Immigration QA

"Grace" is Minnesota's official state photograph. I was State Senator in 2002 when we officially voted for Minnesota's official "state photograph." A more prolific image originating from Minnesota than "Grace," I'm not aware of.  My colleague and friend, Rep. Loren Solberg , was the natural author of the bill since Loren lived in Bovey, Minnesota where the photograph was taken.  I think Loren also liked it because he bears resemblance to Charles Winden, the guy in the photo (Loren and I ribbed each other from time to time).  Read more about the history of Grace here. Speaking of grace, lately I've received a rash of calls from noncitizens who find themselves similarly situated to Mr. Wilden, praying for providential intervention in a recent job loss.  Primarily H1B visa holders, these folks have been laid off and are uncertain about their legal status and how to proceed with potential new employment in the United States.  The influx is prom...

  My translation service friends have been in my mind lately. Not sure why, maybe because a recent case required both an Arabic and French document translation.  From time to time I enjoy a chuckle from a funny interpreting experience some years ago. The matter involved an urgent need for spoken Gujarati, and no professional service was immediately available. I asked a local aide society if they could find someone who spoke Gujarati, and they heartily agreed.  When the interpreter arrived he spoke beautiful Gujarati with my client. Small problem: he couldn’t speak a word of English back to me!  Basic lesson: make sure your interpreter is fluent in BOTH languages! Lol!

I recently answered the following question. Q:   I was working on H1b for 3.5 years, but for some personal reasons I resigned last week from the job.   Now my Employer is really mad and they are saying that they will report it to USCIS. I came back to my home country and then resigned. Can they still report something bad/suspicious to the USCIS? A: You didn't do anything illegal, but by resigning from your job you lost your H1B status. If you truly departed the country, and THEN resigned, then there is nothing about that particular action your employer can complain about. Of course they can try. If there were other issues going on (like fraud) then certainly the employer can submit a report.  It does not mean their reports will be found valid, but they can cause a headache nonetheless. If there's not fraud for them to report, then at most they can submit a "withdrawal" of your visa to make a difficult to reenter (but you'd need to be rehired by that particulary em...

I recently answered the following question:  Q: I married a US citizen while currently waiting for H1B renewal to be approved. What happens in this case?  H1B visa expired last October. I am currently waiting for my renewal to be approved. When I get married to my fiancee, can I file for adjustment of status while my H1B is still pending? A:  Your spouse can sponsor you for a green card and you can adjust your status in the U.S. regardless of your current or pending status (if you entered the U.S. legally).  The more frequent question is whether, when you receive an EAD while adjusting, should you begin work on the EAD or stay on H1B (or other status).  This is a sensitive question that totally depends on individual circumstances, and should  absolutely be discussed with your immigration attorney before acting.  One reason to NOT invoke the EAD is if  for some reason, your green card is denied you will still be in H1B status and no additional...

I was recently asked what I'd like non-immigration attorneys to know about the practice of immigration law. The first thing that came to mind is it's complexity.  This is not to say other areas of law are not incredibly complex, but a flavor of what a typical immigration lawyer encounters may be enlightening for lawyers and non-lawyers alike. In a landmark decision expanding rights of noncitizens regarding proper immigration advice before a guilty plea, the U.S. Supreme Court specifically stated, “Immigration law can be complex, and it is a legal specialty of its own.” Padilla v Kentuck y (2010).  The court was right to underscore this, and it’s understandable how many can overlook just how complex immigration law is. For example, different “legal statuses” exist for noncitizens depending on their purpose of entry. There are temporary entries ranging from visitor or student, to refugee and myriad of narrowly defined occupations.  Then there is Legal Permanent Residency, o...

I think most immigration advocates agree it's been a mixed bag.  There were immediate reversals of SOME of President Trump's most anti-immigration executive orders, but not all.  Suprising, given President Biden's pro-immigrant rhetoric. One example is the refugee moratorium, which the administration declined to lift until there was a public outcry.  Another is the many months it took the AG to recind the onerous Castro-Tum decision, which imposed procedural restrictions on immigration judges.   I myself had a client who grew up in the US but was deported under Castro-Tum rule, even though the immigration judge HERSELF ruled he was eligible for a U Visa. Before Castro-Tum, he could have stayed in America waiting for its approval. Under Castro-Tum, he was deported to a life in Mexico he's never known.  How many countless noncitizens were unfairly deported while Merrick Garland delayed this no-brainer move? Castro-Tum should have been rescinded the day he was conf...

BREAKING: U.S. Supreme Court has denied the government’s attempt to eliminate Deferred Action for Childhood Arrivals (#DACA).  I do believe the decision requires a “but,” because the (slim) majority decision does affirm USCIS’s legal ability to eliminate it, just that it failed to provide the legal rationale required by the Administrative Procedures Act.  Further analysis is needed as to whether the government could even realistically offer such rationale in the future.  Initial conclusion is that #DACA is good for now, but still not 100% safe. Here is the decision for further details:  Supreme Court DACA Decison

AN ATTORNEY RECENTLY ASKED ME: "A friend asked me to review a retainer agreement from a law firm representing both the noncitizen employee from Turkey and the sponsoring employer.  The agreement says that, in the event a conflict, the attorney could choose which party to continue representing and that any and all information learned during the course of application's representation would no longer be privileged.  For persons attempting to obtain a work visa, is it common practice to hire a firm that plays matchmaker between applicant and employer?  If the relationship/arrangement goes south, what, if any, remedies does the applicant, as a non-citizen, have against the law firm and/or the employer?" ANSWER:  Dual representation is indeed a reality in several types of immigration scenarios. In the employment-based immigration setting, many applications must originate from an employer seeking the government’s permission to hire a foreign nati...

