San Francisco Immigration Law Blog

Immigrants to be denied visas if they can’t afford health care

2019-10-10T20:16:00Z

The current administration said it would deny visas to immigrants who are unable to prove they can pay for their own health insurance or medical costs once they become official residents of the United States.

The administration justified the move by saying immigrants are three times as likely to lack health insurance coverage, which would impose a burden on American hospitals and taxpayers. The president said the U.S. government is “making the problem worse” by admitting thousands of undocumented immigrants who are not able to pay for their medical costs and that they should not “further saddle the current health care system.”

]]> According to news reports, the current administration says legal immigrants must have approved health insurance or have the financial ability to afford reasonably foreseeable medical expenses.

However, the policy would not affect refugees, asylum seekers or international students wanting to attend college in the United States.

How the process would work

Immigrant visas are often the first step to receiving a green card in the United States. Once the new rule is implemented, people seeking those visas abroad would be asked by consular officers to demonstrate how they would get health insurance within approximately one month of arriving in the U.S., whether it’s through employment or coverage through another family member. If the officers are not satisfied with the immigrant’s claims, their visas could be denied.

Some are questioning the administration’s claims

Those who specialize in immigration law have expressed skepticism regarding the administration’s new policy. One expert said they doubted the claim that immigrants were three times as likely to lack health insurance. That’s because certain financial requirements need to be met before receiving a green card. Most immigrants who get green cards usually have a job waiting for them or a spouse that is already employed.

The proclamation is expected to go into effect Nov. 3. However, some specialists are saying the new rule could face some legal challenges.

These new policy changes can be complicated

For immigrants with visas, trying to obtain a green card can come with many hurdles, especially under the current administration’s new rules. If you are facing a similar circumstance, it’s best to consult with an experienced immigration attorney.

Immigrants to be denied visas if they can't afford health care

2019-10-08T20:13:25Z

The administration justified the move by saying immigrants are three times as likely to lack health insurance coverage, which would impose a burden on American hospitals and taxpayers. The president said the U.S. government is "making the problem worse" by admitting thousands of undocumented immigrants who are not able to pay for their medical costs and that they should not "further saddle the current health care system."

According to news reports, the current administration says legal immigrants must have approved health insurance or have the financial ability to afford reasonably foreseeable medical expenses.

However, the policy would not affect refugees, asylum seekers or international students wanting to attend college in the United States.

How the process would work

Immigrant visas are often the first step to receiving a green card in the United States. Once the new rule is implemented, people seeking those visas abroad would be asked by consular officers to demonstrate how they would get health insurance within approximately one month of arriving in the U.S., whether it's through employment or coverage through another family member. If the officers are not satisfied with the immigrant's claims, their visas could be denied.

Some are questioning the administration's claims

Those who specialize in immigration law have expressed skepticism regarding the administration's new policy. One expert said they doubted the claim that immigrants were three times as likely to lack health insurance. That's because certain financial requirements need to be met before receiving a green card. Most immigrants who get green cards usually have a job waiting for them or a spouse that is already employed.

The proclamation is expected to go into effect Nov. 3. However, some specialists are saying the new rule could face some legal challenges.

These new policy changes can be complicated

For immigrants with visas, trying to obtain a green card can come with many hurdles, especially under the current administration's new rules. If you are facing a similar circumstance, it's best to consult with an experienced immigration attorney.

USCIS Seeks to Limit EAD for Foreign Nationals Paroled Into the US

2019-08-23T17:05:59Z

Litwin & Smith recommends that you maintain your H-1B. Adjustment of Status EAD cannot be relied upon.

U.S. Citizenship and Immigration Services (USCIS) issued a immigration policy alert on August 19, 2019, stating that USCIS is enhancing its adjudicators' discretion to grant or deny work permits to foreign nationals paroled into the United States under INA 212(d)(5). This policy change affects many foreign nationals awaiting lawful permanent resident status.

]]> Parole in U.S. immigration law describes various processes to allow entry or permission to remain in the United States to those that do not otherwise qualify for admission. Some parole policies allow a person to leave the United States and return; this is referred to as advance parole. This process is used by Temporary Protected Status (TPS) recipients, adjustment applicants, Deferred Action for Childhood Arrivals (DACA) recipients, and others to travel outside the United States and be permitted to return to resume their applications or status, even if they are without other documents permitting their admission.

USCIS' new policy memo emphasizes the use of discretion when determining whether to grant employment authorization for foreign nationals paroled into the United States in keeping with existing policies. USCIS, U.S. Immigration and Customs Enforcement (ICE), and CBP officers can decide, as a matter of discretion, whether to grant a foreign national parole for urgent humanitarian reasons or based on a significant public benefit. The fact that USCIS, ICE, or CBP grants parole does not mean a foreign national is automatically entitled to discretionary employment authorization. The grant of parole is a separate determination from the grant of employment authorization, even though both adjudications require an officer to exercise discretion.

