When Immigration Matters

MAKING THE H-1B VISA QUOTA | PART II

Posted by Karen Pollak on Wed, Apr 06, 2011 @ 8:54 PM

WHAT OTHER VISA OPTIONS ARE AVAILABLE?

The L-1 Intracompany Transferee Visa

immigration lawyer dallas txThe L-1 or intra-company transfer visa facilitates the transfer of key employees from a foreign corporation to a U.S. branch, parent, subsidiary, or affiliated entity.  This visa allows a U.S. company to bring in top-level managerial, executive, or specialized knowledge employees for a temporary period.  The employee must have worked for the foreign company for at least one of the past three years or six months for blanket L scenario and must work for the U.S. company in a similar position.  It need not be the same status as overseas (ex: specialized knowledge overseas could be a manager in the United States.  Only needs to be in one of the three classes:  manager, executive, or specialized knowledge).  The foreign entity may pay the employee his or her salary but the U.S. company must control the employee’s performance of his or her work.  Authority to engage and terminate the employee is strong evidence of control.  There are no numerical limits on the L visa and the spouse of an L visa holder may apply for work authorization.  The L visa is initially valid for up to three years in the case of an existing business and up to one year where a new business is established in the United States.  There is a five-year limit on L-1B employees with specialized knowledge staying in the United States and a seven-year limit for L-1A managers and executives.

Consular posts generally see an increase in L-1 applications after the H-1B cap is reached.  However, there is no legal reason why aliens eligible for H-1B status cannot legitimately seek out other type of visas, including L visas. 

The Treaty-Trader/Treaty -Investor Visa (E-1/E-2)

E or treaty visas are available to persons or entities engaging in trade between the United States and their home country or persons and entities coming to the United States to develop and direct enterprises in the United States in which they are investing substantial amounts of capital.  The E-2 category includes individual investors and managers, executives, and essential skills employees of business entities that do the investment.  As a threshold issue, in order for a foreign national to qualify for this visa there must be a trader or investor treaty between the U.S. and the applicant’s home country.  For treaty traders, the company set up in the United States must be at least 50% owned by a treaty country national but the applicant does not have to be an owner of the business.  There must be a “substantial” flow of trade (either goods or services) between the U.S. business and the treaty national’s home country.  The USCIS determines whether the trade is substantial on a case-by-case basis.  Factors that may be considered include the nature of the business, the number of transactions, amount of trade and capital outlay.

With respect to an investment visa, again the business must be at least 50% owned by treaty nationals and there must be a substantial investment, which like the treaty-trader visa is determined on a case-by-case basis.  The investor must have experience in the business and must be actively involved.  The investor cannot simply invest in a company run by someone else. An E visa holder is normally admitted to the U.S. for a two-year period with unlimited two-year renewals.  Spouses of E visa holders may apply for work authorization.

TN Status

Employers may continue to sponsor Canadian and Mexican nationals in TN status under the North American Free Trade Agreement (NAFTA).  This visa is available to Mexican and Canadian nationals who have been offered a temporary position in one of the professions described in schedule 2 of NAFTA.  The applicant must have the degree or credentials required for that profession.  The TN visa is valid for three years and may be renewed indefinitely.  A spouse of an employee in TN status is not eligible for work authorization.

The O Visa

Foreign nationals with extraordinary ability in the arts, sciences, athletics, education or business, may apply for an O visa.  Beneficiaries in the sciences, athletics, education or business field must show that they have risen to the top of their field evidenced by national or international recognition.  Beneficiaries in the arts must show prominence and a record of extraordinary achievement.  Beneficiaries in the motion picture or television industry need to show a high-level of accomplishment, above that ordinarily encountered in the field.  The O visa is usually granted for three years and is renewed in one-year increments.  The O visa may be renewed indefinitely.  A spouse of an O visa holder cannot apply for work authorization.

