Articles Posted in Uncategorized

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The immigration community is scratching its head about Trump’s recent Tweet about H-1B visas. “H-1B holders in the United States can rest assured that changes are soon coming which will bring both simplicity and certainty to your stay, including a potential path to citizenship,” tweeted Trump on January 11, 2019.  Trump may have been referring to the USCIS proposed regulation to change the order of the H-1B lottery; however this will have no effect on H-1B visa holders ability to secure green cards or citizenship.  The government has also not announced any changes to the current path to permanent residence or citizenship for H-1B visa holders.  So no one really knows what his Tweet meant!

For more information and comments: Forbes 

Or contact  Cornerstone Law Group

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U.S. District Judge Jesse Furman has blocked U.S. Commerce Secretary Wilbur Ross’ attempt to include a question about citizenship on the 2020 U.S. Decennial Census in State of New York et al. v. U.S. Department of Commerce, et al.

The U.S. Census Bureau, which falls under the U.S. Department of Commerce, has not asked a citizenship question since 1950.  The census, which measures U.S. population and demographics every ten years, serves to properly allocate House of Representatives seats and helps to appropriate billions of dollars in Federal funds, grants, and support to states, counties and communities.

According to Secretary Ross, the citizenship question was a response to a U.S. Department of Justice request for better citizenship data to enforce the Voting Rights Act and its protections against racial discrimination in voting.

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The visa bulletin is out at this link: February 2019

For the Date for Filing, employment-based categories are as follows: EB-1 is at June 1, 2018 for all countries except China and India (October 1, 2017); EB-2 is current for all countries except  China (November 1, 2015) and India (May 22, 2009); EB-3 is current for all countries except China (January 1, 2016), India (April 1, 2010) and the Philippines (October 1, 2017);  EB-3 other workers is current for all countries except China (June 1, 2008), India (April 1, 2010) and the Philippines (October 1, 2017); EB-4 and religious worker visas are current for all countries except El Salvador, Guatemala, and Honduras (May 1, 2016); and EB-5 non-regional centers and regional centers are current for all countries except China (October 1, 2014).  Family based petitions are backlogged, with the most recent date at December 1, 2017 for F2A (spouses and children under 21 of lawful permanent residents) and the longest queue for Philippines F4 (brothers and sisters of U.S. Citizens) at August 1, 1997.

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There has been a significant increase in the frequency with which IT professionals are refused visas at consular posts in Mission India. These refusals appear to be the result of the Buy American/Hire American Executive Order (BAHA). AILA, our immigration lawyers association, has provided the following strategies for visa issuance:

  • Applicants must be prepared to discuss the job offered and the specific skill set required to perform the job.
  • Applicants should be prepared to provide a succinct “elevator speech” explanation to the consular officer about the position. The applicant must clearly communicate what they do (or will be doing) and should be prepared to articulate the value that they bring to the U.S. employer.
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U.S. Immigration and Custom Enforcement (ICE) reports  that criminal investigations, business audits, and arrests by ICE and ICE’s Homeland Security Investigations (HSI) division have surged 300 to 750 percent in fiscal year (“FY”) 2018 compared to FY2017.  HSI opened 6,848 worksite investigations compared to 1,691 in FY2017 and initiated 5,981 I-9 audits compared to 1,360 in FY2017. HSI made 779 criminal arrests and 1,525 administrative worksite-related arrests in FY2018 compared to 139 criminal arrests and 172 administrative worksite-related in FY2017.  Businesses were ordered to pay more than $10.2 million in judicial fines, forfeitures, and restitutions and HSI levied businesses another $10.2 million in civil penalties in FY2018.

HSI continues to focus on the criminal prosecution of employers who knowingly break the law, and the use of I-9 audits and civil fines to encourage compliance with the law. The Immigration Reform and Control Act (IRCA) of 1986 requires employers to verify the identity and work eligibility of all individuals they hire, and to document that information using the Employment Eligibility Verification Form I-9.

For more information about I-9 regulations please contact our office at: immigrationinfo@cornerlaw.com

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A recent Forbes Op-Ed article, International Students Are Founding America’s Great Startups, by Stuart Anderson, highlights the high percentage of U.S. startup companies that have been founded by professionals who first came to the United States as international students.