The new policy provides a list of positive and negative factors that an officer may consider when balancing the totality of the circumstances and determining whether an applicant warrants a favorable exercise of discretion. In deciding whether a parolee should be granted employment authorization, USCIS makes a case-by-case determination considering all relevant information. The ultimate decision to grant discretionary work authorization for a parolee depends on whether, based on the facts and circumstances of each individual case, USCIS finds that the positive factors outweigh any negative factors that may be present, and that a favorable exercise of discretion is warranted. The denial of employment authorization is not subject to judicial review.

Favorable Factors

· The emergent nature of the event or circumstances that necessitated the foreign national's parole that is dependent on work authorization

· The length of time authorized for parole (for example, over 1 year) and conditions placed on parole

· If the foreign national is the primary caregiver or source of financial support for a spouse, parent, or child with significant and debilitating health conditions

· Any prior time periods the foreign national has been lawfully in the United States

· If the foreign national is assisting (or will assist) the federal government in a criminal investigation or prosecution of significant duration

· If the foreign national is the spouse, parent, or child of a U.S. citizen; or the foreign national is a member of the U.S. Armed Forces or in the Selected Reserve of the Ready Reserve and is currently serving on active duty, or, if discharged, served honorably

Unfavorable Factors

· Any criminal history, especially serious crimes or felonies

· The length of time authorized for parole (for example, less than 1 year)

· If the foreign national violated the terms of his or her parole

· The nature and severity of any prior violations of the immigration laws, including illegal entries and unauthorized employment

· The length of time the foreign national was or has been in the United States without lawful presence, with shorter periods of time being more unfavorable

· Grounds of inadmissibility or removal that may apply to the parolee that may be considered unfavorable factors

· Fraud or material misrepresentations to obtain an immigration benefit

· Lying or making a material misrepresentation to any immigration or consular officer or employee while such officer or employee is performing his or her official duties under the law

· Whether the foreign national has a final order of removal or is subject to reinstatement of such an order

· Whether the foreign national is a national security or public safety risk as evidenced by arrests and criminal convictions

Foreign Nationals Seeking Parole Should Consult with an Immigration Attorney

Contact an experienced immigration law attorney at Litwin & Smith. Led by a certified specialist in immigration, our team of immigration and naturalization attorneys can assist you and your family with all of your business and personal immigration needs.

We have extensive experience advising business professionals and employers regarding various employment-based visas, counseling clients through labor certification (PERM), and proactively assisting businesses with immigration compliance and enforcement. Some of the business or employment-based visas that we regularly handle include H working visas, L working visas, O visas, and R visas.

The information in this article does not constitute legal advice. The law is constantly changing, and we make no warranty of the accuracy of information.

This answers most of the frequently asked questions which we receive in our office. If after reading this you have questions about immigrating to the United States or any other immigration matters, please call Litwin & Smith and arrange a consultation at either our South San Francisco or Santa Clara office. There is an initial consultation fee for the first half-hour.

https://www.uscis.gov/policy-manual/volume-10-part-b-chapter-2

DHS will perform site visits to STEM OPT employer locations.

2019-08-13T17:08:18Z

Until recently a provision in the May 2016, STEM OPT regulation was not enfored. Current immigration policy (81 FR 13039) clarifies DHS discretion to conduct employer site visits at worksites to verify whether employers are meeting program requirements, including that they possess and maintain the ability and resources to provide structured and guided work-based learning experiences.

]]> While DHS had the authority to make site visits since May 2016, the agency has not begun to conduct inspections until now.

Under existing immigration policy, to be eligible to employ a STEM OPT student, an employer must have and maintain a bona fide employer-employee relationship with the student. The employer must attest to this fact by signing the Form I-983, Training Plan for STEM OPT Students. The employer may not be the student's "employer" in name only, nor may the student work for the employer on a "volunteer" basis. Moreover, the employer that signs the Form I-983 must be the same entity that provides the practical training experience to the student. See 2016 STEM OPT Final Rule (pp. 13072, 13079).

DHS will provide notice to the employer at least 48 hours in advance of any site visit unless the visit is triggered by a complaint or other evidence of noncompliance with the STEM OPT extension regulations. Site visits will be limited to checking information related to student STEM OPT employment and ensuring that students and employers are engaged in work-based learning experiences that are consistent with the information supplied on the student's Form I-983.

During its site visit DHS may:

· Confirm that the employer has sufficient resources and supervisory personnel to effectively maintain the program.

· Ask employers to provide the evidence they used to assess the wages of similarly situated U.S. workers.

Third-Party Worksites

STEM OPT participants may engage in a training experience that takes place at a site other than the employer's principal place of business as long as all of the training obligations are met, including that the employer has and maintains a bona fide employer-employee relationship with the student. DHS will review on a case-by-case basis whether the student will be a bona fide employee of the employer signing the Training Plan and verify that the employer that signs the Training Plan is the same entity that employs the student and provides the practical training experience.

