Category Archives: Nonimmigrant Visas

Oh Where, Oh Where Are the O-1 Visas Going?

o letterGetting approval of any type of visa for temporary work in the U.S. involves providing stacks of paperwork to U.S. Citizenship and Immigration Services (USCIS), with the goal of proving that the applicant meets a strict set of legal criteria. That’s part of why people hire immigration attorneys — not only to interpret the law, but to help assemble, file, and keep track of all the documents in a client’s case.

So when even the attorneys are complaining that USCIS is raising the bar on the type and amount of documents required, and ultimately reducing the numbers of approvals, you know there’s a problem. That’s precisely what’s happening in the case of O-1 visas for outstanding workers in the sciences, arts, athletics, education, or business.

According to to an October 17, 2014 report by Matthew Blake of the San Francisco Daily Journal, immigration lawyers are concerned that, “over the past year, [USCIS] has made it more difficult for their clients to get work visas, speculating that the agency is accepting more petitions for scientists at the expense of entertainers, or more cautiously following visa rules with national immigration policy in flux.” Applicants are being asked to provide “detailed, multi=year work itineraries,” and “more evidence that they are extraordinary.”

Some lawyers met with USCIS over this issue, but were disappointed at the answers (or lack thereof.) The lawyers have since requested a “summit” with federal immigration officials.

Perhaps these lawyers’ actions will bring about a resolution such that prospective O-1s can get on with their lives and visa applications. But if you are a potential O-1 seeker — especially an athlete — you’d do well to consult an attorney with lots of recent experience in this subspecialty of immigration law.

Justin Bieber’s Immigration Woes. Again. (Sorry.)

Demonstrating for Justin BieberJustin, please tell me you didn’t get into legal trouble again.

I say that not because I’m in a moralizing mood, and not because I’m worried about what kind of example you’re setting for your fresh-faced, adoring fans.

No, I say that for one, much simpler reason.

I thought I was done writing about whether your various run-ins with U.S. law enforcement make you, as a non-citizen visa holder, deportable. Intellectually and emotionally, I am over it.

But now readers are asking, “So, is he deportable this time? The LAPD are going after him for attempted robbery! How ‘bout it? ”

Alright, here goes.

Justin’s latest “oops” was apparently grabbing a woman’s cell phone in order to erase photos that he suspected she had taken of him. (‘Cause who wouldn’t want to snap photos of the Biebs?)

If that doesn’t sound like robbery to you, read Nolo editor Micah Schwartzach’s analysis, “Breaking Down Bieber’s Alleged Attempted Robbery.”

Noncitizens of the U.S. can be deported if they commit certain types of crimes, found in Section 237 of the Immigration and Nationality Act (I.N.A.). Although some crimes are named on that list, attempted robbery isn’t one of them (nor is regular robbery.)

However, his lawyers would also want to look at whether the robbery conviction (if it indeed happens, and depending on the details) meets any of the following criteria for deportability found in the I.N.A.:

  • a crime involving moral turpitude that was committed within five years ) after the date of U.S. admission and is punishable by a sentence of at least one year
  • one of two or more crimes involving moral turpitude that took place at any time after U.S. admission, where the two crimes did not arise out of a single scheme of misconduct, or
  • an aggravated felony committed at any time after U.S. admission.

As explained further in the links provided above, the short answer is that, once again, he’s probably not deportable. Unless, that is, he gets a one-year sentence for grabbing a cell phone. Stay tuned!

Wait, no, don’t stay tuned to hear it from me. That’s it. My last blog on Justin Bieber. I swear it.

The Justin Bieber Immigration Chronicles, Continued

If I blog about Justin Bieber for the third time in a row, does that make me a “Belieber?” (Nah, I still can’t hum a thing he’s recorded, sorry.)

But he’s become the world’s best object lesson regarding U.S. immigration law and policy.

drug dogIn his latest kerfuffle, reported on by CNN, U.S. Customs and Border Protection (CBP) officials searched his private plane, interviewed him for “several hours,” and brought in the trusty drug-sniffing dogs before letting him back into the U.S. from his recent trip to Canada.

