Immigration QA

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...

The 46th President of the United States, Joe Biden, has issued  immigration changes on his inaugural day .  His transition organization issued a fact sheet laying out many executive orders to sign as he steps into the White House for the first time as U.S. President, including several immigration policies.  UPDATE 01/21/21: Those executive orders and actions are now in effect and their language can be found on the White House web page or this link . Day-1 executive orders orders are commonly prepared and signed by all modern U.S. Presidents.  Some are meant to reinforce the new President's priorities, and some are to temporarily suspend the previous President's orders, especially prior agency regulations that have not yet been finalized and may be cancelled by the President/agency heads. President Biden's inaugural schedule includes primarily ceremonial visits.  But once he arrives at his new abode for the next four years, he will step into the oval office...

UPDATE06/17/2020:  BREAKING: US government denial of COVID relief to noncitizen students has been blocked by a judge. Check with your DSO! In a letter to colleges last April, the Education Department advised colleges to only give relief funds to students who typically qualify for federal financial aid, excluding international students and beneficiaries of DACA. The letter was not binding at the time. In May, the California community college system filed a lawsuit against the DOE alleging that DeVos exceeded her authority in barring colleges to give aid to whom they please. U.S. District Court Judge Yvonne Gonzalez Rogers granted an injunction blocking the Department of Education from enforcing their CARES Act guidance on June 17, 2020. The proposed rule will be up for public comment for 30-days until July 17. During this time period, anyone from the public can file a comment on regulations.gov for the agency to consider. Once the rule is finalized, it will be binding on co...

"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...

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.  ...

A body of evidence is required to meet the standard for "bona fide marital relationship." I was recently asked the following question: I am planning to get married in India later this year. We will opt for court marriage instead of traditional one. For visa interview purposes, is court marriage sufficient to prove that marriage is legal. Do we need to do traditional marriage to prove marriage is legal? Answer: I get this question a lot, because it's a good one.   Traditional marriages are usually better to demonstrate that a "bona fide marital relationship" exists. But, they are not always necessary because the method of marriage is not the only determinant of a bona fide marital relationship. It's not even the primary determinant. One must provide a whole body of evidence to meet the standard. So it's not whether the marriage is legal, but whether the relationship is real. I recommend reading the instructions for form I-130, or some peop...

Farruko was arrested for not declaring more than $10K to U.S. Customs. That's the Question When Bringing Money into the U.S. This week, the reggaeton music artist, Farruko, was arrested and charged for failing to declare the import of more than $10K into the U.S.  Had he simply stated on his customs card that he had $54K, Farruko fans would've been Chillax-ing at his next gig with Ky-Mani Marley as we write this. Readers of Chaudhary Immigration Attorney's  blog, however, have the benefit of legal advice that Farruko apparently did not.  So, in the singer's words, listen to "Lo question Yo Diga"(What I Have to Say): 1. It is NOT illegal to bring more than $10,000 into the U.S. 2. Bringing more than $10,000 into the U.S. is NOT subject to any extra duty (on its own). 3. Such money is not necessarily reported to the IRS without other relevant concerns. Now, although this is a common myth, it is not without government blame.  Just reading I...

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...

You Do Have Choices In Your Immigration Destiny Last year the USCIS announced new scrutiny for third party IT consultancies.  As part of the priority given to combating fraud in employment-based immigration programs, USCIS issued a policy targeting site visits in certain sectors that commonly receive H1B visas and have shown more than average propensities for fraud and abuse.  These included circumstances where an employer's basic business information could not easily verified, employers with a high ratio of H1B workers, and--the topic of this post--employers who send their H1B workers off-site to work for another company (i.e. "IT consultants"). See the announcement here:  USCIS: Combating Fraud And Abuse in the H-1B Visa Program . So then, almost a year later, what have been the results?  The answer is at the moment is hard to tell.  Today, the USCIS recycled their year-old announcement on Twitter, without amendment let alone report, on the succes...

An application can be denied even before an interview. Recently I Answered the Following: "Me an my spouse (F-1 student) are in the process of concurrent filing. We were wondering if it is really necessary to include hard evidence such as: joint bank statements, auto/health insurance, car titles, bills, rent lease, photos...etc with our application package, or leave until we are called in for the interview?" Short, Sarcastic Answer:  Sigh. A Little More Helpful Answer:  It depends on a noncitizen's tolerance for risk. An adjustment interview is not like a consular interview where one necessarily brings supporting docs to an interview. Without adequate supporting documentation of a bona fide marital relationship, an application may be denied before an interview is even granted. Having said this, the items listed are common documents to demonstrate a bona fide marital relationship. A marriage certificate is not enough. In fact, joint financial statement...