Post-Site Visit Requests for Evidence

If, as a result of a site visit, DHS determines that an employer or student needs to submit updated or corrected information, this request will be sent to the employer in writing, with specific instructions on how the employer or student must submit the new information.

Contact Litwin & Smith for Business Immigration Services

If DHS has performed a site visit at your company, contact an immigration lawyer from the law firm of Litwin & Smith. We can help you and your employees respond to any requests for evidence and ensure your company's compliance with immigration laws.

How is a national interest waiver visa different from others?

2019-08-11T13:54:04Z

Individuals from other countries seek work opportunities in the U.S. for many reasons. However, there are many restrictions and guidelines to be aware of. These revolve around the professional qualifications of the individual applying for that specific work visa.

Employment-based immigration is split into two work visa categories, first and second preferences. First preference visas require an individual to fall within three of their eligibility criteria and require extensive evidence and documentation.

]]> On the other hand, second preference visas do not require as much documentation and consist of a visa type which skips the Department of Labor process. This visa type is called National Interest Waivers (NIW).

The national interest waiver visa is different from all other visa types because it lets individuals self-petition to the U.S. Citizenship and Immigration Services (USCIS) to drop the labor certification requirements. For individuals who find themselves applicable to the other visa types, their employers would apply to the Department of Labor (DOL) on their behalf and then go through the process of approval with the USCIS. But people who want to apply for national interest waivers, can do it themselves.

These individuals face the burden of proving to USCIS that working in the U.S. is in the nation's best interest.

They can do this by skipping past the DOL process and applying directly with USCIS, along with the I-140 form, which is a petition for Alien Worker. To qualify and start the process of applying for a national interest waiver, an individual must meet three of seven criteria. Some ways a person can qualify for a NIW are to have:

At least 10 years of documented work experience in a specific work field
A degree or diploma from a college or school showing qualifications for that field of work
A membership in a professional association in that work field

The main reason why someone might want to apply for a national interest waiver visa is because for the other visa types, the DOL must provide evidence to USCIS that this person is not taking away a job from an equally eligible worker in the U.S.

Asylee EAD expiring, Spousal EAD months away what to do?

2019-07-12T20:47:06Z

While a US citizen sponsored spouse might not be ineligible to adjust for unauthorized employment. An LPR sponsored spouse would be ineligible. Further, while the sponsored spouse may not be ineligible for a green card. The employer may be penalized for employing without authorization. After the current EAD expires could take time off from work and wait for the new one. But, as you may have multiple EAD filings. Rather than be off work or work without authorization. We would recommend filing the C-08 EAD. It provides 180 days of employment authorization while the I-765 is pending adjudication to bridge the gap.

]]> Litwin & Smith, ALC has helped hundreds if not thousands of families with US family immigration sponsorship and interim travel permission and employment authorization. Our law practice is limited to immigration. http://www.litwinlaw.com/. Our firm is nationally recognized as a premiere immigration firm. We routinely provide immigration assistance to foreign nationals from all over the world. To find out more contact info@litwinsmith.com or call 650 588 7100.

Get a Green Card: Know if you're eligible

2019-06-21T14:58:01Z

You want to stay in the United States and work. You know that there are opportunities for you, your family and your friends. Being able to work here is like a gift. With the right opportunities, everyone in your social circle benefits.

Getting a Green Card is one of the first things you need to do, but you have to be eligible for it. Your Green Card will give you official immigration status in the U.S., minus the risk of deportation without just cause. You'll be entitled to many of the same rights and responsibilities of the people born in the U.S. Additionally, a Green Card is a necessity if you plan to naturalize in the future and become a U.S. citizen.

]]> How do you know if you're eligible for a Green Card?

There are several categories under which you may be eligible for a Green Card. You can get a Green Card through family living in the U.S., as a crime victim, through employment or because of refugee or asylee status. There are also Green Cards given for victims of abuse, through a registry and other categories. You can reach out to your attorney to determine if you fall under one or multiple categories and have a right to apply for a Green Card in the U.S.

What if you don't qualify for a Green Card based on the above category listings?

Even if you don't qualify under the listings above, there is another program, the Diversity Immigrant Visa Lottery Program, that may help you get to the United States. Through this lottery program, 50,000 immigrant visas can be issued each year. This allows people in countries with a low rate of immigration the opportunity to apply for a drawing from a random pool of applicants. If chosen, they will potentially obtain a Green Card. It's essential that applicants have graduated from high school or have work experience that qualifies them for the visa.

If you're interested in entering the lottery, keep in mind that it is held only once a year, usually in the fall, for around 4 to 5 weeks. Results are posted the following spring, and applicants who obtain a visa can then enter the United States the following year.

Your attorney can guide you through this process if you are successful in obtaining a visa through the lottery program hosted by the U.S. government.