(CBP are the same folks who meet you at the airport or border, examine your passport or other entry documents, and ask whether you’re bringing in any drugs, snakes, explosives, and so on before they hopefully wave you in).

Their reason for spending so many time on Bieber? To get autographs for their kids, of course! Oh, no, the officials say that they’d “detected an odor of marijuana after [the plane] landed in New Jersey.”

Uh oh, the dreaded weed. Maybe they’re getting into the spirit of the “let’s deport Justin” movement, because had drugs been found, that plus his earlier admission of having been smoking marijuana might very well be enough to have him removed from the U.S. as a drug abuser. (See my earlier blog, “Justin Bieber “Stuck in the Moment” of a Pending Removal Proceeding?“)

But either their sniffers were overactive that day or the Bieber entourage does a really, really good job of hiding its dope, because nothing was found. Justin was allowed into the U.S., with nary a stain on his record. That means he doesn’t get to join my list of  “International Celebrities Denied U.S. Entry Visas.” (Then again, by the pilot’s description, they may have simply smoked it all.)

How Much SHOULD a Diplomat’s Maid Be Paid?

illegal contractIf you’ve been following the headlines about the deputy consul general from India, Devyani Khobragade, whose arrest in New York over having submitted false documents to the U.S. government regarding the amount she was paying her housekeeper is sparking an international incident, you may have wondered: How much SHOULD she, by law, have been paying her maid?

If all that went by too fast, here’s a little more background: The deputy consul came to the U.S. on a diplomatic visa called an A-1. This visa allows its holders to bring along domestic staff from their home country — on the condition that they pay them the higher of:

  • the prevailing wage in that region, or
  • the federal or state minimum wage.

(Read more about this visa on the State Department’s page describing “Visas for Diplomats and Foreign Government Officials.”)

Ms. Khobragade brought a housekeeper along, and despite her apparent promises to the U.S. government that she would pay her housekeeper $4,500 a month, allegedly paid her a mere $573 a month, for work far in excess of 40 hours per week.

So, back to the original question regarding appropriate payment. For starters, the deputy consul obviously should have paid the amount promised in the visa application on behalf of the housekeeper, namely $4,500 a month. Making false statements on U.S. immigration applications is grounds for becoming inadmissible, that is, unable to receive future U.S. visas or immigration benefits.

As for the minimum the deputy consul should have offered, one must determine this by going to the Department of Labor’s “Foreign Labor Certification Data Center” website. For the New York Metro area, and the position of “Maids and Housekeeping Cleaners,” my search came up with a minimum figure of $10.32 per hour or $21,466 a year, which works out to $1,789 per month. Since that figure is higher than the federal minimum wage of $7.25 per hour, that’s what the housekeeper likely should have received at the very least — less than the amount originally promised, but far more than the amount apparently paid!

Obviously there are major questions about the way this case was handled, with an arrest outside the deputy consul’s daughter’s school, and alleged strip searches (looking for what?! the missing wages?). But setting that aside, should the deputy consul be allowed to claim diplomatic immunity to avoid meeting basic (and not overly generous) U.S. immigration and labor laws?

According to journalist Sandip Roy, India’s diplomats have a history of flouting U.S. labor laws. Roy concludes, “As consular staff member representing India abroad, Ms Khobragade enjoys many rights. The right to a domestic help at cut-rate wages however is not one of them.”

Small Businesses Face USCIS Suspicion When Petitioning for H-1B Workers

If your business’s gross annual income is less than $10 million, your workforce numbers fewer than 25, and your business has been in operation for fewer than ten years, guess what: You match the “fraud indicators” outlined by U.S. Citizenship and Immigration Services in a recently released document, putting any petitions that your business files to hire H-1B specialty temporary workers under suspicion. They’ve even got a catchy name for it: the “10/25/10″ formula.

Supposedly this formula was developed after analysis of where the largest volume of fraudulent applications was coming from. Small comfort if you’re a small business owner or manager trying to hire someone from another country! The situation isn’t hopeless, but you can expect lots of requests for documents, and quite possibly a site visit.