The J-1 Exchange Visitor Visa

This visa is available to foreign nationals to enter the United States as exchange visitors to participate in government approved exchange programs.  First, the prospective employer must establish an approved exchange program.  Such program may be sponsored by government agencies, private businesses or educational agencies.  The foreign national may then enter the United States for the purpose of doing research, gaining training or studying.  Depending on the foreign national’s qualifications and the type of exchange program, the J-1 visa is available anywhere from eighteen months for most trainees to forty two months for professors and research scholars.  Certain foreign nationals may be subject to a two-year home residency requirement at the end of their stay.

MAKING THE H1-B CUT-OFF FOR FY 2012

The prudent employer will be well-served in starting to consider their employment needs for the upcoming fiscal year.  Because the USCIS generally works on petitions in the order they were received, it may be worthwhile to pay the extra $1,225.00 premium processing fee to have your H-1B visa applications adjudicated in fifteen days. 

Unless Congress raises the annual H-1B visa cap, employers will have to file their H-1B petitions as early as possible and make use of other visas available to bring temporary workers to the United States for FY 2012.  Readers are encouraged to contact their senators and representatives to push for an increase in the H-1B cap.

GAO Recommendations on E-Verify | Immigration Law

Posted by Karen Pollak on Sat, Jan 22, 2011 @ 10:15 AM

About the Study

GAOE-Verify is a system to electronically verify work eligibility and operated by the Department of Homeland Security’s (DHS) U.S. Citizenship and Immigration Services (USCIS) and the Social Security Administration (SSA). GAO testified in June 2008 that ensuring accuracy and combating fraud were challenges facing E-Verify. As requested, GAO examined the extent to which USCIS and SSA took efforts to (1) reduce tentative nonconfirmations (TNC) and E-Verify’s vulnerability to fraud, (2) safeguard employee personal information, and (3) prepare for possible mandatory use by all employers nationwide. GAO reviewed key policy and procedural documents, interviewed relevant DHS and SSA officials, and conducted site visits to three states selected, in part, based on employer types.

Recommendations

GAO recommends, among other things, that USCIS disseminate information to employees on the importance of consistently recording their names, DHS components develop procedures to help employees correct inaccurate personal information, USCIS develop reliable cost estimates for E-Verify, and SSA assess risks associated with its E-Verify workload costs. DHS and SSA generally agreed with most of GAO’s recommendations. SSA disagreed that it should assess risks associated with its workload costs because it believes it already does so. GAO believes the recommendation is valid because SSA’s risk estimate has limitations as discussed in the report.

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Full Report

Visa Bulletin for February 2011 | Immigration

Posted by Karen Pollak on Fri, Jan 21, 2011 @ 9:00 AM

A. STATUTORY NUMBERSVisa Bulletin

1.  This bulletin summarizes the availability of immigrant numbers during February. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the Bureau of Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status.  Allocations were made, to the extent possible under the numerical limitations, for the demand received by January 11th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed.  The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.

Only applicants who have a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date which has been announced in this bulletin.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000.  The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620.  The dependent area limit is set at 2%, or 7,320.

3.  Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First:  Unmarried Sons and Daughters of Citizens:  23,400 plus any numbers not required for fourth preference.

Second:  Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

A.  Spouses and Children:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B.  Unmarried Sons and Daughters (21 years of age or older):  23% of the overall second preference limitation.

Third:  Married Sons and Daughters of Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth:  Brothers and Sisters of Adult Citizens:  65,000, plus any numbers not required by first three preferences.

EMPLOYMENT-BASED PREFERENCES

First:    Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers".  

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.

4.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.  Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.  The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, DOMINICAN REPUBLIC, INDIA, MEXICO, and PHILIPPINES.

5.  On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Family All Chargeability Areas Except Those Listed CHINA-mainland born DOMINICAN REPUBLIC INDIA MEXICO PHILIPPINES
1st 01JAN05 01JAN05 01JAN05 01JAN05 22JAN93 01AUG94
2A 01JAN08 01JAN08 01JAN08 01JAN08 01APR05 01JAN08
2B 15APR03 15APR03 01JAN97 15APR03 01JUL92 01JUN99
3rd 01JAN01 01JAN01 01JAN01 01JAN01 22NOV92 22OCT91
4th 01JAN00 01JAN00 01JAN00 01JAN00 01JAN96 15JAN88

*NOTE:  For February, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01APR05.  2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01APR05 and earlier than 01JAN08.  (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.)