Labor certification is required for some employment visas

2019-04-26T20:55:39Z

Some individuals who come into the United States do so through an employer. The labor certification for which employers can apply enables them to bring people into the country to fill jobs. The program is overseen by the Department of Labor.

The DOL handles the labor certification process to ensure that the people coming into the U.S. aren't going to take jobs from citizens here. It also looks into whether hiring the foreign worker is going to have a negative impact on working conditions or wages. If it will, the labor certification won't be issued.

]]> Labor certification isn't always required

Not all permanent worker preference categories require an employer to have a labor certification. The certification is required for all third preference EB-3 workers. These are professional, skilled workers and some other workers who don't fall into the other categories.

Sometimes, a labor certification is required for the second preference EB-2 visa. The exception is if the application has a national interest waiver. Members of this group are people who have exceptional abilities in the sciences, arts or business. It also includes people who have advanced degrees.

Purpose of labor certifications

The labor certification requirement for some visas ensures that the immigrants have a job when they make it to this country. Each fiscal year, there are approximately 140,000 worker visas available in this country that are based on the applicant's job skills. These cover the worker, their spouse and their minor children.

Visas without labor certification

There are three types of employment visas that don't require a labor certification. These include the EB-5, or fifth preference, which is reserved for people who are investing large sums into the business sector in this country in order to bring jobs to the area.

The fourth preference category, EB-4, is reserved for people who are considered special immigrants, such as religious workers, international organization retirees, U.S. foreign service post employees and some minors who meet specific classifications.

Navigating through the immigration laws in this country can be challenging, especially with the fluid state of them now. Finding out how to handle your petition can ensure that you are taking the critical steps. No matter what type of petition you are filing in California, make sure that you are being honest since any omissions or misstatements can have a negative impact on the results.

Green Card via PERM labor certification & employer sponsorship

2019-04-04T18:34:31Z

The most common form of green card sponsorship through employment is the PERM labor certification. Often, after obtaining a nonimmigrant employment visa. The most popular nonimmigrant employment visas are H-1B, E-1, E-2, L-1, and O-1. Although F-1, J-1, P, TN, and E-3 may be pathways to permanent residency as well.

Alternatively, employment-based immigrant visas not requiring labor certification are available, including EB-1A, EB-1B, EB-1C, EB-2 NIW, EB-4, and EB-5. These visas automatically provide an employment-based green card but have higher criteria to obtain and longer processing times than nonimmigrant visas.

]]> Along with the principal beneficiary lawful permanent resident status is available to their spouse and dependent children. Please see this article for information regarding family sponsorship.

The PERM Labor Certification Process

For employers looking to fill permanent positions with qualified non-U.S. workers, the PERM labor certification process is the most common. Under the PERM process, the Department of Labor (DOL) and the U.S. Citizenship and Immigration Services (USCIS) collaborate to allow an employer to sponsor a qualified foreign worker.

In the PERM process the employer must prove to the DOL they were unsuccessful in recruiting a qualified U.S. worker for the position through a test of the labor market. The position must be permanent, full time and pay the prevailing wage for that occupation in that geographic area. Below is a brief introduction of the green card process through employment sponsorship. It consists of three steps: labor certification, I-140 immigrant petition, and I-485 green card application.

STEP 1: Navigating the DOL PERM Labor Certification Process

The First Step in the Green Card Process through PERM Labor Certification is the PERM process with the DOL. The PERM filing process itself is in 4 parts.

PART 1: Defining the Duties and Minimum Requirements of the Prospective Position

The first part of the DOL process involves defining the duties and the minimum requirements of the prospective position. Extensive care and detail should be used to identify the education, experience, and skill required to perform the duties of the position as the description provided will be critically assessed. Later when filing the PERM Form 9089, the employer will be required to attest to two statements:

These are the actual minimum requirements for this specific position; and
All others in the group, who perform substantially the same job duties, also met these same minimum requirements prior to being hired into that position. This means no one was hired with less than the stated minimum requirements.

After defining the position, the employer submits a prevailing wage request to the DOL. In the request, the employer will include information about the job duties, requirements for the position, and work location.

PART 2: Submitting a Prevailing Wage Request (PWR) to the DOL

The second part of the DOL process follows the identification of the minimum requirements above. The employer submits a prevailing wage request (PWR) to the DOL. The DOL will provide the employer with a prevailing wage determination (PWD) for the prospective position. The PWD is the minimum wage an employer must pay a sponsored worker under the PERM sponsored immigrant visa. While an employer may ask for a prevailing wage redetermination, if they find the wage unacceptable, it causes delays to the process. Well-crafted minimum requirements can predict the occupation and wage level to the satisfaction of an employer without delays. Once an employer obtains an acceptable PWD, the employer may begin recruiting for the position.