For more information, see the press release, “LAC Wins Release of H-1B Fraud Documents for AILAfrom the American Immigration Council. And if you’re worried about these and other hassles associated with the H-1B visa, check out this recent article by San Francisco attorney Deborah Dyson: “When the H-1Bs Run Out: Alternative Visas and Strategies.”

 

Supply of New H-1B Visas for FY 2013 Already Used Up!

Despite a slow economy, the demand for new H-1B visas for specialty workers (such as scientists, engineers and computer programmers) is higher than ever. As usual, it is higher than the number of visas Congress has allotted per year in this category (65,000).

According to an announcement from U.S. Citizenship and Immigration Services (USCIS), the 65,000 cap was reached on June 11, 2012. That’s even earlier than the date upon which H-1B visas ran out last year.

Any new H-1B specialty occupation petitions physically received by USCIS after that date, and requesting an employment start date in FY 2013, will be rejected. What is FY 2013? It starts on October 1 2012, and runs through September 30 2013.

This announcement does not mean, however, that everyone who seeks an H-1B visa is out of luck.

Some people may be exempt from the cap under an  “advanced degree” or other exemption. Others may be renewing their current H-1B status or changing employers. USCIS will continue to accept and process such petitions.

For more information, see “Who Is Exempt From the H-1B Cap on Visas.”

Media Muddles Description of Indiana Teen’s Difficult Visa Case

Okay, I’ve practiced immigration law; I shouldn’t have had to read the news articles on Elizabeth Olivas, who got stuck in her native Mexico and almost missed graduation due to a leap-year timing glitch, five times to figure out what they were talking about.

To listen to the news tell it, Elizabeth, an undocumented citizen of Mexico who arrived at age four and was about to graduate from high school, was facing a law that says that “children of immigrant parents have until 180 days from their 18th birthday to leave the United States for their country of origin and apply for a visa.” (That’s straight from the CNN article called “Indiana student returns home from Mexico after a visa mixup.”)

But with a little pressure on the consulate, according to these reports, Ms. Olivas applied for a waiver, got a visa, and can now graduate and live happily ever after.

Huh? Any layperson, especially of the anti-immigrant variety, might be left wondering things like why she had to wait for age 18 to get a visa in the first place; how it can be so easy for an undocumented person to leave the U.S., go to a U.S. consulate and say, “Please give me a waiver and a visa to resume my life in the U.S.,” and what this oddball law about turning 18 is.

So, let’s try to clear things up.

1) Elizabeth wasn’t just any undocumented immigrant. She was the unmarried daughter of a (naturalized) U.S. citizen. That makes her an “immediate relative,” and immediately eligible for U.S. lawful permanent residence (a green card). Why couldn’t she apply for it? First off, the news mention some processing delays in the initial paperwork (all too common). Second, for her to apply for her green card in the U.S., she would have to be eligible for “adjustment of status” — a procedure allowing immediate relatives who are in the U.S. after a legal entry to avoid returning to their home country to complete the application process. I’m guessing that Elizabeth and family entered unlawfully, across the Mexican border, in which case her only choice for applying for the green card is “consular processing,” via the U.S. consulate in Mexico.

2) When the news talks about her needing to apply for a “visa,” they’re not talking about the type of visa most people think of, as in a tourist or student visa. She was applying for an “immigrant visa,” which is the rough equivalent of a green card. (Immigrants use it to enter the U.S. and claim permanent resident status, and the actual green card arrives a few weeks later.) The CNN report that I picked on earlier was actually the only one I came across to mention this, stating that Elizabeth’s father “filed an immigrant visa petition for his daughter to gain legal status.”

3) The 180-day issue arises because people who spend excessive amounts of time in the U.S. unlawfully become “inadmissible,” that is, ineligible for any U.S. green card, visa, or other entry. That law applies to everyone over the age of 18, whether or not they are children of immigrants. If someone over 18 spends more than 180 days in the U.S. unlawfully, and then leaves (perhaps to attend a visa interview at a U.S. consulate), he or she is barred from returning for three years. A 365-day unlawful stay will get the person a ten-year bar on returning. Once Ms. Olivas turned 18, the clock started ticking, such that her unlawful presence would trigger a time bar. And due to her lawyer using a calendar that forgot leap year, she accrued 181 days of unlawful presence. Oops.