Employment- Based

All Chargeability Areas Except Those Listed

CHINA- mainland born DOMINICAN REPUBLIC INDIA MEXICO PHILIPPINES
1st C C C C C C
2nd C 01JUL06 C 08MAY06 C C
3rd 01APR05 01JAN04 01APR05 22FEB02 08JUL03 01APR05
Other Workers 01MAY03 22APR03 01MAY03 22FEB02 01MAY03 01MAY03
4th C C C C C C
Certain Religious Workers C C C C C C
5th C C C C C C
Targeted Employment Areas/ Regional Centers C C C C C C
5th Pilot Programs C C C C C C

The Department of State has available a recorded message with visa availability information which can be heard at:  (area code 202) 663-1541.  This recording will be updated in the middle of each month with information on cut-off dates for the following month.

Employment Third Preference Other Workers Category:  Section 203(e) of the NACARA, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year.  This reduction is to be made for as long as necessary to offset adjustments under the NACARA program.  Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B. DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States.  The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program.  This reduction has resulted in the DV-2011 annual limit being reduced to 50,000.  DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

For February, immigrant numbers in the DV category are available to qualified DV-2011 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

RegionAll DV Chargeability Areas Except Those Listed Separately 
AFRICA 26,100 Except: Egypt 20,200
Ethiopia 15,000
Nigeria 12,100
ASIA 14,850  
EUROPE 17,600  
NORTH AMERICA (BAHAMAS) 7  
OCEANIA 810  
SOUTH AMERICA, and the CARIBBEAN 900  

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery.  The year of entitlement for all applicants registered for the DV-2011 program ends as of September 30, 2011.  DV visas may not be issued to DV-2011 applicants after that date.  Similarly, spouses and children accompanying or following to join DV-2011 principals are only entitled to derivative DV status until September 30, 2011.  DV visa availability through the very end of FY-2011 cannot be taken for granted.  Numbers could be exhausted prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN MARCH

For March, immigrant numbers in the DV category are available to qualified DV-2011 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

RegionAll DV Chargeability Areas Except Those Listed Separately 
AFRICA 31,950 Except: Egypt 24,275
Ethiopia 18,650
Nigeria 13,100
ASIA 17,200  
EUROPE 20,450  
NORTH AMERICA (BAHAMAS) 7  
OCEANIA 900  
SOUTH AMERICA, and the CARIBBEAN 1,025  

D. RETROGRESSION OF FAMILY CUT-OFF DATES

Continued heavy applicant demand for numbers in the Family Fourth preference category has required the retrogression of the Worldwide, China-mainland born, Dominican Republic, and India cut-off date for the month of February.

It has also been necessary to retrogress the Dominican Republic F2B category for the month of February.

Further retrogressions cannot be ruled out should demand continue at the current levels for some categories and countries. 

Please Note:   Applicants entitled to immigrant status become documentarily qualified at their own initiative and convenience. By no means has every applicant with a priority date earlier than a prevailing cut-off date been processed for final visa action.  On the contrary, visa allotments are made only on the basis of the total applicants reported documentarily qualified each month, compared with the amount of available numbers.  For example, during the past month, over 17,300 of the applicants who have become documentarily qualified in the Family preference categories have priority dates earlier than the cut-off dates established for January.  Demand for visa numbers can fluctuate from one month to another, with the inevitable impact on cut-off dates.  

