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Los Angeles Sheriff Allows ICE Agents in Jails

Recently the Los Angeles Sheriff has authorized ICE agents to enter jails and identity immigrants who could be eligible for deportation.   The Sheriff has stated that this practice was done in order to balance public safety needs and the concerns of immigrant communities.   The new policy will allow ICE agents access to inmates who are being released. The agents are authorized to interview those inmates who have been convicted of serious crimes and are not protected by the California Trust Act. The California Trust Act is a law enacted in 2013 that protects immigrants from federal immigration agents unless they are convicted of serious crimes.

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With the race for the 2016 Presidential Nomination dominating the news and major media sources, the candidates’ views on immigration are surfacing. The views on the Republican side range from Jeb Bush’s reported support of comprehensive immigration reform to Donald Trump’s alleged plan of increased border security and mass deportation. Below are four of the republican nominees frontrunners and a summary of reported views and initiatives the candidates support in regards to immigration.

white-house-1225488-1Jeb Bush

Former Florida Governor Jeb Bush is one of the leaders in the race for the republican nomination. Reports state that Bush has demonstrated support for “earned legal status” and that he would support moving the undocumented population out of the shadows if they agree to pay a fine, learn English and have a clean criminal record. Back in 2013, Bush was in support of a bill for comprehensive immigration reform and reportedly supported the DREAM Act, a proposed legislation that would grant conditional residency to undocumented immigrants who entered the United States as children. Bush also allegedly has indicated that building a wall at the United States border along with the mass deportation of millions of undocumented immigrants is not feasible or realistic.

Donald Trump

The current frontrunner in the republican race is Donald Trump. Donald Trump has been vocal about his immigration policies and has reportedly stated that he would support building a wall along the United States-Mexico border. Trump allegedly stated that he would attempt to make Mexico pay for this wall along the border. Trump also reportedly stated that he did not support birthright citizenship and he would attempt to deport the estimated 11 million undocumented immigrants living in the United States. Trumps also reportedly stated in his immigration plan that he would make it harder for asylum and refugee seekers to stay in the United States.

Scott Walker

Republican potential Wisconsin Governor Scott Walker has reportedly stated that it “makes sense” to grant citizenship to undocumented workers who are already present in the country. Other reports suggest that Walker would work to reduce the number of undocumented immigrants in the United States. Some news medias state that Walker had been in support of ending birthright in the past.

Carly Fiorina

Carly Fiorina, a former business executive, is a hopeful for the republican nomination. Reportedly she has indicated that she would support a path to citizenship for undocumented children but not adults. She has reportedly objected to comprehensive immigration reform but would pass bills one at a time in a series aimed at solving the need for new immigration laws. She is also reportedly opposed to amnesty but is in support of the DREAM act.

Immigration issues can be serious and complicated to navigate. Contact the Law Office of Sweta Khandelwal to discuss any immigration matter you’re facing. Attorney Khandelwal has over 10 years of experience working on immigration cases and is located conveniently in the Silicon Valley.

Cited Sources:

How Realistic is Donald Trump’s Immigration Plan? August 20, 2015, John Burnett

A green card is the documentation granted to lawful permanent residents (LPR) by the USCIS which demonstrates that the holder is authorized to legally work and live in the United States. Green cards generally expire after 10 years. If the green card expires, it must be renewed for the holder to continue to receive the benefits of lawful permanent residence.

personal-files-1534344Things to watch out for
Expiration dates: The expiration date on the green card will determine the time to file for renewal.

Helpful Tip
The expiration date is printed on the front of the green card and is easily found.

Timelines to keep in mind
 – The type of green card dictates the timeline for renewal.     Conditional permanent residents have different timelines for renewal than LPRs.
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When a child is born outside the United States it seems logical that the child would not be granted automatic US citizenship. However, if the child is born to one or two US citizen parents, the child may be granted US citizenship derivatively.

tree-climbing-2-874401-mDerivative citizenship is a way to obtain citizenship through U.S. citizen parents if the child is not a U.S. citizen when born. If the child gains citizenship derivatively, citizenship is granted automatically even if the child does not have a US birth certificate or other documentation confirming citizenship. The child can later file an N-600 to receive a certificate of citizenship.  Derivative citizenship is a complicated concept that calls for many requirements to be met. Derivative citizenship contains several intricacies to account for many different situations that occur when a child is born outside the U.S. Determining if derivative citizenship applies to a specific situation requires careful consideration.

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All employers must ensure that Form I-9 is properly filled out for each employee.   Form I-9 is used to verify the identity and employment authorization of each employee coming to the United States to work. Form I-9 is a simple form, which asks the employee to complete identifying information such as name, address, date of birth, U.S. social security number, and immigration status.

business-man-1338212-mImmigration and Custom Enforcement (ICE) agents inspect Form I-9  to ensure all provided information is correct. Incorrectly or fraudulently completed Form I-9 can subject the employer to fines or criminal penalties depending on the seriousness and type of violation.