PART 3: Testing the Labor Market with Recruitment

The third part of the DOL process is the test of the labor market with recruitment. The employer must place multiple advertisements for the prospective worker's job position in addition to filing a job order with the state workforce agency. Newspaper ads for the position must run in the major Sunday paper in the area on two different days. For professional positions, the employer must use three additional recruitment methods. During this time the employer must timely respond to any applications or resumes submitted by candidates. After the last ad recruitment ends there is a 30-day waiting period required before the employer can move on to filing the PERM. Form 9089, along with a summary of the requirements, recruitment, and the beneficiary's qualifications.

PART 4: DOL PERM approval

The fourth and final part of the DOL process is to file the Form 9089 with the DOL and obtain a certification of the recruitment. A Certified PERM is the DOL approval required for filing the I-140 employer immigrant petition. For PERM filings that are not audited the approval time is currently around six months. For audited filings, the processing time increases significantly. Currently, the Department of Labor is randomly auditing about 35% of the PERM labor certification filings.

Although, we cannot guarantee a filing will not be audited. Our PERM filings are seldom audited by the DOL. Maybe that is because we prepare our filings with the audit in mind as we perform all the steps along the way. Unlike, most firms who only prepare an audit file after they receive an audit notice. We can't be sure, but maybe it's our reputation for paying attention to all the details that result in our lack of audits. When the PERM is audited the employer has 30 days to submit any required documentation for the audit. The DOL also requires supervised requirement for a limited number of cases from those selected for audit, adding additional time to the approval process.

STEP 2: I-140 Immigrant Petition

The Second Step in the Green Card Process by employer sponsorship through PERM labor certification is the employer's I-140 immigrant petition filed to USCIS with the Certified PERM labor certification form. Once the DOL certifies a PERM an employer can file an I-140 visa petition with the USCIS. The PERM Form 9089 is signed by both the foreign worker and the employer attesting to the validity of its contents. The employer's I-140 petition includes information about the foreign worker's background used to prove the worker's qualifications as stated on the Form 9089. When completing the I-140 the employer must also provide information about the foreign worker's salary and evidence of the employer's ability to pay the PERM PWD.

The USCIS can take several months to decide on the petition. I-140 processing time is presently for about 8 months. However, for an additional fee, the process can be expedited. Premium processing for PERM based I-140 filings is currently available permitting a decision in 15 business days. Generally, once the I-140 petition is approved by the USCIS the worker may file an I-485 green card application or immigrant petition.

STEP3: I-485 Green Card Application

The Third and Final Step in the Green Card Process by employer sponsorship through PERM labor certification is the I-485 green card application filed to the USCIS by the sponsored employee. The I-485 id filed to USCIS after approval of the l-140 petition or concurrently with the I-140 when an immigrant visa is immediately available. The sponsored employee must complete this step for themselves; the employer cannot file on behalf of the employee.

Where there is an immigrant visa unavailability the person must wait until the visa priority date becomes current and visas become available to them. The visa priority date is the date the Form 9089 is filed with the DOL. EB-2 for most countries have visa availability. Most EB-3 positions for persons from most countries have visa availability. Persons born in India or China will have EB-2 or EB-3 wait times before a green card application or immigrant visa may be filed by them.

STEP 4: Green Card to Citizenship

For most clients, naturalization is the next step following obtaining a green card that allows them to live and work in the U.S. The naturalization application may be filed 4 years and 9 months from the issue date of the green card. For more information about the naturalization process please see our naturalization article.

Get a Green Card During the Trump Administration

The PERM process is lengthy and nuanced and seeking the assistance of a legal professional is strongly recommended. Not only can an attorney assist with the drafting and filing of the application, they understand all the steps and can prevent an employer for inadvertently causing the PERM to be delayed or worse yet, denied.

These are the general requirements, but some unique situations may require additional steps. For more information please email or call (650) 588-7100 to find out more.

The information in this article does not constitute legal advice. The law is constantly changing, and we make no warranty of the accuracy of information.

We look forward to assisting you.

Details of the H-1B visa application process

2019-03-06T19:45:45Z

Applying for any of the three main types of H-1B visa is a detailed process that requires input and action from both the employer and employee. All H-1B visas are designed for foreign workers with special skills or those who work in a specialized industry.

While additional details are likely to come to light during the application process, here are the three primary steps required for an H-1B application:

Employer completes and files a Labor Conditional application with the Department of Labor: In this application, the employer agrees to comply with all labor requirements associated with bringing an employee to the United States on an H-1B visa. Any violation of these requirements can result in a fine, banning additional visa applications and other sanctions.
Employer completes and files a Petition for Nonimmigrant Worker with the U.S. Customer and Immigration Services: A Petition for Nonimmigrant Worker, also known as Form I-129, should be submitted to the proper U.S. Customer and Immigration Services center, based on location, and accompanied by a Labor Condition application.
The prospective worker applies for an H-1B visa before entering the United States: After the employer submits the necessary information and receives approval, the foreign worker, who at that point is still outside the United States, will apply for an H-1B visa.