Following are examples of possible cut-off date actions based on demand:

Numbers
Available 
Demand with Priority Dates
Prior to the Current Cut-off
Next Month’s
Cut-off Date Will

3,000
3,000
3,000

1,000
3,000
5,000
Advance
Remain the same
Retrogress

 

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GAO Recommendations on H-1B Visa Program

Posted by Karen Pollak on Fri, Jan 21, 2011 @ 8:00 AM

About The Study

GAOCongress created the H-1B program in 1990 to enable U.S. employers to hire temporary, foreign workers in specialty occupations. The law capped the number of H-1B visas issued per fiscal year at 65,000. Since then, the cap has fluctuated with legislative changes. Congress asked GAO to assess the impact of the cap on the ability of domestic companies to innovate, while ensuring that U.S. workers are not disadvantaged. In response, GAO examined what is known about (1) employer demand for H-1B workers; (2) how the cap affects employer costs and decisions to move operations overseas; (3) H-1B worker characteristics and the potential impact of raising the cap; and (4) how well requirements of the H-1B program protect U.S. workers. GAO analyzed data from 4 federal agencies; interviewed agency officials, experts, and H-1B employers; and reviewed agency documents and literature.

Recommendations

This report offers several matters for congressional consideration, including that Congress re-examine key H-1B program provisions and make appropriate changes as needed. GAO also recommends that the Departments of Homeland Security and Labor take steps to improve efficiency, flexibility, and monitoring of the H-1B program.

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New Countries Eligible to Participate in 2011 H-2A and H-2B Programs

Posted by Karen Pollak on Thu, Jan 20, 2011 @ 9:00 AM

WASHINGTON— U.S. Citizenship and Immigration Services (USCIS) announced today that the Department of Homeland Security (DHS), in consultation with the Department of State, has identified 53 countries whose nationals are eligible to participate in the H-2A and H-2B programs for the coming year.

USCISThe H-2A program allows U.S. employers to bring foreign nationals to the United States to fill temporary agricultural jobs; the H-2B program allows U.S. employers to bring foreign nationals to the United States for temporary nonagricultural jobs. USCIS, with limited exception, approves petitions only for nationals of countries designated by the Secretary of Homeland Security as eligible to participate in the H-2A and H-2B programs. A new list of eligible countries publishes in a Federal Register notice on January 18, 2011 , and the designations are valid for one year from the date of publication.

Effective Jan. 18, 2011, nationals from the following countries are eligible to participate in the H-2A and H-2B programs:  Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Honduras, Hungary, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu.  Of these countries, the following were designated for the first time this year:  Barbados, Estonia, Fiji, Hungary, Kiribati, Latvia, Macedonia, Nauru, Papua New Guinea, Samoa, Slovenia, Solomon Islands, Tonga, Tuvalu, and Vanuatu.

After considering a number of relevant factors under the governing regulations, the Department of Homeland Security and the Department of State have determined that Indonesia currently does not warrant a renewed designation as a participating country in the H-2A and H-2B programs for 2011.

This new list does not affect the status of individuals who currently hold valid H-2A or H-2B visas or status. A national from a country that is not on the list may be the beneficiary of an approved H-2A and H-2B petition if the Secretary of Homeland Security determines, in her sole and unreviewable discretion, that it is in the U.S. interest for the alien to be a beneficiary of the petition. 

Immigration questions?  We have answers.  Free consultation available | 800-969-5529 

USCIS Releases 2011 Handbook for Employers M-274 | Immigration

Posted by Karen Pollak on Wed, Jan 19, 2011 @ 8:44 AM

New M-274 Handbook For Employers Fills Gaps In Form I-9 Guidance

by Avalyn Langemeier, Susan K. McConn and Kari Konikowski

M-274The United States Citizenship and Immigration Services (USCIS) recently issued new guidance for employers on the Form I-9 process. The Handbook for Employers (Rev. 01/05/2011), also known as the Form M-274, has been updated and revised to provide guidance to employers on how to complete the Form I-9, Employment Eligibility Verification. The Form I-9 must be completed for every worker hired after November 6, 1986, regardless of whether the employee is a U.S. citizen or not. The following is a summary of the changes found in the revised Handbook:

Employees with Temporary Protected Status (TPS), Pages 10 - 11

TPS is a temporary immigration benefit that allows foreign nationals from designated countries to reside and work in the United States for a temporary period of time. The Department of Homeland Security may extend a country's TPS designation and issue a Federal Register notice to automatically extend expiring Employment Authorization Documents for TPS beneficiaries. Thus, a TPS beneficiary may choose to present an Employment Authorization Document that is expired on its face so long as it has been automatically extended. The challenge to employers is how to determine whether a TPS beneficiary's expired Employment Authorization Document is valid as a List A document.