Fines can be considerable depending on the number of offenses and the severity of the offense.  The USCIS has listed some of the violations and corresponding penalties on its website (last reviewed 2011). Specifically, continuing to employ a person with knowledge that the person is not authorized to work in the United States carries a minimum fine of $375 for each employee for first time offenders. The maximum fine for first time offenders is $3,200 per employee. If this behavior continues the minimum fine for third time offenders is $4,300 per employee and maximum fine is $16,000 per employee.   The fines can add up quickly and it is very important to correct any discovered errors on Form I-9.

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This year the USCIS received a record number of H-1B applications, totaling over 233,000. With only 85,000 H-1B visas available, including the additional 20,000 for the United States Master’s quota, only 36% of applicants have a chance of receiving a coveted H-1B visa.

Applications are up from 172,500 for the 2015 fiscal year and 124,000 for 2014 fiscal year. This not only means that the number of applications have greatly increased but with the quota remaining at 85,000 visas, the chances of receiving a visa have dropped by half, from 69% to 36%.

work-work-work-539382-mInterestingly enough there’s no shortage in demand for workers in the technology field. According to USA Today, of the highest paying companies in America, nine of the top fifteen are technology companies that depend on H1B to find talented, highly-skilled workers to drive their businesses.

There has been such rapid growth in the information technology sector that the labor market can’t keep up the demand. These technology-based companies require highly-skilled workers which many foreign workers qualify for. Many technology companies prefer to bring the workers into the company to work, and not out-source the work, because of the level of judgment the worker must exercise in these jobs.

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The February 2014 Visa bulletin has been released, and with it comes some advances and some stalls. As some of our past readers will remember, the visa bulletin is split not only by family and employment categories, but also by country.

For the employment based category, the EB-1 category has continued to remain current. The EB-1 category is for priority workers. The EB-2 category for China has fortunately moved ahead by a year to January 8, 2009. India unfortunately has not moved at all, while all other countries have remained current (i.e., visas are currently available). The EB-3 has moved forward by up to two months in some instances, but India has unfortunately remained locked in its priority date like it did with the EB-2 category. The EB-4 and EB-5 categories have continued to remain current.

FEBRUARY 2014 VISA BULLETIN – EMPLOYMENT BASED

Employment- Based All Chargeability Areas Except Those Listed China – mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 08JAN09 15NOV04 C C
3rd 01JUN12 01JUN12 01SEP03 01JUN12 15APR07
Other Workers 01JUN12 01JUN12 01SEP03 01JUN12 15APR07
4th C C C C C
Certain Religious Workers C C C C C
5th
Targeted
EmploymentAreas/
Regional Centers
and Pilot Programs
C C C C C

 

JANUARY 2014 VISA BULLETIN – EMPLOYMENT BASED

Employment- Based All Chargeability Areas Except Those Listed China – mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 08DEC08 15NOV04 C C
3rd 01APR12 01APR12 01SEP03 01APR12 15FEB07
Other Workers 01APR12 01APR12 01SEP03 01APR12 15FEB07
4th C C C C C
Certain Religious Workers C C C C C
5th
Targeted
EmploymentAreas/
Regional Centers
and Pilot Programs
C C C C C

 

For the family based category, there was modest movement in the FB-1 category for the unmarried sons and daughters of U.S. citizens. Across the board, the FB-1 category moved ahead by approximately a month. The FB-2A category for spouses and children of green card holders did not move at all, unfortunately. The FB-2B category for the unmarried sons and daughters of green card holders from all countries, except for Mexico, also moved forward by a month. Mexico unfortunately experienced a retrogression by almost a full year, moving the priority date back to May 1, 1993. The FB-3 category for married sons and daughters of U.S. citizens and the FB-4 category for brothers and sisters of U.S. citizens also moved forward by up to a month.

FEBRUARY 2014 VISA BULLETIN – FAMILY BASED

Family-Sponsored All Chargeability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPPINES
F1 01JAN07 01JAN07 01JAN07 01OCT93 15AUG01
F2A 08SEP13 08SEP13 08SEP13 01SEP13 08SEP13
F2B 08JUL06 08JUL06 08JUL06 01MAY93 22MAY03
F3 15MAY03 15MAY03 15MAY03 01JUN93 08FEB93
F4 22OCT01 22OCT01 22OCT01 08NOV96 08AUG90

 

JANUARY 2014 VISA BULLETIN – FAMILY BASED

Family-Sponsored All Chargeability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPPINES
F1 08DEC06 08DEC06 08DEC06 22SEP93 01JUL01
F2A 08SEP13 08SEP13 08SEP13 01SEP13 08SEP13
F2B 01JUN06 01JUN06 01JUN06 01APR94 01MAY03
F3 15APR03 15APR03 15APR03 01JUN93 01FEB93
F4 01OCT01 01OCT01 01OCT01 01NOV96 01JUL90

 

If
you have questions about your priority date, would like to apply for a green card, or have other immigration questions, please contact our office today.

Most of our articles have been on immigration laws, issues, and compliance. We cannot underscore the importance of complying with these laws. This is especially important, given that last week on Halloween the United States federal government imposed an approximately  $35 million fine on Infosys, one of the largest India-based technology, consulting, and outsourcing companies for American IT companies.