4) With 181 days of unlawful presence on Ms. Olivas’s record, her only hope for the U.S. consulate to approve her for an immigrant visa/green card was to apply for a waiver, which one can apply for only by showing that extreme hardship would result to U.S. citizen or permanent resident close relatives in the United States if the applicant were denied the visa. Again, Ms. Olivas was in a special position — many undocumented immigrants do not have qualifying relatives like this, and so would not be able to apply for the waiver.

That’s complicated stuff, I know. There’s a good reason the news reports didn’t devote as much space to this topic as I did. Nevertheless, with the fast-and-loose reporting about immigration laws that we see in this and other cases, it’s no wonder that strange rumors abound in this area. People start believing weird things, like that a new amnesty has been authorized, or that undocumented people could apply for green cards — or even U.S. citizenship — if they would just take a little initiative, and so on. The truth is inevitably more complicated.

Great News for F-1 and H-1B Visa Holders

A January 31 press release from Homeland Security (DHS) contains some positive changes for students and H-1B workers — all with the headlined goal of attracting and retaining highly skilled immigrants.

With the caveat that nothing is final until the immigration folks work out regulations and policies (which can take months), here is what we have to look forward to:

  • Eligibility for a 17-month extension of optional practical training (OPT) for F-1 international students with a prior degree in Science, Technology, Engineering and Mathematics (STEM). At the moment, F-1 students are limited to 12 months of OPT.  DHS also plans to continually review emerging fields for possible inclusion in the list of eligible STEM degree programs.
  • Allow spouses of F-1 students to enroll in part-time study academic classes (currently, they are limited to taking recreational or vocational courses).
  • Allow spouses of H-1B holders (H-4 visa holders) who are waiting for USCIS action on an adjustment of status (green card) application to apply for work authorization after meeting a minimum period of H-1B status in the U.S.
  • Broaden the scope of types of evidence that outstanding professors and researchers can present in order to prove their academic achievement in support of their employment-based immigrant visa applications.
  • Treat E-3 visa holders from Australia and H-1B1 visa holders from Singapore and Chile the same as related work visa holders by allowing them to continue working with their current employer for up to 240 days while their petitions for extension of status are pending, assuming these petitions were filed in a timely manner.
  • Launch an initiative called “Entrepreneurs in Residence” at the end of February  2012, which will bring together high-level representatives from the entrepreneurial community, academia, and various federal government agencies to discuss how to maximize current immigration laws’ potential to attract foreign entrepreneurial talent.

All very sensible reforms — why didn’t someone think of them sooner?

Executive Order Aims to Speed Nonimmigrant Visa Processing

Nothing is yet being implemented, but there’s cause for hope that getting a tourist, student, or other nonimmigrant visa won’t be as slow a process as it has been since 9/11, based on a recent Executive Order by President Obama. (The order is called “Establishing Visa and Foreign Visitor Processing Goals and the Task Force on Travel and Competitiveness” and was issued on January 19, 2012.)

A lot of the order simply tells the relevant federal government agencies to come up with a plan, but it does contain some specific instructions to:

  • increase nonimmigrant visa processing capacity in China and Brazil by 40% over the coming year
  • ensure that 80% of nonimmigrant visa applicants are interviewed within three weeks of receipt of application, while still taking resource and security considerations into account
  • increase efforts to expand the Visa Waiver Program and travel by nationals of Visa Waiver Program participants, and
  • expand reciprocal recognition programs for expedited travel, such as the Global Entry program.

If it leads to real change, this will be good news for Chinese and Brazilian citizens in particular, who have faced waits of up to three months just to get a visa appointment.

But the Economist is doubtful whether the needed resources will truly be allocated in this direction, as described in its article, “Obama moves to simplify visa process.”