The Handbook now provides guidance on how to identify a TPS Employment Authorization Document, how to determine whether the Department of Homeland Security has issued an automatic extension of expiring Employment Authorization Documents, and how to explain that the TPS status was extended on the Form I-9.

J-1 Exchange Visitors & F-1 Students, including F-1s Changing to H-1B Status ("The Cap Gap"), Pages 11- 16

The Handbook provides a detailed explanation on how to complete Form I-9 for those individuals in J-1 exchange visitor status (pages 11-13) and F-1 and M-1 student status (pages 13-15). Additionally, the Handbook explains how to complete the Form I-9 for F-1 students who are changing status to H-1B and are eligible for a "cap-gap" extension of status and employment authorization. The Handbook confirms that the student's employment authorization will remain valid through September 30 of the calendar year for which the H-1B is filed, so long as the student's H-1B status will begin on October 1. Additionally, the Handbook advises that an employer must re-verify a student's Form I-20. The Form I-20 must show that the cap-gap extension was endorsed by the student's designated school official. Re-verification must be done no later than October 1.

H-1B Employees Changing Employers (Portability), Page 17

The Handbook now states that an employee in valid H-1B status who changes ("ports") to a new employer can begin to work with the new employer upon filing an H-1B petition with USCIS. The prior 2009 version of the Handbook required the porting H-1B employee to obtain a Form I-797 Receipt Notice from U.S. Citizenship and Immigration Services (USCIS) prior to beginning work with the new employer. This approach created considerable delay because it often takes USCIS weeks to issue the official Form I-797 Receipt Notice.

The current version of the Handbook explains that a porting H-1B employee may begin employment by presenting his or her Form I-94/ I-94A issued for employment with the previous employer, along with his or her foreign passport, as a List A document. The employer should write "AC21" on the Form I-9, record the date that the new H-1B petition was submitted to USCIS in the margin next to Section 2 of the Form I-9, and attach documentation as specified in the Handbook.

Extensions of Status, Pages 17 and 18

The Handbook explains that an employee with a petition for extension of status timely filed before the employee's work authorization expires is eligible for continued work authorization for up to 240-days beyond the expiration date of the authorization as long as the extension remains pending. The Handbook provides a detailed explanation on how to complete the Form I-9 and the documentation to be attached for individuals in E-1, E-2, H-1B, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, R-1 and TN status who have timely filed extensions with the same employer.

Where an H-1B extension is timely filed and the extension remains pending, the employer should write "240-Day Ext." and record the date the employer submitted the Form I-129 to USCIS in the margin of Form I-9 next to Section 2. (Page 17)

Additionally, the Handbook expands upon what documentation should be added to the Form I-9. Previously, the employer was advised to attach only the USCIS Form I-797 Receipt Notice. Now, the Handbook adds that the employer should retain the following documents with the Form I-9 in this situation:

1. A copy of the new Form I-129 that was filed for the extension,

2. Proof of payment for the filing of the new I-129, and

3. Evidence that the new Form I-129 was mailed to USCIS.

4. After the extension is filed, USCIS will issue a receipt notice (Form I-797(C)), which should also then be added and retained with the Form I-9.

When the extension of stay is approved, the employer should record in Section 3 the document title, number and expiration date listed. The Handbook also adds that the employer must give to the employee the Form I-94A, which is evidence of the employee's employment authorized nonimmigrant status.

Interruptions in Employment, Page 20

The Handbook now provides guidance to employers that are uncertain about whether a new Form I-9 is required after an employee has experienced a brief interruption in employment. The Handbook provides examples of situations which include "continuing employment," such as maternity or paternity leave, leaves of absence, transfer from one business unit to another business unit of the same employer, the same employer at another location, etc. An employer is not required to complete a new Form I-9 in these situations so long as there is a reasonable expectation of employment at all times.