]]> All three of these steps are a must in order for an employer to bring a worker to the United States on an H-1B visa. Any type of mistake along the way, such as neglecting to include the Labor Conditional application along with Form I-129, will result in a denial.

As the most coveted non-immigrant visa, the H-1B is not always easy to secure. Instead, it takes quite a bit of time and effort to get everything in order, both on the side of the employer and employee.

Further complicating your situation is the fact that the U.S. caps the number of H-1B visas it issues every year.

If you want to successfully bring a foreign worker to the U.S., it's imperative to tackle the application process in an efficient and timely manner.

For more information on the H-1B visa program, among other options, visit our website and read through our past blog posts.

Cinco cosas que todo indocumentado debe saber en EEUU

2019-01-16T16:00:00Z

En estos últimos años, la situación para las personas que no se encuentran de manera legal en los Estados Unidos ha sido cada vez más difícil. Los controles migratorios se han vuelto mucho más estrictos y son cada día más frecuentes a lo largo del país, en especial en el Estado de California.

Esto ha hecho que muchas personas sin documentos hayan sido detenidas y en algunas ocasiones, las mismas; no han sabido cómo reaccionar ante tal situación.

A continuación, te presentamos 5 derechos que todo inmigrante indocumentado debe conocer:

]]> 1. Ninguna autoridad puede entrar a su casa sin una orden judicial.

Esta es una situación que puede suceder, lo mejor que puede hacer si un agente de policía o de Inmigración y Control de Aduanas (ICE) pide entrar en su casa o apartamento es que de una manera calmada y educada pida la orden judicial para poder hacerlo. Si ellos no la poseen, entonces; no pueden entrar a su residencia a menos que usted les de permiso para hacerlo.

2. Si una autoridad policial se le acerca por cualquier razón, guarde silencio.

En muchas ocasiones, las autoridades policiacas se acercan a personas en la calle de las cuales "sospechan" que son individuos sin documentos. Le recomendamos que en esta situación guarde silencio y no responda a las preguntas que los oficiales le puedan hacer.

Sin embargo, este procedimiento cambia si usted es detenido por la policía de tránsito. En esta situación en particular, debe proporcionar su licencia de conducir y responder estrictamente a lo que el oficial solicite.

3. Preguntar a las autoridades si se puede ir.

Al ser abordado por uno o varios oficiales en la calle sin alguna razón, usted puede preguntar muy educadamente y sin perder la calma si se puede retirar del lugar. Si la respuesta es afirmativa por parte de los oficiales, puede empezar a caminar de manera tranquila y sin prisa, ya que; salir corriendo u otra reacción acelerada puede hacer que las autoridades policiacas empiecen a sospechar de usted.

4. Es mejor pedir un abogado de migración.

Si es arrestado por cualquier motivo, usted tiene derecho a un abogado. Lleve siempre a la mano el número y nombre de su abogado de inmigración de confianza, éste le podrá ayudar de muchas maneras si usted lo necesita.

5. No firme documentos.

Es muy importante que no firme algún documento que le presenten sin la presencia de su abogado y en el idioma que usted más conoce. A veces por el susto o la prisa ha habido varias personas que han firmado papeles en donde señalaban su deportación voluntaria sin saberlo.

Ahora que ya conoce un poco más sobre sus derechos, puede reaccionar de una manera más natural ante diferentes escenarios que se le pueden presentar. Es sumamente importante que no pierda la calma y que si tiene alguna duda en cuestión a Ley de Inmigración, no dude en busca ayuda profesional.

Types of employment visas employers might find beneficial

2019-01-04T15:11:12Z

Some individuals who come into the United States do so on an employment visa, which is sponsored by an employer. When employers want to get workers here via one of these visas, they must know a bit about the options that fall under this category.

As an employer, you have several things that you have to do in order to make it possible to bring talent in to work here from another country. All employment visas are categorized into five preferences, each denoted by E followed by a number. Some of these have subcategories within the preference.

]]> Labor certification

Before you are able to bring employees in from other countries, you need to take the steps necessary to get a labor certification from the Department of Labor. After you receive this, you file a Form I-140, which is the Immigrant Petition for Alien Worker form. You will have to designate your preference category in this petition.

Preference categories

The five preference categories each include a specific group of workers. Thinking of the type of work and the specifics of the potential workers can help you to determine which is the appropriate one for your company.

