration has been an aggressive deporter, with almost two million under his belt.

More troubling, however, is the fact that about three-quarters were deported two years ago with no hearing whatsoever, and advocates complain that this is depriving immigrants of their due process. This is not unheard of, however. It has been the prerogative of the Border Patrol and Immigration and Customs Enforcement (ICE) whether of not they deport, with the provision that the immigrants go willingly. The selling point for immigrants is they their record will not be blemished, and they will still have a chance to apply for immigration through the usual channels.

But since 2005 another method of deportation called “expedited removal” became part of the arsenal for the Department of Homeland Security. With the case of expedited removal, the attempt to enter the United States does go on their record, and may make them eligible for future application. And if they try to enter illegally again, it will mean a felony charge. Activists argue that these measures are too extreme, and that immigrants deported without even a hearing is a fundamental assault on what makes America great. They also claim that the real motivation behind expedited removal is that is keeps immigrants in the dark about their legal rights, and the fact that some of them may have legal grounds for remaining in the US.

Since more immigration reform in the current regime is unlikely, advocates want Obama to personally step in and reduce the number of expedited deportations.