Electronic Retention of Forms I-9 and Documentation of Electronic Storage Systems, Page 24

The Handbook offers expanded guidance to employers that use paper, electronic systems, or a combination of paper and electronic systems to retain a Form I-9. Employers must follow certain guidelines should they choose to retain Forms I-9 in an electronic generation or storage system, and these guidelines are outlined in the Handbook. One requirement is that an employer must maintain and make available upon request complete descriptions of the electronic generation and storage system and the indexing system that permits the identification and retrieval of documents and records maintained in the system. Employers that are currently using an electronic retention system or contemplating the future use of an electronic retention system should review the information outlined in the Handbook and consult with immigration counsel.

E-Verify and Federal Contractors, Pages 19 and 35

The previous version of the Handbook offered guidance to employers regarding participation in E-Verify and the corresponding Form I-9 responsibilities, such as maintaining a photograph of a List B document. The new version of the Handbook provides additional guidance to Federal contractors about their responsibilities under the amended Federal Acquisition Regulation (FAR) related to employment eligibility verification. The Handbook explains that the regulation requires contractors with a federal contract that contains a FAR E-Verify clause to use E-Verify for their new hires and all employees (existing and new) assigned to the contract. The Handbook also states that where an employee working for a FAR employer undergoes a name change and the employer chooses to verify existing employees by updating existing Forms I-9, then a new Form I-9 must be completed.

Questions and Answers Section, Pages 37 - 49

The Handbook has expanded upon its Questions and Answers (Q&A) section in an effort to provide clarification to employers in a variety of situations related to Forms I-9, including the following helpful information: 

  • A Native American tribal document is acceptable as both a List B and List C document, and no other documents need be presented. For a current list of tribes recognized by the U.S. federal government, employers may visit the website of the Bureau of Indian Affairs at www.bia.gov. A Certificate of Indian Status does not constitute an acceptable Native American tribal document and may not be accepted for Form I-9 purposes, (pages 38-39);
  • An employer may accept a Social Security Card that has not been signed as a valid List C document, (page 39);
  • An employee may present an unexpired Form I-94 card notated with work-authorized status in two situations: 1) as a List A document along with his or her foreign passport; or, 2) as a List C document demonstrating work authorization from USCIS, (page 41);
  • Employers may accept documents bearing a different name than that which the employee has indicated in Section 1 of the Form I-9, so long as the documents reasonably relate to the employee. The employer may want to attach a brief memo to the Form I-9 detailing the employee's reason for the name discrepancy, including copies of any supporting documentation the employee chooses (but is not required) to provide, (pages 41-42);
  • Significantly more information is provided for employers in the Commonwealth of the Northern Mariana Islands (CNMI), including eight additional Q&As and pictures of sample documents that may be acceptable for Form I-9 purposes in the CNMI only (pages 48-49, 59).

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New Pitch for StartUp Visa Act

Posted by Karen Pollak on Fri, Dec 17, 2010 @ 11:29 AM
December 16, 2010

Need a Real Sponsor here

By ANGUS LOTEN

San Francisco entrepreneur Brian Wong has already hired two employees and secured $300,000 in funding for his start-up, and hopes to have a staff of 40 or more full-time workers by this time next year.

But there's at least one red flag in his business plan: Mr. Wong isn't American; he's Canadian. As such, his long-term immigration status is up in the air. That kind of uncertainty can spook investors and clients alike, says Mr. Wong, whose start-up, called Kiip, aims to develop a new mobile game advertising platform.

"It's already hard enough to raise funds and this is an added risk," Mr. Wong says of his temporary visa status.

With prospects for the latest immigration reform efforts fading in the Senate—and new Republican lawmakers calling for tougher border security—Mr. Wong and other immigrant entrepreneurs are holding out hope for a separate bipartisan bill that seeks to spur job growth by easing visa restrictions on foreign-owned start-ups.

