U.S. Immigration Attorneys
5005 Rockside Road Ste. 600 Cleveland Ohio 44131
info@sarmientoimmigration.com
1.800.496.8043
Our Associate Attorney, Sung Hee (Glen) Yu, Esq. was invited to talk about the practice of immigration law practice and his professional experience at the Third Annual Case Western Midwest APALSA (Asian Pacific American Law Students’ Association) Conference last February 18, 2012.
This year’s conference entitled “Building Your Niche: Creating a Professional Identity in Practice and Beyond,” was designed by law students in light of the challenging employment market. APALSA members sought to put on a conference that focused on the expansive opportunities that a Juris Doctor can open up for students, law related or otherwise. Over twenty-five attorneys, professors, and other professionals were invited to attend and share their experiences. More than 80 law students attended this all day conference.
Mr. Yu, a Case Western Law School alum, was invited to speak at the Immigration Law Breakout sessions with two other immigration attorneys. He discussed various issues common to the practice of immigration law and shared his experiences in handling employment-based, family-based, and deportation and removal cases. He also offered advice on how to find internships and employment in immigration law firms and other jobs related to the field.
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On November 29, 2011, Congress passed H.R. 3012 (The Fairness for High-Skilled Immigrant Act) by a vote of 389-15 with no additional amendments. The measure now moves on to the Senate for consideration. The Fairness for High-Skilled Immigrant Act was introduced on September 22, 2011 by Rep. Chaffetz (R-UT) to eliminate the employment-based per-country cap entirely by fiscal year 2015 and raises the family-sponsored per-country cap from 7% to 15%.
This passed Bill aims to move away from the current law, under which immigrants from an individual country who are in the U.S. on an employment visa such as an H1-B cannot apply for more than seven per cent of the 140,000 green cards issued annually by the State Department. The Act ultimately eliminates this per country percentage cap. What this implies is that countries that are facing the highest demand-supply mismatch for green cards, among which India ranks first and China second, then Mexico and the Philippines will see a benefit in terms of prospective green card issuance (shorter waiting time for priority dates to be current), whereas the waiting time for other nations would be significantly longer.
Therefore, the Act greatly will improve the processing times for Indian and Chinese green card applicants. However, an unintended consequence of the Act likely would be the slower processing times for natives of other countries.
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The USCIS on August 17, 2011 issued a policy memorandum regarding officer adjudication of B-2 applications by cohabiting partners or family members of non-immigrants in the U.S., such as family members and partners of F-1 students and H-1B workers. The memorandum pointed out that in some circumstance, elderly parents, cohabiting non-immigrant partners, and other household members of the principal non-immigrant may be ineligible for derivative status. It defined “household member” as aliens who “regularly resides in the same dwelling as the principal non-immigrant and with whom the principal non-immigrant maintains the type of relationship and care as one normally would expect between nuclear family members.” These aliens may apply for B-2 visas, or change whatever status they are in to a B-2, to enable them to reside with the principal non-immigrant visa holder. Extensions may also be sought in six month increments for the duration of the principal alien’s non-immigrant status.
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The USCIS updated its H-1B guidance to clarify the employer-employee relationship standard for self-employed individuals. The memorandum does not change any of the requirements for H-1B petitions. Currently, the CIS requires that a U.S. employer prove that it has an employer-employee relationship with the beneficiary in that it may hire, pay, fire, supervise, or otherwise control the work of any such employee. Other requirements include establishing that the beneficiary is coming to the U.S. to work in a specialty occupation, showing that the beneficiary is qualified to perform that specialty occupation, and the filing of a Labor Condition Application specific to each location where the beneficiary will be working.
But as to self-employed individuals and H-1B petitions, the CIS mentioned that if the facts show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established. They went on to provide that if the petitioner provides evidence that there is a separate Board of Directors, which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship for H-1B purposes. The CIS cites Matter of Aphrodite, 17 I&N Dec 530 (BIA 1980), which held that the USCIS acknowledges that a sole stockholder of a corporation can be employed by that corporation as the corporation is a separate legal entity from its owners and even its sole owner. The memo also stated that several unpublished Administrative Appeals Office (AAO) decisions determined that corporations are separate and distinct from their stockholders and that a corporation may petition for, and hire, their principal stockholders as H-1B temporary employees.
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On August 2, 2011, the U.S. Embassy in Manila established its Visa Reissuance Program (VRP) to expedite tourist visa renewals for those who previously have been issued multiple entry visas to the United States valid for five years or longer.
