Immigration QA

Credit Reuters Happy days to the Indian national cricket team, taking its first grand title of a T20 World Cup.  A nearly blemish-free record by most accounts. By the way, this year was also America's first serious ICC Cricket tournament on home turf. The U.S. team actually won enough games to qualify for the 2026  T20 World Cup  in Sri Lanka and India! This rather reminds me of U.S. immigration law.  This is because, in addition to the many requirements for U.S. naturalization, applicants must have what is called Good Moral Character (GMC). This can be a highly discretionary standard used as a catch-all for a derogatory past that may not be technically disqualifying. Some people think it only matters for the previous five years. This is not true. For clients without a blemish on their record, I don’t submit proof of GMC.  For those that do, I work hard to prove this up.  So what is considered a blemish?  This must be examined early in a client screeni...

  Extensions can be beautiful yet complicated. Like hair extensions, H1B extensions can be a very good thing, but are complicated to achieve.  To be sure, both require particular attention. Recently I received some questions about extending an H1B visa. BACKGROUND An H1B, or "H1," visa is a temporary visa allowing a company to petition for a noncitizen with a bachelor's degree or higher to work for the business on specific project whose occupation requires such a degree. Most often it is used for S.T.E.M. occupations, but that is not required.  There is an annual cap on these visas and competition is high to just be allowed to apply for the H1.  Once approved, one can work on an H1B visa for up to six years before needing to go through the "cap" process again. However, an H1B is usually only approved for one to three years, requiring a company to apply for an extension that proves a project still exists for the noncitizen to work on. Also, if a company sponsors ...

"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...

Over the years I’ve been blessed to discover some effectives way to initiate the first call to a lawyer, and some not so effective ways. Initial contact with an attorney can move quickly and efficiently, or can take longer and lead to more confusion.  This post lists some of my own observations through 24 years of law practice to get the most out of your first call with an attorney. To clarify, it's not about WHAT to call a lawyer, as my imagination pales to many out there. It is about how to contact an attorney to make your first (or subsequent) call as productive--and inexpensive--as possible.  These are some helpful tips when contacting an attorney for the first time, or even when contacting your current attorney. Call from a Quiet Spot This is my biggest suggestion and most common problem. You are calling a lawyer because you have an important legal issue in your life that needs to be solved. If the attorney cannot hear you, or you cannot hear the lawyer, you risk losing i...

I RECEIVED THE FOLLOWING QUESTION TODAY:   My husband and father's cases have been in Administrative processing for over 9 months now. The Embassy is just delaying the process! ANSWER:   In general, there’s not much a lawyer can legally do to "unstuck" an application at an Embassy. An attorney can submit a letter, but Embassies are so bureaucratic it is doubtful the letter will reach the right person. An attorney can, however, sue the Department of State in U.S. federal court to force a decision one way or another, but this will cost thousands of dollars and the decision may go against you. One realistic course of action should be to contact your own Congressperson to write a letter to shake loose a decision. You should know, however, that if the application was problematic is some way, sometimes no answer is a good answer. Meaning, at least the application is not yet denied. To help determine your chances, a consultation with an attorney may help. But it will be essentia...

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...

This week USCIS released a new Handbook for Employers: Guidance for Completing Form I-9.  Many people don’t realize the I-9 form, filled out by new employees—citizens and noncitizens alike—is actually an immigration form.  All businesses with employees should carefully review the changes in this handbook. The new I-9 form itself began Jan. 31, 2020. https://www.uscis.gov/i-9-central/handbook-employers-m-274

"How much for an H1B?" It’s been a while since my last blog post and for that I apologize. First off, happy new year! And what better way to kick off 2020 than a new H1B visa filing season! I’ve discussed a lot of H1B issues in the past, and first usually refer newcomers to my blog post providing the big picture H1B process, and what it means to employers and foreign nationals. Please do read my  H1B Primer . “HOW MUCH FOR AN H1B?” Because I’m a solo practitioner, this is often the first question I get about the entire process.  It always feels strange to me, as if the time and expertise needed for immigration application is less if one uses a solo attorney.  More important, does the employee become less valuable depending on the price of the attorney?  So when I’m posed with a question about fees right off the bat, I try to answer with another question: “On a scale of 1 to 10, how important is the H1B’s approval?”  For foreign nationa...

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...

Much discussed H1B lottery pre-registration process announced. It was expected. Today the USCIS officially announced that, starting next H1B season, not this H1B season, there will be a pre-selection sign up instead of the traditional post-April 1 application submission lottery.  In addition, it announced a major shift in how Masters Degree candidates are selected, by giving priority to masters cap applications after the lottery’s conducted, as opposed to  selecting them in their own lottery process. Mathematically, this is tantamount to giving an approval edge to applications with masters degree candidates. Here is our prior discussion on the pros and cons of this pre-selection process:  Pros and Cons of H1B Pre-Registration Here is the announcement:  H1B Pre-Selection Proces Announcement . Also, here's the hit song from Kim Wilde in honor of H1B Pre-selection's final arrival:

Today the USCIS finally announced a much anticipated rule regarding next year's H1B visa (specialty occupation worker) application process.  At the moment, a computer-aided lottery is required to simply choose which applications may go forward for simple consideration.  This is because the law requires an annual cap on new H1B visas to be issued every year, about 65,000.  Recently, American companies have submitted about 3 to 4 times that number for their potential foreign employees, resulting in some sort of system to pick which applications to even consider.   H1B applications are complicated, requiring multiple steps to even assemble an application to submit to the government.  Also, the fees are quite high, several thousand dollars for small companies and even more for the larger ones.  For a basic run down on the H1B visa, read my previous run down:  H1B Visas Explained . This is an immigration application. So then why go through al...