Noncitizen name changes can complicate or benefit.  I recently got the following question from a family law attorney: QUESTION:  Can a Minnesota court order the name change of a non-citizen? Client has a H4 visa, and my understanding is that means they are a lawful temporary resident.  So my thinking is they satisfy the residency requirement of Minn. Stat. 259, having lived here in Minnesota for more than 6 months.  I'm wondering if there is any prohibition to such a name change, or compelling reason not to change their name? ANSWER:  There is no prohibition on the name change for noncitizens, for the statutory reason cited.  Perhaps there are a couple additional issues worth noting: First, the recordkeeping must be meticulous because the individual will be asked about the name change in future immigration applications. There should be proof that it was done in the proper manner. I recommend multiple certified copies so that the i...

The EB5 green card program allows investment in America. What Does It Take to Get An EB5 Visa? Why the interest in an "EB5," or (Employment-Based 5) category of green card, or Legal Permanent Resident, in the United States? The short answer is: Speed.   The EB5 category is the fastest method of a noncitizen to become a Legal Permanent Resident in the United States.  As with all methods of immigration, however, there's a tradeoff.  The speed of permanent entry is offset by a high standard of eligibility, and more importantly a high expense.  But those that can afford a sizable investment into U.S. business, hiring employees, OR local government projects along with high legal fees may consider this mutually beneficial approach.  But beware, the documentation required rivals an SEC audit.  In short, the EB5 is a "strings attached" process of mutually beneficial immigration to America. The applicant must invest in a new, expanding, or troubl...

Recent I was asked the following question: I work full-time as a software developer in H1b status.   Now a local college has asked me if I can join as an adjunct teacher and teach a computer science class for only 4 hours a week.  It is a government college and is willing to apply H1B.  Can I work/teach part-time in that college?   Is premium processing available? ANSWER:  Yes, this should work.  You can have what is called a concurrent H1B visa, i.e. more than H-1B at the same time.  You just need to make sure that the second H1B application clearly indicates that it is a concurrent H1B petition and not a change of employer or replacing your current employment in any way.   Also,  you must continue to abide by all the terms of your original H1B.  Premium processing for the teaching job is indeed possible, but prevailing wage determination's and LCA's take time.   As such, you may consider using a private servic...

Could you win a duel for your immigration status? On this date in 1804,  U.S. Vice President, Aaron Burr , mortally wounded former Secretary of the Treasury Alexander Hamilton in a pistol duel in Weehawken, New Jersey.  The two had once been friends, but a long history of conflict spawned largely by their clashing political ambitions set them at odds. The bad blood may have started in 1791, when Burr replaced Philip Schuyler , Hamilton's father-in-law, in the United States Senate.  In 1800 Burr very nearly won the presidency, tying Thomas Jefferson with 73 electoral votes, and Hamilton—who disliked both Jefferson and Burr, but distrusted Burr more—worked hard to ensure that Jefferson emerged the victor when the election was thrown into the U.S. House of Representatives. Hamilton similarly labored to defeat Burr's bid for the governorship of New York when it became evident that Jefferson meant to drop Burr as vice-president after one term.  ...

USCIS completed its lottery. Well, they done did it.  USCIS completed a lottery to select which H1B visa petitions will be considered this year.  This year there was no prior indication that a lottery would be conducted, as there had in previous years.  We simply received the announcement this afternoon that it was done. Hopefully our office’s petitions will be selected.  Here's the announcement if you'd like to read it.   USCIS Completes H1B Cap Random Selection Process for FY19 . More later, but in honor of the lottery announcement, here's a song:

New H1B Visa for FY19 Cap Filled in 5 Days. And just like that, the cap is full. Well, that did escalate fast didn't it? The  USCIS announced this morning that it has received more new H1B visa applications than it can approve under law for FY19.  Although not explicitly stated, previous practice tells us that USCIS has now ostensibly begun a "lottery" process for selecting which applications it will even consider for approval or denial, and which applications will be returned with their filing fee checks uncashed.  Actually, the timeline for this announcement, five days after applications were allowed to be filed, is about the same as previous years as well.  Chaudhary Immigration Attorneys  also filed new, Cap-subject H1B petition on behalf of clients this year.  Our practice is to ensure petitions arrive at USCIS on the first day applications were accepted, this year being this past Monday, April 2.  Fingers crossed now that they will b...

If you're in IT, foreign or not, sit up and read this. In 2016, Time Magazine listed the  20 Best Songs to Wake Up To.   Don't ask me how Hit the Quan made the list.  In immigration news, however, the Trump administration just issued a policy memo that should wake up every IT manager in America, whether or not they employ noncitizens.  To be sure, every IT Consultant involved with H1B visas should sit up and read this. As of today, the USCIS has "clarified" the  Policy Requirements for Third-Party Worksite H-1B's , i.e. IT consultancies.  I put "clarified" in quotes because, although the new memo mostly restates the current law and requirements for H1B visas (not altogether unneeded by the way), there are several subtle and not so subtle hints regarding the way off-site employee H1B visas will be treated in the Trump administration.  This amounts to new H1B policy just as we enter the season of annual new H1B filings. SUMMARY Less deferenc...