Under this program, a Philippine citizen holding a valid tourist visa can apply for re-issuance within 12 months of its expiration date. Visa reissuance applicants will be given a priority appointment date. They only need to appear at the Consular Section of the Embassy at the designated appointment time to submit a valid passport and application confirmation page, and to have their fingerprints digitally scanned. No interview will normally be needed. The applicants can expect to receive their passports with the new U.S. visa within a week of application.
Below are the requirements to be eligible for the visa reissuance program:
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On December 14, 2011, President Obama signed the Accreditation of English Language Training Programs Act which requires ESL programs seeking to enroll international students to receive accreditation by a regional or national agency recognized by the Department of Education. The law came into effect 180 days later, on June 12, 2011.
International students enrolling on an ESL school or program who wish to obtain an F-1 visa or status in the U.S. should be careful of potential ESL schools’ accreditation status. They should make sure the schools are accredited before they apply for a change of status or a visa.
The following important dates should be noted:
December 14, 2011: Non-accredited, SEVP-certified English language training programs must submit an application for accreditation to a regional or national accrediting agency recognized by the Secretary of Education by this date.
December14, 2013: If by this date, the non-accredited, SEVP-certified English language training program has not obtained or was denied accreditation, the applicant may not be granted a non-immigrant visa through this sponsoring program.
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On June 23, 2011, the Board of Immigration Appeals (BIA) concluded that the derivative child of a finacee visa holder is not ineligible for adjustment of status simply by virtue of having turned 21 after admission to the United States on a K-2 visa.
In Matter of Le, the respondent came to the U.S. with his mother, who became engaged to a U.S. citizen. The K visa petition was approved for the respondent’s mother and respondent, and they subsequently applied for adjustment of status in the United States. Respondent was 19 years old when he filed his adjustment application. Eventually, his mother’s adjustment application was approved, however, respondent’s application was denied since he had already reached the age of 18 at the time of his mother’s marriage. He was therefore determined to be ineligible to adjust status.
The issue was whether a fiancé derivative child who accompanied or followed to join his alien fiancé parent to the United States remains eligible to adjust status, if after satisfying the other statutory requirements, he attains the age of 18 or 21. The BIA conclude that to adjust based on a K-2 visa, an alien derivative child must establish that he or she was under 21 years of age at the time of admission to the United States. In this case, the Respondent was 19 years old at the time of admission to the United States, thus, he was allowed to renew his application for adjustment of status.
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The USCIS released the number of receipted cap-eligible H-1B visa petitions from April 1, 2011 to June 13, 2011. As of June 13, 2011, approximately 15,200 H-1B cap-subject petitions were receipted. Additionally, the USCIS has receipted 10,200 H-1B petitions for foreign workers with advanced degrees (master’s degree or higher).
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The Adam Walsh Child Protection and Safety Act is a federal statute that was signed into law by President George W. Bush on July 27, 2006 to protect children from sexual exploitation and violent crime and to prevent child abuse and child pornography. Section 402 of the Adam Walsh Act amends section 204 of the INA to prohibit U.S. citizens and lawful permanent resident aliens who have been convicted of any “specified offense against a minor” from filing a family-based immigration petition on behalf of any beneficiary, unless the Secretary of Homeland Security determines in his sole and unreviewable discretion that the petitioner poses no risk to the beneficiary. The “specific offense against a minor” includes the following:
If a person is subject to the act, he or she must demonstrate to the USCIS that there is no risk to the beneficiary. Also, this Act removes spouses or fiancés of U.S. citizens convicted of those offenses above from eligibility for the “K” non-immigrant status.
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On May 12, 2011, USICE published an expanded list of STEM degree programs that qualify eligible graduates on student visas for an Optional Practical Training (OPT) extension. By expanding the list of STEM degrees to include such fields as Neuroscience, Medical Informatics, Pharmaceutics, and Drug Design, Mathematics and Computer Science, the Obama administration is helping to address shortages in certain high-tech sectors of talented scientists and technology experts – permitting highly skilled foreign graduates who wish to work in their field of study upon graduation and extend their post-graduate training in the United States.
Under the current OPT program, foreign students who graduate from U.S. colleges and universities are able to remain in the United States and receive training through work experience for up to 12 months. Students who graduate with one of the newly-expanded STEM degrees can remain for an additional 17 months on an OPT-STEM extension.
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