The StartUp Visa Act, introduced by Sens. John Kerry (D., Mass.) and Richard Lugar (R., Ind.) in February, would grant permanent residency—that is, a green card—to any foreign-born entrepreneur whose new business attracts at least $100,000 in venture capital or angel backing out of a total $250,000 in equity financing, while creating five new jobs within two years. The bill is expected to be reintroduced in the Senate as early as January.

Last week, Senate Democrats blocked a vote on the Dream Act, a bill that provides a path to citizenship for younger undocumented immigrants, in the face of strong Republican opposition.

By contrast, the start-up visa bill has won broad support among both parties. It's also backed by some big names in venture capital and angel investing, including Y Combinator's Paul Graham and Foundry Group's Brad Feld, who have faced a dearth of homegrown start-up activity since the economic downturn.

While the recession has forced many Americans to go into business for themselves, fewer are taking on employees, according to recent Labor Department data. That's left policymakers targeting small-business job-creation programs at existing firms, through a mix of grants and tax credits. Yet data show start-ups are strong vehicles for job growth. In a typical year, an average of 800,000 jobs are created by firms in their first full year of business, compared with just 335,000 by firms launched six to ten years earlier, according to a study by the Kauffman Foundation, an entrepreneurship advocacy group in Kansas City, Mo.

And foreign entrepreneurs have long played an outsized role in the U.S. start-up sector, especially in the tech industry. Immigrants are nearly 30% more likely to start a business than nonimmigrants, the Small Business Administration says. University of California researchers estimate about a third of Silicon Valley technology firms were started by Indian or Chinese entrepreneurs, while a joint study with Duke University found at least one immigrant founder in over a quarter of all engineering and technology firms launched in the U.S. since the mid 1990s, together generating nearly 450,000 jobs by 2005. Google Inc., Intel Corp., Yahoo Inc. and eBay Inc. all had at least one immigrant founder.

Yet many of these companies were also started on a shoestring, leading some tech industry insiders to say the bill's capital requirements are far too high.

"What I've seen is people raising maybe $50,000 or $100,000 at the most," says Edith Yeung, a 33-year-old Silicon Valley technology consultant who hosts monthly tech entrepreneur meetings.

Before getting her green card three years ago, Ms. Yeung had been on a string of temporary visas since leaving Hong Kong in the early 1990s. Her last was a six-year H-1B visa tied to her employer.

"It was frustrating. I wanted to start something on my own, but I was stuck," she says. "If I left my job, I would have to leave the country."

As it is, the bill is a more accessible version of the current EB-5 visa, which offers a green card to foreign entrepreneurs whose businesses have an upfront investment of $1 million and employ at least 10 workers. Last year, less than half of the allotted 10,000 EB-5 visas were issued, largely reflecting a dearth of qualified candidates. The start-up visa bill proposes filling these unused slots, rather than creating new spots and raising immigration quotas.

Though restrictive, the start-up visa's high capital requirement is certain to filter out sole-proprietorships, while ensuring it attracts innovative, mostly tech-savvy entrepreneurs, says Bob Litan, a researcher at the Kauffman Foundation. The downside, he says, is that only a handful of immigrant entrepreneurs will qualify.

"Hardly any businesses get venture capital in a given year," Mr. Litan says. "This isn't going to have much of an impact on the U.S. economy and I suspect that's why so few people are opposed to it."

Still, like all recent immigration reform efforts the bill's future is far from certain. A companion bill sponsored by Rep. Jared Polis (D., Colo.), which is a similar reworking of the EB-5 visa, was rolled into a comprehensive immigration reform package that's currently stalled in the House.

Without a visa, Mr. Wong says he'll be forced to launch his start-up back in Canada, taking the new jobs with him.

"I've been back and forth to Toronto and Vancouver so many times it's ridiculous," he says. "It's something I think about every night. It would be so much easier to just stay there."

Write to Angus Loten at [email protected]

Sign in to http://startupvisa.2gov.org/ and show Congress your support for this visa!