E1: Employment First Preference: This has three subcategories – persons with extraordinary abilities in athletics, education, business, arts or the sciences; outstanding researchers and professors who are internationally recognized and have three years of experience; and multinational executives and managers who have specific experience with the employer.
E2: Employment Second Preference: There are two subcategories in this designation – persons with exceptional ability in business, the sciences or arts; and professionals who have an advanced degree beyond a baccalaureate, or who have a baccalaureate and progressive experience in the field for at least five years.
E3: Employment Third Preference: There are three subcategories in this group – unskilled workers that aren't seasonal or temporary; skilled workers who aren't temporary or seasonal; and professionals who have at least a baccalaureate degree.
E4: Employment Fourth Preference: There are 19 subcategories in this group.
- Certain religious workers
- Beneficiaries of labor certification petitions impacted by the Sept. 11, 2001, terrorist attacks
- Certain retired NATO-6 civilians
- Certain unmarried daughters or sons of NATO-6 civilians
- Certain spouses of deceased NATO-6 civilian employees
- Foreigners who served or enlisted in a branch of the U.S. military
- Certain immigrant juveniles
- Certain medical graduates
- Specific retired international organization employees
- Certain spouses of deceased IOEs
- Certain unmarried daughters and sons of IOEs
- Nationals from Afghanistan or Iraq who meet specific requirements of U.S. government employment
- Interpreters and translators from Iraq or Afghanistan who meet specific work requirements with the U.S. military or Chief of Missions
- Former employees of the Canal Zone Government or Panama Canal Company who meet requirements
- Former employees of the U.S. government who worked in the Panama Canal Zone who meet specific requirements
- Some former employees of the Canal Zone Government or Panama Canal Company who were employed on April 1, 1979
- Ministers of religion
- Broadcasters working for the International Broadcasting Bureau of the Broadcasting Board of Governors and some grantees of the organization
- Specific current or former employees of the U.S. government who worked or are working abroad
E5: Employment Fifth Preference: This covers visas for foreigners who are making capital investments that create jobs in this country.

There are annual limits for the number of employment visas that are issued each year. The fiscal year for these runs from Oct. 1 to Sept. 30 of each year. Around 140,000 of these visas are issued in this country each year. Visas are issued in chronological order based on the filing date of the petition, so getting a petition in as soon as possible is imperative since this might reduce the waiting time you have before an employee can come into the country.

The EB-5 visa program allows investors to come to the U.S.

2018-11-08T15:37:24Z

There are many different visa programs to help people immigrate to the United States, each of which can apply to different personal and career situations. Many people are familiar with the HB-1 visa, which allows for skilled workers to enter the United States. Others are also aware of the L group of visas, which help those with existing work relationships with a company to transfer to the United States.

However, exceptional professional careers do not always result in employment. Sometimes, the most exceptional professionals are actually job creators, as opposed to individuals accepting jobs from others. For many years, individuals who were job creators and not employees had a difficult time gaining legal entrance into the United States for work.

]]> Thankfully, the United States government has recognized since 1990 the importance of foreign investors in the United States economy and has changed and updated the program several times since then. Individuals who hope to invest in a business and create jobs in the United States may find themselves eligible for an EB-5 visa with the right documentation.

What is an EB-5 visa?

Unlike many other visas, the EB-5 visa is not contingent upon an offer of employment or an existing job with a company that operates in, or hopes to expand to, the United States. Instead, the EB-5 visa is known as the Immigrant Investor Program, because it offers legal residency options to those who want to start a business or expand an existing business into the United States.

Professionals from other countries who hope to develop a business interest in the United States can apply for an EB-5 visa, which will grant them a conditional green card if the application receives approval. An EB-5 visa will usually result in two years of permanent residence in the United States, at which time they can apply to have the conditions removed. Upon the removal of the conditional status, the green card becomes permanent.

The individual applying can usually also request similar documentation for their spouse and unmarried children. These other family members will have the ability to secure permanent green cards at the same time as the investor holding the EB-5 visa.

How do you qualify for an EB-5 visa?

Typically, the minimum investment required to qualify for an EB-5 visa is $1,000,000, although investments in certain targeted employment areas may qualify with half of that much capital. Individuals who have invested or intend to invest a qualifying amount of money will need to fill out specific forms. They must provide documentation of their investment, their foreign business registration, financial history and criminal background.

Typically, in order to qualify for an EB-5 visa, the individual applying must be able to demonstrate that their investment will create 10 or more full-time positions here in the United States. The right help with your EB-5 visa application can streamline the process and reduce the risk of mistakes on the application.

Does your company need an L-1A or L-1B visa for a transfer?

2018-09-13T19:46:31Z

For many businesses, it makes more financial sense to transfer internal employees when a position opens up. Whether you are taking an employee with years of experience and promoting them to a new position or having that person move into a similar position in a new location, it can be much easier then training someone new.

It is also more cost-effective, as you will not have to spend weeks or months familiarizing somebody with your company's standard practices.

]]> For international companies, it often makes sense to move an employee who works at an international facility to a domestic one. If this is a move your company is considering making, you will probably need help filling out the L-1A visa if that person is an executive or manager or an L-1B visa if that person is an employee with specialized knowledge.