The study, conducted by the National Foundation for American Policy, a non-partisan public policy research organization of which Anderson is the executive director, finds that almost one quarter (20 out of 91)  of U.S. billion-dollar startups have a founder who first came to the U.S. as an  international student. These startups have a collective value of $9.6 billion and have created an average of more than 1,400 jobs per company.

Anderson argues that programs such as Optional Practical Training (OPT), which allows foreign students to stay in the U.S. after graduation to work for a period of up to 12 months, gives foreign students an opportunity to join the U.S. workforce and find successful U.S. startups. He argues that the Trump Administration’s restrictions on foreign students will make it more difficult for these students to become valuable assets to the U.S. workforce.

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The American Immigration Council (AIC), a nonprofit immigration advocacy group, notes that other countries stand ready to embrace highly skilled foreign workers’ contributions, if the U.S. increases obstacles which prevent highly skilled workers from applying for and receiving U.S. work authorization.  While the current U.S. administration plans a major overhaul of the H-1B process, which will decrease the number of highly skilled foreign workers admitted to the U.S., other countries such as Canada are embracing highly skilled foreign workers.  The Canadian Government’s “Global Skills Strategy” program has promised a two week turn around on work permits for skilled foreign workers.

Talent is highly mobile and immigration contributes to “talent clusters.”  According to Harvard Business School professor William Kerr, the author of The Gift of Global Talent, talent clusters are areas where talented individuals tend to congregate, and these clusters form innovative places such as the Silicon Valley.

As the author indicates, immigrants contribute to the growth of these clusters.  For example, immigrants are responsible for one-quarter of all U.S. patents filed, and more than half of all U.S. workers with doctorates in science and engineering fields are immigrants.  As the U.S. restricts immigration, highly skilled foreign workers will likely find more welcoming talent clusters in other countries.

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US Citizenship and Immigration Services has adopted new policy guidelines for adjudicating Function Manager visa petitions based upon a recent case ruling from the Administrative Appeals Office (AAO). The Immigration and Nationality Act (INA) provides both temporary (L-1A) and permanent (EB-1C) visa categories for multinational executives or managers. The INA recognizes two different types of managers that qualify in both categories: personnel managers, who supervise and control the work of personnel, and function managers, who manage an organizational function. The AAO clarified that, in order to establish that a beneficiary will be employed in a managerial capacity as a “function manager,” the petitioner must demonstrate that: 1) the function is a clearly defined activity; 2) the function is “essential,” i.e., core to the organization; 3) the beneficiary will primarily manage, as opposed to perform, the function; 4) the beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and 5) the beneficiary will exercise discretion over the function’s day-to-day operations. Persons interested in applying under this category should keep in mind they will need to furnish supporting evidence addressing these eligibility factors, such as organizational charts and letters from other company managers or executives detailing the “essential function,” including the impact that function has on the company and the authority the beneficiary has over that function.

Please contact us if you have any questions or need additional information.

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The Justice Department cautioned employers filing H-1B petitions not to discriminate against U.S. workers. The warning came as the federal government began accepting employers’ H-1B visa petitions for the next fiscal year. The H-1B visa program allows companies in the United States to temporarily employ foreign workers in specialty occupations such as science and information technology. The antidiscrimination provision of the Immigration and Nationality Act (INA) generally prohibits employers from discriminating against U.S. workers because of their citizenship or national origin in hiring, firing and recruiting. Employers violate the INA if they have a discriminatory hiring preference that favors H-1B visa holders over U.S. workers. “U.S. workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims” said Acting Assistant Attorney General Tom Wheeler of the Civil Rights Division. Applicants or employees who believe they have been discriminated against based on their national origin, citizenship or immigration status can contact the Immigrant and Employee Rights Section. The IER can be reached via email at IER.usdoj.gov and via phone at 1-800-255-8155.

For further information: http://www.aila.org/infonet/doj-cautions-employers-seeking-h-1b-visas

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As of May 5, 2014, USCIS will accept only the revised version of Form N-400 (Rev. 9/13/13), Application for Naturalization. USCIS will reject and return previous versions of the Form received after this date. Issued on February 4, 2014, the new version does not change the eligibility requirements. According to USCIS, the revisions are designed to allow the Service to more efficiently make eligibility determinations.

The revised Form N-400 includes:

(1) Additional questions surrounding good moral character and issues relating to U.S. security. These questions were formulated for compliance with the Intelligence Reform and Terrorism Prevention Act (2004) and Child Soldier Prevention Act (2008).