The fine was imposed because Infosys allegedly brought a number of its employees for long-term stays on B-1 (business visitor) visas. These visas are much easier to obtain than the more appropriate H-1B visas, but are strictly limited for intermittent, temporary stays for non-employment purposes. For example, under a B-1 visa, a person may attend conferences, negotiate deals, or undergo training. They may not, however, be compensated for these activities other than reimbursements for expenses. In this case, Infosys submitted false “invitation letters” stating that the B-1 visa holder would be attending “meetings” or engaging in “discussion” when in fact they were engaging in activities not authorized under the B-1 visa. Infosys also distributed a memo to its employees telling them not to use certain phrases or words at the consular interview in order to falsely secure their B-1 visas.

According to an I-9 audit by Immigration and Customs Enforcement (ICE), Infosys also failed to maintain proper I-9 records for its foreign employees during 2010 and 2011, including failure to update and re-verify employment authorization status of a large number of the foreign employees. The ICE I-9 audit also revealed that more 80 percent of Infosys’s I-9 forms for 2010 and 2011 contained substantive violations. There is a $935 fine for each I-9 form error.

The investigation stemmed from a 2011 lawsuit filed by a former Infosys employee, who sued Infosys for harassment and breach of contract. The employee alleged that he was retaliated against when he brought up concerns with possible immigration law violations with management.

This case highlights how important complying with immigration laws can be and the consequences for noncompliance. Contact our office today if you have questions about immigration compliance issues.

Investment-based immigration through the Immigrant Investor Program (“EB-5”) is one of the most bustling, complicated, and newest programs through which a noncitizen can receive LPR status, or a “green card.” For the longest time, the EB-5 Program has been running with little clarification and guidance from the multitude of federal and state agencies involved which includes USCIS.

The Financial Industry Regulatory Authority (“FINRA”) is not a traditional government agency, but as an independent regulator of securities firms doing business with the US public, it has a very large role in securities regulation. Recently, it issued some guidance on FINRA Rule 2111, regarding broker-dealer suitability, and how it applies to the EB-5 context.

The full text of the guidance on the rule quoted above can be found here.  To summarize, the interpretative letter confirmed that EB-5 investments were securities and  were subject to the securities laws of the United States. This should not come to a surprise to any experienced EB-5 consultant or EB-5 attorney, but this clarification could be a testament to the little cohesive guidance available regarding EB-5. The letter also stated that broker-dealers involved in EB-5, including EB-5 offerings functioning under the private placement exemption (Regulation D), is , inter alia, required to  conduct a reasonable investigation concerning the issuer and its management; the business prospects of the issuer; the assets held by or to be acquired by the issuer; the claims being made; and the intended use of proceeds of the offering. The broker-dealer must also determine  whether the private placement is consistent with the requirements of the EB-5 Program, such as whether it constitutes an investment in a domestic project that will create or preserve at least 10 jobs for U.S. workers.

After a broker-dealer has accomplished these due diligence duties, the next crucial step in  the suitability analysis is to help ensure that the investment profile of the given EB-5 opportunity is well suited for the given investor. This includes both the financial risks and the immigration risks involved, which puts a unique spin to the duties of a broker-dealer.  It is important to remember than an Immigration Attorney is ethically prohibited from advising his/her clients of the financial risks associated with the EB-5 venture.

Navigating  ever-changing and complex areas of law involved with the EB-5 program usually requires the advice of an expert attorney. Contact our office if you need assistance with your EB-5 case or any other immigration issues today.  Attorney Sweta Khandelwal is a Chartered Accountant, akin to a C.P.A which gives her the unique advantage of understanding the complexity of corporate and security laws.

Just as we and many other sites have predicted, the H1-B visa hit its cap on Friday, April 5th, just a mere four days since the opening date on April 1st.

Even before this year’s H1-B visa application season opened, there was talk of a possible lottery. USCIS, the government branch in charge of handling a large proportion of visa petitions, has done a lottery for H1-B visas in the past – most notably in 2008 when the H1-B visa cap was reached on the very first day. This year’s lottery involves a computer-generated random selection process, starting first with the advanced degree petitions. USCIS  announced today (Monday April 8th) that it received  approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption.

The speed at which the H1-B visa cap was exhausted bolsters our blog posts and other media outlets’ reports on the need for Comprehensive Immigration Reform. In particular, there has been numerous pushes to raise the H1-B visa cap to allow foreign talent to work for the benefit of American companies and spur productivity. John Feinblatt, Chief Policy Advisor to New York City Mayor Michael Bloomberg and Chairman of the Partnership for a New American Economy, reflected similar sentiments when he stated, “The fact that our supply of H-1B visas was exhausted so quickly is not only emblematic of our broken immigration system – it represents yet another missed opportunity to attract the world’s best and brightest to our shores.”

As we’ve stated before, some H1-B related Comprehensive Immigration Reform proposals include allowing H1-B visa holders to get green cards by investing $100,000 to start a business and hire two full-time employees. The proposed Immigration Innovation Act 3.0 will also almost double the current visa cap from 65,000 to 115,000 and allow for unlimited H1-B visas for those who have a Master’s Degree from a United States University.

If you have any questions about the H1-B visa or any of your immigration issues, contact our office!