How to know if your company qualifies

Not all businesses have the right to obtain L-1A or L-1B visas. Your company must have a qualifying relationship with a foreign company. The kinds of relationships that qualify your company for these visas could include parent companies, branches, subsidiaries and affiliates. You must also either currently do business in the United States as an employer or intend to do business in the United States in the near future.

If your company meets these requirements, you may have the ability to seek an L-1A visa or an L-1B visa to transfer an existing employee to a location in the United States. Whether you are expanding your operation to new offices or need to transfer someone into a recently vacated position, these visas can help you move your existing talent into a domestic role in your company.

How to know if the employee in question qualifies for a visa

There are also requirements for the employee whom you hope to transfer to work in the United States. For example, they typically need to have worked for your company for at least one continuous year in the last three years. They will also need to have the skills to fill a management or executive role in the case of L-1A visas or have specialized knowledge for the L-1B visa.

They will also need to pass a comprehensive background check and be a citizen of a country that is not part of a travel ban. Both of these visas allow workers to stay for one year in the case of new offices or three years in the event of existing offices. It is possible to extend the stay in two-year increments for up to seven years for L1-A visas or five years for L-1B visas.

Ensuring eligibility and properly executing all documents are important concerns when seeking transfer visas for international workers. Your company would likely benefit from professional assistance with this complicated process.

I-9 Verification Places Employers at Risk of Severe Penalties for Failing to Notice Errors in Paperwork

2018-08-12T21:29:07Z

Employers are responsible for ensuring the employee completed section one of the I-9 Employment Eligibility Verification form and for completing section two of the I-9 Employment Eligibility Verification form, as well as to verify that proper documentation has been provided to demonstrate an employee's eligibility to work in the U.S. Failing to properly verify their employees places employers at significant risk of civil and criminal penalties.

]]> California Employment Eligibility Verification Lawyer

If your business is facing an I-9 audit or needs assistance ensuring worksite compliance, an experienced California employment eligibility verification attorney can be extremely beneficial to protecting your interests. At Litwin & Smith, we advise businesses and foreign nationals with all aspects of completing I-9 employment eligibility forms and ensuring compliance with United States immigration laws.

The federal government takes immigration laws seriously and is regularly taking steps to reduce and eliminate the number of illegal immigrants working in the U.S.

The enactment of the Immigration Reform and Control Act created the requirement that employers verify the identity and employment eligibility of their employees and created criminal and civil sanctions for employment related violations.¹ The Employment Eligibility Verification Form I-9 (Form I-9) is the means of documenting this verification. Employers are required by law to maintain for inspection original Forms I-9 for all current employees and are required to retain those documents for a period of at least three years from the date of hire or for one year after the employee is no longer employed, whichever is longer.² I-9 Audits are becoming more frequent based on several factors:

The Trump Administration has directed U.S. Immigration and Customs Enforcement (ICE) to enhance "interior enforcement."

The Trump administration has called for an increase in worksite enforcement investigations to ensure U.S. businesses maintain a culture of compliance. Last December Tom Homan, deputy director of U.S. Immigration and Customs Enforcement (ICE) stated, "I want to see a 400% increase in work site operations ... We're not just talking about arresting the aliens at these work sites, we are also talking about employers who knowingly hire people who are unauthorized to work."³

Federal prosecutors are showing an increased interest in proceeding criminally against employment verification failures.

As a result of this policy more than 5,200 businesses around the country have been served with I-9 audits since January.

The Trump Administration has directed U.S. Immigration and Customs Enforcement (ICE) to increase civil fines for I-9 noncompliance.

The Department of Justice has also adjusted the civil monetary penalties for inflation in accordance with the provisions of the Bipartisan Budget Act of 2015.⁴ These penalties range from $375 to $16,000 per violation, with repeat offenders receiving penalties, at the higher end.⁵ Penalties for substantive violations, which includes failing to produce a Form I-9, range from $110 to $1,100 per violation.

San Francisco I-9 Employment Forms Attorney

At Litwin & Smith, we assist employers throughout the San Francisco Bay Area, Silicon Valley, and Northern California with Form I-9 Employment Eligibility Verification compliance regarding immigrant employees, including those with a green card (permanent resident status) and those with temporary work visas. We can make sure you are compliant with I-9 regulations and advise you regarding additional immigration compliance and worksite enforcementconcerns.

Contact one of the immigration attorneys from Litwin & Smith to put our more than fifty years of immigration law experience to work for you.

Please visit our Immigration Articles page for a full listing of detailed articles regarding immigration and naturalization law.

¹ INA § 274A(b).

² 8 C.F.R. § 274a.2.

³ Parija Kavilanz, ICE pledges immigration crackdown on businesses. Here's what it looks like, CNN Money, (January 15, 2018: 9:14 AM ET), https://money.cnn.com/2018/01/15/news/economy/ice-immigration-work-site-crackdown/index.html

⁴ 82 FR 9131

⁵ U.S. Immigration and Customs Enforcement, Form I-9 Inspection Overview, January 8, 2018