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IMMIGRATION MYTH: Arizonans Need SB 1070 to Fight Crime & Kidnappings

Posted by Karen Pollak on Thu, Dec 16, 2010 @ 12:25 PM

Supporters of Arizona's anti-immigrant SB 1070 claim that the residents of the Grand Canyon State need to be protected fromMythbuster crime and kidnapping perpetrated by illegal immigrants. But, the truth is, rising immigration is responsible for crime reduction and in Arizona the people most likely to be kidnapped are undocumented immigrants themselves! Before throwing your hands up in frustration and defeat when you hear this myth about the need to have SB 10170, and laws like it, for the sake of public safety, consider responding with these quick mythbusting facts!

FACT:Statistical models suggest that cities with the largest increases in immigration between 1990 and 2000 experienced the largest decreases in homicide and robbery during the same time period. According to sociologist Tim Wadsworth, the findings offer insights into the complex relationship between immigration and crime and suggest that growth in immigration may have been responsible for part of the precipitous crime drop of the 1990s.

FACT:Some police chiefs believe that crime will actually go up if SB 1070 becomes law in Arizona or in any other state. They believe that diverting resources away from the fight against violent crime and breaking down the hard-won trust between cops and the communities where they work will make it harder to keep people safe. Police chiefs have argued that, “This is not a law that increases public safety. This is a bill that makes it much harder for us to do our jobs,” said Los Angeles Police Chief Charlie Beck.

FACT: Most of the kidnappings that do occur in Phoenix are of undocumented immigrants. As Terry Greene Sterling describes in her book Illegal: Life and Death in Arizona’s Immigration War Zone, most of the kidnapping victims in Phoenix are unauthorized immigrants held for ransom by the smugglers (coyotes) they hire to bring them to the United States. These are “drop house” kidnappings in which “incoming migrants at the border are baited with low smuggling fares. Those low fares are ramped up by thousands of dollars once the migrants are held at gunpoint in a drop house.”

More mythbusting facts on this issue can be found in Separating Fact from Fiction: The Truth about Kidnapping in Arizona, a report from the Immigration Policy Center.

Immigration questions?  We have answers.  Free consultation available | 800-969-5529

Senate to Vote on Dream Act | Immigration

Posted by Karen Pollak on Thu, Dec 16, 2010 @ 10:17 AM

Dream ActThe Senate will be voting in the next few days (if not today) on the DREAM Act.   Please call and urge YOUR SENATORS to SUPPORT the DREAM Act!

You can email your Senators’ via the AILA link at http://capwiz.com/aila2/home/)

For more information on the DREAM Act see:

Source:  Immigration Policy Center

Immigration questions?  We have answers.  Free consultation available | 800-969-5529

Solutions That Work: A Policy Manual for Immigration Reform

Posted by Karen Pollak on Wed, Dec 15, 2010 @ 12:10 PM

Solutions That Work: A Policy Manual for Immigration Reform was crafted by the American Immigration Lawyers Association (AILA) to show that a solution to our nation's immigration problem does exist and can be achieved. Each section of this policy manual summarizes a key component of the existing immigration system, identifies its deficiencies and offers workable solutions that when applied together, will fix the totality of the broken, outdated, and inadequate system. AILA believes that for lasting and meaningful reform to take hold, these various components must be addressed in a comprehensive immigration reform package.

ImmigrationThe Policy Manual explains how any effective, long-term solution to the immigration problem must: 1) require the unauthorized population to come out of the shadows, register their presence with the government, and give them the opportunity to earn legal status; 2) provide fair and lawful ways for American businesses to hire much-needed immigrant workers who help grow our economy while protecting U.S. workers from unfair competition and all workers from exploitation; 3) reduce the unreasonable and counterproductive backlogs in family-based and employment-based immigration; 4) ensure the permanent immigration system provides adequate visas to meet the needs of American families, businesses, and communities; and 5) preserve and restore the fundamental principles of due process and equal protection while protecting our national security.

Review and download AILA's newest advocacy resource, Solutions That Work: A Policy Manual for Immigration Reform.

Immigration questions?  We have answers.  Free consultation available | 800-969-5529

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