BREAKING:   Due to a federal court order, USCIS has resumed accepting requests to renew a grant of deferred action under DACA.  Until further notice, and unless otherwise provided in this guidance, the DACA policy will be operated on the terms in place before it was rescinded on Sept. 5, 2017.  For details, please see the  USCIS Response to Federal Injunction Regarding Recent DACA Court Decision . If you believe you make qualify, it is a very good idea to call a  licensed immigration lawye r now to review your rights.

I recently answered the following questions: 1. Do we qualify for H1B if we are hourly and level 1 wage? 2. Can we apply for H1B and also STEM extension? 3. Is premium processing of H1B necessary? ANSWER 1. You can qualify.  But, some problems occur with Level 1 wages when they are low enough to question whether the occupation is really a specialty. So it depends on the job duties/requirements, and best examined on a case-by-case basis.  In other words, a wage by any other name may or may not smell as sweet! 2. Yes. 3. No but usually worth the expense. Some IT consultants refuse to premium process in order to retain the prospect in current employment as long as possible, or play the “project shuffle.” See a licensed attorney for options to address this.

Today I answered the following concern : “My company just today told me they will not be filing for H-1B this year for me. My STEM OPT expires in Jun-2018. I will have to find another job in time for filing H-1B now.” ANSWER : It’s disappointing learn at the last minute that an employer declines to file your H1B petition, particularly after what was presumably loyal service through one’s STEM OPT, which can last up to three years. In the IT industry at least, this is a lifetime! It reminds me of the Soup Nazi episode from Seinfeld. Customers at a New York soup cafe would stand dutifully in line, but one error in store protocol would result in them being thrown out of the store. The owner would yell, “No soup for you!” In Seinfeld, dejected soup customers could find lunch elsewhere, no doubt a disappointingly substandard lunch to the amazing soup they hope for. Nonetheless, their palate would be sated. When an employer repays dutiful employment during your l...

During our day to day activities, it's easy to miss the impact of immigration on our lives. But this guide takes a new angle and discusses why an natural born American citizen might use an immigration lawyer. I OWN A BUSINESS 1) The I-9 form is a critical piece of hiring any employee. It verifies that your new hire is legally allowed to work in the United States. But few people realize the I-9 is actually an immigration form. Completing this form improperly can lead to results worse than an IRS audit! 2) If your business requires specialized occupations, such employees may be hard to find. If you discover a foreign national that fits the qualification, an immigration lawyer is all but required to help navigate a complicated and nuanced work permit process.  Here's a link to my primer on H1B visas:   H1B Visa Primer . 3) If you are interested in capitalizing your business, there are incentives to foreigners to invest upwards of $1 million into a qualified business i...

Some questions have arisen as to whether the lottery for selecting FY 19 H1B petitions will be eliminated, given a recently proposed regulatory rule change. See this link: https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201710&RIN=1615-AB71 The answer is no, at least according to the above proposed rule. Indeed, DHS is proposing to resurrect a proposed rule from 2011 that creates pre-H1B registration for employers. The idea is to select applications to consider by lottery, but before an employer puts in all the time, cost, and planning to submit the actual packet. With an up-front cap selection process, only those employers who have obtained a cap number would be required to submit the entire H1B Petition for a Nonimmigrant Worker, Form I-129. This idea has merit because, as mentioned, it’s take a LOT of time, planning, and cost to create a proper H1B petition. Small employers, or first-time petitioners often cannot afford the time to become familiar with ...

Be extremely aware of the dates your status is valid, AND, when it changes. I was recently asked the following question: “Can I travel internationally while my H1B is in process (1 April 2018-30 Sep 2018 )? I am on F1 OPT and my Employer will file my cap-subject H1B petition on April 1, 2018.” Answer: Traveling back and forth when your immigration status is about to change can be unnerving.  Between the potential need for new consular stamping and review at the port of entry, it's as uncertain as finding a way home during the holidays in a snowstorm.  If you've seen the above-pictured movie, you know what I mean!  Any number of bureaucrats have your life in their hands!  Personally, I suggest not traveling while your status is changing.  Even when technically feasible, things still happen.  Why risk it? But the answer to the above question is, technically, yes.  This is because, if one's H1B petition is chosen in the lottery and approv...